Stay of Cancellation of Child Care Benefit Approval: Happy 'N' Friendly Day Care Pty Ltd and Secretary, Department of Education and Training

This is another case heard by the Australian Administrative Appeals Tribunal, which is very similar to the one involving Galaxy Day Care Pty Ltd (see previous blog post).

This case involved an application for the stay of a decision made by the Department of Education and Training (the Respondent) to cancel the registration of Happy ‘N’ Family Day Care Pty Ltd (the Applicant) as a provider of day care services under the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). On 25 September 2018 the Department cancelled the Happy "N" Friendly's approval. On 9 October 2018 the Applicant sought an internal review of the cancellation decision. The Applicant also appealed to the Federal Court for a stay of that decision on 19 October 2018. The Federal Court granted a stay until 16 November 2018 in order to provide time for the internal review to be conducted.  On 15 November 2018 the Respondent notified the Applicant that its internal review had resulted in an affirmation of the original cancellation decision. The Applicant returned to the Federal Court on 16 November 2018 requesting a further stay until an appeal against the decision could be heard by this Tribunal and, on the 28 November 2018 applied to this Tribunal for such a review. The Federal Court, by consent of the parties, granted a stay effective to the date on which the Tribunal “determines the Applicant’s application for a stay of the Decision.”  The basis for the Department's cancellation are outlined by the Tribunal:

The basis of the cancellation decision lies in the Respondent having found the Applicant to be seriously non-compliant, and indeed misleading, in its reporting of its activities under section 219N of the Act; making false claims for payment of child care benefits, including:

·    211 instances where payments were made but the relevant educators were overseas at the time

·    567 instances where payment were made but the child in question was overseas

·    718 instances of “child swapping” where payments were made to non-eligible individuals

·    2350 occasions where payments were made in respects of children who were either in school or else over the age of 14 years when no such payments should have been claimed.
These identified breaches occurred in the period from 1 January 2016 to 18 April 2018.
Moreover there appear to have been breaches of statutory requirements related to the passing-on to parents, or remitting to the Commonwealth, monies related to child care fee reductions.
In addition to these instances, the Respondent notes (and categorises) some 4,313 instances which it describes as “further apparent contraventions of the family assistance. (paras.24-7).

The Tribunal decided not to grant the stay on similar grounds to the Galaxy case.