Cancellation of Provider Approval: Jessica Education Centre Pty Ltd (KA Family Day Care) v Secretary, Department of Education

In this case the NSW Civil and Administrative Tribunal considered an application for review of the decision of the NSW Department of Education (respondent) to cancel the provider approval of Jessica Education Centre Pty Ltd (applicant). Previously the applicant's CCB approval had been cancelled (see previous post). The Department cancelled the provider approval of the applicant on the basis that the applicant was not a fit and proper person to be involved in the provision of an education and care service and that the approved provider had breached a condition of the provider approval, namely regulations 124 and 177(2). During the hearing, the Department argued that applicant’s approval should remain cancelled based on the following grounds: 

• The applicant has failed to operate an education and care service for more than 12 months (s 31(f)).
• The applicant breached a condition of its provider approval by repeatedly failing to comply with the National Law (s 31(e) read with s 19(2)). 
• The applicant is not a fit and proper person to operate an education and care service (s 31(a)).

Considering these grounds, the Tribunal found that the service had not operated for more than 12 months as it could not afford to without Commonwealth subsidies.  It also found that the applicant breached a condition of its approval by repeatedly breaching the National Law. In particular, the Tribunal noted: "[s]ome breaches concerned whether educators responsible for caring for children had proper oversight and instruction, and whether children’s whereabouts were known and recorded. These are very significant issues." (para.45). In relation to the fit and proper ground, the Tribunal observed:

Ms Choi, a director of the applicant, clearly desires to assist the Korean community and there was evidence of her good character and diligence. The evidence, however, supports a finding that the applicant’s knowledge and understanding of the responsibilities of an approved provider is inadequate and the applicant has not acted in accordance with those responsibilities.
While there is no evidence to suggest that Ms Choi individually is not of good character, the available evidence indicates that she and the applicant lack the knowledge and ability to operate the service in compliance with the National Law and therefore are not fit and proper within the meaning of the National Law.(paras. 52-3)

The Tribunal, therefore, upheld the decision of the Department to cancel the applicant's provider approval.