AQC and Aqd v Department of Family and Community Services

[2013] NSWADT 185

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AQC & AQD v Department of Family and Community Services [2013] NSWADT 185
Hearing dates:	30 May 2013
Decision date:	30 May 2013
Jurisdiction:	Community Services Division
Before:	S Higgins, Deputy President
Decision:	Application dismissed for want of jurisdiction as the application seeking review of the respondent's decision is made out of time.
Catchwords:	Jurisdiction - application for review - application lodged out of prescribed time - no reasonable explanation for delay
Legislation Cited:	Administrative Decision Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
Category:	Interlocutory applications
Parties:	AQC & AQD (Applicants) Department of Family and Community Services (Respondent)
Representation:	Foster Carer's Association (Agent for the applicants) N Hali (Respondent)
File Number(s):	134009
Publication restriction:	S 126 of the Administrative Decisions Tribunal Act 1997

reasons for decision

Background

1. On 16 April 2013, the applicants, AQC and AQD, made an application seeking review of a decision of the respondent, the Department of Family & Community Services, to cancel their authorisation as carers under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act).

1. The decision of the respondent was initially made on 11 May 2012, following a 5-year review of the applicants as authorised carers. The applicants were notified of this decision and the reasons for decision in a letter dated the same date.

1. The applicants made an application for internal review of that decision, which they were entitled to do. On 4 June 2012, an officer of the respondent (other than the original decision maker) made the internal review determination, which affirmed the original decision. The applicants were notified of this decision and the reasons for that decision in a letter dated 12 June 2012.

1. On 16 August 2012, the Director, Child and Family, of the Region wrote to the applicants setting out the four competencies that all carers are required to meet and a summary of the findings in the course of the applicants' 5-year review as to their ability to meet those competencies. In that letter, the Director re-iterated the internal review decision to cancel the applicants' authorisation as carers.

1. The applicants' application came before me, at a directions hearing, on 30 May 2013. At the directions hearing, the respondent contended that the tribunal had no jurisdiction to hear and determine the applicants' application as it had been lodged out of time. In support of that contention, the respondent relied on submissions it had filed and served on 15 May 2013.

1. After hearing short arguments from the parties, I dismissed the applicants' application for want of jurisdiction as the applicants' application had been lodged out of time. At the time I gave some very brief reasons for decision.

1. The parties subsequently made a request for written reasons: see s 89 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In accordance with that request, these are my reasons for decision.

ADT Act

1. Subs 38(1) of the ADT Act provides that the tribunal has jurisdiction to review a decision, of an administrator, where an Act, or regulation, other than the ADT Act, provides that applications may be made to the tribunal to review the decision in issue. There is no dispute that the decision for which the applicants seek review is a decision for which the applicants can seek review by the tribunal: see para 28(1) of the Community Services (Complaints, Review and Monitoring) Act 1993 and para 245(1)(a) of the Care Act.

1. S 55 of the ADT Act sets out when an application for review can be made to the tribunal. That section relevantly provides:

55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) where the person was entitled to seek an internal review of the decision-the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, by the end of the default application period for the decision.

Note.

1 Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

2 Section 53 (9) provides that an internal review is taken to be finalised if:

(a) the applicant for the review is notified of the outcome of the review, or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

3 A person may not have an entitlement to seek an internal review because such an entitlement has been excluded by regulations made for the purposes of section 53 (11) or by an enactment.

(2) The default application period for a reviewable decision is:

(a) in the case where the applicant has duly applied for an internal review of the reviewable decision-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or

(b) in any other case-the period of 28 days after:

(i) if the applicant has requested reasons under section 49 for the reviewable decision-the day on which the applicant was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the applicant has not requested reasons under section 49-the day on which the applicant was notified of the making of the reviewable decision.

(3) ...

1. S 57 of the ADT Act makes provision for the lodgement of late applications and provides as follows:

57 Late applications to Tribunal

(1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(1A) An application by an interested person under subsection (1) must be in writing unless the Tribunal dispenses with the requirement.

(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the period or time referred to in section 55 (1) (d).

Consideration

1. In their application for review, the applicants noted that their application was issued out of time. While no formal application for an extension of time was sought, it was noted that the reasons for lodging the application out of time was set out in the applicants 'attached letter detailing reasons'.

1. The letter is addressed to the tribunal and sets out the background to the applicants' application and why they consider the decision of the respondent to be unfair. Although the letter is dated 21 February 2013, the applicants did not send it to the tribunal prior to lodging their application for review on 16 April 2013.

1. As I have explained, the respondent also filed and served written submissions and copies of relevant documents prior to the directions hearing.

1. In my view, the starting point in this application is to identify the date on which the prescribed period, in para 55(1)(d) of the ADT Act, commenced.

1. As the Community Services (Complaints, Review and Monitoring) Act 1993 and the Care Act do not prescribe the time within which an application for external review, by the tribunal, of a reviewable decision under these Acts is to be made, the 'default period' in subs 55(2) of the ADT Act applies. And the applicable para in this subs is para 55(2)(a) as the applicants had duly applied for an internal review of the original decision made in May 2012.

1. As I have explained, the internal review decision was made, on 4 June 2012 and the applicants were notified of the decision and the reasons for decision in a letter dated 12 June 2012. In that letter, the respondent informed the applicants of their right to seek external review of that decision by the tribunal. The applicants were also informed that they were required to apply for a review within 28 days. Details of the tribunal's website and the tribunal's contact details were also provided.

1. The applicants did not say when they received the 12 June 2012 letter of internal review determination. However, in the respondent's chronology of events, which is not disputed by the applicants, on 27 June 2012, the applicants met with officers of the respondent in regard to the internal review decision. The respondent provided a copy of the minutes, in the bundle of documents, in support of its submissions. I note, that during the course of this meeting there were discussions about the applicants seeking authorisation through another designated agency. Review by the tribunal of the respondent's internal review decision was also discussed. The meeting appears to have concluded with the respondent agreeing to look at re-writing the internal review decision.

1. The letter of 16 August 2012 appears to be the re-written internal review determination. The decision remained the same. However, the reasons for decision were amended to include an acknowledgement of the applicants' strengths as carers. The applicants were again informed of their right to lodge an application with the tribunal. In their application for review, the applicants' state they were notified of the respondent's re-written internal review determination on 16 August 2012.

1. Strictly speaking, the applicants' right to seek external review by the tribunal began to run from the time they were notified of the internal review determination. That is, from around 12 June 2012. However, in light of the agreement by the respondent to re-write the internal review determination, it is appropriate for time to commence from the date on which the applicants were notified of the re-written determination (i.e. 16 August 2012). On this basis, in order to file an application for review within the time prescribed in para 55(1)(d) of the ADT Act, the applicants were required to lodge their application for review by 13 September 2013.

1. This, the applicants failed to do. However, it would appear that the applicants continued to discuss their de-authorisation with the respondent. They had also, in July 2012, applied to be authorised as carers with Life Without Barriers. The applicants state that initially Life Without Barriers was very supportive of their application and they were registered to undertake further training. That training, I note from a Life Without Barriers document attached to the applicants' letter, dated 21 February 2013, states that the training was scheduled to take place at the end of September 2012.

1. The applicants state that they were 'denied the opportunity to attend training by head office LWB on the basis that they wanted us to firstly take FaCS to tribunal'. On the basis that this training was to occur in late September 2012, the applicants must have been informed about the position of Life Without Barriers prior to this date. Again the applicants did not lodge an application for review. Instead they appear to have again approached the respondent seeking a review of its decision to cancel their authorisation. In its chronology, the respondent states that on 12 November 2012, the Regional Director, Child and Family informed the applicants, by email, that the respondent would not oppose a late application, to the tribunal, so long as it was done by 31 December 2012.

1. Again, the applicants failed to lodge an application for review by this date. Had they done so it would have been 3½ months out of time.

1. The applicants did not lodge their application for review for a further 3½ months. Accordingly, this application has been lodged 7 months out of time and on this basis the application fails to meet the requirements of para 55(1)(d) of the ADT Act. As para 55(1)(d) is one of the requirements that must be met in order for the tribunal to have jurisdiction to hear and determine an application for review, a failure to meet that requirement, or any of the other requirements in subs 55(1), means that the tribunal does not have jurisdiction to hear and determine the application.

1. The exception to para 55(1)(d) is where the tribunal makes an order, under s 57 (1), to extend time. However, the order is to be made on an application, by the applicant, for an extension of time and the tribunal is given power to extend time where it is of the opinion that the applicant has provided a 'reasonable explanation' for the delay in making the application. Furthermore, an application for an extension of time is to be in writing, unless the tribunal dispenses with the requirement (see subs 57(1A)).

1. As I have explained, the applicants did not make a written application for an extension of time. Nor did the applicants seek to have the requirement for writing to be dispensed with.

1. While I appreciate the applicants have not been legally represented, it is apparent from the material they filed and the undisputed chronology filed by the respondent that the applicants have at all times been aware of their right to seek review by the tribunal and that this right was to be exercised within 28 days of the internal review decision. They were also aware of the respondent's undertaking that it would not to object to an extension of time, if they lodged their review application by the end of 2012.

1. Yet the applicants have continued to delay in bringing this application. Furthermore, they have not provided any explanation as to why there has been a delay since October 2012. I appreciate that the cancellation of their authorisation has caused them considerable upset. However, in my view this alone cannot be accepted as a reasonable explanation for the delay, especially as the applicants appear to have fully understood their review rights. Instead they have chosen another path to address their concerns. I am not critical of the applicants having done so. I also note that the applicants are not prevented from re-applying for authorisation under the Care Act. That application, if made, will be considered on its merits, in light of the circumstances that apply at that time. If dissatisfied with the decision that is made, the external review rights of applicants will again be enlivened in respect to that decision.

1. For these reasons, even if the applicants had made an application for an extension of time, on the material before me I would not grant that extension of time as the applicants have failed to provide a reasonable explanation for their delay.

1. Finally, in making my findings, it should be noted that I have not considered the merits of the applicants' application for review.

Orders:

Application dismissed for want of jurisdiction as the application seeking review of the respondent's decision is made out of time.

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Decision last updated: 16 August 2013