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)