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

This case is the latest in a string of recent cases in the Civil and Administrative Tribunal (NCAT) where the NSW regulator under the National Law (Department of Education) has cancelled 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)). This case too involves a family day care service who has had delays in gaining approval from the Commonwealth Department of Education and Training to become registered for Child Care Benefit (CCB). In this case the application had been ongoing for two years. You can read the full judgment here.

The approach taken in this case is somewhat different from that taken in the previous cases heard before NCAT (see previous blogs, and in particular CTG v, NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60, which appears to have similar facts. In the other three cases a six month extension was granted before the service approvals were cancelled). Some of the previous cases took the view that failure to obtain CCB approval did not negate the approved provider's responsibilities to comply with the National Law, i.e. the condition on service approval under s.51(3)). In this case the Department issued a show cause notice cancelling the service approval. The approved provider did not respond in the required time to the notice and so the Department cancelled the service approval. The approved provider took the matter to NCAT seeking the cancellation be set aside and a six month extension be given to its service approval in order for it to obtain CCB Approval. The Senior Member agreed with this and issued an order accordingly.

There are a few interesting points that come out of the judgment:

• The tribunal took the view that the six month time period in s.51(3) was arbitrary (para.60)
• There was nothing to indicate that the approved provider was not capable of running a service - 

"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 service approval to run a proposed Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children." (para. 59)

• The tribunal looked at the purposes of the legislation and concluded -

"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 (para. 58)....According to the applicant [CTZ], and this is not disputed by the respondent, the only difficulty preventing the commencement of the Family Day Care Service is the inability to obtain approval for Child Care Benefits under the family assistance law. Without that approval, parents of children will not receive Commonwealth fee assistance for sessions of care provided by the service. The role of parents is also to be respected and supported under the principles to be applied by the National Law. It is in the best interests of children to receive quality childcare and for their parents to receive fee assistance in order to obtain that quality childcare, if the service is eligible. This provides respect and support for the parents of the children. This is also a matter where it is considered in the best interests of children to have the opportunity to access quality and well regulated childcare." (para.61)