Sumer Child Care Pty Ltd v Secretary, Department of Education

Sumer Child Care Pty Ltd v Secretary, Department of Education - [2021] NSWCATAD 42 - NSWCATAD 2020 case summary — Zoe

[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.

[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.

[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.

[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.

[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.

[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.

[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.

At a glance

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Judgment (55 paragraphs)

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Legislation Cited (2)

Cases Cited (3)