Cancellation of Service Approval (Breach of Condition): 3 Angels Family Day Care Pty Ltd 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. In this case the name of the service has been published. Normal practice of NCAT in the past has been to not publish approved provider details.

The full decision can be found here. In January 2016 the approved provider (3 Angels Family Day Care Pty Ltd) was granted service approval to operate a service in NSW. In February 2017, the Department contacted the approved provider and was told that the service was not currently operating as it had not been given Child Care Benefit (CCB) approval by the Commonwealth Government. In March 2017 the Department gave notice that the service approval would be cancelled. The approved provider responded that they could not operate without CCB approval. In April 2017, the service approval was cancelled under section 79(1)(a)(i) of the National Law. The ground for the cancellation was that a condition of the service approval under s.51 had not been complied with, being the requirement to commence ongoing operation within six months (s.77(d)). At the hearing the approved provider argued that they had commenced operating the service. The Tribunal found that the care that was being provided for children was a "personal arrangement" under s.5(1) of the National Law:

The evidence indicates that the applicant “intends” to provide education and care on a regular basis to children under 13 years of age, by offering services to other children. I am satisfied, on that basis, that it is an “education and care service” as defined. However, given that it is currently providing education and care in a way that does not meet the definition, I do not consider that it has commenced operation. 
I note also that the applicant is required by the condition in s 51(3) of the National Law to commence “ongoing” operation within six months. The Tribunal may, in some circumstances, find that the correct and preferable decision is to allow an applicant which has commenced ongoing operation at the time of the hearing to continue to do so, even if the applicant failed to comply with the condition in s 51(3). In this case, after only four days of the applicant providing services, it is too soon to be persuaded that the applicant has commenced ongoing operation (paras. 23-4)

The Tribunal affirmed the decision of the Department to cancel the service approval: 

The failure to commence operation for about nineteen months is a breach of the condition of the service approval. The respondent was entitled to cancel the service approval on this ground (National Law, s 77(d)). Further, for reasons given above, it has still not commenced ongoing operation. 
If I am wrong about this, I would nevertheless decline to exercise my discretion to allow the service to continue operating. 
The two matters referred to above, the lack of evidence that Ms Kattar’s [director of approved provider] mother has an applicable Working With Children Check clearance, and the lack of evidence that the neighbour providing care has commenced studying a relevant course, are both concerning. They indicate a lack of compliance with the National Law and the regulations which compounds the failure to comply with the condition requiring the applicant to commence ongoing operation of the service within six months. They also indicate a lack of understanding of the high standards which it is necessary for the applicant to meet in order to comply (paras. 29-31)