21 November 2017

Inadequate Supervision (Section 165, National Law): Recent West Australian Cases

Recently, the West Australian State Administrative Tribunal (WASAT) made a further number of orders which gave effect to the terms of settlement in relation to matters brought before the tribunal by the WA Regulator (Department of Local Government and Communities) for contraventions of s.165National Law, in that they by failed to ensure that all children being educated and cared for by the service were adequately supervised at all times. 

In Chief Executive Officer of the Department of Communities, Jane Hale, Jane Hale, a family day care educator with Nature Alliance Family Day Care Services, was found to have contravened s.165(3) of the National Law as the child was obtained burns to 7% of his body due to spiiling hot tea on himself. A fine of $6,500 was imposed on the educator for breach of s.165(3) and r.102(3). She was also required to pay $500 in costs to the Department.

In another case, Chief Executive Officer of the Department of Communities, Helping Hands Network Pty Ltd (not reported on the WASAT website) the approved provider was found to have contravened section 165(1) of the National Law in that a six year child with downs syndrome left the service unnoticed and unsupervised and was found wandering on the road about 100 metres from the service. The service was Helping Hands Rockingham Beach at Rockingham Beach Primary School. A fine of $8,000 was imposed on the approved provider for breach of s.165. The approved provider was also required to pay $2,000 in costs to the Department. Further details can be found on the Department's web page and in a news report in the Kwinana Courier.

Coronial Inquiry into Drowning of Child at WA Family Day Care Service

An inquest is currently being held by the Western Australian Coroner’s Court into the drowning of a child in a pool at a family day care service. The West Australian and ABC Online have carried reports.

17 November 2017

Cancellation of Service Approval (Breach of Condition): Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education

This is another NSW case where a family day care provider has sought review by NSW Administrative and Civil Tribunal (NCAT) of the decision of the NSW Regulatory Authority under the National Law (Department of Education) to cancel its service approval for breach of condition.

The full decision can be found here. In May 2016, the applicant (the approved provider, Transcon Holding Pty Ltd) was granted service approval. In March 2017 the approved provider was issued with a show cause notice by the Department notifying them of the intention to cancel the service approval on basis of failure to comply with the conditions in section 51 of the National Law (namely, section 51(3) of the that requires a service to commence operation within 6 months of the grant of the service approval). The applicant had not commenced operating the service primarily because the Child Care Benefit (CCB) payment approval had not been obtained from the Commonwealth Government. On 25 June 2017 the Commonwealth Department of Education and Training refused the applicant’s application for CCB approval. The applicant responded to the show cause notice and on 28 April 2017 the Department cancelled the service approval with effect from 12 May 2017 under section 79(1)(a)(i) of the National Law. The application for review was filed on 10 May 2017. A stay of the effect of the decision to cancel the service approval was granted by consent on 16 May 2017.

The case considered some of the legal principles underlying the Tribunal's function and determined that the "Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education..." (para.46). There were also considerations of whether what services the applicant was providing was a family day care service. However, considering all the facts the Tribunal upheld the decision of the Department:
The determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount. 
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received provider and service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children.
The Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
The applicant has not complied with the provisions of the National Law and in particular has failed to commence operations within 6 months of the grant of the service approval. The Tribunal does not accept that the applicant has commenced operations as required by the National Law having regard to the definition of what constitutes an education and care service. It is highly unlikely that the applicant will be able to commence to provide the appropriate service without CCB approval. It is clear from the evidence before the Tribunal that the applicant has been refused that avenue of subsidised funding. There is in those circumstances no persuasive reason to extend the period of time for compliance. (para. 77-80)

16 November 2017

Victoria to Toughen No Jab No Play Legislation

The Age carried a story on the Victorian Government's plans to tighten the legal requirements in respect to vaccination exemptions for children attending childcare services.

5 November 2017

More on the Safety Risks of Queensland High Rise Childcare Services

The Courier Mail has carried a follow up report on the issue of the safety risks of high rise childcare centres which has national implications.

30 October 2017

ACT Childcare Provider Compliance

The Canberra Times recently carried a report on Canberra childcare services' compliance with the National Law and Regulations.

26 October 2017

DPP v Kuol: Child Care Benefit Fraud

This is another criminal case heard by the Victorian County Court in relation to Commonwealth Child Care Benefit fraud. This case concerned a Family Day Care Educator, Martha Anne Kuol who pleaded guilty to one charge of dishonesty causing loss to a Commonwealth entity contrary to section 135.1(3), Criminal Code (Cth). The charge related to submitting false time sheets to five different Family Day Care (FDC) providers: Nyier FDC, Manhal FDC, White Butterfly FDC, Favour FDC and Dorsy's FDC.

As outlined by the court, the Department of Education and Training identified a group of FDC providers as the Deng Group who were involved in fraudulent activity. Rosa Riak was the mother of Kuol Deng and Achai Deng. These three people conducted the Deng Group FDC Provider businesses. Martha Kuoli is one of nine educators who have been charged with child care benefit fraud in the Deng Group as a result of an Australian Federal Police investigation. At the time of the sentencing of Martha Kuol only one of the other eight educators, Adiol Dahl, was sentenced (see previous blog post).

The court indicated that the total amount paid out by the Department of Education and Training for claims submitted in relation to Martha Kuol for the period 8 June 2015 to 16 December 2015, was $291,539.87. Martha Kuol accepted that a total of $119,657.54 was dishonesty received by her for childcare services that she did not provide. Also, according to the court, she obtained these payments by charging excessive hours, overlapping and inconsistent claims and submitting false claims and time sheets. This was done in complicity with members of the Deng Group.  In her claims, through the Deng Group specifically, she received a total of $215,000 for the period June and December 2015.

The court sentenced Martha Kuol to a term of 12 months' imprisonment. However, this was suspended on her entering a recognisance of $2000 and on condition of her being of good behaviour for two years. 

In relation to child care benefit fraud in general, the Herald Sun recently carried a story.

21 October 2017

BKE Pty Ltd v Department of Education and Training - Suspension of Service Approval

This case concerned an application to the Queensland Civil and Administrative Tribunal (QCAT) from the approved provider (BKE Pty Ltd) for a review of the decision of the Queensland Regulator under the National Law (Department of Education and Training) to suspend service approval for Busy Kids Cranbrook Kindergarten and Child Care Centre. The suspension was originally stayed by the Tribunal.

The Department issued a show cause notice for cancellation under section 78, following a number of breaches of the National Law and Regulations. Some of these breaches resulted in the issue of a show cause notice for suspension and a Compliance Direction. Full details of the compliance history of the service is outlined in the decision. After considering the approved provider's response to the show cause notice, the Department decided to suspend service approval for three months instead (see section 79). 

At the hearing, the approved provider admitted to the breaches but argued that "...where historical breaches notified by the Department had been remedied, or taken into account in the course of the Department previously reaching a decision not to cancel or suspend BKE’s service approval, they could not later be taken into account when again considering cancellation or suspension. Alternatively, BKE submitted that the breaches, if they could be taken into account, did not individually or collectively warrant suspension." (para.15). QCAT rejected the first argument saying that the decision maker in exercising its discretion to suspend or cancel can take into account past breaches:
The propensity of a service provider to not fulfil its obligations to maintain a safe environment for children would, in my view, be a relevant factor for the exercise of the discretion. It is also relevant in determining whether the threshold conditions for the exercise of the power are satisfied. That propensity may be revealed by a continuing failure to proactively comply, notwithstanding that a provider may have remedied breaches in a reactive way as they were brought to attention. (para.20).
The Tribunal then examined the breaches that had occurred to see if suspension was appropriate and concluded:
A decision to suspend a service approval involves: (1) determining whether the power is enlivened; and, if so, (2) deciding whether as a matter of discretion it should be exercised.
It is clear that if, as I have decided, it is appropriate to consider earlier breaches, the suspension power is enlivened by the acknowledged breaches of the National Law: s 70(e).
Taking into account matters outlined in the discussion below in relation to the exercise of the discretion, I would in any case also conclude that it would not be in the interests of children being educated and cared for by the service for the service to continue (s 70(a)). I would also conclude that the s 51(1) implied condition of the approval – the service being operated in a way that “ensures the safety, health and wellbeing of children being educated and cared for by the service” - has not been complied with (s 70(b)) (paras. 79-81).
One of the major reasons for QCAT in supporting the Department's decision to suspend was the number of previous and current breaches as well as the attitude of the approved provider:
Having regard to the further issues identified at the monitoring visit after the service recommenced operations and the recurring nature of the non-compliance, and notwithstanding Ms King’s long history in the industry, I cannot be satisfied that BKE is committed to ensuring compliance with the requirements of the National Law and Regulations. Bearing in mind the two show cause notices and various compliance directions and advice already issued to BKE, one might reasonably ask what else, short of suspension, the Department as the regulatory authority, and the Tribunal in its place on review, could reasonably do to ensure BKE’s compliance with its legal obligations? (para.97).

18 October 2017

Victorian Multiethnic Slavic Welfare Association Inc (in liq) & Anor v Trajkov & Anor

ABC Online recently carried a report of a court case in which the Victoria Multiethnic Slavic Welfare Association Inc (in liquidation), operators of a childcare centre in Lalor, sued its President, Boris Trajkov, for using Association funds for personal purposes. You can see the full County Court judgement here.

11 October 2017

Profitability of Childcare Services

ABC Online recently published an article by a childcare consultant in relation to the profitability of childcare services and childcare fees.