CVM v NSW Department of Education, Early Childhood Education & Care Directorate & CVN v NSW Department of Education, Early Childhood Education & Care Directorate: Cancellation of Service Approval (breach of s.51 condition)

The NSW regulator under the National Law (Department of Education) has been active recently in cancelling the service approvals of a number of services, under s.77(d) of the Education and Care Services National Law, who have failed to comply with the condition on the approval requiring them to commence ongoing operation within six months after the approval has been granted (s.51(3)). As a result a number of these have resulted in the approved provider seeking a review of the decision by the NSW Civil and Administrative Tribunal. All of these reviews involve Family Day Care services who appeared to be having problems gaining approval from the Commonwealth Department of Education and Training to become registered for Child Care Benefit (CCB). 

Early this year two cases were heard and decisions handed down: CTG v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60; and CVT v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 74. On 5 April 2017 the Tribunal handed down two further findings in CVM v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108, and CVN v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109.

There are some interesting points that arise from these two last cases:

• The Tribunal supported the decision of the Regulatory Authority to cancel the service approval and this at least partly was based on consideration of the objectives of, and principles underlying, the National Law and the credibility and/or competence of the approved provider
• The Tribunal made it clear that the delays in CCB approval did not negate the approved provider's responsibilities to comply with the National Law, in this case the condition on service approval under s.51(3)).
• In both cases the Regulatory Authority conducted unscheduled visits of the service's principal office before finalising the cancellation of service approval and obtained evidence that indicated that the service was not operating even though the approved provider claimed they were.

It should be noted that it appears to be the practice of the Tribunal in these cases to protect the identity of the approved providers and services involved, hence the names of the cases.