The Australian Administrative Appeals Tribunal in Helping Hugs Family Day Care Pty. Ltd. and Secretary, Department of Education heard a review of the decision of the Commonwealth Department of Education to cancel the applicant's approval. The Tribunal set aside the decision to cancel Helping Hugs Family Day Care Pty Ltd’s approval to operate a child care service. However, it determined that Helping Hugs’ approval be granted on the basis that the number of educators allocated to the service does not exceed 45 and the number of child care places allocated to the service does not exceed 315. In addition, it was held that the breaches identified by the Department had been made out, as such Helping Hugs has received an overpayment of $65,654.10 and ordered that the balance of the monies held in trust by Helping Hands must be remitted to the Department. The Tribunal also ordered, to ensure that Helping Hugs continues to comply with all the conditions of its approval, that it must require all families to deposit gap payments directly with the service and not the individual educators. In coming to its decision, the Tribunal observed (paras. 261-264):
The Tribunal is satisfied that Helping Hugs has now established procedures to ensure adequate oversight, governance and compliance systems, in a genuine effort to meet its obligations. It is also satisfied that Helping Hugs and its directors were genuine in their desire to provide a quality child care service to children from diverse cultural backgrounds in growing communities with high needs and limited resources. Helping Hugs has demonstrated that it is endeavouring to understand its obligations and has committed to complying with them.
Given the weight of evidence, the Tribunal would have been satisfied that cancellation was the appropriate sanction at the time. The breaches identified were egregious and highlight that Helping Hugs’ governance arrangements at the time were systematically flawed or non-existent. This is particularly so as the health and safety of children is paramount, and the blatant disregard of the public purse cannot be ignored. If the delegate had not sought to cancel Helping Hugs approval, none of these breaches would have been detected by Helping Hugs, moniesowed would not have been remitted, and action to ensure ongoing compliance would not have been taken by the service.
However, in the time since the imposition of the stay and the hearing, Helping Hugs has been able to demonstrate that it has now put in place policies, procedures and governance arrangements to ensure it is complaint with the requirements for approval. Therefore, the Tribunal is not of the opinion that cancellation is still warranted.
The Tribunal nevertheless finds that Helping Hugs should be sanctioned for its numerous breaches and determines that limits need to be imposed on its approval due to its systemic failures. The evidence before the Tribunal leads it to the conclusion that Helping Hugs is still not completely cognizant of its obligations under the FAL, which is concerning given the service has been operating since 2013.
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