BKS and BKT v Department of Family and Community Services

[2016] NSWCATAD 307

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKS & BKT v Department of Family and Community Services [2016] NSWCATAD 307
Hearing dates:	9 August 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	The applicants’ application is dismissed for want of jurisdiction.
Catchwords:	Administrative Review – jurisdiction – whether the decision of the respondent was an administratively reviewable decision under s245(1)(c) of the Children and Young Person (Care and Protection) Act 1998
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Children and Young Person (Care and Protection) Act 1998 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Review and Monitoring) Act 1993
Cases Cited:	AMS and AMT v Department of Family and Community Services [2013] 140 NV & OA v Director-General, Department of Community Services [2009] NSWADT 209 PR v Department of Community Services [2009] NSWADT 277
Category:	Procedural and other rulings
Parties:	BKS and BKT (Applicants) Department of Family and Community Services (Respondent)
Representation:	Counsel: M Higgins (Respondent)     Solicitors: BKS and BKT (Applicants in person)
File Number(s):	1610326
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 prohibits the publishing or broadcasting of the name of any person: (a) who appears as a witness in these proceedings, or (b) to whom these proceedings relate, or (c) who is mentioned or otherwise involved in these proceedings, unless the Tribunal consents thereto: see NCAT Act s 65(1)(b). Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Introduction

1. The applicants, BKS and BKT, are authorised carers under Part 8 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act). On 9 May 2016, they made an application seeking review, under subsection 245(1)(c) of the Care Act, of an internal review “decision” of Mr Coutts-Trotter, Secretary of the respondent (Department of Family and Community Services) concerning the request of BKS about the placement of twin girls who had been removed from her care and that of her husband in 2014. The respondent has raised a preliminary issue in that it contends the Tribunal has no jurisdiction to hear and determine the applicants’ application because the decision for which they seek review is not a decision that is reviewable by the Tribunal. Alternatively, the respondent contends the applicant has no standing to bring the application.

2. The respondent’s application was heard on 9 August 2016.

3. For the reasons that follow, I have found that the Tribunal does not have jurisdiction to hear and determine the applicants’ application because the decision for which the applicants seek review is not a decision that is reviewable by the Tribunal under s 28 of the Community Services (Complaints, Review and Monitoring) Act 1993 (NSW) (Community Services Act) and s 245(1) of the Care Act.

Background

4. As I have noted, the applicants are authorised as out-of-home carers. BKS is also an employee of the respondent (a caseworker).

5. In June 2010, the respondent placed child B into the day-to-day care of the applicants. In December 2011, the respondent placed child B’s younger siblings into the day-to-day care of the applicants. The younger siblings were twin girls (child C and child d).

6. In September 2013, the applicants asked the respondent to remove child B from their care because of behavioural issues. In response to this request, the respondent engaged an independent forensic psychologist (the psychologist) to conduct an assessment of the placement of child B and the twins. The assessment was completed on 6 January 2014. In her assessment report, the psychologist recommended that all three children be transitioned into a new placement together.

7. On 18 January 2014, the respondent removed child B from the applicants’ care after they had reported an incident of alleged serious harm by child B to their biological daughter who was 5 years-old at that time.

8. On 21 January 2014, the respondent informed the applicants that it had accepted the recommendations of the psychologist and would be removing the twins from their care once they found a new long term placement for all three children.

9. In February 2014, the applicants sought internal review of the decision of the respondent to remove the twins from their care. In July 2014, the respondent determined the applicants’ internal review request. The respondent determined that the relationship between child B and the applicants had irretrievably broken down and it was in the best interest of the twins to plan for a long-term placement with their brother. In the same month the applicants lodged an application with the Tribunal seeking administrative review of the respondent’s decision to remove the twins from their care (Tribunal file no 1410380).

10. The Tribunal, constituted by Senior Member Andrews and General Member Davison, heard the applicants’ application over three days, on 7 and 8 October and 1 December 2014. In early 2015, Senior Member Andrews became unavailable. Following consultation with the parties, the President of the Tribunal replaced Senior Member Andrews with me pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). On 1 May 2015, after the parties were given an opportunity to file and serve any updating material, the Tribunal, as reconstituted, heard final submissions and determined the matter by affirming the decision of the respondent. Oral reasons for decision were also given.

11. I understand the twins were removed from the applicants’ care shortly thereafter. They were not placed with the same carer of child B.

12. On 2 December 2015, the applicants wrote to Mr Roderick Best, District Director of the respondent and requested consideration be given to the twins being returned to their care and that child B be placed into the care of his (and the twins) maternal aunt. In their letter the applicants noted the break-down of several placements since child B had been removed from their care, the break-down of the placement of the twins since they were removed from their care and that a placement for all three children had not been found.

13. On 29 January 2016, Mr Best, wrote a letter in reply to the applicants’ request. In his introductory paragraphs, Mr Best said:

“As you are aware, I have been considering what needs to happen as a result of two lines of inquiry that were commenced as a result of your care of [child B] and his twin half siblings, [child C and child D].

Background and current status

The two lines of inquiry came about to help determine whether the concerns held amounted to reportable or reflected your work as an employee. These were separate lines of inquiry because considering whether a person should care for children and whether they were performing their employment raise separate issues and need to consider different elements and consequences. …”

14. The two lines of inquiry Mr Best was referring to were the investigations that were being undertaken in regard to allegations that had been made against the applicants and the issues as to whether the twins should remain in the applicants’ care.

15. There were two investigations being undertaken in regard to the allegations. There was the investigation by the respondent’s Reportable Conduct Unit (RCU) and the investigation by the respondent’s Professional Conduct, Ethics and Performance (PCEP). In 2014, the RCU had investigated the allegations made by child B that he had been smacked (hands and a wooden spoon) and hit (with a belt) by the applicants. The RCU found most of the allegations not to be sustained and those that were sustained were not reportable conduct.

16. In 2015 there was a subsequent RCU investigation that did sustain a further allegation that BKT put “gaffer tape” on child B’s mouth to stop him crying.

17. The PCEP investigation related to the conduct of BKS arising from the allegations and whether they supported a finding of misconduct by her in her capacity as an employee of the respondent. That investigation found here was insufficient evidence to support a finding of misconduct.

18. In his letter, Mr Best said he needed to make three decisions as follows:

“- whether a process should be commenced to look at your [i.e. BKS] current authorisation as a carer;

- if you [BKS] remain as a carer authorised by FACS, what steps need to be taken (under the policy that FACS employees should no longer be authorised by FACS) for your caring to be authorised by another agency, and

- whether (again assuming that you continue to be authorised) the twins should be placed back into your care.”

19. Mr Best noted the Ombudsman was looking at the RCU investigation report concerning the “gaffer tape” allegation. He said that this meant he had the opportunity to make a “preliminary”, rather than “final” decision. He went on to say his “preliminary” decision was that he would not adopt the RCU report and take steps to de-authorise BKS as a carer.

20. Mr Best went on to say, his further “preliminary” decision was that notwithstanding the flaws in RCU report:

“… there is sufficient information which has been accepted as established that you adopted negative views of [child B] … As [child B] will not be in your care, then the conclusion of the OSP report [i.e. July 2014 report of Ms K Nixon], based on the [January 2014] report of [the psychologist], (which I accept subject to any contrary comment of the Ombudsman) is that neither should [child C] nor [child D]. Furthermore, irrespective of the attachment to [child B] these also conclude that the girls were not progressing as well as might otherwise be expected.”

21. On 25 February 2016, BKS sent an email to Mr Coutts-Trotter. The subject matter of the email was “Request for Review of 5 decisions [child B], [BKS], [BKT], [the twins]” and it was marked high in importance. Attached to the email was BKS’s request for internal review, her 2 December 2015 email to Mr Best, the 29 January 2016 response of Mr Best and other relevant documentation. BKS’s request for internal review included a request for review of Mr Best’s decision not to place the twins in their care.

22. The applicants did not receive a response to BKS’s email to the Secretary.

23. On 9 May 2016, the applicants lodged this application for review by the Tribunal, seeking review of the internal review decision of Mr Coutts-Trotter.

24. As at the date of hearing the respondent advised that child B and the twins were in separate short-term placements, pending the identification of a suitable long-term placement in a single residence.

Matter in issue

25. The first matter in issue is whether the decision for which the applicants seek review is an administratively reviewable decision falling within the Tribunal’s administrative review jurisdiction. This issue primarily turns on whether the decision of Mr Best is a decision falling within s 245(1) of the Care Act: see Community Services (Complaints, Review and Monitoring) Act 1993 (NSW) (Community Services Act), s 28(1)(a).

26. In the event it is found the decision of Mr Best is a decision falling within s 245(1)(c) of the Care Act, the next matter in issue is whether the applicants are “unjustifiably interfering” in the placement of twins and should be denied standing to bring this application: see Community Services Act, s 29(4).

27. Finally, in the event it is found that the decision of Mr Best is a decision falling within s 245(1)(c) of the Care Act and there is no finding that the applicants are “unjustifiably interfering” in the placement of twins, the next matter in issue is whether the Tribunal should exercise its power under s 31 of the Community Services Act and refer the matter to the Ombudsman so as to avoid an “incomplete outcome for the applicants.”

The Tribunal’s administrative review jurisdiction

Administrative Decisions Review Act 1997

28. Section 9 of the Administrative Decisions Review Act 1997 (ADR Act) sets out when the Tribunal is vested with “administrative review jurisdiction.” That section relevantly provides as follows:

“9   When administrative review jurisdiction is conferred

(1)  The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)  in the exercise of functions conferred or imposed by or under the legislation, or

(b)  in the exercise of any other functions of the administrator identified by the legislation.

(2)  If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

…”

29. The term “enabling legislation” is defined in subsection 4(1) of the ADR Act to mean:

“enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a)  provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)  otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.”

Community Services (Complaints, Reviews and Monitoring) Act 1993

30. For the purpose of this application the “enabling legislation” is the Community Services Act. The provisions relevant to administrative review by the Tribunal are contained in Part 5 of that Act. Section 28 in that Part provides:

28   Applications to Tribunal for administrative reviews of decisions

(1)  A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

(a)  a decision that is an administratively reviewable decision under … section 245 of the Children and Young Person (Care and Protection) Act 1998,

(a1) …”

Children and Young Persons (Care and Protection) Act

31. Section 245 of the Care Act relevantly provides:

“245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

(a)  …,

(a1)  a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),

(b)  …,

(c)  a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

(d)  …”

32. Chapter 8 of the Care Act contains provisions relevant to the provision of out-of-home care. There are three categories of out-of-home care:

1. “statutory out-of-home care” (s 135A);

2. “supported out-of-home care” (s 135B); and

3. “voluntary out-of-home care” (s 135C).

33. Relevant to this application is “statutory out-of-home care”, which is provided to a child pursuant to a care order of the Children’s Court, or by reason of the child being a protected person: see Care and Protection Act, s 135A.

34. Subsection 138(1) provides that only a “designated agency” or the Children’s Guardian can arrange for the provision of statutory out-of-home care. Subsection 138(2) creates an offence where a person other than a “designated agency” or the Children’s Guardian places, or arranges for the placement of a child in statutory out-of-home care.

35. The term “designated agency” is defined in s 139 to include a Public Service Agency or organisation that is accredited under the Children and Young People (Care and Protection) Regulation 2012 (the Care Regulation) to arrange for the provision of out-of-home care. The respondent is a designated agency.

36. Where a designated agency places a child into out-of-home care, s 157 imposes a duty on that agency to supervise that placement and to ensure that the safety, welfare and well-being of the child or young person is being protected and promoted.

37. Section 136 provides that only an “authorised carer” can provide “statutory out-of-home care.” Subsection 137 (1) defines an “authorised carer” to be a designated agency or a person who is authorised as an authorised carer by a designated agency pursuant to the Care Regulation.

38. Division 2 of Part 6 of the Care Regulation makes provision for the authorisation of carers by a designated agency. It also makes provision for the suspension and cancellation of a person authorised as a carer under that Part: see Care Regulation, reg 42 and reg 42A to 42D.

39. Who can apply for review of an administratively reviewable decision

40. Subsection 55(1) of the ADR Act provides that only an “interested person” can make an application for administrative review of an administratively reviewable decision. The term “interested person” is defined in subsection 4(1) to mean “a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.” (emphasis added)

41. In this regard, s 29 of the Community Services Act (the enabling legislation in this application) relevantly provides:

“29   Who may apply to the Tribunal?

(1)  An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.

(2)  …

(3)  The Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application.

(4)  A person found by the Tribunal to be unjustifiably interfering in a matter is not entitled to apply to the Tribunal for a review in relation to the matter.

(5)  In determining whether a person is unjustifiably interfering in a matter, the Tribunal is to take into account, to the extent that it is practicable to do so, the wishes and interests of any other persons who have an interest in the matter.

(6)  This section applies despite any contrary provisions of the Civil and Administrative Tribunal Act 2013 or the Administrative Decisions Review Act 1997. “

42. Section 31 of the Community Services Act sets out a number of alternatives to hearing and determining an application for review. That section provides as follows:

“31   Alternatives to Tribunal determining the matter

(1)  The Tribunal must take such steps as to it seems reasonable to encourage the parties to an application for review to effect an amicable agreement.

(2)  The Tribunal may, before it hears an application, or before it determines a matter the subject of an application, refer the application or matter:

(a)  to the service provider for resolution at a local level, or

(b)  to the Ombudsman recommending that consideration be given to investigation or resolution of the matter under this Act or the Ombudsman Act 1974, or

(c)  for investigation by any other appropriate investigative authority.

(3)  The powers conferred on the Tribunal by this section are in addition to any other powers that the Tribunal has under the Civil and Administrative Tribunal Act 2013 with respect to the use of resolution processes.”

43. Section 32 of the Community Services Act sets out some addition powers of the Tribunal to decline to hear and determine an application for review. That section is in the following terms:

“32   Additional powers of Tribunal

(1)  The Tribunal may decline to hear or determine an application if, in the opinion of the Tribunal:

(a)  the applicant has available an alternative and satisfactory means of redress, or

(b)  the applicant has not made appropriate attempts to have the matter to which the application relates resolved otherwise, or

(c)  the ground for the application is unacceptable having regard to the frequency of applications previously made by or on behalf of the appellant in respect of the same subject-matter.”

Consideration

44. The first issue for determination is the nature of the decision for which the applicants have sought review and whether it is a “decision” made under s 245(1)(c) of the Care Act. In this regard, the term “decision” is broadly defined in s 6 of the ADR Act to mean as follows:

“6   Meaning of “decision”

(1) General meaning A decision includes any of the following:

(a)  making, suspending, revoking or refusing to make an order or determination,

(b)  giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c)  issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d)  imposing a condition or restriction,

(e)  making a declaration, demand or requirement,

(f)  retaining, or refusing to deliver up, an article,

(g)  doing or refusing to do any other act or thing.

(2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.

(3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.

(4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.

(5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.”

45. In their application for external review, the applicants described the decision for which they sought review as being their internal review request to Mr Coutts -Trotter and his failure to give a response to that request.

46. The ADR Act contains provisions for internal and external review of administratively reviewable decisions. Section 53 of that Act makes provision for internal reviews, including the time within which an administrator is to determine an internal review application (i.e. 21 days): see ADR Act, s 53(9)(b). If not determined within the prescribed time, the applicant is given a right to seek external review of the decision the subject of internal review: see ADR Act, s 55(3).

47. While Mr Coutts-Trotter did not determine the applicants’ internal review request within the time prescribed in s 53 of the ADR Act, this is not sufficient to enliven the Tribunal’s administrative review jurisdiction. What must be shown is that the original “decision” was a decision that was reviewable by the Tribunal. In this case, the original decision maker was Mr Best and the parties agree that in order for that decision to be reviewable by the Tribunal it must be established that it was a “decision” falling within s 245(1) of the Care Act. If it is not an administratively reviewable decision under that section, then the provisions of the ADR Act do not apply.

The decision of Mr Best

48. The respondent submits that:

“.. [in] order to succeed on the preliminary question the applicants must support the proposition that a combination of s 245(1)(c) of the care Act and s 28(1)(a) of the CS Review Act confer a right to seek administrative review of the Department’s decision to refuse to grant care or control over a child by an authorised carer who cold-called the Department and attempted to solicit a position as the child’s carer.“

49. The respondent argues that the structure of the Care Act does not support such a proposition. It was noted that Chapter 8 of the Care Act imposed special responsibilities on the Secretary, the Minister, designated agencies and authorised carers in regard to out-of-home care. However, there was no provision giving authorised carers the power or authority to make arrangements for out-of-home care. On the contrary, as pointed out by the respondent s 138(2) of the Care Act prohibits a person other than a designated agency or the Children’s Guardian to place or arrange for the placement of a child in statutory or supported out-of-home care. The respondent went on to submit that “nothing in the purpose or structure of the Care Act indicates that an authorised carer has the right to demand that a decision regarding child placement be made by the [respondent]).” Nor did the purpose or structure of the Care Act indicate an authorised carer has a right to seek administrative review of the respondent’s “refusal to accede to such a request.”

50. The applicants in their submissions denied there was any “cold call” by them.

51. In my opinion, the respondent’s submission that the applicants request to Mr Best was a form of a “demand”, or a “cold call” is misconceived and groundless. While I agree, the Care Act, nor the Care Regulation, make provision for an authorised carer to make an application for a child(ren) to be placed into their care, this does not mean that an informal request cannot be made by an authorised carer. How that request is dealt with is a matter for the respondent. Whether the person making the request has a review right will depend on the terms in which the respondent determines the matter.

52. In this case, Mr Best did not view the applicants’ request as a “demand”, or a “cold call”. Had he done so, his response would have been in very different terms.

53. As I have noted, there were two aspects to Mr Best’s response – the issue concerning the applicants’ authorisation as carers and the issue concerning the return of the twins to the applicants’ care. It is the issue concerning BKS’s authorisation as a carer which Mr Best deals with at length in his letter of response. His decision in that regard was not to proceed to take steps to de-authorise BKS as a carer, which is not a decision that is reviewable by the Tribunal. However, in the event the respondent decides at some time in the future to suspend or cancel the authorisation of BKS and/or BKT, under reg 42 of the Care Regulation, that is a decision that is a reviewable decision under s 245(1)(a) and (1) of the Care Act.

54. In regard to the issue concerning the twins being returned to the applicants’ care, in my opinion, Mr Best did not make a decision to refuse to grant the applicants’ request for the twins to be returned to their day-to-day care. As I have noted at [20] above, Mr Best did no more than summarise the findings and recommendations of investigations and assessments that had been made previously and that these were subject to any contrary comment by the Ombudsman. The Ombudsman’s comment was pending at the time he wrote his letter in response to the applicants’ request.

55. Even if the response of Mr Bests were to be construed as a decision to refuse the applicants’ request to grant to them the responsibility for the daily care and control of the twins, the respondent contends this is not a decision falling within s 245(1)(c) of the Care Act. In light of my findings it is unnecessary to determine whether a decision not to grant care of a child to an authorised carer is a decision falling within the terms of s 245(1)(c) of the Care Act. In NV & OA v Director-General, Department of Community Services [2009] NSWADT 209, at [9] to [13], the former Administrative Decisions Tribunal found that such a decision was a decision falling within s 245(1)(c). That decision was followed in AMS and AMT v Department of Family and Community Services [2013] and PR v Department of Community Services [2009] NSWADT 277.

56. It is also unnecessary for me to determine the other matters raised by the respondent, if I were to find the decision of Mr Best to have been a reviewable decision by the Tribunal. However, I have considered these in the event I am wrong and the decision is a decision that is reviewable by the Tribunal.

The applicants’ standing to bring this application

57. The respondent contends the applicants should be found to be “unjustifiably interfering” in the matter of the placement of the twins because:

1. they “cold-called” the respondent,

2. they are attempting to “solicit a position” as the twin’s’ carers,

3. they have previously been found by the Tribunal not to be appropriate carers for the twins, and

4. they have sought internal and external review of a decision that was expressed to be a “preliminary” one and subject to revision.

58. I have already found that the applicants have not “cold-called.” Nor do I find that the applicants to have been attempting to “solicit a position.” On the contrary, I accept the applicants’ request was genuinely based in response to the news that the new placement of the twins had broken down and, contrary to what the respondent had hoped, a placement for all three children had not been found.

59. In regard to the 8 May 2015 decision of the Tribunal, I note the Guardian ad Litem appointed to represent the twins in those proceedings, supported the decision of the respondent on the condition they were placed into the same placement as child B had been placed in December 2014. The Tribunal’s findings in that decision was to note the difficulties surrounding the applicants’ relationship with child B and how this might impact on the applicants’ ability to maintain a positive relationship between child B and the twins. The Tribunal went on to note that the applicants’ relationship with the twins had not been subject to the same difficulties and in this regard the Tribunal said:

“……[while] the experts have recommended that it is in the best interest of the twins to be placed together with child B, there is no suggestion that there should be no further contact between the applicants and their children and family. Hence we recommend that this be supported and facilitated by the respondent and any other agency given responsibility for supervising the placement of the twins.

The applicants have been the only parents the twins have known to date. That should be acknowledged and recognised with ongoing contact and respite as we have already indicated. Circumstances can change and the twins ongoing positive relationship with the applicants can only be in their best interest.

We have already noted the respondent supports [the psychologist’s] recommendations of considerable support being urgently provided to child B, the twins and the proposed carer. Support also needs to be provided to the applicants.

For the reasons we have given, we reiterate our finding that on the material before us, the decision of the respondent to transition/remove the twins from the day to day care of the applicants into a placement with their brother, child B, is the correct and preferable decision.

Accordingly, we order that the decision of the respondent is affirmed.” (emphasis added)

60. I am not dealing with the merits of the applicants’ application in these proceedings. However, the respondent’s assertion that the Tribunal in the 2015 proceedings found that the applicants were not appropriate carers for the twins is incorrect. As can be seen from the above, the Tribunal’s decision was based on the understanding that the twins would be placed with child B as recommended by the psychologist.

61. This did not and has not occurred, even though the twins were removed from the applicants’ care. I am not critical of the respondent, as I understand circumstances do change. Nor is it my role, in these proceedings, to review that decision. I merely note the respondent’s duty in regard to the placement of the twins is to ensure their ongoing safety, welfare and well-being is protected and promoted: Care Act, ss 9(1) and 157

62. In summary, for the reasons set out above, I find there is no basis to make a finding that at the time the applicants made their request to Mr Best, or at the time they lodged this application that they were “unnecessarily interfering” in the placement of the twins.

Referral to the Ombudsman

63. In the event the decision the subject of review is a reviewable decision, it is unclear to me how a referral of the applicants’ application to the Ombudsman would resolve the matter. An investigation into the “gaffer tape” incident is already being considered by the Ombudsman. However, it is not within the power of the Ombudsman to make decisions falling within s 245 of the Care Act. Nor is the Ombudsman vested with a power to review decisions of the respondent that fall within s 245 of the Care Act. Accordingly, I would not make a referral as suggested by the respondent.

Conclusions and orders

64. For the reasons set out above, I have found that the decision for which the applicants seek review is not a decision falling within s 245(1) of the Care Act. Hence, the applicants have no right to bring this application under s 28(1)(a) of the Community Services Act. Hence it follows that the Tribunal does not have jurisdiction to hear and determine their application for review.

65. Nevertheless, I would encourage the respondent to make a final decision in regard to the applicant’s request and the matters raised by Mr Best in his letter of response.

66. However, for the purpose of this application, the appropriate order is to dismiss the applicants’ application for want of jurisdiction.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 December 2016