8Prescribed circumstances where no eligibility for a session of care

#### 8 Prescribed circumstances where no eligibility for a session of care (1) For subparagraph 85BA(1)(c)(iii) of the Family Assistance Act, the following are circumstances in which a session of care is provided for which there is no eligibility for CCS: (a) where the care is provided aboard a transportation vehicle (such as a bus), unless the transport is merely incidental to a session of care being provided (such as to take children on an outing); (b) except for care provided by an IHC service, where the care is provided in a domestic living arrangement on residential premises where: (i) the care is provided in the child’s own home; or (ii) an individual for whom the child is an FTB child or a regular care child (including a parent of the child) remains present at the location where the care is being provided, whilst the care is taking place; (c) where the session of care is provided by an individual as referred to in section 195D of the Family Assistance Administration Act (conditions for continued approval—working with children check), in circumstances where the provider: (i) is in breach of that section by not ensuring that an individual covered by the section has a current working with children check; or (ii) fails to provide evidence of a working with children check if requested to do so by the Secretary under section 43 of these Rules; or (iii) fails to comply with the requirement at item 17 of the table in section 55 of these Rules to notify the Secretary of changes in the status of a current working with children check within 24 hours after the provider becomes aware of the change of status; (d) where the session of care is provided by an FDC service to a child who is an FTB child or regular care child of an FDC educator, or a partner of an FDC educator, and where the session occurs on a day that the FDC educator provides care at an FDC service, unless one of the circumstances in subsection (2) apply; (da) where the session of care is provided by an IHC service to a child who is an FTB child or regular care child of an IHC educator, or a partner of an IHC educator, and where the session occurs on a day that the IHC educator provides care at an IHC service; (e) where the session of care is provided to children who are in the relationships with an FDC educator of the service, or their partner, as set out in subsection (3), who provides the care at an FDC service; (ea) except where subsection (4A) applies, where the session of care is provided by an IHC educator to children who are in one of the relationships, as set out below, with the IHC educator, or their partner: (i) FTB child; (ii) regular care child; (iii) foster care child; (iv) biological or adopted child; (v) brother, sister, half‑brother, half‑sister, step‑brother or step‑sister; (vi) grandchild, great‑grandchild, nephew, niece or cousin; (vii) foster grandchild, foster great‑grandchild, foster nephew, foster niece or foster cousin; (viii) a child (not mentioned in subparagraphs (i) to (vii)) for whom the IHC educator or their partner has legal responsibility, as described in paragraph 22(5)(a) or (b) of the Family Assistance Act; (f) where, during any part of the session, the child is attending school, or engaged in a formal schooling program (including a home schooling or distance education program); (g) where the session of care is taken to have been provided on a day covered by subsection (4B); (h) except where subsection (4C) applies, where a service that is not an IHC or FDC service is closed for any part of the session of care for the purposes of staff completing mandatory child safety training; (i) except where subsection (4D) applies, where an IHC educator or an FDC educator is unavailable to care for children enrolled in a session of care and for which the educator is responsible, for any part of that session of care, because the educator is completing mandatory child safety training. (2) The circumstances for paragraph (1)(d) are: (a) the child is an eligible disability child of the individual; or (b) the child is an eligible ISP child of the individual; or (c) the child is a remote area child of the individual; or (d) the FDC educator: (i) is required to work for at least 2 hours on the care day in paid work which is not for an approved FDC service; and (ii) has provided documentary evidence, in accordance with subsection (4), to the provider of the FDC service that the FDC educator is usually required to work at the time the session of care is provided; or (e) the FDC educator: (i) is enrolled in a program or course of education or training towards a recognised qualification (at Certificate III level or above) provided by a registered training organisation; and (ii) is engaged in scheduled activities for the purposes of the program or course on the care day that overlap with the session of care; and (iii) has provided documentary evidence, in accordance with subsection (4), to the provider of the FDC service that the FDC educator usually studies at the time the session of care is provided. (3) The relationships for paragraph (1)(e) are where the child is one (or more) of the following with respect to the FDC educator or the partner of the FDC educator: (a) FTB child; (b) regular care child; (c) foster care child; (d) biological or adopted child; (e) brother, sister, half‑brother, half‑sister, step‑brother or step‑sister; (f) a child (not mentioned in paragraphs (a) to (e)) for whom the FDC educator or partner has legal responsibility, as described in paragraph 22(5)(a) or (b) of the Family Assistance Act. (4) Documentary evidence is provided in accordance with this subsection where: (a) it has been provided by the time that the provider is required to submit an attendance report under section 204B of the Family Assistance Administration Act for the first session of care to which the evidence relates; and (b) the provider has met the requirements to keep a register, as set out in section 56 of these Rules, in relation to the evidence; and (c) if the evidence relates to the requirement to work referred to in subparagraph 8(2)(d)(ii), the evidence is an employment contract or a payslip, showing usual hours of work (but where the contract or payslip does not show usual hours of work, a letter signed by the relevant employer is required stating usual hours of work); and (d) if the evidence relates to the study referred to in subparagraph 8(2)(e)(iii), the evidence is a copy of an enrolment form detailing the times that the individual is usually required to study (but where the form does not provide such details, it must be supplemented with additional documentary evidence, such as an official course timetable). (4A) This subsection applies where: (a) an IHC Support Agency has made a recommendation that the session of care should be one in respect to which an individual is eligible; and (b) the premises at which the session of care is provided is in an area designated as ‘very remote Australia’ in accordance with the Australian Statistical Geography Standard (ASGS) Edition 3 – Remoteness Structure, March 2023, as published by the Australian Bureau of Statistics; and (c) there is no IHC educator reasonably available who is not in the relationships with children described in paragraph (1)(ea); and (d) the child is: (i) the grandchild, great‑grandchild, nephew, niece or cousin of the IHC educator or the educator’s partner; or (ii) the foster grandchild, foster great‑grandchild, foster nephew, foster niece or foster cousin of the IHC educator or the educator’s partner. (4B) For the purposes of paragraph (1)(g), a day is covered by this subsection if: (a) on the day, a session of care is not provided because the child care service that would otherwise provide that session is closed; and (b) the child care service is closed for a reason other than: (i) a public holiday ; or (ii) during a period of emergency, as a direct result of that emergency. > Note: A child care service is not closed for the purposes of this subsection if only part of the service is closed. (4C) This subsection applies where: the service closure commences on or after 5:00 pm; and the total time during the calendar year for which the service has been closed for the purposes of staff completing mandatory child safety training on or after 5:00 pm has not exceeded 5 hours. (4D) This subsection applies where: the period for which the educator is unavailable occurs between 5:00 pm and midnight; and the total time during the calendar year for which the educator is unavailable to provide care because the educator is completing mandatory child safety training between 5:00pm and midnight has not exceeded 5 hours. (5) In this section: > eligible disability child of an individual means: (a) a child of the individual who has been diagnosed by a medical practitioner as suffering from one or more of the conditions listed in Schedule 1; or (b) a child of the individual who has been diagnosed as suffering from one or more of the conditions listed in Schedule 2 by a psychologist who: (i) is registered with a Board established under a law of a State or Territory that registers psychologists in that State or Territory; and (ii) has qualifications or experience in assessing impairment in children; and where: (c) documentary evidence of the diagnosis has been provided to the provider of the service providing care to the child in accordance with subsection (4); and (d) the diagnosis was obtained within a period of 24 months prior to the provision of the documentary evidence to the provider of the service, unless the diagnosis is, or is likely to be, permanent. > eligible ISP child of an individual means a child of the individual in respect of whom an approved child care service that is an FDC service is receiving funding, under a funding agreement entered into under the auspices of the Commonwealth Inclusion Support Programme, of IDF Family Day Care Top Up (as referred to in the Inclusion Support Programme Guidelines 2016‑2017 to 2018‑2019), but only if: (a) the child is undergoing assessment for disability (including an ongoing or continuous assessment, as described in those Guidelines); and (b) documentary evidence has been provided to the provider of the service providing care to the child in accordance with subsection (3). > engaged in scheduled activities means: (a) the individual is engaged in an activity on the care day that is part of a formal timetable of activities provided by the registered training organisation, and where participation in that activity can only reasonably occur at a set time on the care day; and (b) without limitation, could involve attending a lecture (in person, or online) or undertaking an exam, which is only scheduled at a set time on the day during which the session of care occurs; however does not mean: (c) engaging in activities that are outside of the individual’s formal timetable, such as where the individual is engaged in homework, group activity, viewing a pre‑recorded lecture or assessment work; or (d) engaging in activity on a day that is not the day during which the session of care occurs and during a time that would not usually overlap or conflict with the session of care. > mandatory child safety training means the child safety training prescribed for the purposes of section 162B of the Education and Care Services National Law. > remote area child of an individual means an FTB child or regular child of the individual, if: (a) the child resides in an area designated as ‘remote Australia’ or ‘very remote Australia’ in accordance with the Australian Statistical Geography Standard (ASGS) Edition 3 – Remoteness Structure, March 2023, as published by the Australian Bureau of Statistics; and (b) documentary evidence of the child’s residence has been provided to the provider of the approved FDC service providing care to the child in accordance with subsection (4). Note: Documentary evidence of a child’s residence could include a copy of the individual’s (in relation to whom the child is an FTB child or a regular care child) current driver’s licence, or a recent utility bill sent to the address where the individual and child reside, or a statutory declaration.