Recent WASAT Decisions

Recently, the West Australian State Administrative Tribunal (WASAT) made a number of consent orders in relation to matters brought before the tribunal by the WA Regulator (Department of Communities) for contraventions of the National Law:

In Chief Executive Officer of the Department of Communities and Helping Hands Network Pty Ltd, the approved provider breached section 165, National Law. The breach involved leaving a 51/2 year old child on a bus, used for transporting children to the service, for a period of 10-15 minutes. The child was found by a parent locked in the bus. The approved provider was fined $15,000 plus $2,000 costs.

In Chief Executive Officer of the Department of Communities and Kids Active Pty Ltd, the approved provider contravened sections 165 and 174(2)(a), National Law. This case involved a child aged 41/2 found by a member of the public standing next to a pond located outside the front of the service (Kid's Active Canning Vale). The approved provider also failed to notify the Department of this serious incident within 24 hours as required by the National Law. The approved provider was fined $12,500 and had to pay $2,000 towards the Department's legal costs.

 

In Chief Executive Officer of the Department of Communities and Goodstart Early Learning Ltd, the approved provider breached section 165, National Law. In this case the child left the service (Goodstart Early Learning East Bunbury) unnoticed and unsupervised and walked to her house 150m away where her mother was on the front lawn. The parent took the child back to the service. Educators had not noticed the child's absence until then (a period of about 20 minutes). The approved provider was fined $10,000 and had to pay $2,000 towards the Department's legal costs.

In Western Australia such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

Some of these cases were also reported on by The West Australian.

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.