Helen Huang
Special Counsel
CTP Insurance, Insurance
Are childcare services considered treatment and care or domestic services?
24 March, 2025
In Brief
- Pursuant to s 1.4 of the Motor Accident Injuries Act 2017 (MAIA), childcare services as part of an education program for a dependant are note “attendant care services” because they do not “provide assistance [to the Claimant] with everyday tasks“.
- Some forms of childcare services, depending on the specific circumstances of the claim, could come within the definition of “domestic services” in s 3.26 of the MAIA.
- Childcare services which are aimed at preparing a child for school, however, cannot be recovered pursuant to 3.26 of MAIA because they are educational services rather than childcare services.
Facts
The Personal Injury Commission (PIC) published its decision in Saedi v Allianz Australia Insurance Limited [2025] NSWPIC 71 on 21 March 2025.
The Claimant was involved in a motor accident on 2 June 2023.
The Claimant requested that the Insurer approve the provision of childcare services during the periods she attended her treatment providers for treatment caused by the accident. She argued that “childcare services” fall within the definition of “treatment and care” in s 1.4 of MAIA.
The Insurer declined the request on the grounds that the provision of childcare services do not constitute “treatment and care“.
The issue was referred to the PIC as a miscellaneous assessment and a merit review matter.
Relevant Provisions
The phrase “treatment and care” is defined in section 1.4 of MAIA and includes “attendant care services“:
Section 1.4 also defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
Section 3.36 of MAIA sets out when domestic services can be claimed as a statutory benefit, as follows:
(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant’s dependants, but only if-
- (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of
“dependants” in this section–the claimant provided the services to those dependants before the motor accident, and - (b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
- (c) there is a reasonable expectation that, but for the claimant’s injury, the claimant would have provided the services to the claimant’s dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and
- (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
The Member’s Determination
The Member concluded the childcare services in dispute did not fall within neither the definition of “attendant care services” under section 1.4 nor within the definition of “domestic services” under section 3.26 of the Act.
The Member concluded that the childcare services sought by the Claimant were not “attendant care services“, as defined by s 1.4, for the following reasons:
- The childcare services sought by the Claimant are not a form of personal assistance, nursing, home maintenance or domestic services.
- Childcare services as a part of an education for a dependant do not “provide assistance [to the claimant] with everyday tasks“.
The Member concluded that the childcare services sought did not fall within the replacement “domestic services” contemplated by s 3.26(5), for the following reasons:
- Some forms of childcare could come within the definition of “domestic services” in section 3.26(5) of the Act such as babysitting that is provided in the home or in an informal setting on an occasional or short-term basis. An example might be where a Claimant with a broken arm might need full-time childcare for a newborn child.
- In this dispute, however, the childcare services in dispute aligned with school terms and was designed to get a child ready for school, in that the services included literacy and numeracy programs.
- The disputed services, therefore, aligned with an educational service rather than a household or domestic services.
- In the alternative, if the disputed childcare services did form “domestic services”, then a Claimant is required to satisfy all four criteria set out in section 3.26(1). In this dispute, however, the Claimant did not satisfy sections 3.26(1)(a) and (c) because the service was not provided before the accident and was not required for more than six hours per week for six consecutive months.
Why This Case is Important
The decision in Saedi provides that some forms of childcare could come within the meaning of domestic services and therefore be a form of statutory benefits under section 3.26 of the Act.
The form of childcare, however, must be considered in the context of the individual Claimant’s circumstances and needs.
If you have a query relating to any of the information in this case note please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
