1. Because I am obliged to have regard to the matters listed in subsection (3) I have each of the matters listed in order to assess whether the applicant is suitable to provide aged care. It was however unlisted considerations that were ultimately determinative in this case. I am not satisfied that the applicant is suitable to provide aged care services because I am [5]not satisfied that the individuals currently involved will continue to be involved when the company ultimately starts delivering aged care services.
2. When the original application was made by the company for approval, the key personnel were as follows:

Mr Ambrat Panjwani, CEO and Director of Nursing

Mr Vinesh Kumar Valecha, CFO

Mr Arish Tareen, General Manager Operations

1. When Mr Valecha was found to have limited engagement with the company during the course of the earlier AAT proceedings, the key personnel were re-organised as follows:

Azam Mohammed, CEO;

Ambrat Panjwani, Director of Nursing; and

Showkat Chowdhury, Manager Finance and Operations

1. The evidence presented in these proceedings has given me cause to doubt the medium- and long-term commitment of Mr Chowdhury and to the delivery of aged care through the applicant, and have raised doubts about the reliability of Mr Panjwani as a key person responsible for providing accurate information to the regulator. As a consequence, I am not satisfied that the company is a suitable person to provide aged care. My full reasons for reaching this conclusion are set out below.

1. The documentary evidence on which my analysis is based is as follows:
   • Exhibit A1: Statutory Declaration of Mr Azam Mohammad dated 16 July 2024
   • T-Documents, T1-T38, pages 1 to 898 of the Tender Bundle
   • Supplementary T-Documents, ST1 to ST2, pages 899 to 904 of the Tender Bundle
   • Respondent's Further Bundle, pages 934 to 1287 of the Tender Bundle
   • Volume IV, pages 2643-2747 of the Tender Bundle
   • Volume VI, pages 3687-3935 of the Tender Bundle
   • Applicant's excel spreadsheet entitled 'DBAC Internal check by self assessment July 24'
2. Mr Mohammad, Mr Panjwani and Mr Chowdhury gave evidence at the hearing for the applicant and were cross-examined by the respondent.

1. Double Bay is a private company. It was first registered on 30 March 2019. Mr Ambrat Panjwani was appointed Director and Secretary on incorporation. Mr Mohammed Azam was appointed a director on 25 June 2024. It has two shareholders, Mr Mohammed and Mr Panjwani.
2. It applied for approval to provide aged care under the ACQ Act on 8 February 2021. It was seeking to provide in-home care rather than residential aged care.
3. At the time it applied for approval it was proposed that the company's managing committee would consist of Mr Panjwani, Mr Vinesh Kumar Valecha and Mr Arish Tareen. Mr Panjwani was to be Chief Executive Officer ('CEO') and Director of Nursing. Mr Valecha was to be Chief Financial Officer ('CFO') and Mr Tareen was to be the General Manager Operations.
4. Following adverse comments about the suitability of Mr Panjwani and Mr Tareen to fulfil the roles they were assigned within the company in the AAT's 2023 decision, the management of the company was re-organised. Mr Mohammed, who to that point had only been involved as a consultant, became a director and is now proposed to be CEO of the new company. Mr Valecha and Mr Tareen ceased any involvement with the company Mr Showkat Chowdury was put forward as Manager Finance and Operations. Mr Panjwani was no longer slated to be CEO but remained as the proposed Director of Nursing.
5. The applicant's procedures were revised, and the company's available capital was increased. It is against this structural background that the applicant's application for approval must be assessed. To this point, the applicant itself has never provided any aged care services to any person. Its suitability to provide aged care services depends upon the qualifications and commitment of the persons currently involved in its management.
6. I make further factual findings in the context of discussing each of the relevant considerations.

1. In determining whether a person is suitable to provide aged care services I must consider each of the specific matters identified in section 63D(3)(a). My assessment of the applicant against each criterion is as follows.

Experience in providing aged care or other relevant forms of care (s 63D(3)(a))

1. The applicant is a company set up for the sole purpose of providing Commonwealth-funded in-home care. It lacks any experience in providing care of any kind. Consequently, it is necessary to consider the question of the company's experience in providing aged care by reference to the key personnel within the company. The definition of key personnel in section 8B of the ACQ Act includes members of an entity's governing body and any person who is likely to be responsible for the nursing services to be provided by the service.
2. As noted above, the key personnel have changed since the application was first submitted.

1. Mr Mohammed has been involved with companies that have been successful in gaining approval in the past, as well as companies that have not been successful.
2. He describes his experience in the following terms. He holds a Master of International Relations and a Bachelor of Commerce. He worked for the Pakistani government for most of his career, including as Pakistan's Consul General in Sydney. Since retirement, he has managed a private trading and consultancy company with specialisation in the National Disability Insurance Scheme ('NDIS') and aged care. He considers that his experience and acquired skills in governance, management, risk and financial management in both the public and private sector are directly transferable to managing a company that provides aged care services.[6]
3. Since 2018, he has set up two aged care companies - Inspired Aged Care Services Pty Ltd ('Inspired') and Sazem Disability and Aged Care Services Sydney Pty Ltd ('Sazem'). These were approved to provide services when the Department of Health was responsible for approving applicants. He was CEO and CFO in Sazem and CFO in Inspired. After a little over a year of running these providers, he resigned as a member of the Board and as CEO and CFO as he could not attract more than one consumer during his time in charge of the companies. The companies now have quite large customer bases - 150 in the case of Inspired Aged Care and 30 in the case of Sazem. He is now the compliance manager in both companies. Both companies continue to be compliant. He has undertaken numerous courses in aged care related activities.[7]
4. The respondent contends that Mr Mohammed's time as a CEO of two companies that only attracted a single consumer does not support his claims to being suitable to run a company providing aged care. The respondent is also concerned that Mr Mohammed's other commitments, including his roles at Sazem and Inspired and providing consultancy services to third parties will reduce his capacity to perform the role of CEO of the applicant.[8]

1. Mr Panjwani is a registered nurse. He holds a Bachelor of Nursing with valid AHPRA registration. He has also done a Master of Public Health and has hands-on experience in public health safety protocols.
2. The respondent concedes that he has extensive experience as a registered nurse, but it urges me to approach the descriptions of his experience with caution. They note that he had a casual role with Community Home Care Services Pty Ltd, and not the more complex role claimed.[9]
3. The experience he described also appeared to be more general nursing, rather than the specific aged care experience he claimed initially. On this basis, the respondent contended that I should not be satisfied Mr Panjwani was sufficiently experienced in providing aged care or other forms of care.

1. Mr Chowdhury holds a Master of Accounting and Master of Political Science. He has direct experience working in an approved aged care service provider as manager of finance and operations for more than four years.[10] It was clear from his evidence that he was an experienced accountant with highly relevant experience in the aged care sector.
2. The respondent is however concerned about his current work arrangements and that he may not be available to spend much time in the applicant's business when it gets up and running. He is currently working four days per week at Inspired and working in a tax consultancy. He has no plans to abandon those roles. It is difficult to have confidence in the focus of someone who is already so committed to other roles.

1. The respondent also pointed to the fact that there are other roles in the company that are critical to its proper operation but have not yet been filled, or an appropriate candidate identified. In the applicant's documentation the occupational therapist (OT) is referenced throughout. The OT is in charge of all personal care, yet no-one is nominated for this role.[11]

1. The applicant itself has no experience in providing aged care or any form of care. It is of significant concern that the company does not have personnel who are clearly committed to working exclusively for the company to provide aged care services in all of its key roles. The company appears to be the brainchild of Mr Mohammed developed in cooperation with Mr Panjwani. The company structure and key personnel are changed whenever it is considered prudent to do so to increase the prospects of the company being approved. It cannot be denied that within the current trio that has been identified for the purposes of pursuing approval there is relevant experience, but it is difficult to know how much weight to put on that experience given how easy it would be for the governing body of the applicant to change after approval is secured. It is difficult to rate the applicant highly against this criterion in such circumstances.

Demonstrated understanding of the person's responsibilities as a provider of in-home care (subsection (3)(b)) and systems in place to meet the responsibilities as a provider of in-home care (subsection (3)(c))

1. The responsibilities of a home care provider are specified in the Aged Care Act 1997 (AC Act). It consists of 7 Chapters and Chapter 4 specifies the responsibilities of an approved service provider. Chapter 4 makes provision for the Aged Care Quality Standards,[12] User Rights Principles 2014 ('User Rights Principles'),[13] and Accountability Principles 2014 ('Accountability Principles').[14]
2. The applicant has made significant efforts to establish that it understands the responsibilities of a provider of in-home aged care and that it has the systems in place to meet its responsibilities as a provider of that type of care. It has done this by:
   • concisely describing the statutory context;
   • tabulating each responsibility and specifying how the systems and processes in place meet those responsibilities;
   • referring to the governance system broadly, and specifically to the policies and procedures that will support the company in delivering safe and quality care and support services to the company's consumers,;
   • demonstrating its understanding of its process in the application form and supporting documents;
   • producing a 'policy and procedures' manual and templates of the care agreement;
   • producing budgets;
   • producing system forms and system registers; and
   • otherwise demonstrating an understanding of its responsibilities by responding to concerns in a way that is responsive and fills any gaps identified in the process.[15]
3. The most important way in which the applicant has sought to demonstrate its understanding of its obligations and that it has put in place the systems to meet those obligations is by the creation of the 'Double Bay Aged Care Policy and Procedures Manual' ('Procedures Manual').[16]
4. The respondent, having reviewed the Procedures Manual, submits that despite its length, it does not demonstrate that the applicant understands its responsibilities as a provider of home care.
5. It submits that version six of the Procedures Manual refers to superseded versions of almost all relevant Acts and legislative instruments and this is a sign of lack of understanding on the part of the applicant.
6. In considering this submission it is relevant that the document was submitted to the Tribunal in September 2022. In the month prior, Parliament passed the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 ('RC Response Act'), making changes to both the AC Act and the ACQ Act. Some of those changes commenced on the RC Response Act receiving royal assent (6 August 2022), others commenced on 1 October 2022 and 1 December 2022.
7. The respondent submits that the failure of the applicant to keep the Procedures Manual up to date alone gives rise to considerable doubt regarding the applicant's ability to satisfy the Tribunal that it possesses a current working knowledge of the requirements applicable to the provision of home care. The respondent submitted that the applicant's policies and procedures (in their current form) do not deal or do not deal adequately with important requirements introduced by the RC Response Act. In particular:
   • the Code of Conduct responsibilities in ss 54-1(1)(g) and (ga) of the AC Act;
   • the extension to home care of the serious incident response scheme related responsibilities in s 54-1(1)(e) of the AC Act;
   • the inclusion of care management as a support service that must be provided under s 1A of Part 1 of Schedule 3 to the Quality of Care Principles 2014 ('Quality of Care Principles'), as well as the cap on prices for care management and package management and the requirement that such costs be kept to reasonable amounts in Division 3B of the User Rights Principles; and
   • the new governance responsibilities for approved providers found in s 9-2A (obligation to notify of certain events relating to key personnel), division 10A (which relates to suitability of key personnel) and ss 63-1A, 63-1C, 63-1E and 63-1G of the AC Act (which cover ongoing responsibilities of a provider in particular circumstances).
8. In response, the applicant says that because version 6 of the Procedures Manual was developed in August 2022 and submitted to the Tribunal in September 2022, it does not refer to any amendments made after August 2022. It did however have a requirement for it to be reviewed in April 2024. The applicant contends that it has already done it and has version 7 in place. It has not provided version 7 because it considers version 6 relevant for the Tribunal proceedings.
9. This seems a reasonable approach. I do not regard the fact that version 6 did not refer to the recent amendments as a basis for concluding that the applicant does not understand its responsibilities as a provider of home care.
10. The respondent also submitted that there is a disconnect between the understanding of a provider's responsibilities outlined in the application, and the Procedures Manual the applicant has produced to give effect to them in practical terms. The respondent contends that the Procedures Manual is revealing because it was developed for the purpose of guiding staff practice. If the Procedures Manual is not comprehensive and up to date, the applicant cannot hope to enable its staff members to undertake their roles in a way that is compliant. The respondent then identified concerns arising from the contents of the Procedures Manual.
11. The first concern identified was that s 54-1(b) of the AC Act requires an approved provider to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met. No new information has been put before the Tribunal in relation to any plans the applicant has to employ persons other than the key personnel or to subcontract the delivery of care services to third parties. The material before the Tribunal suggests that that the applicant will enter into agreements with third parties to deliver care and services to consumers. The applicant states that it is 'aware of its responsibilities for the safety and quality of such care and services'.[17] However, it is unclear how the applicant will ensure that third parties will deliver compliant care and services in circumstances where the applicant's template service delivery agreement purports to outsource compliance with relevant regulatory requirements to those third-party contractors. The respondent refers to the template service delivery agreement.[18]
12. The applicant does not address this concern.
13. If the business model is to have Double Bay operate as a middleman between subcontractors and the regulator,[19] then Double Bay needs to do more than simply pass on in very general terms the obligations that are imposed on it directly as an approved aged care provider. The lack of detail in the subcontract suggests that the systems proposed are not well designed to meet the responsibilities of a provider of aged care.
14. The second concern identified is that the policy on staffing has been lifted from the same policy that was criticised by the AAT in the decision Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2901, where the AAT said at [27]:

The Policy Statement makes little sense and includes broad nonsensical statements, for example: > > It will have a fair initial capture strategy at recruitment level and a staff retention and development strategy based on incentives linked to performance and their continued development. Caring Home Care HR policy based on a planned, structured and transparent procedures to attract and retain competent workforce...Leadership qualities would [be] developed in them at all tiers and workface would be engaged with and involved in decision making to give them ownership of decisions and processes decided.

15. The applicant defended itself on the basis that Mr Mohammed was the consultant for Caring Home Care Pty Ltd ('Caring Home Care'), and there is nothing wrong with using the same documentation. In any event, the offending section has been modified and replaced with statements such as the following:

The core function of the company is carried out by the front line care and support workers. Thus. A proper planning for their recruitment, development, support, monitoring and mentoring is critical for them to deliver care and services by meeting the requirements of the Quality Standards. A care and support worker must be excellent in another care setting, but they will have to be specially trained and made familiar with home care settings and to be well aware of the requirements of Quality Standards as each standard has a bearing on requirements for Standard 7. > > ... > > It is Double Bay Aged Care commitment to recruit only screened Care and Support workers meeting all desired traits and to induct them for delivering compassionate and professional care based on best practices. It will have a fair initial capture strategy at recruitment level and a staff retention and development strategy based on incentives linked to performance and their continued development...Leadership qualities would [be] developed in them at all tiers and Care and Support workers would be engaged with and involved in decision making to give them ownership of decisions and processes decided. [20]

16. While some of the wording has been modified, the key criticism levelled by the AAT at the policy remains - that detail is lacking, it is convoluted and it is difficult to understand how it will work in practice.
17. In reading the Policy Manual, it is impossible to get a sense of how the company will operate and move from its current structure, with three key personnel with varied levels of engagement, to a company that provides services to a small initial customer base and is able to grow and develop by bringing on staff. Despite the volume of words used, very little meaningful content is conveyed.
18. The third concern raised is that the applicant does not have sufficient systems or procedures in place to allow staff to assess or identify consumers that lack relevant incapacity in relation to decision-making and identify a suitable representative. The applicant notes that it does in fact have policies on this issue which includes a section entitled 'Special Communication Strategy'. These sections of their procedures specifically create systems for dealing with consumers with impaired capacity.
19. The fourth concern relates to how risk is dealt with in the applicant's Procedures Manual. The respondent's concern is that the applicant appears to be contemplating facilitating high risk activities on the part of clients that requires a full indemnity from the provider. The respondent reads this as the applicant proposing to provide the 'kinds of care to a consumer in their own home that entail risks requiring indemnity, including death, then the applicant is not fit to be an aged care provider'.[21]
20. The applicant in its Procedures Manual uses skiing as an example of a risky activity that might be facilitated, but only if safety measures are taken including 'wearing knee pads, arm pads and helmets'.[22]
21. This issue highlights the difficulties in assessing suitability in circumstances where there is no care being delivered and no clients. It is difficult to imagine what kinds of scenarios might emerge and decide what is an appropriate response. The applicant sees its role as facilitating out of home activities akin to community participation activities in the NDIS. The respondent, on the other hand, has a conception of care providers attending to clients in their own home making sure that they are safe and comfortable. While I accept that the respondent's approach is more realistic, its reaction to the 'dignity of risk' provisions of the Procedures Manual is an overreaction to what was intended. In the unlikely event that an elderly customer wishes to engage in a risky activity, it does seem reasonable that the provider who facilitates that activity has a method for reducing its legal risk.
22. The fifth concern raised by the respondent is that the applicant's Procedures Manual 'sets out a convoluted criteria that would not enable staff to effectively ascertain who is permitted to perform an initial consumer assessment in particular situations'.[23] While that may have been true in earlier versions, version 6 of the manual is clear on these issues.[24] There is also criticism that the procedures do not provide for review. The current version does.[25]
23. The sixth concern raised by the respondent is that the Procedures Manual does not contain any procedure for managing sensitive aspects of care and does not direct staff as to how consent should be obtained from consumers prior to the performance of bathing and grooming and other similar tasks nor is 'any guidance provided in relation to the management of incontinence'.[26] This criticism again is misplaced. In version 6 of the Procedures Manual, there are detailed policies in relation to complex bowel care, wound and pressure injury management and catheterisation management.
24. The seventh concern raised by the respondent is that Quality Standard 4 requires a provider to provide equipment in the delivery of services that is 'safe, suitable, clean and well maintained'. The respondent contends that the policy on this issue 'does not equip staff to identify risks associated with the use of equipment, and the adoption of incident response and risk mitigation measures as required'.[27] Given the wide range of equipment that could be deployed and the range of risks that may need to be covered, I do not regard this gap as significant. The applicant has also pointed out that much of the criticism of the applicant's compliance with Standard 4 is misconceived. I am satisfied that is the case.
25. The eighth concern raised relates to Quality Standard 5. As the applicant points out, Quality Standard 5 only applies to residential aged care. Consequently, the criticism is misplaced.
26. The ninth concern raised relates to Quality Standard 6, which requires providers to support consumers to make complaints and to make them aware of and facilitate their access to advocates. The respondent contends that the processes outlined by the applicant in the Procedures Manual is confusing, inconsistent and unhelpful to staff. I have reviewed the procedure and consider it adequate for an organisation commencing operations.
27. The tenth concern raised relates to Quality Standard 7. It requires a provider to demonstrate regular assessment, monitoring and review of the performance of each member of the workforce. The respondent contends that apart from provision for an annual performance evaluation 'there is no substantive provision made in the [Procedures] Manual for regular assessment and performance review, nor ongoing training'.[28] The applicant in response notes that the Procedures Manual at paragraph 7.1(v) details that 'staff performance evaluation is also to be done based on feedback from consumers' and emphasises self-assessment. It references forms that would be used in the evaluation of staff and linked to identifying training needs.[29] I am not satisfied that the respondent has identified any serious deficiency in this area.
28. The eleventh concern relates to Standards 1(3) and 8(3) that require providers to keep consumers' personal information confidential and to have effective information management systems in place. Concern that the applicant does not identify the relevant requirements in its Procedures Manual has been largely addressed by the applicant. The Procedures Manual does identify most of the critical requirements.[30] A specific concern about how information will be kept confidential when the business commences operation based in Mr Panjwani's residence was raised. Provided the information security procedures outlined in the Procedures Manual are adopted, no special issue arises.[31]
29. The twelfth concern relates to Standard 8. A generalised concern is raised that the Procedures Manual lacks clarity for specific roles within Double Bay. To establish this point, an example is used of a procedure which allows unidentified third parties to deputise for members of the Managing Committee. The applicant considers that this is cherry picking of the Procedures Manual and leaves out important context. In particular, that the situation will only arise if the Director of Nursing or the OT takes leave and needs to be substituted with a person of appropriate qualifications. I accept that the respondent has not made good a generalised concern about lack of role clarity within the applicant. However, the response does emphasise how thin the applicant's expertise is such that if a key person is unavailable for whatever reason, the applicant's ability to replace them is limited to approaching nursing agencies for a suitable replacement.
30. The thirteenth concern raised by the respondent relates to the obligation to offer care recipients and their representatives the opportunity to establish one or more consumer advisory bodies to give the governing body of the provider feedback about the quality of the aged care that the provider provides to the care recipients at least once every 12 months. The respondent contends that the applicant has no system to ensure compliance with this responsibility. The applicant contends that this relatively new regulatory requirement has been addressed in policy amendments which require that each consumer and/or their representative is offered the opportunity annually to establish one or more consumer advisory bodies. The offer will be made in writing and repeated every year. Given that the requirement was only introduced in December 2022, the addition identified by the applicant is adequate.[32]

1. When considered broadly, I am satisfied that the applicant has a good theoretical understanding of the responsibilities of a provider of aged care. The proposed systems, if implemented, would meet those responsibilities. Many of the specific concerns identified by the respondent were misplaced or poorly supported.
2. However, more general concerns can be levelled in relation to the systems outlined. The first is that, for the most part, they are wordy and dense and may be challenging to understand if the workforce is drawn from Australians with low educational attainment or from migrants whose first language is not English.[33] Second, there is a huge execution risk attached to putting in place the systems outlined.
3. However, the question that I must consider is whether the system the applicant proposes to have in place demonstrates an understanding of the applicant's responsibilities as a provider of home care and whether the systems proposed would meet those responsibilities. I am satisfied that the systems outlined do that.

Section 63D(3)(d) - the applicant's record of financial management, and the methods used, or proposed to be used, in order to ensure sound financial management

1. The respondent notes that the applicant is a new company and has no record of financial management. It also submits that the experience of the key personnel and the proposed financial management systems do not give confidence that the applicant is able to appropriately manage Commonwealth funds as an aged care provider. In particular, the respondent notes:
   • the CFO role has been combined with the role of General Manager Operations;

none of the applicant's key personnel has demonstrated experience as a CFO;

there is no detail as to the financial management systems that the applicant will adopt;

the applicant's cashflow projections are based on a number of unjustified assumptions, and fail to identify insurance arrangements;

the applicant's corporate structure presents a conflict of interest based on the fact that its directors are also shareholders who have contributed $120,000 in capital.

1. To allay these concerns the applicant points out:
   • as CFO of Inspired, Mr Mohammed held and appropriately managed funding in relation to one consumer that was over $5000 per month paid in advance, and Mr Chowdhry has managed Commonwealth funding for Inspired which has involved reimbursement of over $2.5 million a year;
   • all business projections are likely to change in light of changes to the Commonwealth's funding model;
   • Mr Mohammed was CFO in two approved service providers and headed up the finance function when Consul General;
   • Mr Chowdhury has extensive financial experience in aged care. He has experience with aged care specific software like e-HCP, Visual Care and Sandwai;
   • whether the person with financial responsibility is actually called the CFO is beside the point;
   • Mr Mohammed has in the past made projections in the case of three companies which were accepted for the purposes of approval. In relation to Inspired and Sazem, approval was forthcoming. In relation to Caring Home Care, the projections were accepted but there was no ultimate approval.
   • in relation to the projections, the applicant has a commitment from 12 of the projected 17 consumers with 9 estimated at levels 1 and 2 and 8 consumers at levels 3 and 4;
   • the size of other projections are explained, including why expense projections are low;
   • appropriate insurance arrangements have already been made;
   • there is no conflict of interest and, properly understood, the dividend payment arrangement enhances the business cashflow because it means that no salaries need to be paid in the first 18 months. The arrangement is in the best interests of the company and incentives remain in place to grow the business.
2. Based on these submissions, I am satisfied that the applicant's key personnel do have a modestly favourable record of financial management and the methods which the applicant proposes using will facilitate sound financial management. While Mr Mohammed's experience as CFO of Inspired and Sazem was undemanding, given the fact that between both companies only one client was involved, the fact is the system required the company to receive Commonwealth funds and then account for it. At the very least, it establishes that Mr Mohammed can be trusted to deal with Commonwealth funds and account for them appropriately. Inspired was able to do this and ultimately the company transitioned to being a larger provider of aged care services. There is no suggestion that there are any issues with Mr Chowdhury's financial management capacities. He has demonstrated experience. The plan is to use specialist aged care software to manage the finances for the company and the particular software to be used has been selected based on Mr Chowdhury's experience.
3. I am not satisfied that there is any conflict of interest. Mr Mohammed and Mr Panjwani are contributing time and capital which they hope will yield a return. There are no obviously misaligned incentives that suggest that there is a conflict of interest. If a conflict arises when dividend declarations are being considered, arrangements to deal with it will be required at that point.
4. In these circumstances this consideration weighs modestly in favour of approving the applicant.

Section 63D(3)(e) - the applicant's conduct as a provider of aged or other relevant forms of care and the record of compliance with the responsibilities of such a provider and the obligations as a recipient of Commonwealth funds

1. The respondent submits that there is insufficient probative evidence before the Tribunal to facilitate a meaningful consideration of the applicant's record of compliance with the responsibilities and obligations of an aged care provider and that this consideration should be given neutral weight.
2. The applicant contends first that it is not open to the Tribunal to weigh a required matter 'neutrally'. As a legal submission that misunderstands the nature of the power. I am obliged to consider the matters outlined in paragraph (e), but there is no guarantee that when I do so that they will weigh either for or against approval. Consequently, it is possible that neutral weight can be given to the matter.
3. The more substantive submission made by the applicant is that both Mr Mohammed and Mr Chowdhury have been involved in the provision of aged care and there has been no issue with their compliance with their responsibilities in that context or with their discharge of obligations arising from the receipt of any payments from the Commonwealth. In relation to Mr Mohammed, his experience does not amount to much, but cannot be discarded altogether. In relation to Mr Chowdhury, he has good experience in the relevant areas, but only a very modest commitment to the applicant's business. It is also worth noting that Mr Panjwani has experience as a nurse in delivering care and there is no information that suggests he has not met his responsibilities in delivering care. In these circumstances, the matter weighs modestly in favour of an approval of the applicant.

1. The Commissioner submits that there are two further matters that I ought to consider when deciding whether the applicant should be approved. The first is that I could not be satisfied about the reliability of information provided by the applicant because I should have doubts about the truthfulness of its agents. The second submission is that I should have doubts about whether the corporate structure and personnel identified in the evidence before me will be the corporate structure and personnel of the company when it begins to deliver aged care.
2. These submissions were advanced in the following way.
3. In relation to the reliability contention, the respondent noted that Mr Panjwani, in a letter to the Minister for Health and Aged Care represented that Mr Mohammed 'had nothing to do with present company Double [B]ay Aged Care [until] 1 September 2021'.[34] This claim was repeated in correspondence to the respondent.[35] However, when Mr Panjwani gave evidence in earlier Tribunal proceedings, it became clear that Mr Mohammed was involved with Double Bay and that involvement commenced on 20 October 2020. In particular, Mr Mohammed was involved in the development of cash flow projections for the company that accompanied the original application submitted to the respondent on 20 October 2020.[36]
4. In relation to the corporate instability submission, the respondent also noted that when the matter last went to hearing, Mr Valecha was advanced as a person who would play a key role in the company if it was approved. However, during the course of the hearing it emerged that Mr Panjwani did not believe that Mr Valecha could be the company's CFO and did not know what industry Mr Valecha was currently working in. All he could say about Mr Valecha assuming the role of the CFO is that 'I will certainly ask him if he is willing [to come] for me for hearing but no, I would not think he will come'.[37]
5. Mr Tareen, the third person described as key personnel who was held out as being responsible for the operational side of the business when the matter last went to hearing in 2023, was not available to give evidence at the last hearing and has now been removed from the company structure.
6. In these circumstances, the respondent submits that there is no clear or consistent thread as to what or who makes up the applicant. Rather, the indication is that the applicant is merely a vehicle to obtain a lucrative government approval. What is presented is not a coherent corporate structure but a series of ad hoc revisions and reactions to criticisms levelled at the applicant's asserted suitability at each stage of decision-making in this matter. The respondent submits that I should have legitimate reservations as to whether the current makeup of the applicant's key personnel is a genuine reflection of the applicant's intended structure and whether it would remain in place were it to be granted approval. Further, each of Mr Mohammed, Mr Panjwani and Mr Chowdhry appear to have significant external commitments that they do not propose to relinquish in order to devote the requisite time and attention to establishing the applicant as a provider of home care.
7. In response, the applicant makes a number of points. The first is a legal submission. The applicant correctly points out that subsection (6) only confirms that subsection (3) does not limit the matters that the Commissioner may consider when deciding if a person - ie the company - is suitable to provide aged care. The applicant then argues that when considering other relevant matters not expressly identified in subsection (3), the Tribunal cannot consider the matter 'in relation to any or all of the key personnel of the person' as is permitted in relation to certain paragraphs in subsection (3) which are identified in subsection (4).[38]
8. There is substance to that submission, but it is not clear how far it takes things. The submissions made by the respondent go to:

(a) the reliability of what has been advanced by the applicant through its agents; and > > (b) the stability of the corporate structure that the applicant has in place.

9. These are matters that are relevant when considering whether to approve the applicant and not just by reference to the qualities of the key personnel. I reject the applicant's submission that the respondent's submissions advanced at [5.23] to [5.25] of its statement of facts, issues and contentions dated 23 August 2024 should be 'struck down'. I also reject the issues raised as 'redundant'.
10. So turning then to the submission concerning the reliability of information provided by the agents of the applicant. I am satisfied that Mr Panjwani did provide misleading information in the manner described in paragraph ‎79 above.
11. In particular, I reject the submission that it is unclear whether Mr Panjwani conceded during the AAT hearing that Mr Mohammed was involved in the preparation of financial projections used in the initial application. The concession made is clear from the cross-examination of Mr Panjwani in the AAT, which is transcribed as follows:

Ms Roughley: For the first version of this [the growth projections], the one that was submitted as part of the initial application, did you prepare that? --- We prepared (indistinct) together.

Deputy President: That's you and Mr Mohammed? ---- Yes. But ---

Ms Roughley: And then this revised one that was submitted as part of - in answer to further questions asked by the Commissioner, did you prepare this revised version as well? --- No.

1. At that point, Mr Mohammed began interjecting and Mr Panjwani then changed his evidence. Then the following exchange took place:

So who prepared these tables and graphs? Who physically sat at a computer putting numbers in? ---Mohammed.

That was Mr Mohammed who did that? ---Yes.[40]

1. I reject any suggestion that there was obscurity about the evidence given or the concession made.
2. The fact that Mr Panjwani has misled the respondent about how he came to prepare and submit the application is significant. In a regulated industry honesty with the regulator is critical. The fact that Mr Panjwani was willing to mislead the regulator about a comparatively small matter is very alarming and weighs against the approval of the applicant.
3. Further questions about Mr Panjwani's reliability emerged during this Tribunal's hearing.
4. Mr Panjwani was asked to leave the room while Mr Mohammed was giving evidence on a particular matter. The hearing was being conducted online, so it was not possible for the Tribunal to have complete control of the process, but Mr Panjwani appeared to leave the room. However, when Mr Mohammed's evidence was finished, he asked Mr Panjwani to return. Mr Panjwani returned to the room without needing to raise his voice or leave his seat. This suggested that Mr Panjwani was listening to Mr Mohammed's evidence. A concern was raised about this at the time by the respondent's representative. Later, during the course of Mr Panjwani's evidence, he was questioned on a topic that had been covered with Mr Mohammed while Mr Panjwani was out of the room. Mr Panjwani responded to the question saying, 'as Mr Mohammad described this morning, levels 1 to 4'.
5. On the basis of this material, I am satisfied that Mr Panjwani was listening to the evidence of Mr Mohammed during the Tribunal hearing when he knew he should not be doing so. This does raise a concern about his integrity and whether or not he should be working in a key role in a regulated industry.
6. Turning then to the corporate instability issue, the fact that key personnel can be added and subtracted at will, seemingly by reference to their capacity to enhance the likelihood of approval, is also alarming. The approval process is designed to ensure that the regulator is able to look at a company in advance of approval and make a proper assessment of its capabilities. Moving proposed candidates for key positions in and out during that approval process significantly undermines the effectiveness of the regulatory system.
7. Setting up a system where key personnel can easily be moved also has the potential to facilitate an undesirable practice whereby consultants can create pre-approved companies with small to non-existent client bases, that can be handed off to other organisations who want to enter the industry without appropriate scrutiny. The approval process is a gateway for ensuring that the companies that want to enter the industry are suitable. If significant aspects of a company structure and/or personnel may change following approval, there is very little value in a rigorous approval process. Consequently, it is highly relevant to consider how stable the company structure and/or the personnel engaged by the company when deciding whether to approve. I am not satisfied that the applicant's structure and personnel are stable. As noted earlier in these reasons, both Mr Mohammed and Mr Chowdhury have significant commitments to other entities, and they may not ultimately be willing to devote to Double Bay the time needed to ensure it is a provider of quality aged care. A number of key personnel have dropped out since the application was first made giving me little confidence that the structure that is said to be in place now, will necessarily subsist into the future. I reject the submission that the change in key personnel is a natural step. The approval process is not a game in which a shell of a company gropes around to find a line-up of personnel that will ultimately satisfy the regulator. It is a process designed to earnestly test the capacities of a company that wishes to commence providing subsidised aged care. Companies act only through human agents. Confidence that the company structure and/or personnel proposed will be stable into the future is an important consideration in the approval process. It is not just the qualifications of the key personnel that are important. If the well qualified people identified as key personnel may not participate in the company long term, that is relevant and should be considered.
8. There is one other submission that ought to be addressed within the broad category of other relevant considerations. I do accept the applicant's submission that the regular revising of its Procedures Manual is a strength, and not a weakness.

1. In my assessment, it weighs heavily against the applicant that, through its agents, it has made false representations to both the Minister and the regulator. It also weighs heavily against the applicant that there is no strong commitment on the part of some of its key personnel. I am not satisfied that the current key personnel will remain involved in the company long term. Mr Chowdhury, whose experience in the financial side of running an aged care business is an important asset when assessing the competence of the company, is already committed to other ventures and gave evidence that he would not give them up if the applicant were approved. [ I note that in post-hearing submissions it was contended that he would commit more time to the business and give up his other commitments, but these submissions were not entirely consistent with the evidence given by the Mr Chowdhury and would result in Mr Chodhury working every day of the week to fulfil his commitments.
2. These matters weigh heavily against a finding that the applicant is suitable to provide aged care.

1. In relation to the compulsory matters in s 63D(3), I note the following:
2. I am satisfied that with its current lineup of key personnel the applicant has experience in providing aged care and other relevant forms of care, and this weighs in favour of approval.
3. I am satisfied that a review of the Procedural Manual indicates that on the whole, the applicant has a good understanding of its responsibilities as a provider of home care and this weighs in favour of approval.
4. I am satisfied that the systems that the applicant proposes to have in place are, at least in theory, sound. I do however consider that there is a significant execution risk in terms of implementing the systems. Consequently, this matter weighs in favour of approval, but not very strongly.
5. I am satisfied that Mr Mohammed and Mr Chowdhury do have sound relevant experience in financial management and the methods the applicant proposes using are sound.
6. I am satisfied with the past compliance of the key personnel in relation to their past responsibilities in providing care and discharging their obligations concerning payments from the Commonwealth for providing that care.
7. However, I am not satisfied that Mr Chowdhury has any commitment to the applicant. He will either devote too little attention to the company due to his other commitments or will be replaced by someone else. In the absence of a committed person with financial experience, I have doubts about the suitability of the applicant to provide aged care. Further, I consider that there are reasons to doubt that the company structure and personnel that I have been presented with will remain in place even in the medium term.
8. Further, Mr Panjwani has been caught making misrepresentations to both the Minister and the respondent. As the former CEO and proposed Director of Nursing, this is unacceptable. In a highly regulated and subsidised industry, the regulator must be dealt with complete candour. Unless a company can be relied on to be honest with the regulator, it is not suitable to provide aged care.
9. Recipients of aged care are often unable to speak on their own behalf due to mental or physical disability. Regulators need to be sure that the companies responsible for providing the care to such vulnerable people are going to be honest in all matters big and small. The applicant has not demonstrated that it can be relied upon to tell the truth and that is a sufficient basis to find it unsuitable to provide aged care.

1. For those reasons, the decision under review is affirmed.

[3] Aged Care Quality and Safety Commissioner v Double Bay Aged Care Pty Ltd [2024] FCA 242.

[6] Statement of Azam Mohammed dated 16 July 2024 (TB 3687-3689)

[7] Applicant's Statement of Facts, Issues and Contentions dated 17 July 2024, [6.3.5]-[6.3.7]

[8] Respondent's Statement of Facts, Issues and Contentions dated 23 August 2024, [5.7]-[5.8].

[11] Tender Bundle, 2308-2309, 2311-2312, 2316, 2326.

[13] Ibid ss 54-1(1)(c), 56-2(f),(j),(k), (l).

[18] The template service delivery agreement can be found Tender Bundle, 909.

[19] Which appears to be the case, given that there are no identified plans for expanding the workforce directly employed by Double Bay

[33] I note that in post hearing submissions the applicant confirmed that staff would have all relevant documentation explained to them which would address this issue.