AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner - [2023] AATA 2202

AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202 (24 July 2023)
Division:GENERAL DIVISION
File Number:2022/5400
Re:AussieCare Foundation Pty Ltd
APPLICANT

AndAged Care Quality and Safety Commissioner
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:24 July 2023
Place:Brisbane

The decision under review is set aside and substituted with a decision to approve the Applicant to provide aged home care pursuant to s 63D of the Aged Care Quality and Safety Commission Act 2018 (Cth). The matter is remitted to the Aged Care and Quality Safety Commissioner to make any further determinations pursuant to s 63E to give effect to this decision.
..................[SGD]................
Deputy President J Sosso
Catchwords
HEALTH AND AGED CARE – refusal of application for application as an approved provider of aged care – whether the Applicant has experience in providing aged or other relevant forms of care – whether the Applicant has demonstrated understanding of the responsibilities of a provider of the type of aged care for which approval is sought – whether the Applicant has systems or proposed systems, to meet the responsibilities as a provider of aged care – Applicant’s record of financial management – conduct as a provider of other forms of care – where the Applicant has experience providing care under NDIS scheme – where the Applicant has engaged an industry expert to assist with compliance with the responsibilities of providing aged care – decision under review set aside and substituted and remitted to Aged Care Quality and Safety Commissioner
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)
Aged Care Act 1997 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2021] AATA 24
Secondary Materials
Records Principles 2014 (Cth)
Accountability Principles 2014 (Cth)
User Rights Principles 2014 (Cth)
Fees and Payment Principles 2014 (No. 2) (Cth)
REASONS FOR DECISION
Deputy President J Sosso
24 July 2023

On 14 June 2022 AussieCare Foundation Pty Ltd (the Applicant) applied pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) for a review of a reconsideration decision of a Delegate of the Aged Care Quality and Safety Commissioner (the Commissioner) dated 2 June 2022 under s 63D of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Act) not to approve the Applicant as an approved provider of home care – Exhibit 1 T2 pp. 4-20, Exhibit 3 A3 pp. 670-702.
The application for review is made pursuant to s 74N of the Act, which provides that applications can be made to the Tribunal for reviews of reconsideration decisions of internal decision reviewers.
On 30 July 2021 the Applicant made an application to the Commissioner, pursuant to

s 63B of the Act, for approval to provide aged care – Exhibit 1 T5 p. 25. The type of care applied for was home care – Exhibit 1 T5 p. 32.
On 16 March 2022, a Delegate of the Commissioner determined not to approve the Applicant’s application – Exhibit 1 T11 pp. 321 – 329.
On 22 March 2022, the Applicant requested reconsideration of this decision pursuant to

s 74K of the Act.
LEGISLATIVE SCHEME
The objects of the Act are set out in s 5. The object of the Act is to establish a regulatory framework that will:
(a)“protect and enhance the safety, health, well-being and quality of life of aged care consumers; and
(b)promote aged care consumers’ confidence and trust in the provision of aged-care services; and
(c)promote engagement with aged care consumers about the quality of care and services provided by:
(i) approved providers of aged care services; and
(ii) service providers of Commonwealth-funded aged care services.”
To achieve these objects, the Act establishes the Aged Care Quality and Safety Commission and the position of Commissioner.
Amongst the functions conferred on the Commissioner, is the function of approving providers of aged care. The provisions relating to the approval of aged providers are contained in Part 7A of the Act.
Section 63B provides that an application for approval as a provider of aged care must comply with the requirements set out in s 63B(2). Section 63C provides that the Commissioner may, by written notice, request the provision of further information within a specified period.
The key provision for this matter is s 63D. Subsection 63D(2) sets out three requirements that must be met before approval to provide aged care can be given, namely:
(a)the applicant is a corporation;
(b)the applicant is suitable to provide aged care; and
(c)each individual who is one of the key personnel of the applicant is suitable to be involved in the provision of aged care.
The meaning of the term “key personnel” in relation to a person or body is set out in s 8B.
If the entity is not a State or Territory, it means “any other person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the entity at that time” – s 8B(1)(b).
Further, s 8B(1)(d) provides that if the entity proposes to conduct an aged care service, “key personnel” include:
“(i) any person who is likely to be responsible for the nursing services to be provided by the service and who holds a recognised qualification in nursing; and
(ii) any person who is likely to be responsible for the day-to-day operations of the service;
whether or not the person is employed by the entity.”
Subsections 63D(3)-(8) prescribe the suitability criteria for the provision of aged care. The subsections are set out below:
(3)“In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:
(a)the person’s experience in providing, at any time, aged care or other relevant forms of care;
(b)the person’s demonstrated understanding of the person’s responsibilities as a provider of the type of aged care for which approval is sought;
(c)the systems that the person has, or proposes to have, in place to meet the person’s responsibilities as a provider of the type of aged care for which approval is sought;
(d)the person’s record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;
(e)if, at any time, the person has been a provider of aged care or other relevant forms of care—the person’s conduct as such a provider and the person’s compliance with:
(i) the person’s responsibilities as a provider of that care; and
(ii) the person’s obligations arising from the receipt of any payments from the Commonwealth for providing that care;
(ea) whether the person has at any time been convicted of an indictable offence;
(eb) whether a civil penalty order against the person has been made at any time;
(f)any other matters specified in the rules.
(4)In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the person.
(5)The rules may specify the matters to which the Commissioner must have regard in considering any of the matters set out in paragraphs (3)(a) to (f).
(6)Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care.
Suitability of key personnel
(7)In deciding whether an individual who is one of the key personnel of the applicant is suitable to be involved in the provision of aged care, the Commissioner must consider the suitability matters in relation to the individual.
(8)Subsection (7) does not limit the matters the Commissioner may consider in deciding the matter mentioned in that subsection.”
The Commissioner has conceded that the requirements of s 63D(2)(a) and (c) have been satisfied, and that the issue in dispute is whether the Applicant is suitable to provide home care for the purposes of s 63D(2)(b) – Exhibit 3 R1 p. 704 para 3.3.
The responsibilities of an approved aged care provider are set out in Chapter 4 of the Aged Care Act 1997 (Cth) – (the AC Act). The responsibilities relate to:
(a)the quality of aged care provided – Part 4.1;
(b)user rights for people to whom aged care is provided – Part 4.2; and
(c)accountability for the aged care provided, and the suitability of the key personnel – Part 4.3.
Section 54-1 of the AC Act provides, inter alia, that the responsibilities of an approved aged care provider in relation to the quality of the aged care provided is as follows:
(a)to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;
(b)to provide care and services of a quality consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles;
(c)to comply with the Aged Care Quality Standards;
(d)to manage incidents, and take reasonable steps to prevent incidents, including through implementing and complying with the Quality of Care Principles; and
(e)to comply with the provisions of the Code of Conduct applicable to the approved provider.
User rights are also dealt with in the UR Principles. The responsibilities of approved providers in relation to home care is set out in s 56-2 of the AC Act.
Finally, Part 4.3 of the AC Act deals with the accountability responsibilities of approved aged care providers. In particular, s 63-1 of the AC Act set out the various accountability responsibilities of approved providers.
Attention can be drawn, first, to s 63-1(a) which requires an approved provider to comply with Part 6.3 in relation to keeping and retaining records relating to the service. Part 6.3 sets out, inter alia, the obligations of approved provider to maintain and retain certain records. The obligations are referenced to the further obligations set out in the Records Principles 2014 (Cth) – see s 87-2 and 88-1-88-3.
Attention can also be drawn, in particular to s 63-1(g), (ha), (hb), (hc) and (m) which require approved providers to comply with the various requirements of the Accountability Principles 2014 (Cth).
ISSUES
The ultimate issue for determination by the Tribunal is whether the Applicant is suitable to provide home care as defined by s 45-3(1) of the AC Act.
In reaching a determination on this question, the Tribunal must consider the principles outlined in s 63D(3) of the Act, as well as such other matters that are relevant.
BACKGROUND
The Applicant is a registered proprietary company limited by shares and was registered from 9 January 2019 – Exhibit 1 T5 p. 99.
At the time of the application to the Commissioner the Applicant had two directors: Mr Dhanvir Suhag and Ms Jia Li – Exhibit 1 T5 p. 31.
The key personnel identified by the Applicant were the (then) two Directors as well as Mr Vishwanath Gudipati – Exhibit 1 T5 p. 35.
In the application form it was stated that Mr Suhag was born in December 1984 and has a Bachelor’s Degree in electronic and communicating engineering, which was awarded on

1 January 2006 and a Diploma in community welfare work which was awarded on

1 January 2010 – Exhibit 1 T5 p. 36.
Mr Suhag provided the following information about his previous work experience and its relevance to the provision of aged care – Exhibit 1 T5 pp. 36-37:

Employer Role Description Period of employment

Ozcare Community Worker-Rehab assisting with drug and alcohol clients… 2010 -2012

Life Without Barrier[s] community worker providing ADL’s supports to residents… 2012-2017

Carers QLD local area co-ordinator, conducting NDIS plan review meeting for general participants… 2017-2018

NDIA APS 6 Planner… 2018-2019

Mr Suhag set out in the application form the principal duties of his position in the Applicant as follows – Exhibit 1 T5 p. 36:
“Being the owner and director of AussieCare Foundation, my role is to manage the day to day operations and be the main contact with the care managers and clinical nurse advisor on operational issues.
Working with the other staff I will keep up to date with care services provided, maintain compliance, conduct audits across the services using the audit tools and be the main contact for the business. Also working with Jia our other director and accountant to manage the funding and financing of the business. The role is one of oversight of the general operations and ensure the service complies with the Age Care Act. This is the current role I carry out in regard to our NDIS operation.”
Ms Li, who was born in November 1978, has a Master of Commerce (Professional Accounting) from the University of Queensland (1 January 2005), is a Member of the CPA Australia (since 1 January 2013) and has a Certificate III in Individual Support from Sage Education which was awarded in 2020 – Exhibit 1 T5 p. 38.
Ms Li’s duties in the Applicant are as follows – Exhibit 1 T5 p. 38:
“I manage the financial operations of our NDIA service and provide all the accounting, taxation and business advice to AussieCare Foundation. My role with the Home Care business will be similar to the NDIS business. This involves maintain [sic] individual service charges to each client, balancing at the end of the month and providing supporting documentation as to the chares [sic] for clients. I will also be the contact for the Medicare claims under the new payment arrangements for Home Care. I maintain the Caremaster software for the accounts and will do to produce the monthly statements. I also produce all the financial reporting such as the profit and loss and balance sheet, etc for the company.”
Mr Gudipati, who was born in August 1988, holds the position of Clinical Nurse Advisor in the Applicant. He is registered by the Nursing and Midwifery Board as a Registered Nurse (Division 1), and was awarded a Bachelor of Nursing from the University of Southern Queensland on 22 November 2019 – Exhibit 4. Further, he was awarded a Master of Health Services Management by Griffith University on 16 December 2013 and a Master of Health Services Management (Advanced) also from Griffith University on 30 July 2015 – Exhibit 4.
Mr Gudipati worked as a PCW and then a Registered Nurse with related functions with Churches of Christ Care, Stanthorpe from December 2017 and with Bupa Aged Care, Rangeville from November 2020.
The Applicant’s registered business address is in East Brisbane, Queensland – Exhibit 1 T5 pp. 31-32.
On 1 July 2019 the Applicant was registered as an NDIS provider in relation to managing supports under participants’ plans as defined in s 42 of the National Disability Insurance Scheme Act 2013 (Cth) – Exhibit 1 T5 p. 156.
As from 21 May 2021 until 21 May 2024 the Applicant is registered to provide the following classes of supports under participants’ plans – Exhibit 1 T5 p. 156:
(a)assist personal activities high;
(b)assist-life stage, transition;
(c)assist-personal activities;
(d)assist-travel/transport;
(e)daily tasks/shared living;
(f)development-life skills;
(g)household tasks;
(h)participate community;
(i)plan management; and
(j)group/centre activities.
The Applicant reported to the NDIS Quality and Safeguards Commission that Mr Suhag and Ms Li were its key personnel. The Commission made the following finding – Exhibit 1 T5

p. 163:
“As at 21 May 2021 they have been determined to be suitable to be involved in the provision of supports or services which you are registered to provide.”
CONSIDERATION
Introduction
The Commissioner submits that the Tribunal should not be satisfied that the Applicant is suitable to provide aged care as required by s 63D(2)(b) of the Act – Exhibit 3 R1 p. 706 para 5.2.
As previously noted, the Commissioner does not contest that the Applicant complies with the requirements of s 63D(2)(a) and (c) of the Act – Exhibit 3 R1 p. 704 para 3.3.
The Commissioner draws the Tribunal’s attention to the following relevant matters in

s 63D(3):
(a)experience in providing aged care or other relevant forms of care – s 63D(3)(a);
(b)
demonstrated understanding of the responsibilities as a provider of aged care –

s 63D(3)(b);
(c)systems or proposed systems, to meet responsibilities as a provider of aged care – s 63D(3)(c);
(d)record of financial management, and the methods used, or proposed to be used, in order to ensure sound financial management – s 63D(3)(d); and
(e)conduct as a provider of other forms of care and the Applicant’s compliance with its responsibilities as a provider of that care, and obligations arising from the receipt of any payment from the Commonwealth for providing that care – s 63D(3)(e).
Experience in providing aged or other relevant forms of care – s 63D(3)(a)
It is relevant to note that in the form Application for approval to provide aged care: New Applicant, under the heading Experience Providing Aged Care or Relevant Care are the following Notes – Exhibit 1 T5 p. 41:
“Relevant care may include (but is not limited to) the delivery of care under the CHSP, National Disability Insurance Scheme (NDIS), subcontract, or private fee for service care.”
It is clear from this Note, and conceded by the Commissioner, that the Applicant has experience in providing other forms of relevant care – Exhibit 3 R1 p. 707 para 5.4.
Whilst the Commissioner correctly points out (Exhibit 3 R1 p. 707 para 5.4) that the Applicant has no demonstrated experience in the provision of aged care, this is no bar to satisfying the requirements of s 63D(3)(a). This paragraph focuses not just on experience in the provision of aged care, but also “other relevant forms of care”. The Application Form has been specifically drafted to include delivery of care under the NDIS as a relevant form of care.
In its Application Form, the Applicant provided the following information about its relevant care experience – Exhibit 1 T5 pp. 41 – 42:
“Aussiecare Foundation currently has 10 Supported Independent Living homes providing 24/7 care to NDIS participants. Most of our clients are aged in their 50’s and early 60’s, with disabilities including mental health/psychosocial disability, acquired brain injury, autism spectrum disorder, dementia and physical disability.
Additionally we support NDIS participants in the community with a range of services as per our NDIS registration. In total we have approximately 110 NDIS participants as clients.
In our supported independent houses, we have qualified team of support workers who assist our clients around to [sic] clock to ensure that client[s] receive best quality care. Our staff receive training and professional development from time to time which is paramount to our service.
Our support ratio in the houses varies from 1:2 to 1:3 depending on the clients support needs under NDIS. Having an appropriate supporting ratio is critical to the organisation service quality standard. Our client base has grown immensely in the last two years. Most of our clients are aged in their 50’s and early 60’s…”
The Applicant pointed out that it has been providing care services to persons with a mental disability, autism spectrum disorder, dementia and physical disabilities. The range of services provided and the number of care recipients of those services were said, by the Applicant, to be as follows – Exhibit 1 T5 pp. 42-43:

46. Care type Recipients

Plan management 110

Participate community 85

Household tasks 95

Development-life skills 90

Daily tasks/shared living 110

Assist-travel/transport 110

Assist-personal activities 110

Life stage/transition 75

Group/centre activities 95

Assist personal activities - high 75

It is tolerably clear to the Tribunal that the Applicant has significant experience in the provision of other relevant forms of care, and the Tribunal has no reason to doubt the accuracy of the above summary as contained in the Application Form.
Quite properly, the Commissioner draws the Tribunal’s attention to s 63D(4) which provides that in considering a matter referred to in paragraph 3(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the applicant.
As previously noted, the key personnel of the Applicant are Mr Suhag, Ms Li and Mr Gudipati.
The Commissioner submits that the Tribunal should not be satisfied that the Applicant, through its key personnel, has sufficient relevant experience in the provision of aged or other forms of care that would enable it to successfully establish and effectively operate as a provider of aged care – Exhibit 3 R1 p. 707 para 5.6.
The suggested deficiencies in Mr Suhag’s experience and expertise as contended by the Commissioner are set out below – Exhibit 3 R1 pp. 707-708 para 5.7:
“…Mr Suhag has no direct experience in aged care, nor are his current duties bolstered by any significant experience in prior organisational governance roles that might assist with his suitability for the role of a director of a company providing aged care. In this respect, the Commissioner notes that Mr Suhag relies on his former role as an APS 6 Planner at the National Disability Insurance Agency (NDIA). Mr Suhag maintains that this role ‘has given [Mr Suhag] great insight into how the government policy and legisaltions [sic] are implemented and how to implement quality standards’ (T5/43). This statement is not supported by any detail demonstrating that Mr Suhag’s experience is transferable to the role of the director of a company providing aged care. It appears that Mr Suhag’s experience within this entity was limited to the management of staff, not management at an organisational level. The Commission contends that there is a lack of detail regarding how Mr Suhag will undertake his role and work together with the rest of the management team to effectively deliver safe and quality care and services.”
[Emphasis in original]
At the first day of the Hearing, Mr Suhag provided the following information about his experience and expertise in the provision of care services – Transcript (Tr.) 26.4.2023

pp. 14-15:
“MR SUHAG: Okay. Yes, and I finished that in 2010 and since then I’ve been working in aged care sector. I worked with different providers, previously I have worked with Life Without Barriers, Ozcare, Carers Queensland, and NDIA agency and I opened my own business in 2019, which is AussieCare Foundation.
DEPUTY PRESIDENT: Okay. So, in the period between 2010 and 2019, you were telling the tribunal that you were continuously employed in the aged care sector.
MR SUHAG: Yes. Accept [sic] a couple of years when I worked in hospital.
DEPUTY PRESIDENT: Okay. So you’ve been working in either aged care/stroke health in that period, 2010 to 2019?
MR SUHAG: Yes.
DEPUTY PRESIDENT: And what were you doing? What roles were you fulfilling?
MR SUHAG: Oh, I fulfilled a range of different roles starting from the support worker which including assisting people with ADL, that is assisting with shower, dressing, cooking, cleaning, taking the[m] out in the community for shopping, banking, to the coordination of their services, which included making their plans, plans with what the clients want, what their cares would look like, supervising the staff and then slowly more into the team role, and with the NDIA and that’s when I resigned from that role and decided that I think I have appropriate skills and qualifications to have my own business.
DEPUTY PRESIDENT: Okay. So tell the tribunal about the work you’ve been doing since 2019.
MR SUHAG: Oh, of course. Since 2019 it’s been an amazing journey. I left my job being a team leader with NDIA and I decided to open my AussieCare Foundation and because I had done my hard - I always want to work and support people with disabilities and be in the care sector because that’s why my whole life is. That’s what my qualifications, that’s what my experience and we opened our organisation in 2019. We sought approval from NDIA. As Commissions we got approval and then we start, I start working on the organisation. It’s been four years, and the journey has been amazing. Currently, we employ 40 staff members. They almost work, almost on a full-time basis and we provide care to plus/minus, 120 people and most of those clients have a range of different disabilities and a range of different support services and part of our service is providing residential care facility, which is basically looking after the clients on a 24/7 basis.
DEPUTY PRESIDENT: Okay. So, your company employs 40 staff did you say?
MR SUHAG: Yes.
DEPUTY PRESIDENT: Approximately 40 staff.
MR SUHAG: Yes.
DEPUTY PRESIDENT: And of those 40 staff, how many are directly involved in providing care to clients as distinct from corporate work?
MR SUHAG: I would say roughly 80 to 85 per cent. Ninety per cent up to.
DEPUTY PRESIDENT: So almost 30 of your staff are providing residential care.
MR SUHAG: Yes.
DEPUTY PRESIDENT: Okay. And what are the range of services your company provides under the NDIS scheme?
MR SUHAG: So we have various range of services that include support coordination, that support coordination is to coordinate the client package, linking them with the support services, whatever their needs are and other things we provide is supported independent living, which is basically 24/7 facilities. So we got 10 homes which [are] owned by the organisation - the organisations provide where the clients with disability lives and we provide them 24/7 care. In one house, maybe there might be say two people, three people and that’s the ratio, maybe one on one, one to two, one to three to make sure that the clients being looked after in all aspects of their life. That might be cooking for them, cleaning for them, showering them, dressing them, assisting them to seek extra services that might be linked to their psycho-social or they need some counselling. All those sort of things we assist them.”
It should be noted that in the original Determination of 16 March 2022, the Delegate of the Commissioner was satisfied that Mr Suhag’s qualifications and experience were “relevant for his intended role” – Exhibit 1 T11 p. 324.
The Delegate noted that Mr Suhag had previously worked as a Community Worker and a Local Area Coordinator for Carers Queensland. It was also noted that Mr Suhag has experience in the management of disability services in his role as a Director of the Applicant providing NDIS services – Exhibit 1 T11 p. 324.
The Tribunal notes that Mr Suhag has no direct experience in the provision of aged care. However, this omission is not fatal, as he has had considerable experience as a community worker directly assisting and supporting vulnerable clients, particularly in the period

2010-2017 whilst working for Ozcare and Life without Barriers. In the period 2017-2018 Mr Suhag worked for Carers QLD as a local area coordinator, conducting NDIS plan review meetings for participants. This experience was supplemented in 2018-2019 when

Mr Suhag worked for the NDIA as an APS 6 planner, and supervised APS 4 and 5 officers – Exhibit 1 T5 pp. 36-37.
More recently, Mr Suhag has been the joint Director of a company that has, ostensibly, been successfully providing care services for vulnerable persons with a disability. As Mr Suhag explained in the testimony outlined above, this has involved direct care services by approximately 30 staff of the Applicant.
With due respect of the Commissioner, the fact that Mr Suhag has had direct and relevant experience in the supervision of staff providing care services, managing the day to day operations of the Applicant and being the direct contact for operational issues that arise, suggests to the Tribunal that Mr Suhag has direct and relevant experience of a type that would satisfy s 63D(3)(a).
The Reconsideration Delegate outlined at length what she perceived to be the shortcomings of Mr Suhag’s experience – Exhibit 3 A3 p. 673. Some of the points raised both by her and the Commissioner in the Statement of Issues, Facts and Contentions would carry considerable weight in the abstract. Certainly, they are issues relevant to key personnel in a corporate entity which has no experience in the provision of care services.
However, prima facie, the Applicant has demonstrated experience in the provision of disability care services, and the services provided are of a type that would be similar to the aged home care services that would be provided.
At the Hearing, I asked Mr Suhag about his experience in the provision of care and its relevance to the provision of aged care – Tr. 26.4.2023 p. 17
“Are you based, on the roles and the work that you were doing, in the period 2010 to 2019, are you telling the tribunal you’ve had direct experience in aged care provision?‑‑‑Not directly aged care, but people with disabilities and people with mental health, psychosocial – those sort of, and more so those field overlay each other.
Okay. Right. And are you saying that your experiences in those areas are directly transferable to the provision of aged care?‑‑‑Exactly, a hundred per cent.”
Having regard to both the written and oral evidence before the Tribunal, I am satisfied that Mr Suhag’s experience in working with care providers and his experience as a Director of the Applicant, has relevance to the provision of aged care.
Consequently, the Tribunal is satisfied that Mr Suhag has sufficient relevant experience for the purposes of s 63D(3)(a).
Mr Suhag informed the Tribunal at the Hearing that Ms Li was no longer a Director of the Applicant, however it would appear that this has not diminished her role in the governance of the company.
The Delegate of the Commissioner in her decision of 16 March 2022, was also satisfied that Ms Li’s qualifications and experience were relevant for her intended role. The Delegate made these findings – Exhibit 1 T11 p. 324:
“7.11 Ms Li has experience in financial management and the administration of disability services, having previously worked as a Finance Manager and a Service Delivery Manager.
7.12 The applicant has explained how Ms Li’s experience is relevant to her duties and responsibilities as Director and Financial Manager. In particular her experience as a financial manager for NDIS services is relevant to the financial management of home care services.”
The Reconsideration Delegate also found that Ms Li’s CPA qualifications “are however suitable to manage the financial components of the business as outlined in her principal duties” – Exhibit 3 A3 p. 673.
The Commissioner correctly points out that Ms Li has no experience of undertaking roles in the aged care setting, and that her prior management experience appears to be limited to the management of staff, not management at an organisational level – Exhibit 3 R1 p. 708 para 5.8.
However, it must be emphasised that Ms Li manages “the financial operations of our NDIA service and provide all the accounting, taxation and business advice to AussieCare Foundation. My role with the Home Care business will be similar to the NDIS business” – Exhibit 1 T5 p. 38.
Ms Li’s role currently, and in the future, is limited to financial functions. The Tribunal is satisfied that she has the requisite experience and expertise to perform those functions if the Applicant becomes a provider of home aged care.
Mr Gudipati’s role in the Applicant comprises oversight of home care.
The Delegate of the Commissioner in her decision of 16 March 2022 was generally satisfied that he had the requisite experience to undertake the oversight role proposed – Exhibit 1 T11 p. 324:
“7.15 Mr Gudipati has previously worked as a Support Worker and Nurse in residential aged care.
7.16 Mr Gudipati has clinical experience and healthcare qualifications…
7.18 I am satisfied that Mr Gudipati’s qualifications and experience are relevant for his intended role, however, I have concerns in relation to the extent of his clinical experience.”
The Reconsideration Delegate was also satisfied that Mr Gudipati had the relevant experience – Exhibit 3 A3 p. 673:
“Only one of the key personnel nominated has experience in the delivery of aged care, including clinical care – the Clinical Nurse Advisor, Vishwanath Gudipati, who has the appropriate qualifications and described experience to undertake clinical care and oversight of home care.”
The Commissioner pointed out that until the date of the Hearing, Mr Gudipati had not provided documentation of his qualifications and had not provided a current APHRA certificate of registration, as the certificate provided with the application expired on

31 May 2022 – Exhibit 1 T5 p. 98.
Mr Suhag tendered at the Hearing, documentation from Griffith University confirming that Mr Gudipati had in fact been awarded a Master of Health Services Management and a Master of Health Services Management (Advanced). Further, the Tribunal was presented with a (then) current AHPRA certificate of registration which was due to expire on

31 May 2023 – Exhibit 4.
The Tribunal agrees with the Delegate, that Mr Gudipati has both clinical experience and health care qualifications. The understandable concerns of the Commissioner about documentation to demonstrate that Mr Gudipati has those qualifications was addressed at the Hearing.
The Tribunal has some concerns about Mr Gudipati’s ability to undertake an oversight role as he has not undertaken such a role in the past.
Overall, the Tribunal is tolerably satisfied that the Applicant satisfies the requirements of

s 63D(3)(a).
Demonstrated understanding of responsibilities as a provider of aged care –

s 63D(3)(b)
In that part of the Application Form dealing with the requirements of s 63D(3)(b), the following information is provided to applicants – Exhibit 1 T5 p. 45:
“Approved Providers of aged care have ongoing obligations. Your responses to this section must demonstrate your understanding of the responsibilities under Division 54, Division 56 and Division 63 of the Aged Care Act 1997, as well as the Quality of Care Principles and Quality Standards.
You must establish how your underpinning systems, policies and procedures will provide certainty that you are compliant, and will remain compliant with an approved providers legislated responsibilities.”
[Emphasis in original]
In Section 3.2 of the Application, the Applicant outlines at considerable length its demonstrated understanding of the responsibilities as a provider of aged care –

Exhibit 1 T5 pp. 45-70. Detailed responses were provided to the questions posed regarding compliance with the responsibilities required under Parts 4.1, 4.2 and 4.3 of the AC Act.
A sensible reading of the responses given by the Applicant suggest that it has attempted to meaningfully engage with the Commissioner, and has given focused and detailed responses to the questions posed.
The responses could not be categorised as general, imprecise or inadequate. Clearly, as will be discussed below, the responses were less than ideal, but it would not be correct to be overly critical of the manner in which the Applicant has attempted to engage with the Commissioner.
As Mr Dube correctly conceded at the Hearing, the fact that an applicant has “missed a couple of lines in a policy” is not determinative of an applicant’s suitability to provide aged care – Tr. 27.4.2023 p. 118. In short, to engage in an exercise of finding minor errors and omissions, and then to conclude that an applicant has not met the requirements of s 63D(3), would be incorrect. Certainly, errors and omissions in the completion of forms is a matter that needs to be taken into account, and sometimes could result in an applicant being found not meeting the suitability requirements of s 63D(3). However, a decision-maker is required to take into account and weigh it together with all the other considerations –

Tr. 27.4.2023 p. 118.
It is in this context, that attention can now be given to the submissions of the Commissioner.
The Commissioner contends that the “applicant’s responses to question 3.2.1 (Compliance with Responsibilities under Part 4.1 of the Aged Care Act, the Principles and the Quality Standards) are generic in nature, comprise bare assertions and do not provide any real detail about how the applicant will achieve and maintain compliance with its responsibilities” – Exhibit 3 R1 p. 708 para 5.11.
Reference is made to the assertion by the Applicant in the application that its policies and procedures “have been developed by industry experts and are aligned to the Aged Care Act, Quality of Care Principles, and the Aged Care Quality Standards” – Exhibit 1 T5 p. 45.
The Commissioner disagrees and notes that the application heavily references a

“CDC Policies and Procedures Manual”, however notes that only various parts/appendices of this “generic manual” have been provided – Exhibit 3 R1 p. 708 para 5.11. Reference is made to a “Quality Audit Report”, which is a report of an assessment conducted between

2-3 September 2020 of “Under MyCDC” – Exhibit 1 T12 pp. 335-397.
The MyCDC system will be referred to below, however for present purposes MyCDC stands for My Consumer Directed Care – Tr. 27.4.2023 p. 107.
In particular, the Commissioner contends that there is a disconnect between the general understanding of the Applicant’s responsibilities as outlined in the application, and the policies and procedures the Applicant has subsequently produced to ensure compliance with its responsibilities – Exhibit 3 R1 p. 708 para 5.11. The Commissioner outlined the following concerns – Exhibit 3 R1 pp. 709-710 para 5.11:
(a)the Applicant’s Co-design Clinical Care Plans reference policies and procedures which were not provided;
(b)the Applicant’s Nutrition and Hydration Policy fails to provide adequate detail and appears to be a generic template rather than having been extracted from any policy or procedure manual of the Applicant;
(c)the Applicant’s Clinical and Care Services Manual is also claimed to be deficient. The Commissioner contends, inter alia, that the Manual lists a number of policies and procedures which have not been provided, lists Standards but provides no details as to how staff will comply with them, notes that the numbering of Standards is incorrect and overlooks Standards;
(d)the Applicant’s policy on complaint management and access to advocates lacks detail and contains only generic information. Further, it provides no detail as to how complaints are reviewed and used to improve the quality of care and services;
(e)Standard 2(3)(c) requirements are acknowledged, but the Applicant does not explain how these requirements will be incorporated into the care provided
(f)Standard 2(3)(e) requires care and services to be reviewed regularly for effectiveness. The Commissioner contends that the Applicant’s response does not explain how it will review care and services provided to a consumer, how it will identify a change in circumstances or what it will do in response to any change;
(g)the Applicant’s responses do not describe how Standard 4(3) will be met, namely that a care provider demonstrates that a consumer will get safe and effective supports for daily living, the services and supports will recognise each consumer’s emotional, spiritual and psychological well-being and the services will assist consumers to participate in the community; and
(h)the client support plan provided to the Commissioner on 28 September 2022, appears to relate to provision of NDIS services and not aged care.
In addition to the above, the Commissioner also raised concerns about the Applicant’s 2021 Business Plan – Home Care Packages – Exhibit 1 T5 pp. 164-183. The Commissioner refers to the statement at page 3 of the Business Plan that where “required we will also engage with peak bodies of aged care and industry experts” – Exhibit 1 T5 p. 166. It is contended that no reference is given to the relevant regulatory requirements which the peak bodies and regulatory experts have to comply or how the Applicant will monitor performance with the same. Further, it is contended that the Business Plan makes no reference to the type of care and services which the Applicant intends to provide as outlined in

Part 1, Schedule 3 of the Principles – Exhibit 3 R1 p. 711 para 5.12.

Finally, the Commissioner contends that the material provided by the Applicant provides no real detail regarding how it will meet or implement the Standards – Exhibit 3 R1 p. 711

para 5.13.
Overall, it is the contention of the Commissioner that, at best, the Applicant’s understanding of the responsibilities of an approved care provider is rudimentary. Consequently, it is contended that the Tribunal should not be satisfied that the Applicant will be able to equip its staff with a sufficient understanding of the rigorous requirements that must be met at all times when providing home care – Exhibit 3 R1 p. 711 para 5.14.
The Applicant contends that it already has the necessary skills, and thus understanding of responsibilities, to operate an aged home care service and has the systems to meet the requisite legal requirements imposed on aged care providers – Exhibit 3 A1 p. 1 para 1.5. This submission is predicated on the fact that the Applicant has, ostensibly at least, been successfully providing home care services under the NDIS.
Importantly, the Applicant points out that it has engaged an industry expert to assist with compliance with the responsibilities of providing aged care – Exhibit 3 A1 p. 1 para 1.6.
It is contended that most home care providers start with a generic set of policies, procedures and systems and adapt them to their service, as appropriate.
Reference is made to the assistance provided to the Applicant by Mr Mark Sheldon-Stemm, and, in particular, the use of his “operational manual” the MyCDC system. The role of the MyCDC system, and the involvement of Mr Sheldon-Stemm, is discussed at length below.
It is the case that legislative and regulatory requirements for the provision of aged care are complex and complicated. The associated Principles which form part of the regulatory framework are comprehensive and detailed. Further, this is an evolving area of the law, with frequent, and sometimes opaque changes to the regulatory framework – see Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2021] AATA 24 at [71].
Clearly, the overarching regulatory framework in this area is designed to ensure that vulnerable consumers are given the care they require and are not subject to inappropriate and negligent care. The regulatory burden is set at a high level to ensure that those vulnerable consumers at most risk are not placed in the care of an applicant whose staff are not appropriately trained and who are not aware of their legal responsibilities as providers of aged care.
The Commissioner is correct in pointing out errors and omissions in the documentation outlined above. If the following factors were not present, it would be open for the Tribunal to reach the same conclusion as the Commissioner. Whilst care must be taken not to “cherry pick” relatively harmless omissions or errors in the documentation and then default to a finding that the person therefore lacks demonstrated understanding of their responsibilities, nonetheless where multiple errors and omissions are identified, this could result in a negative finding to the question posed by s 63D(3)(b).
The first factor is that the Applicant has been providing home care to persons with a disability since 2019 pursuant to the National Disability Insurance Scheme Act 2013 (Cth). While this is not determinative of whether the Applicant is suitable to provide aged home care, it nonetheless suggests that the Applicant has demonstrated understanding of its responsibilities under that legislative regime. The NDIS does share some similarities with the provision of aged care, albeit the two legislative regimes are separate and distinct.
Mr Dube properly conceded at the Hearing that being an NDIS provider is a relevant factor when considering the requirements of s 63D(3) – Tr. 27.4.2023 p. 119.
Mr Dube made the following submission – Tr. 27.4.2023 p. 119:
“Deputy President the last point really relates to the contention that because the applicant is an NDIS provider who has been providing care under the NDIS for now four years, or just over four years, that that means that that is a reason – that means that the applicant is suitable to provide aged care. It is a relevant factor. We don’t say that it’s not a relevant factor. And we say that the applicant clearly has provided evidence which shows that it’s passed the audits that have been undertaken and that it is providing care, and that there’s no evidence before the tribunal to suggest that it isn’t complying with its obligations under the NDIS Act. But that is a factor. It is not, as was suggested in the applicant’s facts and contentions that as in earlier – I was going to say earlier times – but a few years ago, the way in which approval flowing from aged care to NDIS was in essence automatic in some circumstances. That does not necessarily mean that that should be a decisive factor for the tribunal, the fact that the applicant is an approved provider under the NDIS. It needs to have regard to the experience and the operation.”
The Tribunal agrees with Mr Dube that the fact that a person is an NDIS provider is not, of itself, determinative of whether that person meets the various requirements mandated by

s 63D(3). If that was the case, then the relevant aged care legislation or subordinate legislation would require a decision-maker to automatically approve an NDIS provider to be an aged care provider. A decision-maker must independently consider each of the requirements of s 63D(3). However, when undertaking that exercise, the fact that an applicant is an approved NDIS provider, is a relevant consideration. Further, if such an applicant has a long history of compliance with the regulatory responsibilities mandated by the NDIS, then it may be a highly relevant consideration.
The thrust of the Applicant’s response to both the initial decision of 16 March 2022 and the reconsideration decision of 2 June 2022, was to point out, at some length, that the Applicant is an experienced NDIS care provider, and has demonstrated a good understanding of the requirements imposed on providers under the NDIS. For example, the Applicant made the following submission – Exhibit 3 A3 p. 662:
“Firstly, the NDIS policies and procedures underpin our current operation and these are aligned to that of Aged Care in the way services are to be provided and having the client at the centre of care.”
The Tribunal agrees that in determining if a person has a demonstrated understanding of the responsibilities of a provider of aged care, the fact that a person has demonstrated an understanding of providing NDIS care, is a relevant and potentially important consideration.
The second factor, is that the Applicant has retained the services of Mr Sheldon-Stemm and has the benefit of using the MyCDC system. That system (which is discussed at length below) provides the mechanism for the Applicant, its management team and employees, to gain and maintain a thorough understanding of the responsibilities imposed on aged care providers.
Before proceeding further, the Tribunal notes that the requirement imposed by s 63D(3)(b) is directed to the person. As is pointed out in the Application form – Exhibit 1 T5 p. 27:
“It is not sufficient to rely on the expertise of an external person or organisation in lieu of the applicant’s own.”
[Emphasis in original]
Mr Dube made the following submission at the Hearing – Tr. 27.4.2023 pp. 118-119:
“…at the moment there is a degree, and probably a strong degree, of reliance on the expertise of Mr Sheldon-Stemm to demonstrate the understanding of the requirements to operate as an approved provider…you are responsible for providing clear and accurate information that is a true reflection of your organisation or key personnel’s knowledge and understanding of an approved provider’s responsibility. And it’s that point which we say when the tribunal weighs up all the evidence it can’t be satisfied that there is a sufficient understanding at the moment.”
Mr Dube is correct in highlighting that the requirements of s 63D(3)(a) cannot be delegated to an external person or organisation. The requirement of demonstrated understanding of the person’s responsibilities as a provider of aged care, is directed to an applicant and their key personnel. If a person lacked the requisite understanding required by s 63D(3)(b), but instead relied on an external consultant for such understanding, then that applicant would not meet the requirements of s 63D(3)(b).
However, that is not the situation in this matter. The evidence presented suggests that the Applicant, through its key personnel, does have the requisite understanding. Of key importance to the Tribunal, is that through the assistance of Mr Sheldon-Stemm and his MyCDC system, that understanding is further improved and rendered more robust.

Mr Sheldon-Stemm’s involvement, then, adds to the Applicant’s understanding but does not replace it.
Without setting out at length the Applicant’s responses to the adverse findings made by the two Delegates in the decisions outlined above, the Tribunal notes that the Applicant provided detailed responses to the findings made on s 63D(3)(b) – Exhibit 3 A3

pp. 661-663, 690-697.
Central to these responses was reliance on the MyCDC system and internal processes as set out in the various MyCDC documents.
The Applicant contends that it will ensure adequate numbers of adequately qualified staff who will have an understanding of the requirements of the relevant Standards. In that regard it contends that the processes it will employ to ensure that is set out in the Operational Manual and related documentation. The Applicant contends that the Operational Manual and Policies and Procedures identify the actions required to carry out the relevant aged care and services – Exhibit 3 A3 p. 690.
In addition, it was also contended that other applicants who have been approved to provide aged care have done so in reliance on the MyCDC system – Exhibit 3 A3 p. 690.
The Tribunal acknowledges that there are deficiencies in some of the documentation lodged by the Applicant, however, having regard to its history as an NDIS provider and its reliance on the MyCDC system, it is tolerably clear that the requirements of s 63D(3)(b) are satisfied. In particular, the Tribunal is, on the balance, reasonably satisfied, that the Applicant will have adequate processes and systems in place to ensure that it remains compliant with its legal obligations as an aged care provider.
Systems or proposed systems, to meet the responsibilities as a provider of aged care – s 63D(3)(c)
This paragraph is focused on the governance systems in place to ensure regulatory compliance with the responsibilities required pursuant to the AC Act.
The Application Form provides the following guidance to applicants – Exhibit 1 T5 p. 71:
“…Your responses must adequately describe your organisational governance systems. You must describe who is responsible for the overall operations of your organisation and how they manage and coordinate the activities of the organisation. If your responses references an off the shelf system, such as a Quality Management System or Information Technology system, you must provide substantiating evidence as to how and why these systems will ensure compliance with the responsibilities set out under the Aged Care Act…”
[Emphasis in original]
The Commissioner contends that the responses given in the Application and supporting documents do not demonstrate that the Applicant has systems in place or will have them in place to ensure it meets an approved provider’s responsibilities – Exhibit 3 R1 p. 711 para 5.15. Specific examples given in support of this contention are as follows – Exhibit 3 R1

pp. 711-713:
(a)Standard 1 – the Commissioner points out the Applicant’s claim that it actively embeds respect, dignity and choice into its corporate culture, encouraging and supporting consumers to live full lives of their choosing – Exhibit 1 T5 p. 46. However, the Commissioner contends that while the Applicant’s response in the Application refers to the manual and policies and procedures listed therein, it does not refer to relevant sections of the policies or provide a clear framework to staff to manage compliance with same. Further, the Commissioner contends that the Applicant has not demonstrated any systems in place to ensure it provides clients with information that is current, accurate and timely, and communicated in a clear and easy to understand manner;
(b)Standard 2 – the Applicant’s Co-design Clinical Care Plans do not, the Commissioner contends, stipulate how, and to what criteria, clinical care plans are to be designed and reviewed against. The Applicant does not identify any ongoing assessment or review with the consumer following the initial assessment;
(c)Standard 3 – the Commissioner refers to the Manual wherein it is stated: “where the health condition of the client changes or requires further investigation, referrals are made to a health specialist to maintain their well being”. The Commissioner cites this quote from Exhibit 1 T12 p. 392, whereas it is p. 394. It is submitted that the Manual provides no guidance as to when a referral is to be considered or a framework for obtaining such. It is also submitted that the Applicant has not demonstrated that it has a system in place to ensure health specialists provide clinical care tailored to the needs of the client. The Commissioner also contends that the Applicant fails to provide a framework for ensuring that the conditions, needs and preferences of a client are documented and communicated within the organisation. It is pointed out that Mr Suhag and the Clinical Nurse will undertake an overseeing role, but does not demonstrate a system or systems to achieve this;
(d)Standard 4 – the Commissioner quotes from the Manual which states “each of these service areas are governed by our CDC procedures and carried out by qualified staff”. The Commissioner quotes this as appearing in Exhibit 1 T12 p. 394, whereas it is p. 396. In any event, it is submitted, that this brief and general instruction is wholly inadequate as a statement of procedure to be followed. Clinical care plans are to be communicated to responsible staff, but no system is articulated to achieve this. Further, while staff are required to report if there are changes in services provided to a care recipient, this requirement is not outlined in any of the policies or procedures provided by the Applicant. The Commissioner, therefore, contends that staff would not be aware of their obligation to report those changes.
(e)Standard 5 – the Commissioner concedes that this Standard is relevant for the purposes of s 63D(3)(c) for this application;
(f)Standard 6 – the Commissioner contends that the Applicant’s Feedback and Complaint’s Policy provides insufficient details as to which staff members may seek to resolve complaints or how they must go about doing so – Exhibit 1 T12 p. 397. It is contended that it provides no information about how quickly complaints must be resolved, and provides little guidance to staff about timing or complaint handling. Further, although a dissatisfied client can escalate their complaint to the CEO, there is no framework for this escalation or guidance how the CEO will action the complaint or, in fact, information generally about how to make a complaint or the feedback that will be given;
(g)Standard 7 – the Commissioner contends that there is no procedure in place for ongoing assessment and review of staff performance or ongoing staff training;
(h)Standard 8 – the Commissioner contends that the Applicant has not identified organisation-wide governance systems that will be implemented to operationalise its business, or a clear system for effective regulatory compliance. Instead reliance is place on the asserted knowledge of its key personnel. Moreover, it is contended that the Applicant has failed to demonstrate that it has effective risk management systems in place, nor a clinical governance framework to minimise the use of restrictive practices. Whilst stating that restrictive practices would only be used as a last resort, the Applicant has provided no framework for the circumstances giving rise to the use of restrictive practices, or the requirements in respect of same as required by the relevant Principles.
The Commissioner also referred to a Quality Audit Report which the Applicant provided to demonstrate its compliance with the Standards – Exhibit 1 T12 p. 335. It is pointed out that the Report was provided a year before the Application and appears to relate to another organisation. In these circumstances, the Commissioner contends that it does not demonstrate that the Applicant has current systems in place to ensure ongoing compliance with its responsibilities as a provider of aged care – Exhibit 3 R1 pp. 713-714 para 5.16.
Given these contended deficiencies, the Commissioner submits that the Tribunal should not be satisfied that the Applicant has adequate systems in place, or will have them in place, should it be granted approval – Exhibit 3 R1 p. 714 para 5.17.
The Applicant’s response to these detailed contentions is general and non-specific – Applicant’s Statement of Issues, Facts and Contentions – Exhibit 3 A1 pp. 1-5. Whilst the Applicant provided some detail in the responses to the two Delegates’ decisions, the Tribunal does not have the benefit of a detailed response to the contentions raised by the Commissioner in the Respondent’s Statement of Issues Facts and Contentions.
The Tribunal did, however, have the benefit of hearing the testimony of Mr Sheldon-Stemm on the second day of the Hearing. Much of the Applicant’s case was predicated on the systems produced by Mr Sheldon-Stemm, and used by the Applicant, and the ongoing advice and assistance provided to the Applicant by him.
At the outset it is important to refer to Mr Dube’s submissions on the MyCDC system and its relevance to s 63D(3)(c) – Tr. 27.4.2023 p. 119:
“Again we don’t say that MyCDC isn’t a system that can meet responsibilities. What we say is the way in which it has been adopted and proposed demonstrates that that’s not the case at this point in time and therefore is a reason why we say that subsection 63D(3)(c) is not met.”
Importantly, Mr Dube concedes that the MyCDC is a system that can meet a person’s responsibilities pursuant to s 63D(3)(c). The issue in contention, therefore is not a fundamental one as to the suitability or quality of the MyCDC system, it is more directed to the manner in which it has been adopted (or is proposed to be utilised) by the Applicant.
It is of importance, then, to consider the testimony of the Mr Sheldon-Stemm, the creator of the MyCDC system and his views about the manner in which it is being used, and is proposed to be used, by the Applicant.
Mr Sheldon-Stemm’s experience and expertise was not contested at the Hearing by

Mr Dube, nor did Mr Dube criticise the MyCDC system or suggest it was deficient –

Tr. 27.4.2023 pp. 106, 117.
Mr Dube, quite properly, pointed out that the Applicant is a client of Mr Sheldon-Stemm, and that needs to be taken into account in weighing the testimony of Mr Sheldon-Stemm – Tr. 27.4.2023 p. 117. The Tribunal has taken into consideration that Mr Sheldon-Stemm is not an independent witness and is in a commercial relationship with the Applicant. However, the Tribunal was impressed with the testimony of Mr Sheldon-Stemm, both in terms of his knowledge of the aged care sector and also his expressed passion for improving the quality of aged care in Australia. The Tribunal formed the view that Mr Sheldon-Stemm was a witness of credit, and the views he expressed carried considerable weight.
Mr Sheldon-Stemm has been involved in the aged care industry since 1996. He testified that for 15 years he served as either a Chief Executive or in senior management and then for 12 years has worked as a consultant. Currently he serves as a chief executive of a small community-owned aged care provider in Western Australia and also provides consultancy services to prospective and current aged care providers. Mr Sheldon-Stemm testified that he has approximately 70 clients around Australia. Approximately 12 residential aged care facilities use his MyCDC system and a further six home aged care providers use his system – Tr. 27.4.2023 p. 103.

The MyCDC system was developed approximately seven years ago by Mr Sheldon-Stemm because “the nature of aged care at the moment is a very institutional model and I reject [the] institutional model…elderly people should be able to live [the] life they wish and MyCDC system is the only one in place that actually provides true choice to residents and clients” – Tr. 27.4.2023 p. 103.
At the Hearing I asked Mr Sheldon-Stemm to describe in plain English what the MyCDC system was. His answer was as follows – Tr. 27.4.2023 pp. 103-104:
“So, it’s effectively a – which other systems don’t have - it’s an operational manual which basically guides the senior management and the staff of the organisation as to how to carry out the actual services to the clients or residents, and that’s then supported by a series of policies and procedures that then support that, as well as audit tools and self-assessments. MyCDC I developed before the new standards were introduced, and when the newer standards were introduced back in 2018/19 effectively the MyCDC system fell straight into it. So, effectively I was, I guess, before my time in terms of developing something that was a very much resident focused, client focused. I very much believe in standard 1, which is allowing the elderly to live the life they choose, as such. So, it’s a really a – it’s a guidance for providers in terms of not only meeting the Aged Care Act but also in making sure that in the real world of providing aged care services that they actually have the client at the centre and the client is able to live the life they choose. I’ve been very successful. I’ve trained over four and a-half thousand people in MyCDC across the country over the last seven years, and wherever it’s operating it’s been highly successful.”
Next, I questioned Mr Sheldon-Stemm about the services he provided as a consultant. In particular he was asked whether his services were basically limited to provision of the software/compliance tool, or whether, in addition, he provided a more hands-on operational service. His response was as follows – Tr. 27.4.2023 p. 104:
“Yes. I also do quite a lot of – I’ve developed a lot of models in aged care, both operational models. I’ve got a project at the moment with two providers in Victoria where they’re looking at merging so I’m modelling what the merger will look like both as far as financial is concerned as well as operational, how they would actually operate and what staff they’d need on to make sure the[y] meet the standards and any further requirement, minutes and so on. So, yes. My breadth is fairly wide and the MyCDC is just one part of it. I might add too, in terms of Mr - Dhanvir – and I call him Dhanvir because we’ve, you know, obviously for the last couple of years been communicating, is I get a lot of calls from people who want to become aged care providers. I probably turn down 80 per cent of them because they’re not in it for the real reason of the people. They’re only in it to try and make money and I’m not interested in people who want to make money. I’m interested in people who are genuine about their care for the elderly. So, I would get I would say probably 15 or 20 calls a year from people who will say I want to become an aged care provider, home care, and I probably only – I think my rate’s only three or four a year. So, it’s not a major part of what I do in terms of assisting people become home care providers, but it’s something which I’ve done for a number of years.”
Mr Sheldon-Stemm testified that that the NDIS services provided by Mr Suhag, his colleagues and the Applicant company were transferable to the services proposed to be provided in home aged care – Tr. 27.4.2023 p. 104. In the following exchange,

Mr Sheldon-Stemm explained why he was of that opinion – Tr. 27.4.2023 p. 105:
“And – so, what – in saying that it’s a fairly important point because one of the issues that the tribunal has to ascertain is whether or not Mr Suhag and his company have got the necessary expertise to be able to do what they wish to do, or have to do, under the relevant legislation. So, tell me why you think the services that he and his company are providing under the NDIS scheme are transferable or related to or comparable with in-home aged care?‑‑‑Well, what he provides in the services is effectively personal care and other activities for people with severe disabilities. That is not dissimilar to aged care in – whether it be in residential or home care – where people have obviously conditions which they’re not able to live a normal life in terms of they need support and assistance. I – as far as his actual operations, it was through another organisation, called PQplus, who had been dealt with Mr Suhag in terms of their – his NDIS, and I was aware that he met the standards, and that personal care that’s provided in disability services is similar if not the same. Here, where I am at the moment today, as a CEO we have several NDIS clients in our aged care – in our aged care facility, and the services that they require are basically identical to those required by the elderly in terms of their care and services. So – and I know at home care – and this is quite common – in home care most of the services provided are for personal care or domestic care, which is effectively what Mr Suhag provides in NDIS.
In your opinion, Mr Sheldon-Stemm, do you believe – and I’ll ask you why you believe if, in fact, you do – that Mr Suhag and his company would be able to provide in-home aged care from the first day that they started operations as distinct from learning how to do it over a period of time? In other words, are you of the opinion that if Mr Suhag and his company were able to provide in-home aged care they could do so from the outset, or not, and if so – that is if you think they can from the outset – could you explain to me why?‑‑‑Okay. For a start-up home care it normally takes three to four months for the start. So obviously you would have to recruit, as per the normal business plan, recruit a manager and as far as a care manager’s concerned – who would commence the operations – he would need to employ support staff, which was not dissimilar to the support staff that he has using in his current operation. So, I would be of the opinion that as opposed to some others who have recently been approved by the commission, that are my clients, they’re starting from ground zero they’ll take probably six months to get going whereas Mr Suhag would be able to start pretty soon because he has the connections in the area of care, and it’s interesting that the care workers for both NDIS and aged care almost come under the same standards now in terms of qualifications and so on, and there’s a cross-check in terms of care workers.”
The Tribunal was also assisted by the cross-examination of Mr Sheldon-Stemm by

Mr Dube. The Tribunal places on record its appreciation for the manner in which Mr Dube advanced the Commissioner’s case at the Hearing. As usual, Mr Dube articulated his client’s case clearly and convincingly but in so doing made appropriate concessions.
First, Mr Dube put it to Mr Sheldon-Stemm that each application for aged care approval must be assessed on its own merits. Mr Sheldon-Stemm agreed with this proposition –

Tr. 27.4.2023 p. 107.
Next, Mr Dube put to Mr Sheldon-Stemm the proposition that simply because an applicant utilises the MyCDC system is not of itself a reason for obtaining approval.

Mr Sheldon-Stemm appeared, initially, to disagree with this proposition and seemingly argued that utilisation of the MyCDC should result in approval by the Commissioner –

Tr. 27.4.2023 p. 107.
Clearly, if that was Mr Sheldon-Stemm’s position it is incorrect. The fact that an applicant proposes to use the MyCDC system, or, in fact, any other system, is not solely determinative of whether that applicant will be approved. It is a factor, and possibly a highly relevant factor, but it is but one matter which needs to be weighed with a plethora of other factors.
Subsequently, Mr Sheldon-Stemm clarified his position – Tr. 27.4.2023 p. 107:
“Okay. All right. At a very abstract level – and I’m not suggesting at the moment that this is with respect to this particular case – it’s not your evidence that if someone purchases the MyCDC package that that’s sufficient to say they are capable of providing aged care in a residential or home level?‑‑‑No. No. That’s the reason why I turn a lot of people down, Mr Dube. I mean, I – if they’ve not got the – I know that the commission will not approve them if they’ve been a mechanic and they think they can make money out of this. I just say to them, look, I’m not going to take your money because I’d just be stealing it. You’re not going to be approved, because I not it. It’s a dual thing, is one is you’ve got to have the right people who have that background, and (2) you’ve got to have the systems to support how you operate the business, not break the service.”
Mr Sheldon-Stemm, as noted above, testified that he receives 15 or 20 requests from persons who want to become an aged care provider each year, but of those requests he only agrees to provide his services to three or four persons – Tr. 27.4.2023 p. 104. As he clarified in the above quote, he only agrees to provide his services to persons who have the requisite qualifications and experience to provide aged care services and who will be likely to gain approval if they use his MyCDC system.
Mr Sheldon-Stemm agreed that the Applicant had purchased from him the Policy and Procedure Manual and the audit tools. In addition, aged care providers then pay him a fee (either monthly or annually) to constantly update the material. This is important as the relevant legislation and subordinate legislation is in a state of constant change –

Tr. 27.4.2023 p. 108.
Mr Dube put to Mr Sheldon-Stemm that irrespective of the system utilised by a person, “ultimately it comes down to the ability of the provider to properly implement that system” – Tr. 27.4.2023 p. 109. Mr Sheldon-Stemm agreed with that proposition.
The clear evidence presented to the Tribunal is that the MyCDC system is a robust and highly suitable system that assists aged care providers to meet their regulatory responsibilities.
The Tribunal notes Mr Sheldon-Stemm’s evidence that he has confidence that the Applicant’s key personnel (particularly Mr Suhag) will use the MyCDC appropriately.

Mr Sheldon-Stemm proffered this view of Mr Suhag and the Applicant – Tr. 27.4.2023

p. 111:
“…having worked with Mr Suhag for…now a couple of years in terms of back and forth and checking in what he does, I’m of the opinion that he’ll be more than capable of operating a home care service. In fact, I think he’s probably more capable than quite a lot of current home care providers…that I come across who don’t provide a service very well, but they’re already approved providers so nothing you can do about that. But, in my opinion, AussieCare Foundation most certainly has experience to be able to conduct a success home care…and this is at the core of my opinion, not to place any of the clients at risk when providing services, which is the main thing in terms of any care services is not to place the client at risk.”
Considering the evidence presented to the Tribunal, and having observed Mr Suhag over the two day Hearing, the Tribunal has formed the same view as Mr Sheldon-Stemm.
In conclusion, then, the Tribunal is satisfied that the Applicant has systems in place, in the form of the MyCDC system, which will meet the Applicant’s responsibilities as a home aged care provider.
Whether the person has at any time been convicted of an indictable offence –

s 63D(3)(ea)
Whether a civil penalty order has been made – s 63D(3)(eb)
Any other matters specified in the rules – s 63D(3)(f)
The Tribunal received no submissions with respect to s 63D(3)(ea), (eb) or (f).
The Commissioner, in the Respondent’s Statement of Issues, Facts and Contentions did make submissions with respect to s 63D(3)(d) and (e).
Applicant’s record of financial management – s 63D(3)(d)
Turning first to s 63D(3)(d), the first Delegate of the Commissioner in the decision of

16 March 2022 found that the Applicant had outlined a reasonable assessment of start-up costs and financial projections in relation to providing home care services – Exhibit 1 T11 p. 327 para 7.38.
The Delegate found, based on the contents of the Application, that the Applicant appeared to have a reasonable financial grounding, as well as reasonable financial management systems and methods – Exhibit 1 T11 p. 327 para 7.39.
However, as the Applicant had not provided audited financial statements for the previous years, the Delegate was unable to be satisfied that the Applicant met the requirements of

s 63D(3)(d) – Exhibit 1 T11 p. 327 para 7.40.
In response, the Applicant pointed out that as it was a private company, it was not required to have its accounts audited. However, the Applicant offered to have its accounts audited if it was required by the Commissioner – Exhibit 3 A3 pp. 668-669.
The Reconsideration Delegate also was not satisfied that the Applicant met the requirements of s 63D(3)(d), however different reasons were given. Namely that the Applicant had not – Exhibit 1 T13 p. 409:
(a)provided a copy of the Financial Management Policy and Procedure;
(b)adequately explained the Business Plan such as to demonstrate the Applicant’s strategy and understanding of it;
(c)described how the Applicant will review its actual performance against projected budgets in the Business Plan or what action will be taken should the predictions not be realised; and
(d)identified sufficient procedures for complying with the Fees and Payment Principles (No. 2) 2014.
The Applicant, in response, submitted as follows – Exhibit 3 A3 p. 700:
“Again, this operational manual and the policies and procedures to eb [sic] used have been audited by the Commission and found to be compliant with the aged care act. Evidence was provided for this in the de-identified audit. This includes the financial management.
We also reference our earlier comments that we have successfully operated a NDIS business of a similar nature for several years and this has not been taken into consideration.”
The Commissioner also contended that the Applicant did not have a suitable record of financial management or suitable methods in place in order to ensure sound financial management – Exhibit 3 R1 pp. 714-715 paras 5.18-5.25.
Without setting out each of the contentions of the Commissioner, the Commissioner basically raised concerns about the lack of information provided, including not providing a copy of the Applicant’s Financial Management Policy and Procedure and not providing sufficient detail to demonstrate that it would be able to effectively operate both streams of its business, return a profit and meet unexpected costs. The Commissioner concluded by raising concerns about the claimed uncertain financial situation of the Applicant, and the risk of the quality of care being provided being undermined should the Applicant face unexpected costs or other issues – Exhibit 3 R1 p. 715 para 5.25.
In response, the Applicant made these submissions – Exhibit 3 A1 pp. 4-5:
“2.11 The Commission is again inconsistent as in its original decision it states that there are fair grounds that Aussie Care Foundation can manage the financial aspects of the Home Care service….
2.11.1.1 This is at odds to their statement now contending ‘Commissioner contends that the Tribunal should not be satisfied that the applicant has a suitable record of financial management or suitable methods in place in order to ensure sound financial management’. These two statements are in direct contradiction and demonstrate the Commission’s ongoing inconsistencies in its arguments and the incorrect basis for its decisions.
2.12 Aussie Care Foundation currently claims from the NDIS system and the Home Care payment system now mimics the NDIS system where claims are made for services delivered. There is no significant difference between the operation of the two financial systems and Aussie Care Foundation has successfully operated the NDIS system for 4 years.
2.13 The business plan was developed in conjunction with our industry expert who has operated and supported other Home Care providers for over 20 years. We have relied on his knowledge, experience and expertise to guide us with the amount required for a start-up.
2.14 He has further advised that the business plan template used and updated to our requirements was also similar to another…home care application that was recently approved by the Commission. We continue to contend the Commission[’s] inability to be consistent in its decision making is one reason why we have been denied approval.”
There is some force in the Applicant’s submissions. The two Delegate determinations and the submissions of the Commissioner in this matter each raise somewhat different issues. The Tribunal understands that with each level of decision making, different issues can arise. However, from the viewpoint of the Applicant, the Tribunal also understands that there would have been a degree of frustration and a perception of the goal posts constantly moving.
Subparagraph 63D(3)(d) was not the subject of submissions by Mr Dube at the Hearing. The issue of the Applicant’s financial management was not contested.
There is no material before the Tribunal which suggests that the Applicant is in an uncertain financial situation or that it will be unable to maintain the quality of home aged care because of unexpected financial circumstances. The Tribunal notes that the original Delegate found that the Applicant had a reasonable financial grounding as well as reasonable financial management systems and methods. The Tribunal, having perused all the material presented, has also reached the same conclusion.
Accordingly, in the absence of any submissions to the contrary at the Hearing, the Tribunal is reasonably satisfied that the Applicant meets the requirements of s 63D(3)(d).
Conduct as a provider of other forms of care – s 63D(3)(e)
Finally, attention can be directed to s 63D(3)(e).
In the Respondent’s Statement of Issues, Facts and Contentions, the Tribunal’s attention was drawn to an NDIS certification audit report for 2020 wherein one major non-conformity was reported in relation to support planning, and one minor non-conformity in relation to risk management and opportunities for improvement – Exhibit 3 R1 p. 715 para 5.28.
These non-conformities were noted by the Delegate in her report of 16 March 2022. The Delegate made the following findings – Exhibit 1 T11 p. 327:
“7.44 The documents provided in response to the request for information issued on 2 August 2021 detail an ICHCA corrective action plan that has been undertaken.
7.45 Certification has been granted since the non-conformities have been rectified. No subsequent audits have been provided.
7.46 While it is a matter of concern that the applicant did not identify the adverse finding in their application, I am satisfied that the applicant has taken steps to rectify the issues the subject of the adverse finding.”
As the Delegate was satisfied that the Applicant met the requirements of s 63D(3)(e), the Reconsideration Delegate did not reconsider the original finding – Exhibit 1 T13 p. 409.
The Tribunal has considered the IHCA Certification Correction Action Plan which was prepared by the Applicant and outlines at some length the non-conforming situations as well as the immediate actions taken to correct the situations as well the Corrective Actions implemented to prevent the recurrence of the non-conforming situations – Exhibit 1 T8

pp. 278-285.
Mr Dube questioned Mr Suhag at some length on the first day of Hearing about the circumstances of the major non-conformity – Tr. 26.4.2023 pp. 25-28. It was a matter of concern, as Mr Dube highlighted, that a client suffered from epilepsy but the staff member interviewed at the site was unaware that the client was suffering from that disease –

Exhibit 1 T5 p. 133, T8 p. 279.

Suffice it to say, the issues in question were identified and corrective action was instituted by the Applicant.
No other issues have been drawn to the attention of the Tribunal and Mr Suhag submitted that there have not been any further non-conformities arising from the annual audits since 2020 – Tr. 27.4.2023 p. 121.
As with the first Delegate, the Tribunal is satisfied that the Applicant took steps to rectify the issues in question, and, it would appear, that since that time the Applicant has been compliant.
In these circumstances the Tribunal finds that the Applicant has met the requirements of

s 63D(3)(e).
Conclusion
The regulatory framework governing the approval and supervision of persons and entities providing aged care is complex. Clearly, the fundamental policy underpinning this regulatory framework is to ensure that only persons who are suitable to provide such care should be approved.
There is no criticism by the Tribunal of the decisions of either of the Delegates in this matter. Both Delegates provided clear, well-reasoned decisions which were open to them based on the material presented.
As noted earlier, the Tribunal had the benefit of both logical and well-reasoned submissions from the Commissioner, as well as helpful and incisive submissions from Mr Dube.
Mr Dube appropriately submitted that at each stage of the review process, the relevant decision-maker had before them more information than was previously available. This is an inevitable by-product of evolving decision-making when each extra tier of review brings with it the opportunity for further information and further consideration of that information.
Conversely, the Tribunal appreciates the frustration expressed by Mr Suhag about the perceived ever-changing goal posts which he and the Applicant company faced at each new tier of review.
This is not a matter where an applicant has come forward seeking approval without the benefit of any experience of providing home care to persons. Particularly persons in a vulnerable state of health. Clearly when the Commissioner is dealing with persons with no experience of providing either aged care or comparable care, a precautionary approach is required.
However, in this matter the Applicant has a history of being an NDIS care provider. The Applicant has been providing such care for some four years. In that time, it has had an ostensibly good record. Mr Dube properly drew the Tribunal’s attention to a major non-conformity which occurred on 19 May 2020. The fact that a staff member was unaware that a client was suffering from epilepsy was of concern to the Tribunal. Further there was no Epilepsy Management Plan on file – Exhibit 1 T5 p. 133. Apart from that incident and a minor non-conformity on 19 May 2020, the Tribunal has not been presented with any other issues of concern. On the face of it, the Applicant has been compliant with all of its responsibilities as an NDIS care provider. This, necessarily, is an important consideration.
In addition, the Applicant has retained the services of Mr Sheldon-Stemm and utilises his MyCDC system. Without repeating what is set out above, this is also an important consideration.
Mr Dube pointed out at the Hearing, as well as the Commissioner in written submissions, a number of omissions and other issues with the documentation prepared by the Applicant. Most of the omissions and other issues were not serious, and, as Mr Suhag properly pointed out, information would be supplemented as and when the process evolved.
However, Mr Dube very properly pointed out that the cumulative effect of all of the omissions and other issues should when taken together in totality raise serious concerns as to whether the Applicant is compliant with the requirements of s 63D(3).
There is force in this submission. If not for the fact that the Applicant has been a satisfactory NDIS care provider and had the benefit of the assistance of Mr Sheldon-Stemm and his MyCDC system, it would have been open to the Tribunal to find that the Applicant was not suitable to provide home aged care at this time.
In conclusion, then, the Tribunal is satisfied that the Applicant is suitable to provide aged care. As the Applicant has sought to provide home aged care, the decision will be limited to that that type of aged care. The day on which the approval comes into effect will be determined by the Commissioner pursuant to s 63E(1)(b), as well as any further matters requiring determination pursuant to s 63E.
DECISION
The decision under review is set aside and substituted with a decision to approve the Applicant to provide aged home care pursuant to s 63D of the Aged Care Quality and Safety Commission Act 2018 (Cth). The matter is remitted to the Aged Care and Quality Safety Commissioner to make any further determinations pursuant to s 63E to give effect to this decision.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

…...[SGD].......
Associate
Dated: 24 July 2023

Date(s) of hearing: 26 & 27 April 2023

Applicant: In person

Solicitors for the Respondent: Mr Ben Dube
Sparke Helmore Lawyers

*Employer*	*Role Description*	*Period of employment*
Ozcare	Community Worker-Rehab assisting with drug and alcohol clients…	2010 -2012
Life Without Barrier[s]	community worker providing ADL’s supports to residents…	2012-2017
Carers QLD	local area co-ordinator, conducting NDIS plan review meeting for general participants…	2017-2018
NDIA	APS 6 Planner…	2018-2019

46. Care type	Recipients
Plan management	110
Participate community	85
Household tasks	95
Development-life skills	90
Daily tasks/shared living	110
Assist-travel/transport	110
Assist-personal activities	110
Life stage/transition	75
Group/centre activities	95
Assist personal activities - high	75

Date(s) of hearing:	26 & 27 April 2023
Applicant:	In person
Solicitors for the Respondent:	Mr Ben Dube Sparke Helmore Lawyers