Al Hamid v Secretary, Department of Education

Background

1. On 26 August 2015 the Applicant was granted service approval to run a family day care service called Paradise for Children. The service approval was granted subject to conditions including compliance with the conditions of s.51, which includes the condition under s.51(3) that the service must commence ongoing operation within six months after the approval is granted, unless the Regulatory Authority agrees to an extension of time.
2. On 31 March 2017, the Respondent issued a show cause notice to the Applicant in relation to the provider approval, on the grounds that the Applicant had breached the conditions of the provider approval by: 1. Not paying the annual service fee for the 2016/2017 financial year; 2. Failing to provide a Quality Improvement Plan when requested; and 3. Failing to commence operation of the service within six months.
3. The Applicant sent a written response to the show cause notice on 1 May 2017, in which he stated that the service was operating and over 17 educators were enrolled. He supplied evidence of having paid the outstanding fee and provided a copy of the Quality Improvement Plan.
4. However, when contacted by an authorised officer of the Respondent, the Applicant admitted that the educators had not yet started to operate.
5. The Respondent decided not to cancel the provider approval on 20 June 2017. However, on 21 June 2017 the Respondent issued the Applicant with a notice to show cause, advising that the Respondent intended the Applicant's service approval because the Applicant had failed to comply with the condition requiring him to commence ongoing operation of the service within 6 months of the service approval having been granted.
6. On 19 July 2017 the Applicant forwarded a written response to the show cause, claiming that two educators were working in the office of the child care service and they were receiving training.
7. Between 1 August and 8 August 2017, a series of emails was sent between the Applicant and the Respondent relating to the details of the two educators employed by the child care service and the provision of child enrolment records showing that the children concerned were being educated by the two educators employed by the service.
8. On 9 August 2017 authorised officers of the Respondent visited the residences of the two educators employed by the service. Neither of the educators was at home but one of them was present at the office of the service. The Applicant was said to have told the officers that the educators and the nominated supervisor were working without being paid and parents were not paying for education and care of their children due to the fact that the service had not yet received Child Care Benefit approval.
9. On 21 September 2017 the Respondent issued a notice of decision to cancel the Applicant's service approval with effect from 5 October 2017 on the basis that the Respondent was not satisfied that the service had actually commenced ongoing operations.
10. On 9 October 2017 the Respondent was informed by an email from the Australian Government Department of Education and Training that the application by the Applicant Child Care Benefit approval had been refused.
11. The Applicant filed his Application to the Tribunal on 19 October 2017.
12. The Applicant has provided to the Respondent details of four educators said to have been registered with the service between 21 and 25 August 2017. The Applicant has also provided enrolment and attendance records for six children said to have been attending the child care service in July and August 2017.

Evidence

1. The documentary evidence relied on by the parties is found in a joint tender bundle provide to the Tribunal. Part 1 contains the documents upon which the Respondent relied to cancel the service approval. Part 2 contains the documents supplied by the Applicant to the Respondent in order to demonstrate that it was operating a child care service before the cancellation.
2. The Applicant and his daughter both deposed to affidavits upon which they relied. The Applicant gave oral evidence on the first hearing day, 20 December 2017, and the Applicant's daughter, Anmar Al Hamid, gave oral evidence, 5 February 2018.
3. In his evidence, the Applicant conceded that service approval was granted on 26 August 2015. It was put to him by Ms Sims for the Respondent that it was a period of two years before he commenced providing services to children. He said that the service had moved from one address to the current premises in Susan Street, Auburn. He said that he then commenced looking for educators to work for the service.
4. The Applicant said that he told the Department (i.e. the Respondent) that they were not going to open for six months. He said that someone from the Department rang him and he told them that fact.
5. The Applicant was asked why no educators had commenced operating at the time that he received the show cause notice on 21 June 2017. He had recruited educators in August after having received notice that the approval was going to be cancelled. He could not explain why he had not provided details of these educators to the Department in August 2017.
6. The Applicant's attention was drawn to a document at Tab 36 of the tender bundle showing that an educator, one Imm Cheik Dib, was recorded as providing care to two children aged 14 and 15.
7. The Applicant said that the service charged parents $6.00 per hour, of which $1.00 goes to the educator and $5.00 goes to the business. The service currently had no educators.
8. It was put to the Applicant that the only time that the child care service provided any services to children over some very limited days in September 2017.
9. The Applicant's daughter gave evidence by means of an affidavit affirmed on 18 January 2018, more than four weeks after the previous hearing day. In her affidavit Ms Al Hamid set out her qualifications and experience as an educator, trainer and supervisor.
10. She deposed that she was the nominated supervisor for Paradise for Children. She deposed that for six months after the receipt of service approval on 26 August 2015 she and (presumably) the Applicant worked from home to do everything to ensure that the Centre was legally compliant to operate. They also moved to a new location in Auburn but needed to renovate the premises.
11. At paragraph 8 of her affidavit, Ms Al Hamid deposed: The Department suggested that we did not operate because we did not have the approval of the Child Care Benefit or CCB. I admit this played a role in us deciding not operate in 2016 but not 2017. [1]
12. Ms Al Hamid went on to depose: I would say Paradise for Children was not running as an ongoing service until early 2017. The provider Kamil Al Hamid was advised by other Family Day Care Services that the Department was shutting down services that are not operational. It was around this time that Kamil and I decided to operate the business without waiting for the CCB approval. In 2017 I moved to study part time and focus on setting up the business. [2]
13. Ms Al Hamid then set out all the work that was done to renovate the premises at a cost of $20,000.00. They also paid rent of $62,400.00.
14. Ms Al Hamid deposed that the business received a show cause notice in March 2017. They conducted orientations for educators and parents in April 2017. She deposed: We had 17 educators signed up to our service and stayed on a waiting list. They didn't commence working in a care role as they refused to work without the CCB Approval. [3]
15. Ms Al Hamid claimed in her affidavit that they advised the Department an email in April 2017 advising that the service had changed locations and had commenced operating. However, after they started operating, Ms Al Hamid found that they had lost the first educators that they had signed up. She deposed that she accepted two people, whom she named, as educators, but they had no experience.
16. Ms Al Hamid further deposed that at the time the Service Provider cancellation took effect in late 2017 they had four educators signed up, two of whom commenced looking after children on 3 September and the other two commenced on 11 September 2917. They all ceased working on 5 October 2017.
17. Once the service was up and running in 2017, Ms Al Hamid said in her affidavit at [22] and [23]: 22. We were up to date with paying the annual fee for the service and the insurance payments. We had training programs scheduled for the educators and parents during December 2017. 23. We finally got there towards the end and everything was running functionally. We had a strong management system and we took control of the service. Everything was running smoothly, planned and neatly done. [4]
18. Ms Al Hamid gave oral evidence before the Tribunal on 5 February 2018. She reiterated that as soon as they received the decision from the Department they stopped operating the child care service. Before that, they were running a family day care service, with four educators caring for children. If the Tribunal were to decide to give back the service approval, she would be able to operate as soon as possible, as she had a long waiting list.
19. In cross-examination by Ms Sims for the Respondent, Ms Al Hamid conceded that she and not her father had actually run the day care service, although she did say that she believed that he was ready to take on the service.
20. Ms Al Hamid also conceded that they did not have any children to care for until September 2017 and that it had taken two years to start operating. She confirmed that they did not seek an extension of time. Whilst they had two educators working at their office for two weeks in August 2017, two weeks later they both had gone. The day care service had four educators in September.
21. Ms Al Hamid conceded that the service was "not making much money". The rent was $2,394.36 plus GST per month. The day care service was only making about $34.00 per month. The educators were making about $80.00 per month. She said that they needed the Child Care benefit to operate but they did not have it.
22. Ms Al Hamid conceded in cross-examination that the service only provided care for children over a period of about four weeks. She said that when the department said that they were going to cancel the service approval she "just gave up". She also conceded that she did not tell the Department at the time that they were operating as a day care service.
23. In re-examination, Ms Al Hamid explained that she had not continued with the first two educators. She said that the Department told her that neither of them had provided the necessary documents. She gave them a week to provide the documents, but when they did not do so she did not continue their employment.

Submissions

1. The solicitors for the Applicant and the Respondent each filed written submissions on 19 December 2017. After the completion of the evidence on 5 February 2018, the Applicant's solicitor sought to file a further written submission. Accordingly, the Tribunal ordered that: 1. The Applicant was to file and serve a short further written submission within seven days; and 2. The Respondent was to have leave to file and serve a further submission if necessary.
2. The Applicant's solicitor filed a written submission well out of time, on 23 February. At the time of writing the Respondent had not filed any further submission.
3. In the Applicant's first submission, filed on 1 December 2017, the Applicant submitted that the delay in commencing operation of the service was not due to the delay in obtaining CCB approval but because the Applicant needed to move premises, renovate the new premises, complete the necessary paperwork and recruit and train educators. The service was not waiting for CCB to commence, as a service can still operate. However, parents would not opt for a full-time educator service as the costs would be prohibitive.
4. The Applicant disagreed with the Respondent's contention that the service was operating on an ad hoc or occasional basis, as parents were paying the full amount of the fees without a rebate.
5. Mr Attia, for the Applicant, referred to the decision in 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265, where Senior Member Lucy held that the Tribunal may find it preferable to allow an applicant who had commenced ongoing operation to continue to do so, but in that case, it was too soon to be persuaded that the applicant had commenced ongoing operation after only four days.
6. In the Applicant's later submission, filed on 23 February 2018, it was submitted that previous cases had been settled where the applicant had shown evidence that it had commenced ongoing operations. A similar approach was urged upon the Tribunal in this case.
7. Mr Attia submitted that the Applicant's evidenced was honest and direct in giving his evidence. Whilst he appeared confused by some of the questions, it was submitted that this may have been due to a language barrier or his desire to have his daughter by his side as he answered the questions.
8. It was submitted that the Applicant's daughter, Ms Al Hamid, was honest and open about her attempts to establish the business and commence ongoing operations. She conceded in cross-examination that the service only started its operations in August 2017.
9. Mr Attia submitted that the Tribunal should consider the following matters: 1. whether at the time the service approval cancellation took effect, the family day care service had already commenced ongoing operations; 2. if the service provider approval were to be resumed, would the service be able to restart ongoing operations within a short period of time; and 3. the Tribunal should not take into account the fact that, at the time the Applicant appeared before the Tribunal, the service was not running.
10. It was submitted that the Applicant had commenced ongoing operations in delivering education and care to children in accordance with the definition in s.5 of the National Law before the service was shut down. Section 5 defines a "family day care service" as "an education and care service that is delivered through the use of 2 or more educators to provide education and care for children in residences whether or not the service also provides education and care to children at a place other than a residence".
11. Mr Attia submitted that the Applicant had commenced a family day care service which was ongoing, with 4 educators registered looking after 6 children in a period of more than four weeks.
12. In response to the Respondent's contention that the Applicant may have operated a service but it was only on a very small scale and for a brief period of time, Mr Attia submitted that had fewer educators, teaching fewer children, for fewer hours, in fewer sessions for a shorter period of time been submitted to the Respondent in response to a show cause notice, that situation would have immediately been accepted as satisfying the condition of the Service Provider Approval.
13. The sessions of care only ended because of the cancellation of the Service Provider Approval with effect from 5 October 2017.
14. The next issue, Mr Attia submitted, was whether the Applicant's business was financially viable. The business had monthly expenses of $3,000.00, including rent. He provided a table showing that parents had paid some $684.00 per month to the service, an amount of $620.00 had been paid to the four educators, and "the scheme was able to generate a revenue stream of $124.00 per month after commencing operations in August 2017".
15. The service had been operating without a Child Care Benefit Approval, which had been refused. This issue is before the Administrative Appeals Tribunal. However, it was submitted, the Applicant intended to operate his business without CCB approval. Ms Al Hamid had given evidence that she believed some thirty educators to be enrolled before the service would break even, even without CCB approval.
16. Mr Attia submitted that both the Applicant and Ms Al Hamid had conceded that there was a delay in commencing operations, but this delay was due to the nature of the preparations that needed to be made during 2017 so that the business could develop proper systems to deliver the service.
17. In answer to the contention that the Applicant did not advise the Respondent that the service had registered four educators in late August 2017, Mr Attia submitted that the delay was not unusual, as the Applicant was merely responding to emails from the Respondent as they came in. As of 21 September, the date of the notice of cancellation, the Applicant would have had limited timesheets to produce to the Department to show that the Applicant was delivering an ongoing service.
18. It was further submitted that Ms Al Hamid's evidence showed that it would take very little time to recommence operations, noting the Applicant's contacts in the community and the team's experience in commencing ongoing operations.
19. Mr Attia referred the Tribunal to the objectives and guiding principles contained in s.3 of the National Law going to the provision of a quality framework which improves and measures the provision of services to children. It was submitted that whilst the guiding principles do not of themselves create a positive obligation on the Department, they guide the way in which the Department should conduct itself in administering the relevant legislation, particularly when making a decision to cancel a service provider approval under ss. 77 and 79.
20. The Applicant submits that the Tribunal should consider the guiding principles of the Act when determining what decision is most preferable in this case and whether a fresh extension of time may now be appropriate.
21. The Applicant submits that: 1. Zhad the Applicant requested and had been granted an extension of 6 months to comply with the condition on 1 May 2017, the date when the Applicant admitted that the educators (then employed by the service) were not educating, the service would most certainly have demonstrated compliance if the Respondent had made further inquiries after October 2017; 2. the Respondent's actions in issuing a show cause notice and immediately pursuing the closing of family day care schemes could potentially have put children at risk as operators "scrambled to bring forward evidence to show ongoing compliance when they were not in a position to do so"; 3. the best and most preferable method of enforcing compliance would have been for people making telephone inquiries on behalf of the Department to advise the Applicant that he could seek the grant of an extension of time after which the Department would commence the service approval cancellation process; 4. the Tribunal must consider the repercussions on the Applicant as a result of the Department's decision, because this is not simply a matter of reapplying for a service approval in the future as the Applicant wishes to resume his service immediately; and 5. based on the options available to the Tribunal, the best and preferable decision would be to grant the Applicant a service approval to recommence operations.
22. As it is the Applicant's contention that he had established ongoing operations at the time the cancellation decision was made, he seeks: 1. An order that the decision of the Respondent (to cancel the service provider approval) be replaced by a decision that the Applicant's service provider approval is not cancelled; or 2. In the alternative, an order that the Applicant's service approval is reinstated for a period of six months within which the Applicant must show ongoing compliance with the service condition.
23. In the Respondent's written submission, it was contended that it is open to the Tribunal to find that the Applicant had not, at any time, commenced ongoing operations as contemplated under the National Law. Further, to the extent that it had commenced operations, had the service complied with the regulatory requirements of the National Law and its associated regulations. Thus, the Applicant could not be seen to be operating a family day care service in accordance with the law.
24. The Respondent submitted that, taking the evidence at its highest, the Applicant may be said to have provided some form of after-hours care on an ad hoc basis between 3 September and 4 October 2017. However, this type of ad hoc care, it is submitted, does not meet the definition of a "family day care service" under the National Law. In any event, this brief period of care only took place after almost 25 months since the service approval was granted.
25. The Respondent further submitted that the evidence of the Applicant having established a business, including the lease of office premises and other business-related expenses, does not constitute the "ongoing operation" of an education and care service within the meaning of the National Law. Thus, the Applicant has not complied with a condition of service approval.
26. The Respondent also submitted that it cannot be argued that a reason for the service not commencing ongoing operations within six months was a delay in obtaining Child Care Benefit approval under Part 8 of the A New Tax System (Family Assistance) (Administration) Act 1999. As is well known, CCB approval is required for the Commonwealth to pay Child Care Benefit payments for a child enrolled for care at a service. A service may operate without CCB approval, as the Applicant submitted. In any event, the Applicant's application for Child Care Benefit approval was refused on 9 October 2017.
27. The Respondent's final submission is that, having regard to the Applicant's evidence in support of the claim that the service had commenced operations, including the ages of the children, the times at which care was provided and the nominal fees charged for the children's care, it could not be said that the service had commenced ongoing operations.
28. In any event, as the application for Child Care Benefit approval has been refused, it is highly doubtful that the service would be a viable ongoing operation in the future.
29. Thus, it is submitted that the correct and preferable decision of the Tribunal is that the decision under review be affirmed in accordance with s.193(3)(a) of the National Law.

Conclusions

1. Under subsection 193(3) of the National Law, after hearing the matter, the relevant Tribunal or court may- 1. confirm the decision of the Regulatory Authority; or 2. amend the decision of the Regulatory Authority; or 3. substitute another decision for the decision of the Regulatory Authority.
2. The Respondent submits that the correct and preferable decision is to affirm the decision of the Department of Education under s.193(3)(a). The Applicant, on the other hand, submits that the Tribunal should substitute another decision for the decision of the Department under s.193(3)(c), either by declining to cancel the service approval or, in the alternative, reinstate the service approval for six months subject to demonstrating ongoing compliance with the conditions of s.51 of the National Law.
3. The relevant condition, in the Tribunal's view, is that contained in s.51(3): …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.
4. It is clear on the evidence that this did not happen. The service approval was granted on 26 August 2015, so the service was required to commence ongoing operation by 25 February 2016, unless granted an extension of time. No extension of time was sought by the Applicant.
5. The evidence of both the Applicant and Ms Al Hamid is that the service did not operate at all in 2016. In Ms Al Hamid's affidavit of 18 January 2018, she concedes at paragraph [9]: I would say Paradise was not running as an ongoing service until early 2017.
6. The service received its first show cause notice in March 2017, requesting a register of educators. Ms Al Hamid deposed: I recall we had our first orientations for educators and parents in April 2017. [5]
7. However, even then the service was not providing care for children, as Ms Al Hamid deposed at [14]: After we started operating I discovered we lost the first educators that signed up to our waiting list at the beginning.
8. Clearly, the service could not have been said to be "operating" without any educators. Ms Al Hamid stated that she accepted two people to work as educators in July 2017 but "they had no experience working with children and needed a lot of coaching." [6] However, she said in re-examination by her solicitor that she had to let those two people go because they had not provided the necessary documentation. It was not until August that the service had four new educators, two of whom started work on 3 September and the other two commenced on 11 September. They all ceased working on 5 October 2017, as a result of the cancellation notice.
9. Ms Al Hamid conceded that the service did not commence providing care for any children until early September 2017. It can be seen that this was over two years after the service approval was granted on 26 August 2015.
10. Even then, in the Tribunal's view, it was too little too late. Even in September, when the Applicant claimed the service was operating, there were four educators looking after a total of six children for a relatively short period of time. According to Ms Al Hamid's affidavit at paragraph [20]: 1. One child was being looked after by one educator for two hours on two days a week; 2. A second child was being looked after by another educator for five hours once a week; 3. Two other children were being looked after by a third educator for seven hours once a week; and 4. Two children were being looked after for two hours on two days a week.
11. On Ms Al Hamid's affidavit evidence, two educators were providing a total of 12 hours' care to three children from 3 September and then four educators were providing16 hours' care to six children each week from 11 September until 5 October. In the Tribunal's view, this appears to be more in line with an ad hoc operation, as submitted on behalf of the Respondent, than an ongoing operation, as submitted on behalf of the Applicant.
12. It was submitted on behalf of the Respondent, correctly in the Tribunal's view, that for a service to have commenced "ongoing operations" it must provide education and care to children on a regular basis, through the use of two or more educators (CVM v NSW Department of Education [2017] NSWCATAD 108 at [455]). It is not sufficient for a family day care service merely to be operating as a business (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [37]; 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [16]).
13. The limited number of hours of care over a four-week period is not sufficient to be considered as the ongoing operation of a family day care service.
14. In any event, on the most favourable view of the operation of the service, this service did not commence until more than two years after the approval was given, well outside the six months period specified in the condition under s.51(3). The Applicant did not seek an extension of time. In her affidavit of 18 January 2018, Ms Al Hamid stated: If the Tribunal were to give me an extension of time of 6 Months, I will definitely be able to show that I am able to run a business in full compliance with the service approval conditions. [7]
15. With respect, this is far too late. The Applicant should have sought an extension of time in 2016, when it became obvious that the service could not commence ongoing operation within the 6-month period.
16. It is also clear that the service was operating at a loss. Ms Al Hamid conceded in cross-examination that the service was only making about $34.00 a month, and it was submitted by Mr Attia that the service "was able to generate a revenue stream of $124 per month." [8]
17. It would seem highly unlikely, even if the Tribunal were to order that the Applicant's service approval should be reinstated, even if only for a six-month trial period, that the service could be financially viable, noting that the Applicant has not been granted approval by the Commonwealth for Child Care Benefit.
18. The evidence shows that the service, on the most favourable view of the evidence, commenced operating on a very small scale in early September 2017, over two years after the service approval was granted and more than a year and a half after the period of six months required by s.51(3). The evidence does not support the conclusion that the service had commenced ongoing operation.
19. It is the Tribunal's view, after considering all of the evidence, that the correct and preferable decision is to cancel the service approval.

Order 1. The Tribunal confirms the decision of the Secretary, Department of Education to cancel the service approval granted to the Applicant made on 21 September 2017.

Endnotes

1. Affidavit of A. Al Hamid 18.1.2018 at [8]
2. Ibid at [9]
3. Affidavit of A. Al Hamid 18.1.2018 at [10]
4. Ibid at [22]- [23]
5. Affidavit of A. Al Hamid 18.1.2018 at [10]
6. Ibid at [15]
7. Affidavit of A. Al Hamid 18.1.2018 at [26]
8. Submission 23.2.2018 at [28] 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2018