Sumer Child Care Pty Ltd is a family day care provider whose provider approval was cancelled by the Department of Education for failure to adhere to a condition of its approval, namely to comply with the provisions of the Children (Education and Care Services) National Law NSW ('the National Law') and the Education and Care Services National Regulations 2011 (NSW) ('the National Regulations'). Sumer Child Care has applied to the Tribunal to review this decision. Before the cancellation was due to come into effect, the Tribunal stayed the decision with the consent of both parties.
The hearing took place over five days by way of audiovisual link rather than having the parties appear in person. This was because of the COVID-19 pandemic and the difficulty in ensuring that the participants could safely appear in the Tribunal in person. Mr Mohannad Al Zuhairy, director of Sumer Child Care, and Ms Theografakis, Hub Coordinator with the Department of Education, gave oral evidence in these proceedings, also by audiovisual link. Written material tendered in these proceedings was provided to the Tribunal in both hard copy and digital form.
For the reasons set out below, although I am satisfied that Sumer Child Care breached a condition of its provider approval - namely to adhere to the provisions of the National Law and the National Regulations - and that the breaches were widespread, systemic and many cases serious, I am not satisfied that Sumer Child Care has a culture of non-compliance with the National Law and National Regulations. I find that Sumer Child Care has taken steps to remediate its service to ensure its compliance with the National Law and National Regulations. I find this ongoing remediation to be sufficient and effective to address Sumer Child Care's non-compliance and, on the evidence before me, am satisfied that Sumer Child Care is neither unwilling nor unable to comply with the National Law and National Regulations. On this basis, I have determined that Sumer Child Care's provider approval should not be cancelled.
[4]
Background
Sumer Child Care Pty Ltd first received provider approval in 2014. Officers from the Department of Education undertook compliance visits to Sumer Child Care twice in 2015 and conducted an assessment and ratings visit in 2017. After each occasion, the Department issued a letter of non-compliance. Sumer Child Care's subsequent response resolved the issues and no further action was taken. In 2019, Sumer Child Care responded to an Emergency Action Plan issued by the Department of Education and the compliance action was closed. Following inspections by officers of the Department of Education in May, November and December 2019, Sumer Child Care's provider approval was cancelled for breaching a condition of the approval, namely to adhere to the National Law and the National Regulations. Section 31 of the National Law allows a provider approval to be cancelled in a number of circumstances, including where the approved provider has breached a condition of the provider approval. The Department of Education has not submitted that a cancellation of Sumer Child Care's provider approval would be appropriate for any other reason set out in section 31 of the National Law
A subsequent inspection by officers of the Department of Education, which took place in June 2020, found further contraventions of the National Law and the National Regulations by Sumer Child Care.
Since the cancellation decision, Sumer Child Care has undertaken various remediation measures to address those issues raised in the decision to cancel Sumer Child Care's provider approval.
[5]
National Law
The National Law is applied as a law of NSW by means of the NSW Children (Education and Care Services National Law Application) Act 2010 to establish a national education and care services quality framework for the delivery of education and care services to children.
Its objects are:
1. to ensure the safety, health and wellbeing of children attending education and care services;
2. to improve the educational and developmental outcomes for children attending education and care services;
3. to promote continuous improvement in the provision of quality education and care services;
4. to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;
5. to improve public knowledge, and access to information, about the quality of education and care services;
6. to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (s3(2) of the National Law)
The guiding principles of the national education and care services quality framework are as follows -
(a) that the rights and best interests of the child are paramount;
(b) that children are successful, competent and capable learners;
(c) that the principles of equity, inclusion and diversity underlie this Law;
(d) that Australia's Aboriginal and Torres Strait Islander cultures are valued;
(e) that the role of parents and families is respected and supported;
(f) that best practice is expected in the provision of education and care services. (s3(3) of the National Law)
The National Law provides for a natural person or company to operate an education and care service, which includes family day care services. An applicant must obtain service approval from the regulatory authority, namely the Secretary of the Department of Education, in order to operate an education and care service. (s5, s43 of the National Law; s9 of the Children (Education and Care Services National Law Application) Act 2010 NSW)
The Secretary of the Department of Education can cancel the provider approval for a number of reasons, including for breach of a condition of the approval. (s31, s33 of the National Law)
[6]
Guide to the National Quality Framework
The Australian Children's Education & Care Quality Authority is established under section 224 of the National Law and its Guide to the National Quality Framework gives guidance as to how the Department of Education should properly exercise its powers under the National Law.
Although the guide does not have legislative force under the National Law, I accept that it provides the relevant context in which to consider the appropriateness of the Department's regulatory response in cancelling the Applicant's provider approval.
The guide identifies a number of "best practice regulation principles" which include:
1. proportionality and efficiency, so that the scope and nature of the regulatory measures should match the benefits that may be achieved, by improving outcomes for children or families, or reducing risk to them; and
2. responsiveness and flexibility, which includes the regulatory authority considering the full range of options available to them and tailoring their approach to account for the circumstances of each individual case.
The guide also set out the Ayres and Braithwaite enforcement pyramid, as a diagrammatic representation of regulatory practice with tiers of different regulatory responses identified: educate, direct and deter, restrict and suspend or cancel and the appropriate circumstances in which to deploy them.
The enforcement pyramid considers the suspension or cancellation of the provider or service approval to be the most severe response, and only appropriate where the approved provider is unwilling to change its conduct and to address any issues of non-compliance.
According to the guide:
Cancellations are the top of the pyramid. Usually, cancellation would be the final course of action, after a graduated moving up the regulatory pyramid, depending on the willingness and ability of the provider to comply and seriousness of the offence. Along with prosecution, cancelling a provider approval is a severe way to address non- compliance at the service level.
[7]
Tribunal's powers of review
A decision to cancel a provider approval is a reviewable decision for external review. (s192(b)(ii) of the National Law)
Under its general review jurisdiction contained in s29 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal is empowered to review the decision of the Department of Education and, having heard the matter, may confirm the decision, amend the decision or substitute another decision for the decision. (s5 National Law; s8 Children (Education and Care Services National Law Application) Act 2010)
In the exercise of its general review jurisdiction, the role of the Tribunal is to make the correct and preferable decision on the material before it. (see DBU v Secretary, Department of Education [2017] NSWCATAD 257)
[8]
Breaches of the National Law identified by the Department of Education
According to the Department of Education, Sumer Child Care breached the National Law in a series of areas, which I have grouped together as follows:
1. Risk of harm and/or other safety concerns (s167(1) of the National Law and regulations 89(1), 97, and 77(1))
2. Staff and educator concerns (s164A and s168 of the National Law and regulations 75, 84, 105, 144 and 170)
3. Concerns about the educator's premises (Regulations 82(1), 103 and 110)
4. Administrative failures (sections 72, 175(1) and (2) and 269(1) and (2) of the National Law and regulations 177(2), 165(2), 171(1) and (2) and 185)
[9]
Uncontested contraventions
With respect to the May 2019 inspections, the following contraventions of the National Law and National Regulations are not disputed by Sumer Child Care:
1. Section 164A read with regulation 144
2. Section 167
3. Section 168
4. Section 175 read with regulations 177 and 178
5. Regulations 89, 97(2), 97(4)
With respect to the November/December 2019 inspections, the following contraventions of the National Law are not disputed by Sumer Child Care:
1. Section 164A
2. Section 167
3. Section 168
4. Section 172
5. Section 175(1) and (2)
6. Section 269(1) and (2)
With respect to the November/December 2019 inspections, the following contraventions of the National Regulations are not disputed by Sumer Child Care:
1. Regulation 75
2. Regulation 89
3. Regulations 97(2), (3) and (4)
4. Regulation 103
5. Regulation 105
6. Regulation 110
7. Regulation 144
8. Regulations 171(1) and (2)
9. Regulations 177(2)
10. Regulations 185
With respect to the June 2020 inspections, the following contraventions of the National Regulations are not disputed by Sumer Child Care:
1. Regulation 74
2. Regulation 75
3. Regulation 79
4. Regulation 80
5. Regulation 102
6. Regulation 103
7. Regulation 116
8. Regulation 168
[10]
Contested contraventions
Below are a list of contraventions alleged by the Department of Education that are contested by Sumer Child Care:
1. In relation to the May 2019 inspections, those in respect of regulations 100(1), 100(4)(c),102(1), 102(4);
2. In relation to the November/December 2019 inspections, those in respect of regulations 97(2), 77,84, 170;
3. In relation to the June 2020 inspections - those in respect of section 167 of the National Law and regulations 77, 84, 97, 100, 117, 164A, 171 and 185 in addition to an allegation that Sumer Child Care failed to comply with conditions of the stay ordered by the Tribunal on 21 May 2020.
Whilst having earlier alleged contraventions by Sumer Child Care of section 165 of the National Law and regulation 82 of the National Regulations, the Department of Education is no longer pressing these claims.
[11]
Issues
The following issues arise in this matter.
[12]
Contraventions: procedure for determination
Is it necessary for the Tribunal, in exercising the power under s33 of the National Law and where it is conceded that the precondition to that power in s31(e) is satisfied, to determine each contravention alleged by the Department of Education and contested by Sumer Child Care?
[13]
Contested contraventions of specific sections of the National Law
In relation to contested contraventions of specific sections of the National Law and Regulations, the following issues arise for determination:
1. Should the Tribunal find a breach of section 167 where there are other more specific provisions in the National Law or Regulations concerning the subject matter of the alleged contravention?
2. Does not having a risk minimisation and communication plan mean that every reasonable precaution has not been taken to protect children with allergies form 'harm and [to] any hazard likely to cause injury for the purposes of s167?
3. Does regulation 97(2) require separate risk assessments to be conducted for each type of potential emergency?
4. Does regulation 117 require separate risk assessments to be conducted for each types of potential emergency?
5. Is regulation 84 contravened where educators have been provided with training, but still do not understand their child protection obligations?
6. Are regulations 171 and 185 contravened where educators have been provided the relevant documents by email, but are unable to locate or access them when inspected by authorised officers from the Department of Education?
7. Is regulation 77 contravened where there is an individual instance where an educator does not follow hygienic food practices?
8. In relation to regulation 170, has an applicant taken 'reasonable steps' where the only step relied on by the applicant is to email its policies and procedures to its educators?
[14]
Characterisation of established contraventions
With respect to the seriousness of any established contraventions, the following issues arise for determination:
1. How serious are Sumer Child Care's contraventions (as established) of the National Law and the National Regulations?
2. Did these contraventions pose a risk to the health, safety and well-being of children?
3. Are the applicant's contraventions of sections 172, 175 (1) and (2), 269(1) and (2) of the National Law, and regulations 100(1) and (4), 102 (1) and (4), 165, 175, 171(1) and (2) and 185 of the National Regulations properly characterised as 'administrative failures'?
Does the conduct of Sumer Child Care suggest that:
1. its compliance issues with the National Law and National Regulations are widespread and systematic;
2. it has inadequate governance arrangements and/or
3. it has a culture of non-compliance with the National Law and National Regulations?
[15]
Steps taken by Sumer Child Care to address its breaches of the National Law and National Regulations
What contraventions remain? In relation to the established contraventions, what remediation has taken place?
Can the Tribunal be satisfied that the remediation undertaken by Sumer Child Care is sufficient and effective to address the instances of non-compliance with the National Law and National Regulations raised in the proceedings?
[16]
Exercise of discretion
Should the Tribunal only cancel Sumer Child Care's provider approval if it is satisfied that Sumer Child Care is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations?
If so, then having regard to all relevant matters, including:
1. Sumer Child Care's previous compliance history;
2. the remedial steps taken by Sumer Child Care; and
3. any role that the Department plays in supporting or assisting family day care providers to comply with their obligations under the National Law and National Regulations,
is the Tribunal satisfied that the applicant is unwilling or unable to comply with the National Law and National Regulations?
If not, is cancellation the correct and preferable decision on all the material before the Tribunal and having regard to all relevant matters including the objectives and guiding principles of the National Law and National Regulations?
[17]
Is it necessary for the Tribunal to determine each contravention alleged by the Department of Education and contested by Sumer Child Care?
As set out above, section 31(e) and section 33 of the National Law empower the Secretary of the Department of Education to cancel a provider approval if the approved provider has breached a condition of the provider approval. The decision under section 33 to cancel the provider approval is a reviewable decision for external review pursuant to section 192(b)(ii) of the National Law and, under its general review jurisdiction, the Tribunal has the power to review this decision.
In doing so, the Tribunal must determine what is the correct and preferable decision having regard to the material before it. (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]- [26])
The Tribunal is not confined to the material before the original decision maker or the reasons identified in the decision under review. (Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [28], [41], [87])
There is no onus of proof upon either party (Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [32]- [38])
There is nothing in the powers given to the Tribunal in the National Law that mandates the Tribunal to make a separate finding on each alleged breach of a condition of the provider approval granted to Sumer Child Care. A single breach of the condition of the provider approval is enough to empower the Secretary of the Department of Education to cancel a provider approval, a decision the Tribunal can then review under its general review jurisdiction.
It is the Tribunal's task to simply to determine the correct and preferable decision having regard to the material before it and, having done so, to confirm or amend the decision under review, or substitute another decision for the decision under review.
In order to properly consider the material before me, however, and determine the extent of any non-compliance by Sumer Child Care, I have decided to consider all the breaches in this case and to make separate findings in relation to those breaches that are contested.
On the evidence before me, I am satisfied that each of the uncontested contraventions, as set out above, took place.
At hearing, the alleged contraventions of regulation 82 and 165 were contested by Sumer Child Care and not pressed by the Department of Education.
On this basis, and on the evidence before me, I am not satisfied that Sumer Child Care contravened either of these regulations.
[18]
Section 167
Section 167(1) of the National Law states that the approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.
Reading section 167(1) in the context of the National Law's objectives, one of which is to ensure the safety, health and wellbeing of children attending education and care services, I am satisfied that section 167 should be read broadly and that a breach of its provision can be found by the Tribunal despite the existence of more specific provisions of the National Law or National Regulations concerning the subject matter of the alleged contraventions.
The Department of Education has alleged a series of contraventions of s167(1) which are set out in the Notice of Decision to Cancel Provider Approval dated 8 May 2020.
The following contraventions of section 167 have not been contested by Sumer Child Care:
1. That children could access a glass panel in a coffee table at the house of the educator SB;
2. That the fire extinguisher and blanket at the house of educator JA was last tested in July 2017;
3. That the pathway to the house of the educator RM was partially obstructed by debris; items including a bottle of Jif, a large knife and wasp nest were seen in the shared outdoor space accessible to children, chemicals were left in an unlocked laundry cupboard and daily hazard identification checklists were not completed for outdoors;
4. That bleach-based product was on the window sill of the bathroom used by children in the house of educator AS;
5. That a child was observed sitting in the car of educator DA without a booster seat and that the booster seat, when located in the boot of the car, was found to be without a material covering;
6. That a large flat screen television was on a low shelving unit unsecured with electrical cord in reach of children in the house of educator RY;
7. That in the house of educator TR, bicycles were a potential climbing hazard, fire extinguisher was stored in a high cupboard rather than been accessible, swing set was not properly secured and had a hard, dirt surface below the slippery dip;
8. That in the house of educator SF, there were climbing hazards and a low lying clothesline, chemicals accessible by the children, spikes growing from a citrus tree and incomplete safety checklists;
9. That there was an unsecured television in the house of educator LE;
10. That in the house of educator LE, there was an unsecured large television;
11. In the house of educator IAZ, a mirrored door on the wardrobe was not completely covered in film, a large mirror and TV was unsecured and an electrical outlet was without safety covers;
12. In the house of educator SO, the fire blanket and extinguisher had not been tested in 2018 or 2019 and shelving was unsecured;
13. In the house of RAM, a rabbit hutch was a climbing hazard and a clothesline was broken and low-lying;
14. In the house of educator MJ, the children had access to shampoo and conditioner.
On the evidence before me, I am satisfied that the breaches occurred as alleged by the Department of Education - and not contested by Sumer Child Care - and that section 167 of the National Law was breached in each of these instances.
The following alleged breaches of section 167, found to have occurred during the June 2020 inspection by officers of the Department of Education, are contested by Sumer Child Care:
1. That glass was broken in the front door to the family day care residence of educator BG;
2. That educator SAZ had no risk minimisation plan or communication plan for two children in her care;
3. That an open gas stove was accessible to children in the outside area of the residence of educator DA;
4. That educator MAM had no risk minimisation plan or communication plan;
5. That educator SH could not confirm that the shower screen in her residence was made of safety glass;
6. That educator LJ could not locate a risk minimisation plan or communication plan for a child in her care said to have previously had asthma
On the evidence before me, I am satisfied that during the June 2020 inspection, risk minimisation plans and communication plans were unable to be produced by educators. As these plans are designed to include information about possible health concerns for the children, including asthma, I am satisfied that a failure to hold these documents is in breach of section 167 of the National Law which requires every reasonable precaution to be taken to ensure that children are protected from harm and any hazard likely to cause injury. To be alerted by a harm minimisation plan that a child has asthma is to have the knowledge needed to protect that child from harm by having the appropriate medication available. I am satisfied that a failure to have such plans constitutes a breach of section 167.
I am not satisfied that section 167 is the correct vehicle to consider the issue of the failure by educator SH (who ceased working for Sumer Child Care in June 2020) to confirm that the shower screen in her residence was made of safety glass. More appropriate would be to consider the situation under regulation 117, which sets out specific requirements in relation to glass. Were the shower screen found to meet the definition of a 'glazed area' (which is undefined in the National Law and National Regulations), and were it required to be safety glass under the Building Code, it would be reasonable to expect a certificate to be produced by Sumer Child Care to prove this.
In his statement dated 4 September 2020, Sumer Child Care director Mr Al Zuhairy confirmed that the glass panelling on educator BG's front door was such that it could not be covered in safety film and that BG had instead covered it in plastic as a makeshift solution. On the evidence before me, I am not satisfied that this was a satisfactory solution to the risk identified by the educator, namely that the glass panels of the front door were unsuitable to be covered in safety film. For this reason, I am satisfied that Sumer Child Care was in breach of section 167. I accept that the risk posed by this was remediated when a piece of wood was affixed to the door to cover the glass panelling.
On the evidence before me, I am satisfied that the gas cooker belonging to educator DA was in an area of the backyard not accessed by the children. Whilst it would have been prudent to have removed the cooker from the backyard altogether - which, I accept, is what DA did prior to 1 September 2020 - I am not satisfied that, in failing to do so, Sumer Child Care was in breach of section 167 of the National Law.
[19]
Regulation 100 (1) and (4) (c)
Regulation 100 requires a risk assessment to be conducted prior to an excursion, except where the excursion is a regular outing for which a risk assessment has already been conducted, not more than 12 months before the excursion is to occur.
The Department of Education alleged that a number of educators employed by Sumer Child Care breached this regulation in November and December 2019 and in June 2020 by not being able to locate risk assessment forms for excursions to show inspecting officers.
I accept the evidence provided by Sumer Child Care that a number of these risk assessment forms had been completed - namely by educators LJ, DA and SB - and were later produced to the Department of Education. On this basis, I am not satisfied that Sumer Child Care was in breach of regulation 100 in relation to these risk assessment forms.
I accept that the required risk assessment forms for excursions were not produced by the educators RM, SH, VD and KAZ and find that regulation 100 was breached in these instances.
[20]
. Regulation 102
Regulation 102 requires written authorisation for an educator to take children on an excursion.
On the evidence before me, I am not satisfied that in May 2019, educator SE, who was the assistant to educator KAZ, had the requisite written authorisation form to visit, deliver and collect school-aged children. I am satisfied that the absence of this authorisation placed Sumer Child Care in breach of regulation 102.
[21]
Regulation 171
Regulation 171 requires the provider to ensure that copies of policies and procedures are readily accessible to supervisors, educators and other staff of the child care service and are available for inspection.
I am satisfied that during the May 2019 inspection by the Department of Education, educators SB, AE, RM and RA could not locate a copy of the service's policies and procedures.
I am satisfied that during the June 2020 inspection by the Department of Education, educators IAZ, SH and MAM were unable to provide inspectors with copies of the service's policies and procedures.
I accept the evidence by Mr Al Zuhairy that his office practice was to email a copy of the policies and procedures to educators on their commencement with Sumer Child Care, to ensure their accessibility and availability for inspection, in accordance with regulation 171. I also accept his evidence that copies of the service's policies and procedures were emailed to all educators on 21 May 2020. On the basis, I am satisfied that Sumer Child Care ensured that copies of the service's policies and procedures were both readily accessible to supervisors, educators and other staff members and available for inspection.
On this basis, I am not satisfied that Sumer Child Care was in breach of regulations 171 in relation to either the May 2019 or May 2020 inspections.
[22]
Section 269(2) in conjunction with Regulation 153(1) (c) and (p)
Section 269 requires a provider to keep a register of family day care educators, co-ordinators and assistants, containing information set out in regulation 153.
Whilst I am satisfied that Sumer Child Care did keep a register of family day care educators, co-ordinators and assistants, on the evidence before me, I am not satisfied that, as at May 2019, it contained all the prescribed information as set out in regulation 153. In particular, I am satisfied that no records were kept of phone calls between co-ordinators and educators for the purpose of monitoring and support, nor were dates or times recorded in relation to correspondence with or material sent to educators. For this reason, I am satisfied that in May 2019, Sumer Child Care was in breach of section 269 and regulation 153.
[23]
Regulation 97(2)
Regulation 97(2) requires that for the purposes of preparing the emergency and evacuation procedures, the approved provider of an education and care service must ensure that a risk assessment is conducted to identify potential emergencies that are relevant to the service.
Whilst the Department of Education alleges that Sumer Child Care was in breach of this section in relation to educator RM, on the evidence before me, I am satisfied that a risk assessment satisfying the provisions of regulation 97(2) was undertaken by Sumer Child Care in November 2019. For this reason, I am not satisfied that Sumer Child Care was in breach of 97(2) in relation to the November and December inspections of RM's residence. I am not satisfied that the provisions of regulation 97(2) require a separate risk assessment to be completed for every potential emergency.
[24]
Regulation 84
Regulation 84 requires the approved provider to ensure that nominated supervisors and staff members are advised of the existence and application of the current child protection law and any obligations they may have under it.
On the evidence before me, I am satisfied that Sumer Child Care complied with its obligations under regulation 84 by organising child protection courses every six to twelve months to advise educators and other staff members of the existence and application of the current child protection law and their obligations under it.
[25]
Regulation 170 (2)
Regulation 170 (2) provides that the approved provider of a family day care service must take reasonable steps to ensure that nominated supervisors, staff members and family day care educators follow the services policies and procedures.
I accept the evidence of Mr Al Zuhairy that it has been his practice to email the policies and procedures to the service's educators with an instruction to read them, and that this was a practice he had adopted prior to the Department's inspections in 2019. Although Mr Al Zuhairy could have done more to ensure the educators properly understood the policies and procedures, I am satisfied that the provision of the documents to the educators with an instruction to read is sufficient to meet the requirements of regulation 170(2). On this basis, I am not satisfied that Sumer Child Care was in breach of regulation 170 as alleged by the Department of Education. For the reasons set out below, I am satisfied that Sumer Child Care now takes steps to ensure that educators properly understand the policies and procedures.
[26]
Regulation 77(1)
Regulation 77 requires the approved provider to ensure that all staff members and volunteers implement adequate health and hygiene practices and safe practices for handling, preparing and storing food.
According to the Department of Education, the approved provider was in breach of this provision when the officer inspecting educator RAM observed that school-aged children attending the service after school had brought their own food - namely a left over sandwich and pre-packaged meat pie - which had been stored in their school bags during the day.
On the evidence before me, I cannot be satisfied that the food found in the bag had actually been in the children's school bags all day. Even it that were the case, on the evidence before me, this is an isolated incident rather than a failure on behalf of the approved provider to ensure that staff members implement safe practices for handling, preparing and storing food. For this reason, I cannot be satisfied that Sumer Child Care was in breach of regulation 77.
[27]
Regulation 97(2)
Regulation 97(2) provides that for the purposes of preparing the emergency and evacuation procedures, the approved provider must ensure that a risk assessment is conducted to identify potential emergencies that are relevant to the service.
On the evidence before me, I cannot be satisfied that prior to the inspection in June 2020, the relevant risk assessments had been conducted for the residences of educators MAM, KT, JA, SAZ or FL.
On this basis, I find Sumer Child Care to have been in breach of regulation 97(2).
[28]
Regulation 97(4)
Regulation 97(4) requires the approved provider to ensure that a copy of the emergency and evacuation floor plan and instructions are displayed in a prominent position near each exit at a family day care residence.
On the evidence before me, I am satisfied that at the time of the June 2020 inspection:
1. the relevant instructions were not displayed at the residence of educator SAZ;
2. no emergency and evacuation floor plan or instructions were displayed at the rear exit of educator ED's residence;
3. no emergency and evacuation floor plan or instructions were displayed at the exit of educator MAM's residence; and
4. no emergency and evacuation floor plan or instructions were displayed at the emergency exit of educator JA's residence.
There is no evidence before me to satisfy me of any steps taken by Sumer Child Care prior to the June 2020 inspection to ensure the relevant plans and instructions were displayed.
On this basis, I am satisfied that, prior to the June 2020 inspection, Sumer Child Care was in breach of regulation 97(4).
[29]
Regulation 117
Regulation 117 requires an approved provider to ensure that all glazed areas of a residence are glazed with safety glass, treated with a product that prevents glass from shattering if broken, or guarded by barriers that prevent a child from striking or falling against the glass.
The term 'glazed area' is not defined in either the regulations or the National Law, nor it is defined in the Macquarie dictionary. The word 'glaze' is defined in the Macquarie Dictionary as 'to furnish or fit with glass; cover with glass.'
At the inspection in June 2020:
1. the educator SAM could not confirm that either a glass shower screen in an area accessed by the children or the glass panels in the timber framed front door were made of safety glass,
2. in response to queries from the inspectors as to a glass sliding door and two floor to ceiling windows, the educator ED noted compliance stickers on the windows and door but was unable to provide a certificate stating that the glass was safety glass, telling the inspectors that he'd had a certificate but had been told by the principal office that he didn't need it any more,
3. educator JA was unable to provide a glass certificate for the shower screen in the bathroom, which did not have glass safety symbols attached to it.
4. a glazing certificate produced by educator RM did not include the glass pool fence at the residence.
Sumer Child Care disputes being in breach of regulation 117 on the basis that compliance with the regulation does not mandate the production of a glass certificate.
On the evidence before me, I am not satisfied that there was a breach of regulation 117 in relation to the residence of educator ED. This is because the relevant doors and windows had safety standard stickers affixed to them and because ED had advised Sumer Child Care that he had received (but not retained) a safety certificate for the areas. In these circumstances, I am not satisfied that, at the time of the June 2020 inspection, Sumer Child Care failed to ensure that the relevant doors and windows met the provisions of regulation 117.
On the evidence before me, I am satisfied that educator SAM was unable to confirm that either the glass shower screen or the glass panels in the timber door, both of which were accessible to children in her care, were either made of safety glass or treated with a product to prevent the glass from shattering. In the absence of such confirmation, I find that Sumer Child Care was unable to ensure compliance with regulation 117 (2). I accept the evidence of Mr Al Zuhairy that SAM has since replaced his glass shower screen which now has a glass safety sticker affixed to it.
I accept that educator JA was unable to confirm that her bathroom shower screen was either made of safety glass or treated with a product to prevent glass from shattering. There was no safety stickers affixed to the shower screen and JA was unable to produce a glass safety certificate. On this basis, I find that Sumer Child Care was unable to ensure compliance with regulation 117 (2).
I am also satisfied that the glass safety certificate held by educator RM did not include the glass pool fence and that, at the time of the inspection by officers of the Department of Education, he was not able to confirm that the fence was either made of safety glass or treated with a product to prevent glass from shattering. On this basis, I find that Sumer Child Care was in breach of regulation 117(2). I accept that RM has since obtained a glass certificate confirming that the pool fence is made of safety compliance glass.
[30]
Regulation 185
Regulation 185 requires the approved provider to ensure that a copy of the National Law and National Regulations is accessible at the education and care service premises at all times.
At the June 2020 inspection, educators JA and SH were unable to produce copies of the National Law and National Regulations in either hard copy or electronic form.
I accept the evidence provided by Mr Al Zuhairy that copies of the National Law and National Regulations were emailed to all educators on 21 May 2020 and that it was the practice of Sumer Child Care to provide educators with copies of both documents upon commencing with the service, to ensure their accessibility at the education and care service premises.
For this reason, I cannot be satisfied that Sumer Child Care was in breach of regulation 185.
[31]
Regulation 77(1)
Regulation 77(1) requires an approved provider to ensure that staff implement adequate health and hygiene practices and safe practices for handling, preparing and storing food.
During the June 2020 inspection, officers observed that educator SH did not wash her hands, wear gloves or use tongs before handing homemade biscuits to the children in her care.
I accept the evidence of Mr Al Zuhairy that Sumer Child Care has policies provided to its educators in relation to hygiene practices and safe practices for handling, preparing and storing food.
In circumstances where Sumer Child Care has provided a copy of these policies to its educators, I am not satisfied that one incident of an educator failing to wash her hands before handing biscuits to the children in her care is evidence of a general failure by Sumer Child Care to ensure that staff implement adequate health and hygiene practices and safe practices for handling, preparing and storing food.
On this basis, I am not satisfied that Sumer Child Care was in breach of regulation 77(1).
[32]
Regulation 171(1) and 171(2)
Regulation 171 requires the approved provider to ensure that copies of the service's current policies and procedures are readily accessible and are available for inspection at the education and care service premises.
During the inspection in June 2020, educators IAZ and SH were unable to provide officers from the Department of Education with access to Sumer Child Care's policies and procedures. Educator MAM was unable to locate the Child Protection policy or the Emergency and Evacuation procedures policy.
On the evidence before me, I am satisfied that on 21 May 2020, Sumer Child Care emailed the centre's policies and procedures to all educators. I also accept the evidence of Mr Al Zuhairy that it was the practice of Sumer Child Care to email the policies and procedures to educators upon their commencement with the service.
That three educators, despite being provided with the policies and procedures documents, were not able to access them (or parts of them in the case of MAM) does not put Sumer Child Care in breach of regulation 171.
On this basis, I am not satisfied that Sumer Child Care breached regulation 171.
[33]
Section 164A(1) in conjunction with regulation 144
Section 164A of the National Law provides that the approved provider must ensure that any child being cared for by an educator is not educated or cared for by any other person other than the family day care educator except as provided by the National Regulations.
Regulation 144(1) provides a mechanism for the approval of a family day care educator assistant with the written consent of a parent of each child being cared for by the educator.
In the June 2020 inspection, officers from the Department of Education found that:
1. in the case of educator LJ, written authorisation to use an assistant was not obtained for two children in attendance,
2. in the case of educator FL, written consent was not obtained from the parents of one child to use an assistant.
On the evidence before me, I find that, in these two instances, Sumer Child Care did not ensure compliance with regulation 144. In these circumstances, Sumer Child Care could not be satisfied that the relevant children were not being educated and cared for by a person other than a family day carer. On this basis, I am satisfied that Sumer Child Care breached s164A of the National Law.
[34]
Failure to comply with stay conditions
On 21 May 2020, the cancellation of Sumer Child Care's provider approval was stayed subject to conditions including that Sumer Child Care arrange for one of its coordinators to make fortnightly inspection visits to all educator residences referred to in the cancellation decision where care is provided and to submit fortnightly reports of such visits to the Secretary's nominated email.
It is accepted that there was a gap of over 14 days between inspections:
1. of educator DA on two occasions;
2. of educator IAZ on three occasions;
3. of educator RM on two occasions; and
4. of educator VD on one occasion.
On the evidence before me, I am satisfied that this was in breach of the stay condition. I accept the evidence of Mr Al Zuhairy that the delays in inspection occurred during the period where the officers of the Department of Education attended the principal office over five days, for up to eight hours a day.
There was, it is agreed, some confusion as to which educators were to be inspected on a fortnightly basis. Whilst the wording of the stay (and the understanding of Mr Al Zuhairy) was that all educators were to be inspected, it is now agreed that only those educators referred to in the cancellation decision were required to be inspected.
This lack of clarity meant that Sumer Child Care inspected more educators than was required under the stay condition.
Although, on the evidence before me, I am satisfied that Sumer Child Care breached the stay condition to inspect (the relevant) educators on a fortnightly basis, I have given little weight to this breach.
This is because:
1. some of the delayed inspections coincided with a comprehensive and time consuming inspection of Sumer Child Care's principal office which required the assistance of Mr Al Zuhairy and the service's coordinators;
2. there is no evidence before me that Sumer Child Care has breached the stay conditions on any further occasion;
3. in addition to the confusion as to which educators were to be inspected, it is unclear from the stay conditions themselves whether the inspections were required to have less than a fortnight's gap between them or whether they were simply to take place within a particular bracketed space comprising fourteen days.
[35]
Characterisation of established contraventions
With respect to the seriousness of any established contraventions:
1. How serious are Sumer Child Care's contraventions (as established) of the National Law and the National Regulations
2. Did these contraventions pose a risk to the health, safety and well-being of children?
3. Are the applicant's contraventions of sections 172, 175 (1) and (2), 269(1) and (2) of the National Law, and regulations 100(1) and (4), 102 (1) and (4), 165, 175, 171(1) and (2) and 185 of the National Regulations properly characterised as 'administrative failures'?
I agree with the Department of Education that the most serious of the uncontested breaches is that of s167 which provides that an approved provider must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from any hazard likely to cause injury. I agree that such breaches may pose serious risks to the health, safety and wellbeing of children attending the service.
I accept that Sumer Child Care's contraventions of sections 172, 175 (1) and (2), 269(1) and (2) of the National Law, and regulations 100(1) and (4), 102 (1) and (4), 175, 171(1) and (2) and 185 of the National Regulations involved shortcoming in relation to documentation requirements and that some of these contraventions were one-off occurrences rather than being indicative of a culture of systematic breaches in relation to documentation. I do not think it helpful to describe these breaches as 'administrative failures.' This has a tendency to lessen their seriousness. Where an educator has care of children, communication with the child's parents is important. Written registers and authorisations are proof that this communication has occurred and that the parents are aware of the nature of their children's activities and whereabouts throughout the day.
[36]
Ms Theoni Zografakis
Ms Theoni Zografakis is a Hub Coordinator in the Early Childhood Education Directorate within the Department of Education. In this role, Ms Zografakis manages a team of authorised officers who conduct compliance and monitoring activities of early childhood education and care services to ensure that providers of education and care services comply with the National Law and National Regulations.
In her evidence in these proceedings, Ms Zografakis considered the seriousness of the contraventions of the National Law and National Regulations by Sumer Child Care.
According to Ms Zografakis, while some of the breaches were relatively minor when considered in isolation, several breaches identified during the visits were serious and indicative of a substantial, ongoing risk to the health, safety and wellbeing of children at the service.
Ms Zografakis identified the following breaches by Sumer Child Care, which relate to the protection of children from risks to health, safety and wellbeing, to be the most serious:
1. The requirement to ensure that every reasonable precaution is taken to protect children from harm and from any hazard likely to cause injury (s. 167(1) of the National Law);
2. The requirement to ensure that first aid kits are provided (reg. 89 of the National Regulations);
3. The requirement to ensure that educators are advised of child protection laws and their obligations under them (reg. 84 of the National Regulations);
4. The requirement to ensure that children are not educated and cared for by any person not authorised to do so (s. 164A of the National Law);
5. The requirement to ensure risk assessments are conducted before each excursion (regulations 100 and 101 of the National Regulations); and
6. The requirement to maintain adequate emergency and evacuation procedures, including to ensure that a risk assessment is conducted to identify potential emergencies relevant to an educator's premise and to ensure that a copy of the emergency and evacuation floor plan and instructions are displayed in a prominent position near each exit (regulation 97 of the National Regulations).
I found Ms Zografakis to be an honest and informed witness and accept her assessment of the relative seriousness of the contraventions by Sumer Child Care of the National Law and National Regulations.
[37]
What steps have been taken by Sumer Child Care to address its breaches of the National Law and National Regulations?
For the reasons set out above, I am satisfied that between May 2019 and June 2020, Sumer Child Care contravened the following provisions of the National Law:
1. Section 164A
2. Section 167
3. Section 168
4. Section 172
5. Section 175
6. Section 269(1) and (2)
For the reasons set out above, I am satisfied that between May 2019 and June 2020, Sumer Child Care contravened the following provisions of the National Law:
1. Regulation 74
2. Regulation 75
3. Regulation 77
4. Regulation 79
5. Regulation 80
6. Regulation 82
7. Regulation 84
8. Regulation 89
9. Regulation 97
10. Regulation 100
11. Regulation 103
12. Regulation 105
13. Regulation 110
14. Regulation 117
15. Regulation 144
16. Regulation 148
17. Regulation 160
18. Regulation 165
19. Regulation 170
20. Regulation 171
21. Regulation 173
22. Regulation 184
23. Regulation 185
On the evidence before me, however, I am satisfied that Sumer Child Care has taken a series of steps by way of remediation to address all issues of non-compliance and to ensure that further contraventions of the National Law and National Regulations do not occur. In making these findings, I have taken into account all the material before me, in particular the evidence of Mr Al Zuhairy and Ms Zografakis in addition to that of Ms Su Hlaing Zay, who has been working with Sumer Child Care since July 2020 to address compliance issues.
The director of Sumer Child Care, Mr Al Zuhairy, gave lengthy oral evidence in these proceedings. He impressed me as an honest witness who has made substantial changes to the operation of Sumer Child Care to ensure its future compliance with the National Law and National Regulations.
Ms Su Hlaing Zay, who was initially engaged as a consultant to assist Sumer Child Care with compliance issues and is now a part-time employee of the service, provided a comprehensive statement in these proceedings. She was not required for cross-examination by counsel for the Department of Education.
Ms Zografakis, Hub Coordinator in the Early Childhood Directorate within the Department of Education, also gave oral evidence in these proceedings. I found her to be an honest witness.
[38]
Regulation 167
The breaches of regulation 167, as set out above, were serious in that the risks of injury posed by the accessible products and materials were substantial and the absence of relevant risk minimisations or communication plans placed children at risk of harm in situations where relevant medical information was not noted.
At the time of this decision, I am satisfied that Sumer Child Care has taken the following steps to ensure its compliance with regulation 167:
1. Overhauling its inspection processes, in the form of both scheduled and unannounced visits;
2. Implementing a new checklist to assist co-ordinators identify risks and hazards;
3. Providing reminders to co-ordinators to check various matters during inspections;
4. Conducting workshops for its educators to assist them with hazard identification and risk minimisation, and receiving evidence of steps taken to childproof a residence;
5. Terminating the services of educators due to outstanding hazards in breach of regulation 167.
[39]
Regulation 89(1)
I accept Mr Al Zuhairy's evidence that he purchased new first aid kits for all educators identified to have insufficient kits and that, as part of the educator's induction process, he requires educators to have suitable kits. I accept that this requirement is set out in the Administrative of First Aid policy for Sumer Child Care and that checklists are provided to the educators to enable them to monitor and check their first aid supplies when conducting monthly inspections and spot checks.
[40]
Regulation 97
I accept the evidence of Mr Al Zuhairy that, to ensure its compliance with regulation 97, Sumer Child Care conducts an initial inspection of all educators' residences upon their commencement with the service and annually thereafter. I am also satisfied that Sumer Child Care directs and reminds educators to have an evacuation rehearsal every three months, which is reviewed during monthly educator inspections and recorded on the hazards and documents checklist.
[41]
Section 164(1) and regulations 144(1) and (4)
For the reasons set out above, I am satisfied that Sumer Child Care breached s164A of the Act in circumstances where parental permission for a child to be cared for by an educational assistant was not obtained.
On the evidence before me, I am satisfied that the relevant educator assistant forms have been updated. I am also satisfied that Sumer Child Care informs its educators of circumstances when educator assistants can be used and that this was addressed in a workshop conducted in July 2020 where attendance for educators was mandatory.
[42]
Section 168 and regulations 75 and 105
In relation to its education programming, Sumer Child Care accepts that eight of its educators were not properly using the approved learning framework or completing the program book.
On the evidence before me, I am satisfied that of these eight educators, only two remain with Sumer Child Care: KT and IAZ.
I also accept that Sumer Child Care has addressed its contravention of section 168 by:
1. providing its educators with a weekly program template to be used as a guide for educators to devise their own program, based on the needs and interests of the children;
2. procuring the services of an external consultant to update the service's template program;
3. conducting a programming workshop and preparing resources for all educators to assist them to prepare and deliver an appropriate educational program;
4. ensuring that educators maintain such a program by implementing a new programming book, which will require the educators to link the weekly program to a daily evaluation, and cover programs to be delivered by the educator.
[43]
Regulation 103
Sumer Child Care accepts that in December 2019 it was in breach of the requirement under regulation 103 to ensure that premises, equipment and furniture at educator premises are safe, clear and in good repair.
On the evidence before me, I accept that Sumer Child Care has since taken further steps to ensure that it does comply with the regulation by conducting monthly inspections and spot checks, in conjunction with the monthly inspection checklist, which includes specific matters within the premises to be checked.
[44]
Regulation 110
Sumer Child Care accepts that it was in breach of regulation 110 by failing to ensure that the indoor spaces of the education and care services premises of six of its educators were well ventilated with adequate light and maintained at a temperature to ensure the safety and wellbeing of children.
I accept the evidence of Mr Al Zuhairy that of those six educators, only one educator, JA, continues to provide services for Sumer Child Care and that she has addressed the issue of ventilation by installing a sliding door with flyscreen to her premises. I am satisfied that the enhanced inspection procedures introduced by Sumer Child Care are designed to ensure its compliance with regulation 110.
[45]
Regulations 102(1) and (4)
Sumer Child Care concedes that, in some circumstances, excursion authorisations were not able to be produced, as required under regulation 102 of the National Regulations.
On the evidence before me, I am satisfied that Sumer Child Care has revised its practices to better communicate those regulatory requirements to its educators and better supervise their compliance. This includes:
1. conducting a formal Induction process to explain to new educators, in a one- to-one environment, the key elements of the Applicant's policies and procedures including obligations under the excursion policy;
2. incorporating a hazards and documents checklist with the monthly checklist to be used during monthly inspections and spot checks;
3. instructing coordinators to check that the educator has completed the necessary risk assessments, and they are available at each educator's residence;
4. conducting an annual review of all routine excursion risk assessments, and having those forms available for parents and guardians to view at both the educator's residence and the principal office of Sumer Child Care;
5. convening a meeting for existing educators to explain all updated policies, including the excursion policy, to make sure that the requirements of the policy are effectively communicated to educators;
6. updating existing policy and procedures to ensure compliance with the National Law and National Regulations.
[46]
Section 172
Sumer Child Care conceded that, at the inspections by officers of the Department of Education in November and December 2019, three of the educators failed to display information about the service as required under section 172 of the National Law.
On the evidence before me, I am satisfied that, to ensure that all educators had the prescribed information in their possession, Sumer Child Care emailed to each an electronic copy on 15 July 2020. I am also satisfied that during monthly inspections and spot checks, the service's coordinators will specifically check that the prescribed information is correctly displayed and that a record of that check will be made using the hazards and documents checklist.
[47]
Section 175(1) and (2) and regulation 177(1)
Sumer Child Care accepts that section 175 of the National Law was breached when a number of educators failed to produce enrolment records for each child in their care.
I am satisfied that the co-ordinators of Sumer Child Care will now ensure that they sight enrolment forms for all children during the monthly inspections conducted at each educator's premises and will record the check on the hazards and documents checklist.
[48]
Regulation 177(2) and section 269
Sumer Child Care concedes the following breaches of regulation 177(2) and section 269:
1. that in relation to a number of the service's educators, information was missing for some of the children in their care;
2. ,the principal office's educator register was incomplete; and
3. one of the educators had not completed an educator assistant record for her husband.
On the evidence before me, I am satisfied that Sumer Child Care has prepared an updated enrolment form to include additional information about the children in its care and will be using this new form to update its existing records for all children currently enrolled in its service.
Although educators are required to fill out the new enrolment forms, I accept that Sumer Child Care has modified its practice to include a check during monthly inspections that educators have completed the forms correctly and that they have been properly signed and dated by the parent and educator in order to verify the accuracy of the information.
I accept the evidence of Mr Al Zuhairy that this check will be carried out using the hazards and documents checklist. I am satisfied that, to ensure compliance with section 269, Sumer Child Care has updated its register of educators. I am also satisfied that Sumer Child Care now requires educators to maintain an educator assistants register, which is reviewed on a monthly basis using the hazards and documents checklist.
[49]
What is the extent of the remediation undertaken by Sumer Child Care?
On the evidence before me, I am satisfied that Sumer Child Care has undertaken a lengthy period of remediation in order to comprehensively address the concerns of the Department of Education.
In particular, I am satisfied that the employment of Ms Su Hlaing Zay, first as a consultant to Sumer Child Care and now as a part-time employee, has been instrumental in addressing Sumer Child Care's breaches of the National Law and the National Regulations.
On the evidence before me, I am satisfied that Ms Zay has the skills to advise on compliance issues in relation to the National Law and National Regulations.
I am satisfied that under Ms Zay's supervision, all educators have been provided with updated documents, forms, processes and procedures. I accept that since July 2020, Ms Zay has organised a series of workshops to address issues of health, safety, child protection, education and programming in family day care.
I am also satisfied that in his capacity as director of Sumer Child Care, Mr Al Zuhairy has looked hard at the service's practices and has taken steps not only to bring the service into full compliance with the National Law and National Regulations but also to bring the service in line with the Department's expectations of how the National Law and the National Regulations should be implemented.
In oral evidence given before me, Mr Al Zuhairy impressed me as an honest witness who is committed to improving the performance of Sumer Child Care to ensure it meets its obligations under the National Law and National Regulations. I am satisfied that, having worked as a child care educator himself from April 2012 to February 2014 and obtained a Certificate III in Child Care and a supervisor's certificate in Child Care, he understands what is involved in caring for children in a day care environment.
I am satisfied that Mr Al Zuhairy has appropriate procedures for interviewing and selecting appropriate educators and ensuring that educators hold the relevant certifications. I am satisfied that Sumer Child Care now has a checklist with a list of documents required from educators.
I am satisfied that Mr Al Zuhairy now ensures that all providers have a hard copy of Sumer Child Care's essential documents, including the service's policies and procedures, checklists, emergency and evacuation procedures and templates for weekly programs. To ensure educators have a clear understanding of these essential documents, I accept Mr Al Zuhairy's evidence that he has instructed the service's coordinators to conduct a formal induction, during which the coordinators will:
1. verbally explain and discuss the essential elements of the service's procedures and processes, so as to ensure that the educators have a proper understanding of those matters;
2. give a PowerPoint presentation regarding key points to provide further visual clarification; and
3. discuss the paperwork and forms the educator is required to complete on a regular basis, the services' policies and procedures, the National Law and Regulations, the National Quality Areas and the National Quality Framework Health and Safety book.
I am also satisfied that Sumer Child Care now uses the Harmony Web online software program to track attendance at the service and that all details entered into the software are reviewed by the service's supervisor and coordinators. I accept that educators are trained to use and navigate the system and can contact the principal office if any issues arise.
I accept that an annual service approval and residence risk assessment has been prepared to ensure an educator's residence complies with the National Law and National Regulations. On the basis of Mr Al Zuhairy's written statements and oral evidence, I am satisfied that existing forms have been updated to ensure their compliance with the National Law and National Regulations.
I am satisfied that the policies and procedures of Sumer Child Care are now not only provided to educators in hard copy but that translated versions of the documents are provided to educators (many of whom have an Arabic or Assyrian language background) who require them. I am satisfied that, between them, the co-ordinators speak Arabic and Assyrian and are able to assist educators as required.
I am satisfied that not only has Mr Al Zuhairy ensured that First Aid kits in educators' residence are updated but that a checklist of items contained in the kit has been produced and that the co-ordinators will review this checklist for compliance on a monthly basis.
I am satisfied that child enrolment forms have been updated to ensure their compliance with the National Law and regulations.
I am satisfied that the service undertakes both monthly scheduled and unscheduled checks of educators.
In the basis of his statements and oral evidence, I am satisfied that Mr Al Zuhairy has taken comprehensive steps to address the breaches of sections 164A, 167, 168, 172, 175 and 269 of the National Law and regulations 74,75, 79, 80, 89, 97, 100, 102, 103, 105, 110, 116, 117, 144, 148, 153,160, 168, 173, 177, 178 and 185 of the National Regulations.
In oral evidence, the applicant was able to explain his obligations as a provider and showed a willingness to continue to address issues raised by the Department of Education. I am satisfied that Mr Al Zuhairy is aware of the stay conditions, including the requirement for fortnightly inspections. I accept that some inspections were delayed in June 2020 and that this coincided with four days of inspections of paperwork in principal officer that required extensive work by Mr Al Zuhairy and his staff. I accept that Mr Al Zuhairy is aware of the stay conditions and is committed to adhering to them, including the fortnightly inspections of the relevant educators.
[50]
Does the applicant's conduct suggest that:
1. Its compliance issues with the National Law and National Regulations are widespread and systematic;
2. It has inadequate governance arrangements and/or
3. It has a culture of non-compliance with the National Law and National Regulations?
On the evidence before me, I accept that between May 2019 and June 2020, Sumer Child Care's compliance issues with the National Law and National Regulations were widespread and systematic.
Since this time, however, I am satisfied that, under the guidance of Ms Zay and with the commitment of Mr Al Zuhairy, Sumer Child Care has made comprehensive changes to its documentation, education, policy and procedures. Such has been the remediation undertaken by Sumer Child Care, I am not satisfied that Sumer Child Care has inadequate governance arrangements, nor am I satisfied that Sumer Child Care has a culture of non-compliance with the National Law and National Regulations.
In oral evidence, Ms Theografakis accepted that Sumer Child Care had taken remediation steps to address the Department's concerns. On this basis, she agreed that Sumer Child Care was willing to comply with the National Law and National Regulations. She remained unconvinced that Sumer Child Care would continue to meet its requirement in light of its history of non-compliance.
On the evidence before me, I am satisfied that Mr Al Zuhairy has taken comprehensive steps to ensure continued compliance with the National Law and National Regulations. He employed Ms Zay as a consultant to ensure policy and procedural requirements were met and has continued to retain her services on an ongoing basis. On the evidence before me, I am satisfied that Ms Zay's work with the service has been instrumental in streamlining its processes to make sure it meets its obligations under the National Law and National Regulations.
I am satisfied that many of the educators whose practices and residential conditions were of concern are no longer working for Sumer Child Care. I am satisfied that the processes taken to choose new educators is comprehensive in order to ensure that educators have the ability to meet the requirements of the National Law and National Regulations.
For these reasons, I am satisfied that the remediation undertaken by Sumer Child Care including its retention of Ms Zay's services is sufficient and effective to address the instances of non-compliance with the National Law and National Regulations raised in the proceedings.
On the evidence before me and in light of the extensive remediation undertaken by Sumer Child Care, I am not satisfied that the service has inadequate governance arrangements nor that it has a culture of non-compliance with the National Law and National Regulations.
[51]
Should the Tribunal only cancel Sumer Child Care's provider approval if it is satisfied that Sumer Child Care is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations?
[52]
If so, then having regard to all relevant matters, including:
[53]
any role that the Department plays in supporting or assisting family day care providers to comply with their obligations under the National Law and National Regulations,
[54]
is the Tribunal satisfied that the applicant is unwilling or unable to comply with the National Law and National Regulations?
As set out above, the cancellation of a provider approval is a severe regulatory response and on the evidence before me, one that would only be appropriate in this case were I satisfied that Sumer Child Care is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations.
As set out above, I am satisfied that Mr Al Zuhairy has undertaken an extensive program of remediation to address the concerns of the Department of Education. I was impressed by the programs and procedures implemented by Ms Zay and by the decision by Sumer Child Care to employ her on an ongoing basis. I accept Mr Al Zuhairy's evidence that were he to increase the number of educators working for Sumer Child care, he would employ enough coordinators to more than meet the ratio requirement of 1-15.
I am satisfied that Mr Al Zuhairy has the capacity, intelligence and experience to run Sumer Child Care and to ensure that it meets its duties and obligations under the National Law and regulations. I am satisfied that Mr Al Zuhairy has a strong commitment to the children and parents in the care of Sumer Child care and is committed to ensuring the safety and well-being of the children under the care of Sumer Child Care.
I accept that the implementation of a checklist system is a way for a provider like Sumer Child Care to keep track of its many obligations under the National Law and regulations, which is a complex system. On the evidence before me, I am satisfied that many of the contraventions can be avoided by the implementation of systems to ensure regular oversight of educators and supervisor. I am satisfied that these systems have been implemented at Sumer Child Care.
I am satisfied that Mr Al Zuhairy has an understanding of Child Protection Law and that Sumer Child Care provides documents and education to its educators to ensure they also understand their child protection obligations and responsibilities.
I accept the evidence of Mr Al Zuhairy that, since reducing the scale and operations of Sumer Child Care, the service has been able to focus on improving its processes and procedures. I accept that Mr Al Zuhairy has worked hard to address the concern of the Department of Education in order to ensure that the service is no longer in breach of its obligations under the National Law and National Regulations.
I accept that remediation is an ongoing process and that Sumer Child Care is committed to continuing to take steps to ensure its compliance with the National Law and regulations.
On this basis and having taking into account Sumer Child Care's previous compliance history, the remedial steps it has taken and the availability of support and assistance from the Department of Education, I am satisfied that Sumer Child Care is willing and able to comply with the National Law and National Regulations.
On all the material before me and having regard to all relevant matters including the objectives and guiding principles of the National Law and National Regulations, I am not satisfied that cancellation is the correct and preferable decision.
Accordingly, in substitution for the decision on 8 May 2020 to cancel the provider approval for Sumer Child Care Pty Ltd, I have decided that the provider approval for Sumer Child Care Pty Ltd should not be cancelled.
[55]
Order
In substitution for the decision by the Secretary of the Department of Education on 8 May 2020 to cancel the provider approval for Sumer Child Care Pty Ltd, the Tribunal orders that the provider approval for Sumer Child Care Pty Ltd should not be cancelled.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 March 2021