Better Disability Care Pty Ltd and Aged Care Quality and Safety Commissioner - [2024] AATA 3593

Better Disability Care Pty Ltd and Aged Care Quality and Safety Commissioner [2024] AATA 3593 (10 October 2024)
Division:GENERAL DIVISION
File Number: 2023/6156
Re:Better Disability Care Pty Ltd
APPLICANT

AndAged Care Quality and Safety Commissioner
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak KC, Member
Date:10 October 2024
Place:Melbourne

The reviewable decision is affirmed.
..............................[sgd]..........................................
Mr A. Maryniak KC, Member
Catchwords
AGED CARE – application to become a provider of aged care (home care) – suitability to provide aged care – consideration of key personnel’s capabilities in providing other relevant forms of care – NDIS providers – whether demonstrated understanding of responsibilities – consideration of proposed systems – consideration of financial management – requirements not satisfied – reviewable decision affirmed
Legislation
Aged Care Act 1997 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)
Cases
AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2202
Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177
Secondary Materials
Quality of Care Principles 2014 (Cth)
REASONS FOR DECISION
Mr A. Maryniak KC, Member
10 October 2024

The Applicant seeks review of a decision of 16 August 2023 affirming an earlier decision not to approve it becoming a provider of home care under the Aged Care Quality and Safety Commission Act 2018 (Cth) (‘the Act’). At issue is whether the Applicant is suitable to provide home care by satisfying the requirements of section 63D(3) of the Act and the relevant subparagraphs within that subsection, and if so, satisfies the cumulative requirements of section 63D(2) of the Act.
The Tribunal has considered the documentary material before it, the testimony of Mr John Gregory, Ms Ann Anyaorah, Mr Fesseha Gezehagn and Mr Mark Sheldon-Stemm, together with the submissions from the parties.
Division 2 of Part 7A of the Act governs approval of providers of aged care. Relevantly, section 63D of the Act provides as follows:
Approval as provider of aged care

(2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:
(a) the person is a corporation; and
(b) the person is suitable to provide aged care; and
(c) each individual who is one of the key personnel of the person is suitable to be involved in the provision of aged care.
Suitability to provide aged care
(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.
Such approval is sought by the Applicant to be eligible to receive Commonwealth subsidies for the provision of aged care, pursuant to the complex scheme enacted by the Aged Care Act 1997 (Cth) (‘AC Act’).[1]
[1] Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177 at [19]-[20]. Part 3.2 of the AC Act defines eligibility for Home Care subsidies with s 46-1 providing that “an approved provider” is eligible for Home Care if the Secretary is satisfied that “the approval of the approved provider is in respect of home care”.
Consistent with the Respondent’s submissions,[2] the Tribunal notes and accepts that:
[2] The Respondent’s written Closing Submissions dated 29 April 2024, [2.5]-[2.9].
The term “approved provider” is defined in schedule 1 of the AC Act as having “the same meaning as in the *Quality and Safety Commission Act”. Section 7 of the Commission Act defines an “approved provider” as follows (BA/136):
a person or body is an approved provider if:
(a) the person or body:
(i) has been approved as a provider of aged care under section 63D; or
(ii) is taken, under paragraph 63F(2)(a), to be an approved provider; and
(b) the approval of the person or body is in effect.
Note: The approval of the person or body ceases to have effect if it is suspended or revoked under Division 4 of Part 7A or Part 7B
The term “aged care” in the Commission Act is defined as having the same meaning as in the AC Act. The AC Act defines “aged care” at Schedule 1 (BA/122) to mean care of one or more of the following types:
(a) residential care;
(b) home care;
(c) flexible care.
As noted above, the applicant’s application is for the provision of Home Care only (T10/272). The application was made pursuant to s 63B of the Commission Act. That is, the applicant is applying to be an “approved provider” for the provision of “aged care”, specifically Home Care. Pursuant to s 63D, if a person applies to be approved under s 63B, the Commissioner must decide whether to approve the person as a provider of aged care.
The responsibilities of an “approved provider” of aged care are set out at Part 4 of the AC Act and specifically s 54-1(a) of the AC Act states that an approved provider must provide such care and services as are specified in the Quality of Care Principles in respect of the type of in question. A number of other requirements are listed at 54-1 of the AC Act.
The Quality of Care Principles is a legislative instrument made under s 96-1 of the AC Act. Section 13(5) states that any care and services must be provided in compliance with the Aged Care Quality Standards, which are set out at Schedule 2 of the same instrument. The relevant 8 standards are:
1. Dignity and choice
2. Ongoing assessment and planning with consumers
3. Personal and clinical care
4. Services and supports for daily living
5. Organisation’s service environment
6. Feedback and complaints
7. Human resources
8. Organisational governance
The Tribunal also notes various responsibilities of approved providers as identified by the Respondent:[3]
(a) The Aged Care Quality Standards (Standards), which are set out in Schedule 2 to the Quality of Care Principles 2014 (Quality of Care Principles) (also see section 17 of the Quality of Care Principles): sections 54-1(1)(a) and (d) of the AC Act make it a responsibility of approved providers to provide such care and services as specified in the Quality of Care Principles in respect of the relevant type of aged care, and to comply with the Aged Care Quality Standards.
(b) Part 3 of the User Rights Principles 2014 (User Rights Principles), as well as the Charter of Aged Care Rights, appearing at Schedule 1 to the User Rights Principles: section 54-1(1)(c) of the AC Act makes it a responsibility of approved providers to provide care and services of a quality consistent with the rights and responsibilities of care recipients specified in the User Rights Principles. Subsections 56-2(f), (j), (k) and (l) also make it a responsibility of approved providers of home care to comply with various other requirements in the User Rights Principles.
(c) The Accountability Principles 2014 (Accountability Principles): subsections 63-1(1)(g), (ha), (hb), (hc) and (m) of the AC Act make it a responsibility of approved providers to comply with various requirements of those Principles.
(d) Part 6.3 of the AC Act, which contains an approved provider’s record keeping requirements, including by reference to further requirements in the Records Principles 2014 (Records Principles), and with which it is a responsibility of approved providers to comply under s 63-1(1)(a) of the AC Act.
[3] Respondent’s Statement of Facts, Issues and Contentions dated 19 February 2024 [3.10].
Whilst the Applicant’s seeks approval to provide Home Care only[4] the Applicant is applying to be an “approved provider”, pursuant to section 63B of the Act, to provide “aged care” specifically Home Care. As such, under section 63D of the Act the Commissioner, or here the Tribunal, must decide whether to approve the Applicant as a provider of aged care.
[4] T10, p 272.
The object of the Act is to create a regulatory framework in respect of the provision of aged care that will:[5]
(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 Commonwealth‑funded 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.
[5] The Act s 5.
In considering suitability, the Aged Care Commissioner (hence here the Tribunal) may also consider the application in respect of the key personnel of the Applicant, as it submits, pursuant to section 63D(4) of the Act. The relevant considerations as set out in section 63D(3) of the Act remain applicable.
An overview of the Applicant’s submissions is contained within the Applicant’s Final Statement. Essentially, the Applicant submits it is suitably qualified pursuant to the Act because:[6]
a) It has experience in providing aged care through the consultancy in aged care, working as registered nurses for both residential and home care aged care providers.
b) It has demonstrated it can understand the requirements of providing aged care through its current operations and the systems and process (policies and procedures) that are in place.
c) The systems that are proposed to be used by it are those used by many other home care providers who have successfully passed audits conducted by the Commission on their systems and processes. Details have been provided on this as part of our statement of issues and contentions.
d) It has financial systems and processes in place as it has operated successfully, financially, as a NDIS and aged care consultant over the past three years. This is supported by the engagement of its accountant and its financial statements provided as part of the application.
e) As a NDIS provider it has met all its obligations and has had no actions taken against it in relation to its service. It continues to pass the NDIS audits.
f) Referring to the 63D(e)(i) then as a provider of NDIS its conduct has been in compliance with these responsibilities and also in receiving Commonwealth funds.
g) It has never been convicted of any crime.
[6] The Applicant’s written Closing Submissions lodged 13 May 2024.
Further, the Applicant submits that Mr Gregory and Ms Anyaorah, being the two key personnel (‘key personnel’) are suitable, and the matters submitted in paragraph 10 above equally apply to each of the key personnel, even if the Applicant itself is found not to be suitable.
The Tribunal notes that Mr Gregory, the sole shareholder of the Applicant has a substantial background in the ‘caring profession’ since 2004. Starting as a Personal Care Worker, then an Enrolled Nurse and obtaining his Bachelor’s Degree in Nursing in 2009/2010. He has worked as a Registered Nurse for over a decade. Similarly, Ms Anyaorah commenced as a Personal Care Worker, then an Enrolled Nurse, then as a Registered Nurse, obtaining her Bachelor’s Degree in Nursing in 2018/2019. Both key personnel have been running a National Disability Insurance Scheme business since 2020. Since August 2022 they have also gained some experience providing home care nursing.
Whilst the Tribunal accepts their experience and that they each are caring individuals, the Tribunal is to assess suitability solely against the criteria in the Act, namely section 63D(3).
In assessing the suitability of the Applicant and the key personnel, the Tribunal is to assess the evidence before it regarding their capabilities and experience as against the requirements of, relevantly, subsections 63D(3)(a), (b), (c) and (d).
As conceded, the Applicant has no experience providing aged care pursuant to section 63D(3)(a) of the Act. However, the Tribunal notes that whilst the key personnel have some experience working in aged care, the evidence shows that such experience is limited and does not extend to managing or being responsible for running a homecare business or an aged care facility. Pursuant to section 63D(3)(a) the two key personnel have provided some other relevant forms of care in the past. This must then be considered in the context of the other relevant requirements the Tribunal is to consider under section 63D(3).
A significant part of the hearing and the parties’ submissions focussed upon the capabilities (and/or lack thereof) of the key personnel in respect of satisfying subsections 63D(3)(b), (c) and (d). At the outset, as discussed below, having considered the testimony and the documentary evidence before it, the Tribunal is not satisfied that the key personnel have demonstrated a sufficient understanding of the responsibilities necessary to be a provider of the type of aged care for which approval is sought; section 63D(3)(b). Further, significant limitations are clear from the findings of the Tribunal in respect of sections 63D(3)(c) and (d). Such findings against the key personnel also results in a finding of a similar deficiency in the Applicant itself.
It is apparent from an analysis of the testimony that substantial reliance was placed upon Mr Sheldon-Stemm, who testified that he was engaged as a contractor or consultant on behalf of the Applicant. He was contracted to assist with at least the finalisation of the Applicant’s initial Application,[7] and most likely had input into its preparation as well. The Tribunal finds that Mr Sheldon-Stemm had a significant input into the creation and provision of the key documents relied upon by the Applicant in support of its application. Such documents included the homecare booklet, the example care plan, homecare pricing schedule, sample budget template, monthly statement template and the draft homecare agreement, via Russell Kennedy Lawyers.[8]
[7] See, for example, Transcript of Proceedings dated 4 April 2024, pp 66-7.
[8] Transcript of Proceedings dated 13 March 2024, pp 66-7.
Whilst the use of a consultant of itself is not fatal, the extent of his involvement and contribution here, as established on the evidence, has highlighted important deficiencies in the knowledge and experience of the key personnel of the Applicant, and hence the Applicant. The initial application document itself was a mosaic of templates cut and pasted in, with input from Mr Sheldon-Stemm. It was also clear from the evidence that the provenance of the Business Plan and many of the foundation documents to the application was not that of either of the key personnel of the Applicant.
On balance, the Tribunal finds that Mr Gregory had only a very limited knowledge of the various components of the documents prepared in support of the application and lacked a depth of knowledge as to their relevance and significance. Ms Anyaorah had even less knowledge or understanding. Upon cross examination and questioning by the Tribunal significant limitations were evident.[9]
[9] See, for example, Transcript of Proceedings dated 4 April 2024, pp 31-41.
As a consequence of Mr Gregory’s testimony, the Tribunal finds that his knowledge, of the statutory requirements of sections 63D(3)(b) and (c) for suitability as an aged care provider, was in its infancy and he would face a steep learning curve moving forward. For example, regarding the Applicant’s complaints management process and information management policies, Mr Gregory testified, essentially, that he would be learning once the business was up and running.[10]
[10] Transcript of Proceedings dated 4 April 2024, pp 40-1.
The Applicant has failed to establish to the Tribunal’s satisfaction any real knowledge, on the part of its key personnel, of the statutory requirements under the Act or that such personnel have sufficient experience to meet the criteria under the Act. The good work the key personnel have done to date on a limited basis in the NDIS space and prior nursing related experience are not satisfactory to support any finding that such personnel are suitably qualified as required by section 63D(3)(a) of the Act. That section, when read with the objects of the Act as set out in section 5 require much more than ‘learning on the job’. At the present time, without substantially more knowledge and experience, the key personnel are not suitably qualified to provide aged care pursuant to the Act.
As conceded during the hearing, Mr Gregory’s approach and learning curve was a work in progress and he was, and is in the process of learning the requirements of being an aged care provider. Equally, the systems to be put in place were a work in progress and many had not originated from the key personnel. For example, in respect of procedures and policies for handling complaints as an aged care provider.[11] Further, the evidence establishes that Ms Anyaorah has much less knowledge and experience in this regard. On the evidence the Tribunal is not satisfied that a sufficient understanding of the requisite responsibilities and systems has been demonstrated by the key personnel, hence by the Applicant. None of the foundation documents to the application were created solely by either of the key personnel. Significant input came from elsewhere, including Mr Sheldon-Stemm.
[11] Transcript of Proceedings dated 4 April 2024, p 40 line 35 to p 41 line 5.
The Tribunal is not satisfied that the key personnel and hence the Applicant have demonstrated the requisite understanding as required by subsection 63D(3)(b), nor that the Applicant will have sufficient systems in placed as required by subsection 63D(3)(c).
Turning to the financial management requirements pursuant to section 63(3)(d), the evidence is even less compelling. Put simply, as stated by each of the key personnel, all such matters would be left to the accountant, Mr Gezehagn, to handle. Critically, Mr Gezehagn is not a member of the key personnel of the Applicant. He testified, consistent with the testimony of each of the key personnel, that he has been a contracted accountant assisting Mr Gregory with his tax related matters since 2018. He also helped and guided Mr Gregory in relation to his NDIS business since about the start of 2021.[12] Such assistance has been targeted and discretely project-based, provided in response to specific requests from Mr Gregory.[13]
[12] Transcript of Proceedings dated 13 March 2024, p 51.
[13] Ibid p 52 line 10.
The Applicant has a fairly standard business/independent accountant arrangement with Mr Gezehagn who provides similar types of assistance to over 120 other companies. As such, Mr Gezehagn does not and would not have any general managerial overseeing role or responsibility over the financial management of the Applicant and he would not be responsible for ensuring the overall sound financial management of the Applicant in such a contract/task driven role. He is an independent contractor with no ongoing financial management or governance duties or responsibilities in respect of the Applicant. Hence, the Tribunal is not satisfied that the Applicant or its key personnel have an adequate record of financial management to ensure the sound financial management as envisaged under the Act. Such task orientated contracting of Mr Gezehagn, even pursuant to an ongoing retainer by the Applicant, does not result in the Applicant having any proper or continuing sound financial management as required by the Act.

There were also significant inconsistencies within the business plan, being largely in template form, as to what aspects would be handled by whom.[14] For instance, Mr Gregory testified that Mr Gezehagn would produce the budget and manage the Applicant’s financial matters through his ‘input’, an arrangement the Tribunal finds to be unsatisfactory as discussed above, contrary to the Business Plan which indicated Mr Gregory would develop budgets and manage “the organisation’s financial and other reporting mechanisms”.[15] Further, whilst the Business Plan stated that Ms Anyaorah would “advise on financial matters… financial planning… and financial, physical and staff resources”,[16] she testified inconsistently that Mr Gregory would manage those aspects.[17] Therefore the Tribunal is not satisfied that the Applicant’s (including its key personnel) record of financial management and the outsourcing methods used and proposed will ensure the requisite sound financial management under section 63D(3)(d).
[14] See Transcript of Proceedings dated 4 April 2024, pp 28-9.
[15] T10, p 458.
[16] Ibid p 463.
[17] Transcript of Proceedings dated 4 April 2024, p 70 line 35 to p 71 line 10.
For completeness, the minimal evidence regarding any capacity of a Sarah Ojo to run the Applicant in the absence of the key personnel is particularly troubling and unsatisfactory. Further, the Tribunal finds that Mr Sheldon-Stemm's role has been limited to his retainer in assisting the Applicant with the application process up to and including the Tribunal hearing. There is no evidence as to planned future involvement which, in any event, would only be on a task orientated contracted basis and not, relevantly, as one of the key personnel of the Applicant.
Finally, the Applicant submitted that its Application was similar to that in AussieCare Foundation Pty Ltd and Aged Care Quality and Safety Commissioner.[18] The Tribunal disagrees. For the reasons set out above, and upon an analysis of the evidence before the Tribunal, the relevant facts are different here and the Tribunal has applied the relevant legislative provisions to such facts in reaching its findings.
[18] [2023] AATA 2202.
In light of the findings discussed above, the Tribunal is not satisfied that the Applicant is a person suitable to provide aged care pursuant to section 63D(2)(b), or that the key personnel are suitable to be involved in the provision of aged care pursuant to section 63D(2)(c).
Despite this decision, the Applicant and its key personnel should not be discouraged from making a new application in the future once they have gained further experience and knowledge, if so advised.
The reviewable decision is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

..................................[sgd]......................................
Associate
Dated: 10 October 2024

Dates of hearing: 13 March and 4 April 2024

Applicant: Self-Represented

Advocate for the Respondent: Christopher Orchard

Solicitors for the Respondent Sparke Helmore

Dates of hearing:	13 March and 4 April 2024
Applicant:	Self-Represented
Advocate for the Respondent:	Christopher Orchard
Solicitors for the Respondent	Sparke Helmore