AOR v Department of Family and Community Services (No 2)
[2013] NSWADT 288
•13 December 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AOR v Department of Family and Community Services (No 2) [2013] NSWADT 288 Hearing dates: On the papers Decision date: 13 December 2013 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: The Tribunal has no jurisdiction to hear and determine the applicant's application for review of the respondent's decision to refuse to pay her back pay of a Carer Allowance.
Catchwords: Reviewable decision - whether a decision to refuse payment of a carer allowance is a reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997
Children and Young Person (Care and Protection) Act 1998
Children and Young Person (Care and Protection) Regulations 2012
Community Services (Complaints, Monitoring and Review) Act 1993Cases Cited: IO v Department of Family and Community Services [2012] NSWADTAP 42
IO v Department of Family and Community Services, Community Services [2012] NSWADT 158
IO v Director-General Department of Community Services [2008] NSWADT 267
The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) &anor [1961] HCA 51; (1961) 106 CLR 48Category: Principal judgment Parties: AOR (applicant)
Department of Family and Community Services (respondent)Representation: C Orr for the applicant
L Spencer for the respondent
File Number(s): 134004 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997
reasons for decision
Introduction
On 29 January 2013, the applicant, AOR, lodged an application seeking review of 9 matters listed in her letter, dated 12 December 2012, to the respondent, the Department of Family and Community Services. These matters included the 'cancellation/suspension' of her 'authorisation' as a carer, the 'removal' of three girls (siblings) placed into her care and the payment of outstanding out-of-home care allowances (back pay) she alleged to be owed to her for the care of the young siblings.
On the same day, the applicant made an application for an urgent stay of the decision of the respondent to 'cancel my authorisation as a Carer' and to rescind her status as the 'authorised' out-of-home care carer of three girls who had been placed into her care.
The applicant's application for an urgent stay was heard on 13 February 2013. In written submissions, filed before the hearing, the respondent contended that the decision for which the applicant sought review was a decision to refuse the applicant's application for authorisation as an out-of-home care carer and not a decision to cancel an authorisation. And on this basis, the respondent went on to argue that the tribunal did not have jurisdiction to make an order for a stay.
The applicant, on the other hand, submitted that she had been authorised as a carer and pressed her application for a stay order.
At the conclusion of the hearing I made a number of orders and gave oral reasons for decision. My findings included the following:
..., [on] the basis of the material before the tribunal, I am satisfied that the applicant has at not time been an 'authorised carer', or approved to be authorised to provide out-of-home support or statutory care for the girls under the relevant provisions of the Children and Young Persons (Care and Protection) Act and I accept the respondent's argument that the decision made by the respondent, on 16 November 2012, was not a reviewable decision concerning 'removal' of the girls from the daily care of the applicant as an authorised carer. However, I am satisfied that it is a decision (a) not authorise the applicant as an authorised carer and (b) not to grant the applicant the responsibility for the daily care and control of the girls. The second decision is of course dependent on the first. But in any event, both decisions are reviewable decisions under subs 245(1)(a) and (c) of the Children and Young Persons (Care and Protection) Act 1998.
On the basis of my findings, I also agree with the respondent that the tribunal has no jurisdiction to make an interim order as staying the decision of the respondent would not alter the position of the applicant. She would remain unapproved as the authorised support carer of the girls.
Accordingly, the appropriate order is to dismiss the applicant's interim order application for want of jurisdiction.
Otherwise, it is a matter for the applicant to decide whether she still wishes to pursue a review of the respondent's decision. ...
And I made the following orders:
1. The applicant's interim order application is dismissed.
2.On or before 1 March 2013, the applicant to inform, in writing, the tribunal and the respondent if she wishes to proceed with her application in light of the pending Children's court proceedings in regard to the three girls the subject of these proceedings.
3. In the event the applicant presses her application for review of the decision of the respondent, on or before 15 March 2013 the respondent to file and serve any further written submissions in regard to the progress of these proceedings.
4. Application is set down for further directions on 28 March 2013 at 12 noon.
Following a number of further directions hearings, on 1 August 2013, the applicant's solicitor advised that the applicant did not wish to pursue her application for review of the decision of the respondent in regard to her authorisation as a carer and the removal of the three girls from her care. However, the applicant did press her application for back pay as outlined in her letter of 12 December 2012.
The respondent submitted that the tribunal did not have jurisdiction to deal with such an application. As the solicitor for the applicant pressed that application, I made orders for the filing and serving of evidence and submissions in regard to this issue.
I have now considered all the material filed and for the reasons set out below, I find that the tribunal does not have any jurisdiction to hear and determine this issue.
Background
In her affidavit, sworn on 16 June 2013, the applicant set out the factual background to the circumstances giving rise to her caring for the three girls the subject of her application for review. To the extent they are relevant to the applicant's application for back pay, the factual background is as follows:
(a) in February 2012, the mother of the three girls placed the children into the applicant's care;
(b) when the girls were placed into the applicant's care, the applicant made an application, to the respondent, for the payment of the 'Supported Care Allowance' in regard to her care of the girls;
(c) on 14 May 2012, the respondent wrote to the applicant noting that she was continuing to care for the girls without financial assistance as the respondent was 'unable' to assess her 'eligibility for the Supported Care Allowance'. In that letter the respondent noted that 'payment of this allowance is not automatic and a risk assessment is required ...'. The applicant was requested to contact the respondent so that it could progress her application;
(d) in May 2012, the respondent provided the applicant with a 'Certificate of Eligibility for Exemption from Commonwealth Welfare to Work Reforms'. The Certificate was valid for 12 months, from 1 July 2012 to 30 June 2013, on the basis of the applicant being a person 'currently a recognised foster or relative/kinship carer with' the respondent;
(e) in June 2012, the applicant wrote to the Minister, complaining about the refusal of the respondent to process her application for 'the out-of-home care allowance' in regard to her care of the three girls. A similar complaint appears to have been made to the Ombudsman;
(f) on 8 October 2012, the applicant met with officers of the respondent. The respondent wrote to the applicant on 16 October, providing responses to questions raised by the applicant, at the meeting. This included the payment of the Support Care Allowance. In the letter to the applicant, the respondent noted that arrangements were being made with the applicant for the purpose of assessing her for the payment of the Allowance;
(g) on 16 October 2012, Ms Wheeler (as delegate for the Director-General of the respondent) made a temporary care arrangement in regard to the girls under s 151 of the Children and Young Persons (Care and Protection) Act 1998;
(h) on 26 October 2012, Ms D Howard, Manager, Enquiry, Feedback and Complaints Unit of the respondent, wrote to the applicant. In that letter, Ms Howard noted that the applicant had been advised the previous day that she would 'receive 12 weeks back-pay, which is equivalent to 6 fortnight payments;'
(i) on 7 November 2012, the applicant made a formal 'application', to the respondent, for 41 weeks back-pay in respect of each of the three girls. The applicant said that her application was made 'under the terms of the Out of Home Care Payment Policy and Guidelines section 3.2 and section 161 of the Children and Young Persons (Care and Protection) Act 1998.' The applicant ended her letter saying the respondent had 14 days to respond;
(j) on 9 November 2012, Ms Wheeler wrote to the applicant informing her that she would be paid a carer allowance from 16 October 2012, being the date on which the girls became subject to the above temporary care agreement. Ms Wheeler also advised that the applicant's eligibility for further back payment was awaiting the completion of her carer assessment and the placement assessment for the girls;
(k) on 16 November 2012, Ms Wheeler wrote to the applicant informing her that she would not be authorised as the carer of the girls. Ms Wheeler noted that the applicant was receiving a care allowance, which would cease when the temporary care agreement ended. Ms Wheeler also confirmed that the applicant was not eligible for any additional back pay. As I have already indicated, on 12 December 2012, the applicant wrote to the respondent seeking review of a number of decisions made by the respondent, including this decision concerning back pay from early February to 16 October 2012. Ms Sabellico, the respondent's Acting Deputy Chief Executive, Operations, wrote a reply to the applicant on 22 January 2013. In that reply, Ms Sabellico, confirmed the decision of Ms Wheeler and it is this decision for which the applicant seeks review.
Submissions and consideration
The essence of the applicant's argument is that, from the time the three girls were placed into her care, the respondent had 'characterised' her as the girls 'authorised carer' under the Children and Young Person (Care and Protection) Act 1998. She asserts that the placement of the girls into her care was, at all times, known to and supported by the respondent. That support being in the form of Coles Vouchers, payment of canteen bills and then the payment of a Carer Allowance in October 2012. That allowance, the applicant contends should have been back dated to February 2012, when the three girls were placed into her care and when she lodged an application for a Carer's Support Allowance.
The applicant contends that the tribunal's jurisdiction to review the decision of the respondent to refuse her application for the backdated Carers Allowance arises under s 28 of the Community Services (Complaints, Monitoring and Review) Act 1993, para 245(1)(a) of the Children and Young Person (Care and Protection) Act 1998 and a number of other provisions.
The respondent contends that these provisions and the other provisions, cited by the applicant in her submissions, do not give the tribunal jurisdiction to review a decision of the respondent in regard the payment of a Carer Allowance.
It is well established that the tribunal has no power 'to inquire at large into matters that take its interest but over which it has no jurisdiction': see The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor [1961] HCA 51; (1961) 106 CLR 48.
The tribunal has also previously held that it has no jurisdiction to hear and determine decisions about payments to authorised carers under the Children and Young Persons (Care and Protection) Act: IO v Director-General Department of Community Services [2008] NSWADT 267, IO v Department of Family and Community Services, Community Services [2012] NSWADT 158 and IO v Department of Family and Community Services [2012] NSWADTAP 42. In my view, the decision for which the applicant now seeks review clearly falls within the terms of these decisions.
As is made clear by the express words in para 38(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act), the decisions the tribunal has jurisdiction to review are those, made by an administrator, under an Act (other than the ADT Act) and which are prescribed under that Act as being reviewable by the tribunal: see also s 8 and para 36(1)(b) of the ADT Act.
S 28 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 sets out those decisions, of administrators, made under community welfare legislation, which the tribunal has power to review. That section relevantly provides:
28 Applications to Administrative Decisions Tribunal for reviews of decisions.
(1) A person may apply to the Tribunal for a review of any of the following decisions:
(a) a decision that is a reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 20 of the Disability Services Act 1993 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,
(a1) a decision that is a reviewable decision for external review under section 192 of the National Law Alignment Provisions (within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011),
(b) a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section,
(c) a decision that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section,
(d) a decision made by any State Minister, any Commonwealth Minister or any public authority, not being a relevant decision maker, if it is within a class of decisions that, with the consent of the Minister or public authority, is prescribed by the regulations for the purposes of this section.
S 245 of the Children and Young Persons (Care and Protection) Act relevantly provides:
245 Decisions that are reviewable by Administrative Decisions Tribunal
(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:
(a) a decision of the relevant decision-maker to authorise or not to authorise a person as an authorised carer, to impose conditions of an authorisation, or to cancel or suspend a person's authorisation as an authorised carer,
(b)...
(c) a decision of a relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person ...
As can be seen from the terms of para 245(1)(a) and (b) above, these do not include any reference to decisions about the payment of a Carer Allowance. Nor, in my view can it be inferred, from the express words that are used, that a decision about such allowances is a reviewable decision by the tribunal.
The decisions that are expressly reviewable under these paragraphs, includes a decision to not authorise a person as an authorised carer, a decision to suspend or cancel a person's authorisation as a carer and a decision to remove from, an authorised carer, the responsibility for the daily care and control of a child or young person. Decisions in regard to authorisation of a person as a carer or suspension/cancellation of a person's authorisation as a carer are made under cl 30 to 32 and cl 42 of the Children and Young Persons (Care and Protection) Regulation 2012 (previously cl 20 to 20B and cl 31 of the Children and Young Persons (Care and Protection) Regulation 2000 (repealed) - see also s 137 of the of the Children and Young Persons (Care and Protection) Act which deals with 'authorised carers' generally and contains the regulations making power in this regard). As I have explained, the respondent's decision to not authorise the applicant as an authorised carer of the three girls, is a reviewable decision. However, the applicant does not press this aspect of her application.
Nor do I accept the applicant's argument that the respondent had 'characterised' her as the authorised carer of the three girls. The correspondence of the respondent is expressly to the contrary in that it states that the applicant was being assessed as to whether she was to be the authorised day-to-day carer of the girls.
Chapter 8 of the Children and Young Persons (Care and Protection) Act deals with 'out-of-home care' (ss 134 to 172). This term is defined in s 135. It relevantly provides as follows:
135 Definition and types of "out-of-home care"
(1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided:
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.
(2) There are 3 types of out-of-home care for the purposes of this Act, as follows:
(a) statutory out-of-home care-see section 135A,
(b) supported out-of-home care-see section 135B,
(c) voluntary out-of-home care-see section 135C.
(3) ...
I note the relevant provisions provide that statutory, or supported out-of-home care is to be provided by an authorised carer. I also note that the word 'parent' is defined in section 3 of the Children and Young Persons (Care and Protection) Act to mean the person having 'parental responsibility' for the child or young person. At no time during the period for which the applicant seeks payment of the Carer's Allowance, did the applicant have parental responsibility for the three girls. Nor did the respondent. Indeed, the respondent did not commence care proceedings, in the Children's Court, until after the applicant's application for a stay was heard (Chapter 5 of the Children and Young Persons (Care and Protection) Act makes provision for care proceedings). I am informed, the applicant has become a party to the care proceedings initiated by the respondent in regard to the three girls.
During the relevant period, the only action taken by the respondent in regard to the girls was that of Ms Wheeler, who on 16 October 2012, made a temporary care arrangement for the three girls under s 151 of the Children and Young Persons (Care and Protection) Act. That arrangement is administrative in nature and is made between the respondent and the girls' mother (their 'parent' at the time) as the respondent had formed the view that the girls were in need of care and protection. A decision to make such an arrangement is not a decision falling within the terms of s 245 and hence not reviewable by the tribunal.
The same applies to s 161 of the Children and Young Persons (Care and Protection) Act 1998. That section is in the following terms:
161 Financial assistance for children and young persons in out-of-home care
(1) The Director-General may, in respect of any child or young person in out-of-home care, grant financial assistance to any person having the care of the child or young person for any period during which the child or young person is in that person's care.
(1A) Without limiting subsection (1), financial assistance may take the form of a grant, an allowance or a refund of expenditure, or any other form of financial assistance that the Director-General may approve generally, or in a particular case or class of cases.
(2) (Repealed)
(3) If financial assistance under this section was being provided in respect of a person immediately before the person attained the age of 18 years, the Director-General may:
(a) for the purpose of securing education or vocational training on a full-time basis for the person, and
(b) subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Director-General may determine,
from time to time, and until the person reaches the age of 25 years, continue to provide financial assistance in respect of the person for any period during which the person is residing in the home of the person to whom the financial assistance is provided.
(4) For the purposes of this section, out-of-home care is taken to include residential care and control of a child or young person that is provided:
(a) by a relative of the child or young person who has, pursuant to an order of the Children's Court, parental responsibility for the child or young person at a place other than the usual home of the child or young person, or
(b) by a person in accordance with an emergency care and protection order made under section 46.
As pointed out by the respondent, s 161 gives the respondent a wide discretion in regard to providing financial assistance to persons who care for a child or young person placed in out-of-home care.
Nevertheless, for the purpose of this application, the question is whether a decision of the respondent to grant or refuse to provide financial assistance to a person, under s 161, is a decision that is reviewable by the tribunal. As I have already indicated, a decision under this section clearly does not fall within the terms of s 245 of the Children and Young Persons (Care and Protection) Act and as a consequence is not a reviewable decision under s 28 of the Community Services (Complaints, Appeals and Monitoring) Act 1993. Nor has the applicant identified any other provision, which prescribes a decision made under s 161 as being a decision that is reviewable by the tribunal.
Conclusion and orders
For the reasons set out above, I find that a decision of the respondent to refuse to pay, or back pay, a Carer Allowance to a person is not a decision prescribed to be a reviewable decision by the tribunal. Accordingly, the tribunal has no jurisdiction to hear and determine an application for review of such a decision. And in light of this finding the appropriate order is:
The tribunal has no jurisdiction to hear and determine the applicant's application for review of the respondent's decision to refuse to pay her back pay of a Carer Allowance.
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Decision last updated: 13 December 2013
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