Stay of Cancellation of Childcare Benefit Approval: Global Family Day Care Pty Ltd and Secretary, Department of Education

In a case before the Australian Administrative Appeals Tribunal, Global Family Day Care Pty Ltd were granted a stay of the decision by the Commonwealth Department of Education to cancel their approval. According to the judgment various proceedings are also on foot before the Federal Court and NSW Civil and Administrative Tribunal. The Tribunal granted the stay on one condition:

A stay of the reviewable decision seems to me to be desirable in the special circumstances of the case, but subject to a condition on which I will hear the parties within seven days. Unless otherwise directed, the condition will operate in ten days from the date of this decision. As is usual the stay will operate until further order. The condition which I have in mind is that the applicant uses its best endeavours to ensure that no overpayment of CCS funds occurs between now and the determination of the proceedings. If such overpayment comes to notice, the Applicant is to repay it forthwith. (para.18)

Cancellation of Childcare Benefit Approval: Chicho Family Day Care Pty Ltd and Secretary, Department of Education

This case involves an application to the Australian Administrative Appeals Tribunal for the review of the decision by the Commonwealth Department of Education (respondent) to cancel the Child Care Benefit Approval of Chicho Family Day Care Pty Ltd (applicant).

The Department cancelled the approval as it found that the family day care provider had breached the requirements of the family assistance law relating to child swapping; claims while educators or children overseas; claims for children over 14 or in secondary school; overlapping sessions of care; claims for absences before care commenced and after care ceased; late enrolment and attendance reporting; and breach of educator-child ratios.

The Tribunal assessed the alleged breaches and response of the respondent and affirmed the cancellation, concluding:

I consider that in applying s 200 of the Administration Act, I must consider the provisions of the Breach Determination. Relevant factors include: the severity of failure to comply with conditions for continued approval; the frequency of failures to comply; and, whether failures may threaten health or welfare of any child in the care of the service. The appropriate sanction is cancellation for ‘serious or frequent’ failure in the past.

In addition, there is a presumption in favour of cancellation where contravention involves ‘repeated’ breaches of s 219N. Repeated is defined as involving either 100 or more sessions reported inaccurately, or payments due to misreporting in excess of $5,000. Cancellation is also appropriate where there was false, misleading or otherwise inaccurate information about care where the session of care was not in fact provided (for example, educator or child overseas).

The total amount of sessions of care that were reported in breach of s 219N of the Administration Act is therefore 2,988. Breaches under s 219AB of the Administration Act total 179 instances for late enrolment reporting. The Eligibility Rules breaches include 23 instances of failure to report educator CRNs covering 28,369 sessions of care. The breaches of National Law/National Regulations comprise 63 hourly blocks. The total value of overpayments paid to the Applicant amount to $56,862.42.

I consider the submissions raised on the Applicant’s behalf insufficient to address the concerns arising from the seriousness and frequency of the breaches. As noted above, the evidence overall did not provide significant comfort that Chicho was administered in a manner enabling it to meet the standards required by the family assistance law. It is of particular concern that its principal asserted expertise in this field, but was, effectively, reliant on breach notifications to highlight where there were gaps in the service’s governance.

I am satisfied that the range and volume of breaches mean that they should be considered to have been serious and frequent. I am supported in this conclusion by reference to the definition of repeated breaches in s 4A. The total instances set out above, and the value of overpayments, indicate that breaches of conditions of Chicho’s operation were serious and frequent. This conclusion is unavoidable when taking into account the indicative inaccuracies and misreporting set out in s 4A, as they are far in excess of those thresholds.

CONCLUSION

Accordingly, for the reasons given above, I consider that the breaches, subject to those sessions conceded by the Respondent, have been made out, and that the appropriate sanction is the cancellation of Chicho’s approval as a child care service under the family assistance law. (paras.62-7)

Casino Childcare Provider Found Guilty

The Daily Examiner has reported on this case where a NSW Magistrate found the operator of Rainbow Station Early Education Centre in Casino, LPN Childcare Pty Ltd ATF Liesl Pyke-nott Family Trust, guilty of not protecting children from harm or hazard and failing to notify the regulatory authority about complaints raised. A fine of $7,000 was imposed.

Defamation Case Against Childcare Service Appealed

Further to a previous blog post where the NSW District Court awarded damages to a childcare worker for defamation, the appeal heard in the NSW Supreme Court Court of Appeal overturned that decision. The Court held that the comments were not malicious.

Two Charged with Manslaughter for Death of Child on Childcare Minibus

ABC Online reported on the latest developments in this tragic incident. The Guardian and News.com.au also published reports.

NSW Government Family Day Care Crackdown

ABC Online carried a report on NSW compliance action. The Federal Minister for Education also recently published a media release on Commonwealth compliance activity.

Queensland Government Response to Death of Child on Childcare Minibus

The Sector website carried a report on the response today. A letter from the government was sent to bus service operators and early childhood service providers and can be accessed here.

Stay of Cancellation of Service Approval: Oakhaul Pty Ltd v Department of Education

This is a case before the Queensland Civil and Administrative Tribunal for a stay (put on hold) of a decision by the Queensland Regulatory Authority, under the National Law (Department of Education), to cancel the service approval of a service the applicant operates at Oakey.

The Department decided to cancel service approval because of:

• Oakhaul’s failure to operate the centre in a way that ensured the safety, health and wellbeing of children constituted a breach of a statutory condition of the service approval; 
• the continued operation of the centre constituted an unacceptable risk to the safety, health and wellbeing of the children; and 
• Oakhaul had demonstrated unwillingness or inability to operate the centre in a compliant manner (para. 12).

The judgment detailed a long history of non-compliance and according to the Department there was only one other service in Queensland that had a lower rating under the assessment and rating system (see paras.5-11).

The Tribunal considered the evidence to assess whether the cancellation should be stayed until a full hearing and concluded:

Ensuring the safety, health and wellbeing of children attending education and care services is an objective of the National Law. Guiding principles in administering the National Law include that the rights and best interests of the child are paramount, and that best practice is expected in the provision of education and care services. Another guiding principle is that the role of parents and families is respected and supported.
The Department’s submissions proceed, in effect, on the basis that an unacceptable risk exists to the safety, health and wellbeing of children at Oakhaul’s centre. If that assessment is correct, then of course a stay could not be desirable.
However, I consider the position to be less clear-cut than is asserted by the Department. The Department’s submissions paint a picture of extensive and persistent non-compliances and failures to remedy, without acknowledging the extent to which that picture is based on contested evaluations by the Department about the adequacy of remedial measures or the sufficiency of verification. Further, the inspector’s notes of the 6 January 2020 inspection indicate a number of specific concerns, but the decision to issue a regulatory notice in respect only of the basketball pole is difficult to reconcile with the submission of ongoing unacceptable risk.
I do not regard Oakhaul’s comments about the lack of actual harm as indicative of indifference to the importance of minimising risk regardless of actual harm.
The most recent injury is said to have been in 2017, when a child sustained fractures when using a trampoline. That is a fairly common type of injury, though of course parents and guardians should be given the choice about whether their children are exposed to the risk.
Closure of the centre would disrupt children’s settled routines and familiarity with staff. It would inconvenience and curtail the freedom of choice of those families who have elected to keep their children at Oakhaul’s centre.
When all of the circumstances are taken into account, the public interest factors do not all point in one direction....
My preliminary assessment of the currently-available evidence and submissions leads me to the conclusions that Oakhaul appears to be committed to fixing any remaining deficiencies, and that there is no imminent or otherwise unacceptable risk to the safety of children. When all factors are considered, including the disruption to the lives of children, families, and staff, and the financial effects on Oakhaul, on balance I consider that a stay of the cancellation decision is desirable. (paras.35-41, 44)

Child Found Dead on Childcare Minibus in Cairns

ABC Online have reported this tragic event.

Victorian Legislation to Align Children's Services with National Law Requirements: Draft Regulations

As mentioned in a previous post, legislation is being introduced to align Victorian Children's Services with the National Law. Draft Regulations and a Regulatory Impact Statement have now been published on the Engage Victoria website. Those wishing to provide input on the Regulations  can complete a survey, write a submission or attend a consultation session. The public consultation period closes on 17 March. 

It is intended that the Children's Services Amendment Act 2019 and the new Children’s Services Regulations 2020 will come into effect together on 17 May 2020.

Review of Victorian No Jab No Play Legislation

The Victorian Government is conducting an evaluation of the the No Jab No Play legislation. The Centre for Evaluation and Research, Department of Health and Human Services, is conducting surveys with parents and carers who have been impacted by the No Jab No Play legislation. The survey is available on the Engage Victoria website for all parents and carers of children aged 0 to 5 impacted by the legislation. Key findings will inform the delivery of future immunisation policy and reform and will support recommendations for system improvement.

Stay of Cancellation of Provider Approval: EEB v Secretary Department of Education

This is a case before the NSW Civil and Administrative Tribunal for a review of a decision by the NSW Regulatory Authority under the National Law (Department of Education) to cancel provider approval under section 31.
The Tribunal decided to stay the cancellation but on conditions:

The ultimate determination of the correct and preferable decision must regard the best interests of the child as paramount.

The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.

On an interim basis it is assessed that the protection of children from harm can be mitigated by the imposition of terms and conditions as the price of the stay being granted. That will give effect to protecting the paramount interests of the child.

It is necessary on the evidence which can be determined on this interim application to grant a stay to secure the effectiveness of the determination of the application. The review hearing will be futile if a stay is not granted and the review is successful and in the applicant’s favour.

The matter has been allocated a final hearing date in May 2020. Directions were made to prepare the matter for hearing. At the hearing the Tribunal will be able to determine whether the allegations are established or not and what the correct and preferable decision is having regard to the contested evidence. Any favourable decision made by the Tribunal will be rendered nugatory if the stay is not in place.

It is therefore determined that the stay application should be allowed on the alternative basis proposed by the respondent and to which the applicant agreed.

Order

The order of the Tribunal is that:

(a) The Decision of the Secretary Department of Education (“the respondent”) to cancel the provider approval of EEB (“the applicant”) under the Children (Education and Care Services) National Law (NSW) made on 19 December 2019 is stayed until the resolution of the applicant’s application for external review by the Tribunal (the proceedings 2020/15386) on the following conditions:

(a) The applicant is prohibited from accepting any new enrolments in its education and care service.

(b) The applicant is prohibited from engaging or registering:

(i) any new educators; or

(ii) previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Alaf El Ajouz).

(c) The applicant is to suspend the provision of education and care by the following educators:

(i) Olivera Ali Obaid;

(ii) Farah Javed; and

(iii) Rita Saman.

(d) The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020 (paras.58-64(1)).