The NSW Civil and Administrative Tribunal in Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education reviewed the decision of the Department to cancel the Provider Approval (under the National Law) of the applicant. The matter has an extensive history before the Tribunal. The applicant lodged its application for review on 16 January 2020. The applicant also made an application seeking an order that the decision of the respondent be stayed pending the determination of its administrative review application. On 6 February 2020, the Tribunal made an order staying the cancellation decision of the respondent until the resolution by the Tribunal of the applicant’s external review application: Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43 (Stay Decision). That order was subject to conditions. On 14 October 2020, the Tribunal published its decision and reasons for decision: Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education (No 2) [2020] NSWCATAD 249. In that decision, the Tribunal decided to set aside the decision of the respondent to cancel the applicant’s provider approval. The Tribunal also decided to impose conditions on the applicant’s provider approval. The respondent appealed this decision to the Appeal Panel. On 10 September 2021, the Appeal Panel published its decision and reasons for decision: Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263. In that decision, the Appeal Panel allowed the respondent’s appeal and set aside the Original Decision of the Tribunal. The Appeal Panel also made orders: (a) remitting the applicant’s application to a differently constituted Tribunal for reconsideration, and (b) granting a stay of the decision of the respondent pending the determination of the applicant’s application on re-determination. The stay application was also made subject to conditions.
In this case before a new Tribunal, the Department contended that provider approval was cancelled as over a period of three years the applicant has breached conditions of its provider approval many times. The conditions breached included those prescribed in sections 164A, 165, 166, 167 and 175, National Law and regulations 84, 97, 100, 102, 103, 105, 117, 162, 170 and 171. Before the Tribunal the Department argued it should affirm the decision to cancel the applicant’s provider approval because of the on-going and repetitive nature of the alleged breaches (para. 11):
the applicant has a pattern and culture of non-compliance with the National Law and the National Regulations;
at least some of the breaches are serious and indicative of a substantial, ongoing risk to the health, safety and wellbeing of children in the applicant’s service;
a number of similar harms and hazards were identified across multiple educators’ residences which is indicative of a systemic problem for the applicant and not referable to a particular educator;
even where individual instances of non-compliance have been rectified, the applicant has failed to implement an effective system to ensure that similar incidents of non-compliance do not occur in the future;
the non-compliance extended into the period during which the applicant has been operating its business by virtue of Tribunal stay orders; and
the applicant’s pattern and culture of non-compliance with the National Law and the National Regulations demonstrates that the applicant has either an unwillingness or an inability to address its systemic failures to comply with the requirements of the National Law and the National Regulations.
The Tribunal extensively reviewed the compliance history and decided to set aside the decision to cancel the applicant's provider approval saying (paras. 172-181):
As we have noted above, the respondent’s functions and powers to ensure compliance by an approved provider with the National Law and the National Regulations range from an educative role to an enforcement role. In this case, despite the applicant’s willingness to address the concerns raised by the respondent, it is apparent that the respondent never saw its role as being educative. Nor did it consider taking a less severe form of enforcement action, such as issuing a compliance direction to the applicant regarding the alleged breaches that were of an administrative nature. Instead, the respondent appears to have been focused on cancelling the applicant’s provider approval, which is the most severe and final enforcement action that can be taken.
We accept that the respondent’s on-going compliance and monitoring visits continued to identify concerns about the way in which the applicant operated its service. However, the issues of concern to which the respondent’s compliance and monitoring visits were directed also changed over time. Hence, different types of breaches were found. We note that even though, as early as the first visit concerns about the applicant’s pro-forma forms were identified, no further investigations were made regarding the adequacy of the applicant’s pro-forma forms.
The breaches, and the alleged breaches are, in our opinion, primarily administrative in nature - for example, the applicant’s pro-forma forms relating to approvals under reg 144 and the risk assessments and authorities for an excursion under reg 100 of the National Law.
We did not have the benefit of observing Mary Tesifaye [nominated supervisor] giving her evidence, however we note that the Tribunal as originally constituted accepted her evidence. We did have the benefit of observing Hingano Mataele [educational Leader] give her evidence. We found her to be a credible witness with a commitment to the ongoing improvement of the applicant’s service so that it meets each of the Quality area of the NQS. She has worked hard to address the concerns of the authorised officers and at the same time putting systems in place so as to ensure compliance with the National Law and the National Regulations by the applicant’s service and its educators, many of whom are not native English speakers. This does not mean different standards apply - it just means that Yodit Gessesse, Mary Tesifaye, Hingano Mataele must ensure that the educators that are accepted for the applicant’s service also understand and comply with the provisions of the National Law and National Regulations. We note that, in her evidence, Hingano Mataele said the applicant has taken steps to have some of the applicant’s material translated into Arabic to assist the educators in understanding what their obligations and the obligations of the applicant.
The legislation is not only comprehensive but also complex and in our view this is now well understood by the applicant.
We have not had the benefit of hearing evidence from Yodit Gessesse, the sole director of the applicant. While we have found this surprising, the respondent has not made any comments on this or contended that we should make adverse findings based on the very little evidence she has provided to support the applicant’s case. Hence, we have not done so.
After considering all of the material before the Tribunal, we are not persuaded that:
(1) the applicant has a pattern and culture of non-compliance and is unwilling or unable to address its non-compliance. We agree that there are instances where the applicant has failed to comply with the National Law and the National Regulations, however its response has always been to address the issues raised;
(2) the established breaches are indicative of a substantial ongoing risk to the health, safety and wellbeing of children enrolled in its service. In our view, for the reasons we have already given, the established breaches are largely of an administrative nature and the most serious of the breaches were not ongoing and addressed immediately and did not continue;
(3) the established breaches of the applicant are indicative of an overall systemic problem. Again, the evidence does not support this; and
(4) the applicant has failed to implement an effective system to ensure compliance. Again, the evidence is to the contrary. Furthermore, the applicant is now well aware of the consequences if it does not have an effective system to ensure compliance.
Finally, we note that no further alleged breaches have been drawn to the attention of the Tribunal since submissions closed in this matter.
Having regard to the material before us, our findings and the objects and principles set out in s 3 of the National Law (in particular, that the rights and best interest of the child are paramount), we find that the decision to cancel the applicant’s provider approval is not the correct and preferable decision and should be set aside.
However, we are also of the view that, given the history of the operation of the applicant’s service where it has always had around 20 educators engaged by its service, it may be appropriate for the respondent to consider amending the conditions imposed on the applicant’s service approval by reducing the maximum number of family day care educators the applicant may employ or engage. This recommendation is not binding on the respondent, who will be in a better position to decide, in consultation with the applicant, what the most appropriate number might be.
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