This was a review of a decision to cancel the service approval of a company seeking to offer family day care services. The company had not commenced operation within six months, as required by its approval. At the time of hearing, it was about nineteen months since the approval had been granted.
The key issues in the case were whether it had now commenced ongoing operation, having started providing services in the week of the hearing, and whether the services it offered were personal arrangements.
I found that the services offered by the applicant were personal arrangements and that it had not commenced ongoing operation. For this and other reasons, I confirmed the respondent's decision to cancel the applicant's service approval.
[2]
Background
The applicant's service approval, under the Children (Education and Care Services) National Law (NSW) ("the National Law") was granted on 11 January 2016.
One of the conditions, specified on the service approval document, was that the applicant was required to operate in compliance with the conditions of s 51 of the National Law.
Section 51(3) of the National Law provides:
A service approval is granted subject to a condition that the service must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time.
On 21 February 2017, Angela Rahme of the NSW Department of Education rang Ms Kattar, the director of the applicant. Ms Kattar told Ms Rahme that the service was not currently operating "because of CCB". When asked whether she had any registered educators, Ms Kattar said: "there is no point until I get CCB."
"CCB" is an acronym for child care benefit. Family day care services are required to be approved by a Commonwealth government agency before the Commonwealth will pay child care benefit in respect of children using their services. The applicant had applied to a Commonwealth agency for child care benefit approval but, as at 21 February 2017, that application was undetermined.
On 22 March 2017, an officer of the Department of Education wrote to Ms Kattar giving her notice that the officer proposed to cancel the applicant's service approval. In a letter dated 23 March 2017 to the Department, Ms Kattar said that she could not operate as a provider without CCB approval, which she was awaiting.
On 28 April 2017, the Secretary of the Department of Education cancelled the applicant's service approval under s 79(1)(a)(i) of the National Law. The ground for the cancellation was that a condition of the service approval had not been complied with, being the requirement to commence ongoing operation within six months (see National Law, s 77(d)).
The applicant applied to the Tribunal for review of that decision. It also applied, successfully, for a stay of the cancellation decision. This allowed it to commence operation of a service.
The applicant's application for child care benefit approval was rejected on 26 June 2017. At the time of the hearing, the applicant had applied for internal review of that decision but the application had not been determined.
[3]
Consideration
The applicant's director, Ms Kattar, gave evidence and made submissions in support of the application for review of the cancellation decision, including that:
1. although she received a fact sheet on 2 September 2015, stating that the service should commence operating within 6 months, she was never told that cancellation was imminent or likely in conversations with the Department; and
2. in her conversation with the Department on 21 February 2017, she was not told that the Department was considering cancelling the service approval.
I do not consider that the Department's failure to inform the applicant, or Ms Kattar, of its intention to cancel the service approval, prior to sending her a show cause notice on 22 March 2017, assists Ms Kattar. She admits to being aware of the condition that the service was required to commence ongoing operation within six months and to failing to cause the applicant to comply with it. It is the applicant's responsibility to comply with the conditions of its approval, without the need for reminders.
Ms Kattar said that she relocated her office in about April 2017 even though she had not received approval for child care benefit. She said that the new office was more professional and showed that she was actively pursuing the business. She also referred to providing the Department with information it had requested. Further, her evidence was that she had paid insurance every year, and had paid consultant fees. She had spent over $5,000 on her service, trying to get people to come on board.
I do not consider the move of office or the provision of documents or the money spent on the business to be critical to the application before me. Whilst this shows that the applicant intended to operate the service and took steps towards making this happen, the key issue is what the applicant actually did in terms of operating a service.
Ms Kattar gave oral evidence that the service had commenced operation three days ago. Her evidence was that her mother was providing care to children of a friend of Ms Kattar's ("Yasmin"). Yasmin's children go to school with Ms Kattar's children. Those children started on Monday with Ms Kattar's mother from 5pm to 8pm. Ms Kattar said that they had only done one day and so far Yasmin was happy. Ms Kattar could not recall when the second day would be and said she would have to check.
Ms Kattar also gave evidence that a second educator, Mr Darwiche, who lived next door, had also started providing care to two children on Tuesday (two days ago). Mr Darwiche is 18 years old and studying engineering. He was looking after his relatives. Ms Kattar said that the parents of the children would pay her, and that she would pay Mr Darwiche.
Ms Kattar provided the Tribunal with the register of family day care educators relating to each educator. The Working With Children Check clearance for Ms Kattar's mother authorised her to work with children in a volunteer capacity only. Ms Kattar appeared surprised by this and said she would need to check whether her mother had another clearance, allowing her to work with children on a paid basis.
Ms Kattar said, initially, that Mr Darwiche was undertaking a Certificate III in Children's Services by correspondence. However, there was nothing in Mr Darwiche's file indicating that he was actively working towards a qualification (see Education and Care Services National Regulations, cl 127 and 153(i)). Ms Kattar first said that he had asked for evidence of his enrolment, and "they" were going to send it. However, when pressed, she conceded that Mr Darwiche had told her on Monday that he had applied to enrol in the certificate, but she was not sure whether he was actually enrolled in the course. She could not name the institution at which he claimed to be studying.
Ms Kattar's evidence was that she intended to focus the business on providing services to high income clients, who were not entitled to child care benefit. She also said that she might pay to other clients the amount of the child care benefit but, as Mr Frommer submitted for the respondent, her evidence was equivocal on this point.
The applicant failed to commence operating the service, on any view, for 19 months. The applicant did not apply for an extension of time to commence operation. As the Tribunal has observed previously, the National Law is, of its nature, a law calling for strict compliance (see CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45]). As the applicant now accepts, the failure to obtain child care benefit approval did not preclude the applicant from commencing operation. The applicant claims, in fact, to have commenced operation without such approval. The applicant's explanations for failing to commence operations, including the excuse that the Department did not warn the applicant's director that it was planning to cancel the service approval, indicate that the applicant, through its director, did not take the requirement to comply with the condition seriously.
[4]
Were the services provided personal arrangements?
Mr Frommer submitted that the applicant was not in fact operating an education and care service, despite claiming to have commenced operating. This argument depended upon an exception to the definition of "education and care service" in s 5(1) of the National Law. That term is defined as "any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than" certain specified services. One of these is "a personal arrangement" (paragraph (c)). A "personal arrangement" is defined in s 5(1) of the National Law to mean
education and care provided to a child-
(a) by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or
(b) by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised;
The education and care provided by Ms Kattar's mother to Yasmin's children is a "personal arrangement" within paragraph (b). Ms Kattar said that Yasmin was a friend and that she was happy for the children to go to her mother because they "loved" her mother. I find that Ms Kattar's mother is a friend of the family of the child to whom she is providing care. The arrangement for care appears to still be informal. Ms Kattar spoke of it as if the details had not been finalised as to regular days and hours. On balance, whilst there was evidence that the applicant had placed advertisements for carers; the evidence does not support the applicant's submission that the provision of this education and care was advertised.
My finding that the care provided by Ms Kattar's mother is a "personal arrangement" means that the service is not a "family day care service" as defined, because the definition requires at least two educators to be providing care (National Law, s 5).
I am satisfied that the education and care provided by the second educator is a "personal arrangement" within paragraph (a) of the definition. It is education and care provided by a "family member… of a child" personally to the child. Mr Darwiche is a "family member" either because he is a cousin of the child or because he is "a person who is recognised in the child's community as having a familial role in respect of the child." Ms Kattar said he was engaged by the service. However, I do not accept that the service is yet providing education and care on a regular basis to children under 13 years of age. Accordingly the care was not provided "under an engagement with … a service providing education and care on a regular basis to children under 13 years of age."
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.
[5]
Exercise of discretion
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 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.
For these reasons, I confirm the respondent's decision to cancel the applicant's service approval, pursuant to s 193(3) of the National Law.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 31 August 2017