.........................[SGD]...............................................

AGED CARE - refusal of application for approval as an approved provider of aged care - whether the applicant has experience in providing aged care - whether the Applicant demonstrated understanding of its responsibilities as a provider of home care - whether the Applicant has systems in place to meet its responsibilities as a provider of home care - whether the Applicant has sound financial management - decision under review affirmed

Aged Care Act 1997 (Cth)

Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth)

Aged Care Quality and Safety Commission Act 2018 (Cth)

Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984

AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202

Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963

Aged Care Quality and Safety Commission Rules 2018

1. Assist Care Enterprises Pty Ltd (Assist Care), the applicant, on 11 November 2023 applied under section 63B of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Commission Act) to become an approved age care provider of home services
2. Assist Care was registered as a company on 24 May 2023 with one shareholder and one director Ms Suzette Leppard. Ms Leppard is the only key personnel recorded on Assist Care's application to become an approved age care provider of home services.
3. On 23 February 2024, a delegate of the Commissioner decided not to approve Assist Care as a provider of aged care services through the provision of home care services, determining they were not suitable. Assist Care sought a reconsideration of this decision.
4. On 6 June 2024, the delegate affirmed the deemed decision not to approve Assist Care to become a provider of aged care services under paragraph 74L(2) of the Commission Act.
5. On 3 July 2024, Assist Care applied to the Tribunal for review of the decision as it disagreed with the decision, stating in the application:

I am deeply passionate about addressing the pressing need for quality aged care services in our community. Witnessing firsthand the challenges faced by our elderly population has motivated me to act. By establishing an in-home service aged care aim to provide compassionate support and vital services that enhance the lives of seniors in our community. > > Through diligent research and commitment to excellence, I am dedicated to creating a nurturing environment where elderly individuals receive the highest standard of care. This venture is not only a business opportunity but a chance to make a meaningful impact on the lives of our seniors and their families. > > I am eager to collaborate with stakeholders, healthcare professionals, and community members to develop innovative solutions that meet the unique needs of our aging population. Together we can build a compassionate and sustainable aged care service that our community deserves. > > Thank you for considering my vision to start an aged care business. l look forward to continuing positively to our community and making a difference, in the lives of those who need it most.

1. Chapter 3 of the Aged Care Act 1997 (the Act) provides that a person who seeks to receive government subsidies for the provision of aged care services, must be an 'approved provider'.
2. The objects of the Act are stated in Division 2, which states in part:

(1) The objects of this Act are as follows: > > (a) to provide for funding of *aged care that takes account of: > > (i) the quality of the care; and > > (ii) the *type of care and level of care provided; and > > (iii) the need to ensure access to care that is affordable by, and > > appropriate to the needs of, people who require it; and > > (iv) appropriate outcomes for recipients of the care; and > > (v) accountability of the providers of the care for the funding and for the outcomes for recipients; > > (b) to promote a high quality of care and accommodation for the recipients of *aged care services that meets the needs of individuals; > > (c) to protect the health and well-being of the recipients of aged care services; > > (d) to ensure that aged care services are targeted towards the people with the greatest needs for those services;

3. The objects of the Commission Act are provided for in section 5, which states:

(5) The object of this Act is to establish a regulatory framework that will: > > (a) protect and enhance the safety, health, well-being and quality of life > > of aged care consumers; and > > (b) promote aged care consumers' confidence and trust in the provision > > of aged care services and Commonwealth-funded aged care > > services; and > > (c) promote engagement with aged care consumers about the quality of > > care and services provided by: > > (i) approved providers of aged care services; and > > (ii) service providers of Commonwealth-funded aged care > > services.

4. Section 63D of the Commission Act sets out the minimum requirements for approval to provide aged care. Subsection 63D provides as follows:

(2) The Commissioner must not approve the person as a provider of aged

care unless the Commissioner is satisfied that:

(a) the person is a corporation; and

(b) the person is suitable to provide aged care; and

(c) each individual who is one of the key personnel of the person is suitable to be involved in the provision of aged care.

Suitability to provide aged care

(3) In deciding whether the person is suitable to provide aged care, the

Commissioner must consider the following matters:

(a) the person's experience in providing, at any time, aged care or other relevant forms of care;

(b) the person's demonstrated understanding of the person's responsibilities as a provider of the type of aged care for which approval is sought;

(c) the systems that the person has, or proposes to have, in place to meet the person's responsibilities as a provider of the type of aged care for which approval is sought;

(d) the person's record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;

(e) if, at any time, the person has been a provider of aged care or other relevant forms of care - the person's conduct as such a provider and the person's compliance with:

(i) the person's responsibilities as a provider of that care; and

(ii) the person's obligations arising from the receipt of

any payments from the Commonwealth for providing that care;

(f) any other matters specified in the rules.

(4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f),

the Commissioner may also consider the matter in relation to any or

all of the key personnel of the person.

(5) The rules may specify the matters to which the Commissioner must have

regard in considering any of the matters set out in paragraphs (3)(a)

to (f).

(6) Subsection (3) does not limit the matters the Commissioner may

consider in deciding whether the person is suitable to provide aged

care.

1. Subsection 63D(4) establishes that decision-makers may have regard to the matters contained in subsection 63D(3) in relation to any or all of an applicant's key personnel. Additionally, subsection 63D(5) identifies that subsection 63D(3) is not intended to limit the matters to which the decision-maker may have regard in deciding whether the applicant is suitable to provide aged care.
2. Paragraph 54-1(1)(g) of the Act outlines that an approved aged care provider must comply with the provisions of the Code of Conduct that appear in Schedule 1 to the Aged Care Quality and Safety Commission Rules 2018 (the ACQSC Rules), and paragraph 54-1(1)(ga) prescribes that an approved provider is to take reasonable steps to ensure that its aged care workers and governing persons also comply with the applicable Code of Conduct provisions.
3. Paragraph 54-1(1)(e) of the Act outlines that an approved aged care provider must manage incidents and take reasonable steps to prevent incidents, including by complying with the requirements in the Quality of Care Principles 2014 (Quality of Care Principles).
4. Subsections 54-1(1)(a) and (d) of the Act outlines that an approved aged care provider is required to provide such care and services as specified in the Quality of Care Principles in respect of the relevant type of aged care, and to comply with the Quality Standards.
5. Paragraphs 56-2(f), (j), (k) and (l) of the Act also make it a responsibility of approved providers of home care to comply with various other requirements in the User Rights Principles.
6. Section 63-1A of the Act outlines that an approved aged care provider must consider the suitability of each of its key personnel in accordance with any requirements as specified in the Accountability Principles 2014 (Accountability Principles). Paragraphs 63-1(1)(g), (ha), (hb), (hc) and (m) of the Act make it a responsibility of approved providers to comply with various requirements of those Accountability Principles.
7. Part 6.3 of the Act outlines an approved provider's record keeping requirements, including by reference to further requirements in the Records Principles 2014 (Records Principles), with which it is a responsibility of approved providers to comply under paragraph 63-1(1)(a) of the Act. Under s 63D(4) of the Commission Act, these considerations may also be considered in relation to the applicant's key personnel, including the key personnel's understanding of the approved provider responsibilities under the Aged Care Act: s 63D(3)(b).
8. The 'standard of suitability' in s 63D was correctly described by Senior Member Poljakas in the matter of Amana Community Services as 'stringent', particularly as 'to the focus of the legislation, being the protection of aged care consumers and the provision of high-quality care and support'.[1]

1. The Tribunal finds Assist Care satisfies the requirements in paragraphs 63D(2)(a) of the Commission Act, as it is a corporation.
2. Accordingly, the issues the Tribunal is left to determine is whether Assist Care is suitable to provide aged care within the meaning of section 63D(2)(b) and that each individual who is one of their key personnel is 'suitable to provide aged care' under section 63D(2)(c). of the Commission Act. In determining Assist Care's suitability undersection 63D(2)(b) the Tribunal must considering the following:

(a) experience in providing, at any time, aged care or other relevant forms of care; > > (b) demonstrated understanding of the responsibilities as a provider of aged care services through the provision of home care; > > (c) the systems, or proposed systems, in place to meet the responsibilities as a provider of aged care services through the provision of home care;

(d) record of financial management and the methods used, or proposes to use, in order to ensure sound financial management;

(d) previous conduct as a provider of aged care services through the provision of home care home services; and

(e) that each individual who is one of the key personnel of Assist Care is 'suitable' to provide aged care.

1. The evidence before the Tribunal included documents pursuant to section 37 of the Administrative Review Tribunal Act 1975 (the T documents), and further documentation provided by Assist Care.

1. Ms Leppard as the director and sole employee of Assist Care advised the Tribunal:
   • It was with great disappointment that she acknowledged the decision not to approve Assist Care to provide aged care services and urged the Tribunal to reconsider the decision.
   • From the outset her mission had been driven by a deep commitment to supporting elders in her community.
   • Having grown up in northeast Tasmania she understands the challenges that remote areas face particularly the limited options of aged care services and the scarcity of experienced providers.
   • Elders in remote Tasmania deserve the same level of care as their city counterparts and deserve access to providers that meet the highest compliance and regulatory standards.
   • Through the vehicle of Assist Care, she wants the opportunity to provide the standard of care to the elders of her community they deserve.
   • Having spent seven years in the aged care industry, she understands that passion and skills must be underscored by an absolute commitment to the highest level of compliance with the aged care quality standards and aged care recipients deserve nothing less.
   • She understands the protection of elders and the need to do this right.
   • The whole purpose of her starting the approval process for Assist Care and continuing to proceed with her application to the ART was the fact she sees the way elders in her community are being treated and they deserve better.
   • She passionately believed she could provide better services into her community than they were currently experiencing.
   • Once her business was approved and was up and running, she would seek to find the best systems through consultation and investigation.
   • She had been investing her own time, money and reputation into this approval process.
   • She understood she could not set up as an approved provider alone and would continue to seek financial, clinical and governance support.
   • At the outset she would be ensuring she recruited a support team that were subject matters experts in areas with different skill sets to her, noting this required priority attention.
   • That the Tribunal needed to appreciate that the reality of aged care provision is that in many remote communities there are few providers and even fewer experienced professionals to offer the high quality of care that elders deserve.
   • In such an environment, the commitment to delivering personalised, compassionate and skilled care becomes even more vital.
   • She embarked on this journey believing that her dedication, experience, skills, and compassion would make a meaningful difference in the lives of those in her community who may otherwise feel isolated, overlooked or underserved.
   • For years since returning to live in northeast Tasmania she has explored ways she could support her community, undertaking a Diploma in Community Services through RMIT as well as taking roles with local hospitals and independent living villages to understand the challenges local elders face daily.
   • She had been motivated by the desire to offer comfort, support and dignity to the elderly, particularly those in under resourced areas.
   • This work was more than just a job to her, it was a calling to make a positive impact on the lives of individuals who have contributed so much to our society.
   • The need for experienced, compassionate care in these communities is urgent and it is a challenge that requires a willingness to support the unique circumstances of these remote areas.
   • She remained dedicated to learning and growing, with a focus on ensuring that she could meet the necessary standards to provide the best possible care to elders in her community.
   • The experience of the approval process had deepened her resolve to pursue the necessary steps to achieve the required licence and contribute meaningfully to the wellbeing of her community.
   • She urged the Tribunal to recognise the critical shortage of providers and experienced support in aged care, particularly in northeast Tasmania.
   • She wanted to make it clear that her intention in providing aged care services was not driven by a desire to build a vast financial empire.
   • Her focus was on helping people live independently for longer and improving their life.
   • That each step she takes in building her business is aimed at meeting all of the Commission's obligations and adhering to the new aged care standards and guidelines.
   • Her mission was rooted in compassion and genuine commitment to serving the elderly, particularly in remote areas.
   • She firmly believes that every elder deserves access to high quality and personalised care. That by taking small, deliberate steps to establish and grow Assist Care she would be dedicated to ensuring that it complies with all regulations and maintains the higher standards of care, and she would continually work tirelessly to build towards achieving and maintaining that goal.

experience in providing, at any time, aged care or other relevant forms of care.

1. Ms Leppard advised the Tribunal that she accepted Assist Care had no experience in providing aged care services nor other forms of client-based services. That since the company's registration in 2024 it had not engaged in any business activity.

demonstrated understanding of the responsibilities as a provider of aged care services through the provision of home care.

1. Ms Leppard accepted that in her application for approval as a provider she had not ticked all the boxes in respect of compliance and had not demonstrated understanding of the responsibilities of a provider.
2. However, Ms Leppard asserted:
   • she had undertaken numerous roles in aged care services which demonstrated she understands what care is, what care looks like, and how care is done right.
   • that she did not want to work alone and would surround herself with clinically trained staff and others with the necessary skills and qualifications to assist with all her compliance requirements but was hamstrung at present as she did not have the funds to attract staff to her business
   • she intended to start with provision of entry level services and build up from there to make sure Assist Care was doing things right.

the systems, or proposed systems, in place to meet the responsibilities as a provider of aged care services through the provision of home care.

1. Ms Leppard advised the Tribunal:
   • That she had detailed the systems she would put in place if Assist Care received approval to provide aged care home services.
   • That she had engaged the services of Assent Consultants to assist with the development of her business plan.
   • That on the whole she had utilised google search to find information about specific aged care compliance issues and had utilised free online templates to develop policies, business and financial plans.
   • She accepted there were numerous mistakes in the documentation she had submitted for her applications for approval.
   • That it was difficult to outline policies and procedures when the business was not yet up and running.
   • Assist Care intended to start small with one or two clients and build up over time; during that period, she would refine all her policies and procedures.

record of financial management and the methods used, or proposes to use, in order to ensure sound financial management.

1. Ms Leppard advised the Tribunal:
   • That she had secured a business loan of $50,000 from a major bank, had received $20,000 in financial support from family and friends, and was working three jobs to get the business up and running.
   • That she was paying down the loan to ensure that if her application for registration was not successful, she would not have a large debt hanging over her head.
   • She had submitted the business plan for Assist Care with assistance from Assent Consultants for which she had paid a considerable sum, being assured it demonstrated she had all the necessary systems in place to ensure the business would adhere to sound financial management principles.

previous conduct as a provider of aged care services through the provision of home care home services

1. Ms Leppard accepted that Assist Care did not have any experience as a provider of aged care services but submitted her extensive work experience in the aged care sector and most particularly her two current roles demonstrated she, as the key personnel in the business, had significant experience in the provision of home care services. Ms Leppard pointed to the description of the responsibilities of her current roles as a Home Care Services Coordinator for two organisations in her curriculum vitae:

• Overall management of the retirement village, including financial management, staff management, and ensuring compliance with all relevant regulations and standards > > • Planning, developing, and managing Village budgets > > • Manage key services and maintain presentation of the Village to high standards > > • Develop and maintain relationships with residents, their families, and the wider community > > • Provide exceptional customer service to residents, families, and other stakeholders > > • Oversee the recruitment, training, and management of staff, ensuring a high standard of service is delivered at all times > > • Implement policies and procedures to ensure the safety and well‐being of residents > > • Work collaboratively with the wider management team to ensure the successful operation of the village > > • Plan workforce to meet business objectives including recruitment of casual / permanent staff, compliance of all standards, and continuous home care reporting. > > • Proven ability to listen carefully to escalated issues related to staffing, stakeholder needs, client care etc, able to assess, negotiate and effectively communicate responses. > > • Manage the schedule, ensuring training, consistency in process, client needs are met and analysing data regularly for accuracy and insights. > > • Provide advice to consumers and their carers and or advocates, regarding the selection, self‐management and monitoring of services under a government funding model. > > • Meet with consumers / families and or advocates to discuss future care needs, to review and assess the needs of care for long‐ or short‐term services.

2. Ms Leppard's submitted she possessed the necessary attributes to excel in a Chief Executive Officer role and this wealth of experience had predominately come from her roles within the aged care sector. Ms Leppard submitted her leadership qualities, operational expertise, stakeholder engagement skills, customer‐centric approach, strategic acumen, and communication abilities were all evidenced in the documentation she had submitted.

1. Ms Leppard as the director and sole employee of Assist Care advised the Tribunal:
   • Currently the key personnel were only herself as the business doesn't exist in an actual working form.
   • There were currently no other employees as it was very hard to recruit people to an organisation that doesn't conduct any work and also has no funds coming in to pay those people any sort of compensation for their work.
   • She has extensive experience working in the aged care sector. Currently she has two part-time roles, one as a care manager for home services producing the care plans for clients, reviewing plans, managing the support services to the clients and all associated activities for the support workers, roasters, paying milage etc. And in another role, she is responsible for 74 homes and 96 elderly residents ensuring that they're living safely and well within their homes; in this role the finance and maintenance coordinator report to her.

1. The Respondent submitted that Assist Care should not be approved under the provision of home care under s 74L(2) of the Commission Act as it has not demonstrated that it meets the suitability requirements for approval to be a provider of aged care services, specifically home care.
2. The Respondent contended that Assist Care had submitted purely aspirational documents to the Tribunal which did not demonstrate:
   • it was suitable to provide aged care services; or
   • how it would comply with legislative requirements if approved.
3. The Respondent submitted Assist Care was a 'one person' operation, with no other staff or key personnel involved.

experience in providing, at any time, aged care or other relevant forms of care.

1. The Respondent contended that Assist Care has no experience in providing aged care services nor any other form of service or care (such as National Disability Insurance Scheme services).
2. The Respondent submitted the Tribunal could have no confidence that Assist Care's only key person had the capabilities required to manage and be responsible for an aged care service provider.
3. The Respondent accepted that Ms Leppard had relevant experience from her numerous roles in the age care services sector, had completed an Advanced Diploma in Community Sector Management, and undertaken numerous short courses offered by the Aged Care Quality and Safety Commission.
4. However, the Respondent submitted Ms Leppard had no relevant experience in financial management or corporate governance, operational oversight, quality of care, emergency preparedness, continuous improvement, or compliance with any of the obligations that apply to aged care providers. Additionally, Ms Leppard had not demonstrated in her application, through the various policies and procedures she had submitted, that she had obtained the practical knowledge or skill required to manage and be responsible for an aged care service provider.

demonstrated understanding of the responsibilities as a provider of aged care services through the provision of home care.

1. The Respondent submitted the Tribunal could have no confidence that Assist Care in its application had demonstrated an understanding of its obligations under the applicable legislative standards, taking the Tribunal to numerous examples:[2]

(i) 'Question 7.3.7' '[the] Implementation Plan had no actual plan nor any explanatory information that would detail the contents of the plan or how it would be developed and the legislation it should comply with.

We will develop a specific implementation plan for each agreement to ensure that all conditions outlined by the Commissioner are adhered to...', > > > (ii) 'Question 7.2.6' in relation to compliance with the Aged Care Quality Standards had no evidence of systems it will implement nor any explanatory information that would detail how it would be developed and the legislation it should comply with. > > Our organisation will establish a Continuous Improvement System to identify and apply up-to-date best practices for personal care...' > > > (iii) Has identified the need to provide five different policies (care assessment and planning, consumer engagement and participation, digital care management system, feedback and complaints management, quality improvement and audit) but had not provided any evidence of the intended policies or any description of the information that would indicate how it would develop and implement those policies on a procedural level. > > > > (iv) The documentation provided no assurance of who Assist Care would be hiring, in what role, for what purpose, what the intended staffing levels are, etc and it also fails to describe how Assist Care would structure its staffing in order to meet client needs and service provision. > > Looking at recruitment of one per week until all processes are streamlined and in place and staffing levels are correct to support the needs of the clients > > > (v) Had provided a number of generalised assertions about how it will comply with the Quality of Care Principles but had failed to demonstrate with evidence how that will occur. Assist Care had referred to a 'Quality assurance team' and to 'Care Managers' but had not provided any evidence of who those persons are intended to be and what qualifications and skills they will have. > > > > (vi) Had not demonstrated how Assist Care will comply with or that it understands the severe legislated requirements relating to restrictive practices in aged care and how they apply to home care. > > The Clinical Care Manager will be responsible for authorising and reviewing any use of restrictive practices, ensuring that it complies with legal standards.

2. The Respondent submitted in respect of the various examples it had flagged:
   • the Tribunal should be particularly concerned that on the materials presently available, Assist Care would fail any audit were it to become an approved provider.
   • as Assist Care, has only one key personnel it would present a grave risk to care recipients if they were approved to provide aged care in light of these deficiencies.
   • Ms Leppard as the only key personnel of Assist Care requires substantially more knowledge and experience in the aged care sector to be considered suitably qualified.
   • the grave risks of approving Assist Care, is amplified by it having no clinical care experience or any other key personnel with clinical care experience.
3. The Respondent submitted Assist Care's application was riddled with curious errors in reference to its legislative obligations, taking the Tribunal to numerous examples:[3]

1. Safety and Risk Management: Address client safety, medication management, infection control, and emergency procedures (aligned with Standard 5 and Standard 7).

Neither standard 5 or 7 deals with safety and risk management (for example, Standard 7 deals with human resources).

1. Workplace Practices: Ensure caregivers are adequately trained, supervised, and supported (aligned with Standard 3)

Standard 3 is about personal care and clinical care not workplace practices such as those listed.

Section 11: Ensures that care recipients receive high-quality care and services that meet their individual needs and rights, supported by comprehensive documentation and record keeping.

Unclear what section 11 refers as section 11 of the Aged Care Act, and the Commission Act does not deal with this matter

Section 7: Requires aged care providers to operate effectively and efficiently, ensuring resources are managed prudently and ethically, supported by accurate financial and operational records.

Unclear what section 7 refers as section 7 of the Aged Care Act, and the Commission Act does not deal with this matter

Subsection 56-2(j) of the Aged Care Act 1997 requires aged care service providers to protect care recipients from abuse, neglect, and exploitation.

Section 56-2(j) relates to paid advocacy grant

**_The document 'Policy and Procedure Provision of information' provided with the

application for review refers to 'subsection 56(h) of the Aged Care Act

There is no s 56(h) in either the Aged Care Act 1997 or the Commission Act.

1. 'Certainly! Subsection 56-2(d) of the Aged Care Act 1997 outlines responsibilities related to the management and safeguarding of personal information of care recipients. Here's a step-by-step outline of how Assist Care Enterprises will understand, implement, and ensure compliance with these responsibilities on a day-to-day basis, along with descriptions of policies and procedures...'

Section 56-2(d) is about fees charged for aged care services, not the handling of

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. The Respondent contended Assist Care's business plan demonstrated it was not suitable to be a provider of aged care services. The Respondent submitted as a registered corporation Assist Care was required to already have a business plan in place including its corporation arrangements. The Respondent submitted Assist Care's business plan included nonsensical statements, statements which were irrelevant to the provision of aged care services, numerous errors, and demonstrated a lack of understanding of the legislative requirements of an aged care service provider.

the systems, or proposed systems, in place to meet the responsibilities as a provider of aged care services through the provision of home care.

1. The Respondent contended that Assist Care would not be able to maintain compliance with legislative requirements as an aged care provider of home care services.
2. The Respondent submitted Assist Care:
   • would on registration be required to offer home care at 4 levels, ranging from Level 1 (basic care) to Level 4 (high-level care);
   • had not provided a proposed care plan;
   • had not retained or demonstrated how it would retain the required professional staff (a registered nurse) to provide care;
   • had made no effort to develop a home care template;
   • had taken no regard to the Home Care Packages Program Manual, a readily available operational manual for home care providers of aged services;

record of financial management and the methods used, or proposes to use, in order to ensure sound financial management.

1. The Respondent submitted Assist Care:
   • as a newly formed business had no existing financial statements or records to present to the Tribunal;
   • had not demonstrated sufficient evidence of proposed systems it intended to adopt to ensure sound financial management;
   • had no staff within it, or available to it, with appropriate skills or qualifications in financial management;
   • had provided inadequate evidence of it being able to finance the costs of establishing itself as a home care provider of aged care services such as leasing of premises, hiring of additional key personnel and staff, including salaries, and leasing and purchasing of equipment;
   • had failed to demonstrate that it had sufficient capital to establish itself as a for-profit provider of aged care services;
   • had provided a speculative financial plan, predicting a high estimation of profit within two years of operation but with no accompanying calculations or evidence supporting the assumptions;
   • had failed to raise adequate funds to cover its projected expenses for the first financial year of operation, projected to be $85,834;
   • had failed to account for the fact it would be required to operate for its first month without any Commonwealth subsidies;
   • had advised it would be receiving support from 145 Financial with financial processes but had not described the services 145 Financial will provide, evidence of their working relationship, nor any evidence that 145 Financial had any aged care specific knowledge.

previous conduct as a provider of aged care services through the provision of home care home services

1. The Respondent contended that Assist Care had no experience in providing aged care services nor any other form of service or care (such as National Disability Insurance Scheme services).

1. The Respondent submitted the Tribunal could have no confidence that Assist Care's only key person had the capabilities required to manage and be responsible for the provision of aged care home services.

1. The Tribunal for brevity of the decision did not seek to include in its reasons large extracts from the material Assist Care had summited in support of its application to become an approved provider. The Tribunal having read all the material relied upon in arriving in its determination.
2. The Tribunal found Ms Leppard to be a genuine, compassionate and caring individual who is rightly aggrieved at the huge disparity of services available to aged care clients in capital cities and those in remote communities. The Tribunal found Ms Leppard's passion for her community and her desire to give back commendable. However, Ms Leppard's passion, the genuine need for the service in her community and the lack of equity in service provision is not the measure on which approval to become an aged care provider is measured.
3. The Tribunal concurs with Deputy President J Sosso's comments in AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner (AussieCare):

The regulatory framework governing the approval and supervision of persons and entities providing aged care is complex. Clearly, the fundamental policy underpinning this regulatory framework is to ensure that only persons who are suitable to provide such care should be approved.[4]

4. The Tribunal found on the evidence Assist Care did not have an understanding of the complex requirements of the legislation to ensure it was capable of providing care to vulnerable people in their homes, maintaining client dignity, care needs and privacy. Nor had it demonstrated it understood its fiduciary duties and governance obligations to manage aged care client's government subsidies.
5. The Tribunal again noted the decision in AussieCare which found the evidence demonstrated the applicant had the requested requirements to meet the high bar for approval:[5]

It is the case that legislative and regulatory requirements for the provision of aged care are complex and complicated. The associated Principles which form part of the regulatory framework are comprehensive and detailed. Further, this is an evolving area of the law, with frequent, and sometimes opaque changes to the regulatory framework - see Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2021] AATA 24 at [71]. > > Clearly, the overarching regulatory framework in this area is designed to ensure that vulnerable consumers are given the care they require and are not subject to inappropriate and negligent care. The regulatory burden is set at a high level to ensure that those vulnerable consumers at most risk are not placed in the care of an applicant whose staff are not appropriately trained and who are not aware of their legal responsibilities as providers of aged care. > > The Commissioner is correct in pointing out errors and omissions in the documentation outlined above. If the following factors were not present, it would be open for the Tribunal to reach the same conclusion as the Commissioner. Whilst care must be taken not to "cherry pick" relatively harmless omissions or errors in the documentation and then default to a finding that the person therefore lacks demonstrated understanding of their responsibilities, nonetheless where multiple errors and omissions are identified, this could result in a negative finding to the question posed by s 63D(3)(b).

6. The Tribunal has not been able to glean from the evidence before it that Assist Care or Ms Leppard, currently, demonstrate an understanding of their responsibilities, to reach the high bar for registration. The multiple errors and omissions identified in the written material submitted by Ms Leppard, in conjunction with her evidence, demonstrated she had limited knowledge of the requirements to be an approved provider of aged care services. This must then result in a negative finding by the Tribunal to the question posed by s 63D(3)(b) of the Commission Act.
7. The Tribunal appreciates Assist Care is a new business that is currently not operating and understood Ms Leppard's dilemma in not being able to attract appropriately qualified staff while she was not generating any revenue. Additionally, the Tribunal appreciates that Ms Leppard was hesitant to invest in accounting, workforce planning, scheduling and other necessary systems required to operate an aged care service providing home care.
8. Ms Leppard as Assist Care's CEO certainly understands the needs of aged care recipients in her community and that they are not receiving what they should from the current system. But the Tribunal found there was a chasm between Ms Leppard's desire to provide quality care to her community and her understanding of the complex regulatory framework needed to run an aged care service.
9. The Tribunal could appreciate Assist Care was in a somewhat of a chicken and egg situation. However, the legislation requires providers to be ready to commence operation once approval is granted. Assist Care needed to demonstrate it had the knowledge, processes and staff in place or how it intended to achieve this in its application, and it simply had not.
10. Similarly, the Tribunal found Ms Leppard did not demonstrate a sound understanding of the requirements and responsibilities necessary to be an aged care service provider. The Tribunal arrived at the same conclusion as the Commissioner that Ms Leppard's responses were basic at best, were not sufficiently detailed with only brief outlines of policies or protocols which needed to be developed, lacked examples of what actions must be taken to be compliant, and at times demonstrated a complete lack of understanding of the requirements to run an aged care service.
11. The Tribunal appreciated Ms Leppard candour that several of her responses on her application for approval were incorrect, that she had not proofed the material sufficiently before she submitted and had incorrectly understood several of the questions asked. However, the Tribunal was concerned that Ms Leppard appeared to have little understanding of the material she had submitted in her application for approval. Ms Leppard's evidence failed to give the Tribunal any confidence she was sufficiently across the objects of the Aged Care Act and the Commission Act. And whilst the Tribunal did not doubt Ms Leppard intention was to provide a service which protected the safety, health and wellbeing of aged care consumers her evidence did not demonstrate she had sufficient knowledge, systems, polices or procedures in place to achieve this aim.
12. The issue for the Tribunal is to determine the suitability of Assist Care and Ms Leopard as its key personnel of Assist Care against the strict criteria in 63D(2)(d). The Tribunal found:

1. As conceded, Assist Care has no experience providing aged care pursuant to section 63D(3)(a) of the Commission Act. However, the Tribunal accepts that Ms Leppard as the only key personnel has relevant experience working in aged care, but this did not extend to being responsible for running an aged care service providing home care.
2. The Tribunal found Assist Care did not have the experience or capabilities to be approved as an aged care service provider.

1. The Tribunal accepted that Assist Care had provided some evidence that is consistent with having some understanding of some responsibilities an approved provider of aged care home services has under the Aged Care Act and the Commission Act. However, Assist Care had not demonstrated that it understands the extent of the responsibilities contained in the legislation or the Code of Conduct, Aged Care Quality Standards, User Rights Principles, the Accountability Principles or the Records Principles.
2. By way of example the Commissioner identified the following in respect of personal care and clinical care:

The original decision was concerned you did not provide adequate detail about the framework, policies and procedures you intend to develop including who will be responsible for what, how it will be done and the timeframes and who would develop the policies given the only key personnel has no clinical care qualifications and experience. Our review of the original application and the revised application found that you did not provide any new information. In addition, you did not address the original decision findings including that your only member of key personnel has a background in human resources management and not clinical care or personal care. You failed to provide any details about the development of your proposed policies and procedures including by who and their qualifications, skills and experience in clinical care or to give an undertaking that you would not commence operations until the policies have been developed. Therefore, I consider that these concerns have not been satisfactorily resolved. > > In addition, I have identified the following deficiencies: > > g) You did not adequately discuss what systems will be in place to identify and apply up to date guidance on best practice for delivering personal care. Your responses are primarily focussed on clinical care and have not adequately discussed how you will identify and apply best practice for delivering personal care. > > h) You did not discuss how you will ensure that you have sufficient staff numbers with the right mix of staff, with the rights skills, to meet care recipients' personal care and clinical care needs. > > i) You did not adequately discuss what communication systems will be in place to ensure that relevant care recipient information is readily available to anyone who needs to provide personal care and clinical care to the care recipient without already knowing them, such as paramedics, locum GPs or third-party providers such as agency staff. In addition, you did not discuss your handover practises, especially in circumstances where ca re of the care recipient is shared between two or more service providers. > > j) You did not adequately explain how you would develop the competency and knowledge of your staff to provide personal care and clinical care that is tailored to the needs of care recipients and is best practice. > > k) You did not provide details on the relevant training and education and competency level and the system that will be in place to identify and respond to deterioration in physiological or mental state that has been provided to staff and how your organisation ensures that staff identify and act appropriately on warning signs of clinical deterioration. In addition, you did not discuss how you would support care recipients and/or their representatives to recognise changes or deterioration in their condition of function, including how important it can be to reach out promptly and seek assistance, so that the circumstances can be assessed, and appropriate action taken, if required. > > I) You did not provide details of your organisation's infectious outbreak plan or the systems you will have in place for managing care recipients with known infections. > > m) You did not discuss how your organisation will monitor and review the effectiveness of your personal care and clinical care practices and ensure compliance with Quality Standard 3. > > n) You did not adequately explain how your organisation monitors that the personal care and clinical care delivered to care recipients is consistent with their needs, goals and preferences. > > o) You did not discuss what processes are in place to ensure that the personal care and clinical care provided by your workforce is consistent with the Charter of Aged Care Rights. > > p) You did not explain the processes that would be in place for your staff to work with other service providers such as palliative care specialists to improve a care recipient's end of life care. > > q) You did not link this requirement with your clinical governance obligations including your clinical governance framework. > > r) Overall, our assessment found that your response is too general and lacks specific details regarding the relevancy to the delivery of clinical care and personal care in the home care setting. You did not adequately discuss staff roles and responsibilities and you do not have a suitably qualified and experienced staff member who will be responsible for the clinical care and personal care your organisation provides to care recipients. I am most concerned that you failed to provide specific examples that demonstrate how you intend to deliver safe and effective personal and/or clinical care in accordance with the care recipient's needs, goals and preferences. Whilst you made general intentional statements regarding comprehensive initial assessments, person-centred care plans, specialised training for staff and regular health monitoring etc, I am not persuaded that you provided enough detail to outline how these requirements would be implemented, monitored and reviewed by your organisation. Given the absence of key personnel with clinical skills, qualifications and experience or policy development skills and experience this is a serious deficiency in your approach to comply with Quality Standard 3. Finally, you did not address the original decision findings, so I consider that these deficiencies remain unresolved. > > s) Conclusion > > Based on the reasons above, I am not satisfied you fully understand this requirement and have, or will have, systems, policies and procedures in place to help you comply.

3. There was no evidence before the Tribunal which demonstrated Assist Care or Ms Leppard, as their only key personnel, had developed greater insight or understanding into its responsibility to be approved as an aged care provider to deliver safe and effective personal and/or clinical care in accordance with the care recipient's needs, goals and preferences since the delegate's deemed decision.
4. The Tribunal was not satisfied on all the evidence that Assist Care had a sound knowledge of the responsibilities of an approved provider to meet the requirements under the Aged Care Act and the Commission Act.

1. The Tribunal notes the finding of Senior Member Kelly in Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963 [108]:

...the various responsibilities of an approved provider of aged care form an integrated matrix, such that if a provider fails to comply with one of the criteria to meet one of its responsibilities, it is taken to have failed to comply with its responsibilities under the Act. Similarly, if the Applicant fails to demonstrate that it has sufficient systems in place to meet the responsibilities of an approved provider of home care, that is a sufficient basis for the decision-maker to find that the Applicant does not have systems in place to meet those responsibilities, and accordingly is not suitable to provide home care.

1. The Tribunal accepted that Assist Care had proposed some systems it would put in place to meet the responsibilities as a provider of aged care services through the provision of home care. However, Assist Care had consistently provided aspirational statements of what it intended to do without documentary evidence of how it would achieve these outcomes nor any evidence of capability within the business to achieve these goals or actual polices/procedures or systems it would adopt to ensure compliance.
2. By way of example Assist Care submitted an additional business plan in which it identified

Step 4: Create a Service Delivery and Staffing Plan > > 4.1 Recruitment and Training > > - Action: Post job openings on local job boards, websites like Indeed, or healthcare-specific job boards like Care.com. > > - Create a detailed job description outlining required qualifications, responsibilities, and expected hours. > > - Action: Conduct interviews to assess candidates' experience and their ability to relate to elderly clients. > > - Action: Check references and perform background checks (criminal history, previous employment) for all employees. > > 4.2 Develop Policies and Procedures > > - Action: Write a caregiver manual that includes: > > - Code of conduct. > > - Client privacy and confidentiality procedures (HIPAA or local equivalents). > > - Protocols for emergencies (e.g., calling 911, administering CPR). > > - Handling client complaints or concerns. > > - Action: Develop a client intake form to gather key information such as medical history, emergency contacts, and specific care needs.

3. Ms Leppard's evidence to the Tribunal was this was a template she had sourced online, had submitted without checking thoroughly and accepted there were numerous inaccuracies and deficiencies in the documentation. The Tribunal found Assist Care had failed consistently to address the failures in its understanding of its requirements to be an approved aged care provider and had consistently failed to demonstrate it had the systems or capacity to develop the systems to deliver safe and effective personal and/or clinical care to aged care recipients.
4. The Tribunal found Assist Care has consistently failed to include adequate information about the systems it proposes to have in place to meet the responsibilities of an approved provider of aged care.

1. The Tribunal based on all the evidence before it concurred with the Commissions finding that Ms Leppard:
   • had no financial management skills or experience suitable for all the financial management responsibilities of an approved provider of aged care;
   • had developed a financial plan from a template document which did not adequately address the actual requirements of managing client's funds as an approved provider of aged care;
   • had not developed a realistic start-up budget, did not have sufficient access to capital to start or adequately cover operating costs, nor a realistic projected profit forecast;
   • had not outlined any adequate or proposed financial management systems, policies and procedures to comply with the requirements of an approved provider of home care.
2. The Tribunal found Assist Care had not demonstrated it had a reasonable record of financial management, nor adequate systems and methods to ensure sound financial management in place to meet the responsibilities of being an approved provider of aged care services.

1. The Tribunal found there were no adverse findings relating to the conduct of Assist Care which relates to aged care or other relevant forms of care. As Assist Care nor Ms Leppard had been engaged in the provision of aged care home services there was no material before the Tribunal which assisted in determining the suitability of Assist Care to provide aged care home services.

1. The Tribunal found there were no adverse findings relating to the conduct of Ms Leppard, as the only key personnel of Assist Care, which relates to aged care or other relevant forms of care. The Tribunal found on the evidence the single largest deficiency in Assist Care's application was its lack of key personnel, most particularly any personnel with clinical care experience.
2. In conclusion, the Tribunal is not satisfied that the Assist Care is suitable to provide aged care.

1. The Tribunal, having determined that Assist Care, is not suitable to provide aged care in accordance with 63D(2)(b) of the Commission Act, affirms the decision under review.

I certify that the preceding 74(seventy-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.................[sgd].....................................

[1] Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984 [10].

[3] Respondent's Reply to the Applicant's materials lodged 5 December 2024; RSFIC [30]-[35].

[4] AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202, [167].