Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner
[2021] AATA 24
•19 January 2021
Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2021] AATA 24 (19 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0184
Re:Caring Home Care Pty Ltd
APPLICANT
AndAged Care Quality and Safety Commissioner
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:19 January 2021
Place:Sydney
The decision under review is affirmed.
......................................[sgd]...............................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
HEALTH AND AGED CARE – refusal of application for approval as an approved provider of aged care – whether the Applicant has experience in providing aged care or other relevant forms of care – whether the Applicant demonstrated understanding of its responsibilities as a provider of the type of aged care for which approval is sought (home care) – whether the Applicant has systems, or proposes to have systems, in place to meet its responsibilities as a provider of the type of aged care for which approval is sought – whether the Applicant has sound financial management – decision under review affirmed
LEGISLATION
Aged Care Act 1997 (Cth), ss 2-1, 3-1, 3-2, 3-3, 6-1, 7-1, 8-3, 45-2, 47-1, 47-4, 48-1, 55-2, 96-1
Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth), sch 2, sch 4
Aged Care Quality and Safety Commission Act 2018 (Cth), ss 8B, 63D, 74N
Quality of Care Principles 2014 (Cth), sch 2, sch 3
User Rights Principles 2014 (Cth), ss 17, 21
CASES
Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963
Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
19 January 2021
The Applicant seeks review of a decision of a delegate of the Secretary of the Department of Health contained in a notice dated 16 December 2019 (“the reconsideration decision”). The Applicant made an application (“the application”) for approval as an approved provider of aged care pursuant to the provisions of the Aged Care Act1997 (Cth) (“the Aged Care Act”).
The application was rejected by a delegate on 10 September 2019 (“the decision”). Thereafter, on 23 September 2019, the Applicant requested a reconsideration of the decision. The decision was reconsidered and on 16 December 2019, the delegate confirmed the decision.
The decision records that the requirements under Division 8 of the Aged Care Act had not been satisfied. The Applicant, by statement dated 14 April 2020, has provided further information. Included in such information is the nomination of two additional staff personnel as discussed hereunder, namely Ms Nazlee Mahmud and Mr Azam Mohammed.
LEGISLATION
From 1 January 2020, the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) (“the Amendment Act”) transferred the functions of the Secretary of the Department of Health regarding approval of providers of aged care to the Aged Care Quality and Safety Commissioner (“the Commissioner”).
By clause 32 of Schedule 4 to the Amendment Act, because the decision was made before the transition time (being the commencement of Schedule 4 on 1 January 2020), and because at the time the Applicant had not made an Application for Review of the decision before this Tribunal and the time to make such an application had not expired, section 74N of the Aged Care Quality and Safety Commission Act2018 (Cth) (“the Commission Act”) committed the Applicant to apply to the Tribunal for review of the decision.
Objects
The objects of the Aged Care Act are stated in Division 2 thereof. Relevantly, subsection 2-1(1) provides:
2‑1 The objects of this Act
(1) The objects of this Act are as follows:
(a) to provide for funding of *aged care that takes account of:
(i) the quality of the care; and
(ii) the *type of care and level of care provided; and
(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv) appropriate outcomes for recipients of the care; and
(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of *aged care services that meets the needs of individuals;
Overview
Division 3 – Overview of the Aged Care Act relevantly provides:
3‑1 General
(1) This Act provides for the Commonwealth to give financial support:
(a) through payment of *subsidies for the provision of *aged care; and
(b) through payment of grants for other matters connected with the provision of aged care.
Subsidies are paid under Chapter 3 (but Chapters 2 and 4 are also relevant to subsidies), and grants are paid under Chapter 5.
(2) *Subsidies are also paid under Chapter 3 of the Aged Care (Transitional Provisions) Act 1997.
Subsidy prerequisites
Division 3-2 requires certain approvals before the Commonwealth can pay a subsidy to an approved provider of aged care, as follows:
3‑2 Preliminary matters relating to subsidies (Chapter 2)
Before the Commonwealth can pay *subsidy to an approved provider of *aged care, a number of approvals and similar decisions may need to have been made under Chapter 2. These may relate to:
(b) the *aged care service in question (for example, for residential care services and flexible care services the requirement that *places have been allocated in respect of the service); or
(c) the recipient of aged care (for example, the requirement that the recipient has been approved as a recipient of the type of aged care that is provided).
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
Division 3-3 provides for subsidies to be paid only in certain circumstances as follows:
3‑3 Subsidies
A number of different kinds of *subsidy can be paid. They are paid for *aged care that has been provided. Eligibility for a subsidy depends on:
(a) particular approvals and similar decisions having been made under Chapter 2; and
(b) the circumstances in which the care is provided (for example, whether the care is provided in a residential care service that meets its *accreditation requirement).
Part 2.1 of the Aged Care Act makes provision for approved providers. Such term is defined in Schedule 1 – Dictionary as having the same meaning as in the Commission Act. Division 6, contained in Part 2.1, states in section 6–1 entitled “What this Part is about”:
A precondition to a provider of *aged care receiving a *subsidy under this Act for the provision of care is that the provider is an approved provider.
For the obligations that arise from being an approved provider, see Division 9 of this Part.
Division 10A of this Part sets out offences relating to disqualified individuals and when remedial orders may be obtained.
Division 7 states the significance of approval as a provider of aged care and states in section 7-1:
Payments of subsidy cannot be made to a person for providing aged care unless:
(a) the person is an approved provider; and
(aa) the approval of the person is in effect; and
(b) the approval of the person is in respect of the type of aged care provided, at the time it is provided; and
(c) the approval of the person is in respect of the *aged care service through which the aged care is provided, at the time it is provided.
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
Division 8 contains the prerequisites to be satisfied before a person can obtain approval as an approved provider. By Schedule 1 of the Amendment Act, this Division was repealed. Virtually equivalent provisions are now contained in section 63D of the Commission Act. Subsection 63D(2) provides:
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) none of the key personnel of the person is a disqualified individual.
The Commissioner must be satisfied that an applicant for approval as an aged care provider meets certain criteria. The specific requirements are contained in subsection 63D(3) as follows:
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;
(f) any other matters specified in the rules.
Subsection 63D(4) provides an extension of the consideration by the Commissioner to “key personnel”, as follows:
(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.
The term “key personnel” is defined in section 8B of the Commission Act and in summary is a member of the group of persons who is responsible for the executive decisions of the entity or who has authority or responsibility over planning, directing or controlling the activities of the entity. Paragraphs 8B(1)(c) and (d) provide:
8B Meaning of key personnel of a person or body
(1) Each of the following is one of the key personnel of a person or body (the entity) at a particular time: …
(c) if, at that time, the entity conducts an aged care service:
(i) any person who is responsible for the nursing services provided by the service and who holds a recognised qualification in nursing; and
(ii) any person who is responsible for the day‑to‑day operations of the service;
whether or not the person is employed by the entity;
(d) if, at that time, the entity proposes to conduct an aged care service:
(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.
DECISION UNDER REVIEW
The application was rejected for the reasons stated in the decision. The decision-maker concluded that:
(a)the Applicant had not demonstrated the required experience in providing aged care or other relevant forms of care as stipulated in paragraph 8-3(1)(a);
(b)the Applicant demonstrated a lack of understanding of their responsibilities as a provider of the type of care for which approval was sought as referred to in paragraph 8-3(1)(b);
(c)the documentation provided in support of the systems proposed to be implemented to meet their responsibilities as a provider of the type of care for which approval is sought were inconsistent and did not satisfy the requirements of paragraph 8-3(1)(c);
(d)there was insufficient evidence to assure the delegate that the record of financial management and the methods proposed to be used, existed as required by paragraph 8-3(1)(d).
The Tribunal will consider the relevant criteria requirements set out in subsection 63D(3) of the Commission Act hereunder. The Respondent maintains that it was correct to reject the Applicant’s application for approval as a provider of aged care (“Application for Approval”). Accordingly, the issues for determination concern whether, on the review, the Applicant has demonstrated that it is suitable to provide aged care, particularly having regard to the specific criteria required to entitle the Applicant to subsidies.
PARAGRAPH 63D(3)(A): THE PERSON’S EXPERIENCE IN PROVIDING, AT ANY TIME, AGED CARE OR OTHER RELEVANT FORMS OF CARE
The Applicant
The Applicant is registered as an Australian Private Company and was incorporated on 5 June 2018 as a proprietary company limited by shares. The Applicant has a paid up capital of $100 and records two shareholders, each holding 10 shares namely Sarah Azam and Hamza Azam.
The Applicant claims that it has experience of over one year in delivering care and services to three elderly persons and one person with a disability on a private fee basis. It is currently providing aged care to two persons. Since inception, it has provided aged care to four persons and to one person suffering from a disability.
References
In support of such claim, references have been provided. Bashir Malik has provided a reference dated 9 April 2020 which states that he received nursing care from the Applicant since September 2019 and that they provided excellent service. The reference refers to the respect and dignity provided and that the Applicant had always sent skilled and respectful support workers and a “courteous registered nurse for my nursing care which was required from January of this year”. The reference also states that the CEO maintained regular contact with him and had been “extra supportive in this COVID 19 related hard times as I live alone”.
Syed Zafar Hussain provided a reference dated 7 April 2020 which refers to the Applicant providing “extra support services from Caring Home Care services between October 2018 to January 2019” for his son in counselling, household support and transportation services. The reference continues:
“They provided Daily [sic] personal activities, assist household tasks and participation in community, social activities.”
The reference continues:
“We were very much happy with the support and services provided by them. They treated my son with highly respect, listened to him, respected his dignity, privacy and delivered support as preferred by Hilal.
I was impressed by the way they involved our family and Hilal in the way they provided the support fully keeping our cultural and religious needs in view. The CEO Sarah Azam herself kept in touch us [sic] and kept taking feedback from us. We didn’t find a single reason to lodge a complaint and are very satisfied from their services. We was satisfied [sic] from the top grade services provided by “Caring Home Care services” and happy to recommends [sic] them for other Participants.”
Another reference has been provided by Wamiq Rashid Khan dated 29 June 2020. This reference states that the Applicant provided high-quality nursing and occupational therapy care to the writer’s elderly mother during April, May and June 2020. The author states that the services were carried out to “our fullest satisfaction and desired outcome”. Further, the reference states that “all courtesy and dignity” was extended to the writer’s mother “respecting all her cultural and religious values. In fact, the nurses and OT they sent to us were always ladies as requested by my mother who speak my mother language and from same CALD background”. The reference refers to numerous medical issues which were cared for such as pressure points, skin integrity, bedsores and home modification issues. He states that payment for the services provided was made through bank transfers and once by cash.
Key personnel
Hamza Azam: Role – Director of Health and Policy and Procedures Manager
Dr Hamza Azam was registered on 8 January 2018 as a medical practitioner, having graduated from the University of Sydney in 2017. Dr Azam is described as the Director of Health of the Applicant.
Dr Azam was awarded a Doctor of Medicine from the University of Sydney in 2017, a Bachelor of Biomedical Science from the University of Technology in Sydney in 2013, and a Bachelor of Medical Science from the University of Sydney in 2011.
Following his service as a medical student at two hospitals, he stated he became “Provider Company for Home Care as Chief advisor in charge of nursing and clinical services (June 2017 – June 2018)”; is a Key Person and Board member of an Approved Aged Care Service; has had rural attachment as a doctor (May-June 2018); and at present is a medical practitioner at Westmead Hospital and has held that position since January 2018. He states his special interests are geriatrics, aged care, sports, chess and bodybuilding.
The role of Dr Azam in the Applicant’s operations is to prepare and write policies for the Applicant. It is not proposed that he would participate in the provision of medical services to clients of the Applicant.
Sarah Azam: Role – Chief Executive Officer
In a letter dated 14 January 2019 signed by Mr Azam Mohammed (the husband of Sarah Azam), Sarah Azam is stated to have been working in marketing at Sazem Trading in the years 2014 – 2015 and since 2017, has been assigned work and subcontracting on consultancy for aged (home) care. The application states that Sarah Azam is the Chief Executive Officer of the Applicant.
A reference has been provided by her husband, Mr Mohammed, dated 20 February 2013 on the letterhead of the Consul General of Pakistan, a position which Mr Mohammed held before his retirement. The reference refers to Mrs Azam’s “volunteer work for the community particularly by taking care of our elderly persons and motivating our youngster to take care of them also in Sydney. In our culture, respect for elderly is our first responsibility and you have more than answered to this call by organizing, coordinating and you yourself also providing care to our elderly ladies who on their own can not attend to normal activities like showering and toileting.”
A letter dated 17 July 2018 from Ms Nadeem Sheikh, CEO of Inspired Aged Care Services Pty Ltd (“Inspired Aged Care”), certifies that Mrs Azam:
“… has worked with us in Inspired Aged Care Services for over a year now and during this period she has contributed hugely to our organisation for which we are thankful to her. Her major areas of contributions are:
1. She assisted us in development of our Care and Clinical Manuals and risk mitigation for client guidelines
2. She introduced effective management and Policy Procedure Manual for Inspired based on her experience in aged care services for aged persons of her community and managing a trading and consultancy firm.
3. She assisted us in coordinating support and social service for one of our Level 4 client
4. She assisted with coordination and in delivery of meals, meal preparation in client’s home and cleaning of client’s home.
5. During this period with us, she exhibited deep respect for the client and always treating them with dignity and partnering with the pleasantly, [sic] which made her popular with both our HCP Level 4 and private clients. She also showed full understanding of the regulatory framework governing the aged care services.”
A National Police Certificate dated 27 December 2008 establishes that Mrs Azam has no disclosable court outcomes recorded against her name.
A curriculum vitae (CV) of Mrs Azam certifies that she holds a Bachelor of Science in Home Economics which was awarded on 31 October 1985 by the University of Karachi. The CV also records the following:
·from 1984 to 1986, she had worked as an assistant teacher at the National Montessori;
·from 1998 to 2000, worked in day care at the Embassy of Pakistan in Tokyo as a volunteer and prepared food for children;
·from 2002 to 2006, worked as a social support coordinator for Pakistan Federal Government servants Elderly Services as coordinator for providing care services to retired old government officials and their spouses;
·from January 2008 to December 2008, worked as a part-time casual at ABC Learning Centre, Roseville;
·from 2010 to 2011, worked as a casual worker in sales;
·between 2000 to 2013, worked as a coordinator, supporter and providing meals and transport and personal care service provider for the Pakistan Australia community in Sydney as a volunteer in cooperation with the Embassy and Pakistan-Australia Association;
·from 2014 to 2015, worked as manager marketing and finance in Sazem Trading;
·from 2016 to 2018, worked as a consultant for preparing Quality, Policy and Care manuals with procedures and forms for aged care service provider for home care in Sazem Trading (Consultancy Division);
·from 2017 to 2018, worked as an advisor and casual worker in Inspired Aged Care Services Pty Ltd which then had one Level 4 client; and
·from 2018, worked as CEO of the Applicant.
In the section “SUMMARY OF WORK” in Mrs Azam’s CV, the following is stated:
“Mainly worked in 3 areas: (a) Caring for aged persons in various capacities, mainly as Volunteer and delivery of support care services to one Level 4 HCP client (b) as consultant to aged care service providers for development of Policy and Procedures in accordance with the regulatory framework governing the aged care – Home Care – sector in Sazem and (c) working in marketing and Finance in Sazedm [sic) Trading.”
An extract of the document which is claimed to be the income tax return of Mrs Azam is provided, which indicated she received a salary from Sazem Trading.
Nazlee Mahmud: Role – Director of Nursing
The General Manager, Nursing and Clinical Services (GM NCS) is identified as Ms Nazlee Mahmud. Ms Mahmud, according to a copy of a University of Wollongong testimonial, establishes that she was awarded a Bachelor of Nursing on 3 October 1996. An extract of the register of practitioners indicates that Ms Mahmud is registered as a nurse and that such registration has been held from 22 July 1996.
A reference dated 23 July 2018 has been provided by Ms Nadeem Sheikh, CEO of Inspired Aged Care. It states that Ms Mubbashra (also known as Nazlee) Mahmud has been:
“… a Key Person, member of Board of Director of Inspired and General Manager, Nursing Unit of Inspired Board for over a year now and during this period she has contributed hugely to our organisation for which we are thankful to her. She has demonstrated deep sense of empathy with clients and astute sense of governance, management and administrating her department. Her role as a Board member and key person greatly contributed to not only our delivery of safe and quality services but in her contribution in improvement in our business process and making accountable and transparent process and in inclusive decision making. Her role particularly in assessments and forming assessment teams, reassessments and training & development of staff under her and supervising their work has proved very valuable.
During this period with us, she exhibited deep respect for the client and always treating them with dignity and partnering with the, pleasantly,[sic] which made her popular with both our HCP Level 4 and private clients. She also showed full understanding of the regulatory framework governing the aged care services. We at Inspired are sorry to see her leave us but we understand her commitment to lead her own company in this great field.”
A CV records the following:
·that from 1996 to 1997, Ms Mahmud worked in transitional support rotation at Bankstown-Lidcombe Hospital;
·from 1997 to 2002, worked full-time in the Intensive Care and High Dependency Unit at Bankstown-Lidcombe Hospital;
·from 2005 to 2010, worked part-time as a registered nurse in family practice;
·from 2010 to 2011, was an occupational health registered nurse working in Health for Industry;
·from 2011 to 2012, had registered nurse duties at Liverpool Health Care Medical Centre;
·from 2012 to 2017, worked 2 to 3 days per week as an registered nurse in Lakemba Medical Centre assisting doctors in assessing and treatment plans including for care and treatment of aged persons;
·from January 2019 to October 2019, worked as a key person in charge of nursing care strategy in Inspired Aged Care. The CV stated she resigned as a director but continued to work in nursing.
·from August 2017 to January 2019, she worked as a key person and Board member of approved service provider, Inspired Aged Care;
·from 2020 to date, working as a key person, member of the Managing Committee and General Manager for nursing and clinical care at the Applicant. Only one client was in receipt of care in the relevant period. The CV states:
“Working as a registered nurse in care of patients, disabled and aged persons for 20 years and working as a key person in approved aged care service provider and a new aged care company.”
A National Police Certificate dated 30 July 2018 records there are no disclosable court outcomes against Ms Mahmud.
Azam Mohammed: Role – Chief Financial Officer
Azam Mohammed states that he was asked by “Mrs. Sarah Azam, my spouse and CEO Caring Home Care Services Pty Ltd to represent her since January 2020 in her appeal…” before this Tribunal. Mr Mohammed signed a statement on 7 April 2020 in which he stated he was “found suitable twice by the Department of Health to be a key person and CEO/CFO of an approved aged care provider. If anything since then, I have gained more experience in aged care”. He states that he was unsuccessful in marketing for consumers/clients but that he has now been offered a role. In the Applicant’s statement dated 14 April 2020, it is stated that “… We have now hired a CFO from third week of March 2020”. That person identified is Mr Mohammed. No specific training in accounting, or managing financial computerised systems, is referred to.
Mr Mohammed has had over 30 years’ experience in government service and has previously held the position of Consul General and Trade Minister for Pakistan in Sydney between 2006 and 2012. His statement indicates that he holds a Masters in International Relations (1980) and a Bachelor of Commerce from the University of Karachi (1975).
Mr Mohammed states that upon retirement he created the trading company, Sazem Trading. Such business was divided into operations, namely trading of goods and the provision of consultancy services. Mr Mohammed states that trading in goods only continued for approximately a year and thereafter the business was concentrated on consultancy services especially for aged persons. He has been a director of Sazem Trading since 2014.
A National Police Certificate dated 2 January 2019 records there are no disclosable court outcomes recorded against Mr Mohammed.
Finding
The Aged Care Act does not specify that an Applicant must have a specific history of providing aged care in terms of time, nor does it specify the qualifications of the key personnel.
The evidence establishes that the Applicant has provided home care services since either October 2018 or January 2019 (the evidence is conflicting) to at least four persons, one of whom was suffering from a disability. Those services have ranged from cleaning, counselling and assisting in the home of the person. The references from three recipients of care have been provided, and establish that the Applicant is competent in the provision of those services. The number of clients has diminished due to the fact that one client returned to Pakistan and has no longer any need for such services; another client was able to obtain local services at a better rate; and the disabled person was able to join the National Disability Insurance Scheme. Only one person is now currently in receipt of services.
Included in the key personnel is a registered medical practitioner, Dr Azam and a registered nurse, Ms Mahmud. The practitioner is not proposed to be involved directly in the daily operations of the business but rather to act as the Director of Health and to supervise policies and procedures. The Applicant acknowledges that Dr Azam has had no actual experience with aged persons. The nurse, Ms Mahmud has had considerable experience, in excess of 20 years, as a nurse engaged at a medical centre or a hospital and has had experience during this time in treating aged persons at such places. There is no evidence that she has ever provided assistance to aged persons in a homecare situation.
Mrs Azam, who is proposed to be the Chief Executive Officer, possesses university academic qualifications, but the qualifications do not necessarily involve anything to do with aged care in a home situation. There is no detailed information of any training in managing persons requiring homecare. Mrs Azam appears to have had some experience in her life in caring for people, including aged people albeit some of that experience has been a voluntary capacity. The evidence establishes that she has been essentially operating the business of the Applicant since its inception and has performed some activities of aged care in a private capacity. It is proposed that Mrs Azam would have the essential role of marketing.
Mr Mohammed has had a long experience in administration. He holds university qualifications already referred to which include a degree in commerce. Mr Mohammed’s career has included being a Consul General and Dean of the Consular Corps. Mr Mohammed stated that he decided to become involved in the aged care industry following his retirement from his commercial activities as Consul General.
(a) Dr Hamza Azam: Dr Azam has experience in aged care. However, it is not proposed that he would participate in the provision of medical services for the Applicant as his role is purely to prepare policies. Based upon the policies that have been prepared, the Tribunal is not satisfied that he possesses the requisite experience.
(b) Sarah Azam: Mrs Azam initially provided charity services for members of the Pakistan community. However, the Tribunal does not have before it sufficient detail of the precise activities which were performed. Similarly, the Tribunal notes that she has provided services for three clients and a disability recipient. The Tribunal has noted the references. Nevertheless, again the detail of the exact services provided are not included. Statements such as provision of cleaning services, household support services, care services, do not state with sufficient specificity the precise nature of the work which she has performed. Further, as discussed more fully in the financial matters referred to hereunder, the provision of services has been infrequent and sporadic. There is no history of a long continuity of service.
The Tribunal notes the reference provided by Inspired Aged Care and her service to that organisation as a Board member and working as a key person on the management committee. No details are provided of the actual care which would have been given by this employee. The evidence originally provided to the Tribunal established that that organisation only had one client. However, on the third day of the hearing a reference dated 30 September 2020 was tendered stating that the number of clients had increased from one to 12. No data has been provided to verify such assertion. The Tribunal finds that the reference provided is of little weight, bearing in mind that a portion of the reference is identical to the reference for Ms Nazlee Mahmud. For these reasons, the Tribunal is not satisfied that Mrs Azam has had sufficient experience to be qualified as a key personnel.
(c) Nazlee Mahmud: Whilst Ms Mahmud has been a registered nurse, she has been a key person and member of the Board of Directors and the General Manager, Nursing Unit of Inspired Aged Care. However, there are some disconcerting facts:
(i)a portion of the reference dated 23July 2018 by the CEO of Inspired Aged Care (the reference) is in identical terms to that provided by Inspired Aged Care;
(ii)the precise nature of the work performed by Ms Mahmud at Inspired Aged Care is unclear. Whilst the reference refers to the fact that she was on the management committee and a board member, little is provided concerning the actual services she provided to any client;
(iii)despite her long history of working as a nurse at Lakemba Medical Centre, there is very little evidence concerning her involvement with aged persons; and certainly no evidence that she has provided assistance to aged persons in a home setting;
(iv)the reference is dated 23 July 2018 with a statement: “[w]e at Inspired are sorry to see her leave us”. However, her CV refers to unbroken service from August 2017 to October 2019. These inconsistencies cause the Tribunal to place little weight on the reference and the work history of this proposed employee with experienced in aged care.
(d) Azam Mohammed: Mr Mohammed has obviously had important governmental posts as Consul General and Trade Minister. He also appears to have had some involvement in a business which he commenced after his retirement namely Sazem Trading. The Tribunal notes amongst his academic qualifications that he holds a Bachelor of Commerce.
Despite these qualifications, there is no evidence that he has had any specific training in accounting nor in accounting procedures nor that he is able to operate or conduct electronic accounting packages. The accounting, which is referred to subsequently, is virtually non-existent. Mr Mohammed has not demonstrated that he has any sufficient skills for such care.
For the above reasons, the Tribunal considers that the requirements of paragraph 63D(3)(a) are not satisfied.
PARAGRAPH 63D(3)(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
The responsibilities include knowledge of the relevant standards as set out in the Aged Care Quality Standards, contained in Schedule 2 of the Quality of Care Principles 2014 made under section 96-1 of the Aged Care Act. Chapter 4 of such Act is entitled “Responsibilities of approved providers”. Division 53 summarises the requirement of Chapter 4 by the stipulation of the responsibilities of an approved provider in relation to the quality of care they provide (Part 4.1); user rights for the people to whom the care is provided (Part 4.2); and accountability for the care that is provided and the basic suitability of their key personnel (Part 4.3).
The Quality of Care Principles 2014 make provision for standards of services provided by way of residential care services, home care services, and flexible care services.
Defects in application
1. Application relied on superseded material
Standard 1 contained in Schedule 2 of the Aged Care Quality Standards refers to Consumer Dignity and Choice and contains requirements which must be demonstrated by the organisation. One such requirement is that the organisation demonstrates the following:
(e) information provided to each consumer is current, accurate and timely, and communicated in a way that is clear, easy to understand and enables them to exercise choice.
When submitting its application, one of the documents provided was the Applicant’s “Welcome Pack” dated March 2020. Incorporated is a provision contained in section 10 entitled “Responsibilities of Service Provider – Home Care”. In setting out the responsibilities and obligations of an approved service provider, the Applicant incorporated an extract from an out of date publication entitled “17 Security of Tenure”. The section contained information concerning the cessation of home care to a recipient which was eight months out of date.
The version which has been current since 1 July 2019 concerning security of tenure is contained in section 17 of Division 2 of Part 3 of the User Rights Principles 2014.
The Respondent submits that the fact that the information was from a publication which had not been in force since at least July 2019 demonstrated that the Applicant had no understanding of its requirements and did not possess a current knowledge of the requirements applicable to the provision of home care. The Respondent submits that the Applicant does not possess a current, accurate and timely knowledge of its responsibilities as a service provider.
The Applicant responds stating that it may have incorporated the out-of-date section but that this was due to the change in the legislative requirements, and that the version which it had incorporated was current as per a compilation of the Act which was current as at March 2019. Further, the Applicant states its responsibilities of an aged care provider are contained in numerous policies and that its document entitled “Policy and Procedures Manual” contains references to matters such as the commitment to provide security of tenure and also describes the circumstances where a contract between the provider and a client may be terminated. Any such termination would not be inconsistent with the requirements under the Act.
2. Erroneous information in application
The Respondent also referred to the fact that in the Application for Approval, section 3 contained a provision concerning the suitability of the Applicant.
Section 3.2.2 requires an applicant to:
“Demonstrate your understanding of the responsibilities set out under Part 4.2 of the Act as they relate to the care type/s you are applying for.”
In the response, the Applicant stated:
“We have applied for Home Care. Part 4.2 of the Act relates to our responsibilities regarding Users’ Rights as in the Act and in the Users Rights Principles. The general responsibility is mandated in Div. 55-2 which relates to ethical and prohibitive charging and to comply with Fees and Payment Principles, provide security of tenure, protect private information, to provide care and services in accordance with care agreement, comply with requirements of resolution of complaints, requirement of home agreement and protection of privacy etc.”
The Respondent states that the Applicant erroneously refers to Division 55-2.That section in the Aged Care Act provides the following:
“55 – 2 – The User Rights Principles
User rights are also dealt with in the User Rights Principles .The provisions of this Part indicate where a particular matter is or may be dealt with in these Principles.”
The Respondent states that the responsibilities of approved providers – home care are contained in section 56-2 of the Aged Care Act. Accordingly, the Applicant has simply failed to understand the requisite provisions which required addressing and demonstrated a lack of knowledge of its responsibilities as an aged care provider.
Mr Mohammed acknowledged that it was a mistake in the application to refer to the wrong section, but nevertheless submits that the numerous policies and procedures which have been supplied in support of the application clearly establish that the Applicant is aware of its responsibilities under the Aged Care Act.
The Respondent submits that there has been a lack of workable policies and procedures information provided by the Applicant, with accompanying confusion in respect of the information provided. The Respondent points to the fact that, in respect of one item, namely policies relating to medication, there was an inconsistency between a reference to a Care Manual referred to in the Applicant’s Policy and Procedures Manual compared to references contained in other documentary evidence submitted with the application.
During the hearing, the question arose concerning the absence of any policy relating to the administration of medicines. Mr Mohammed thereafter provided a policy which he said satisfied the requirement. However, on further examination during the hearing thereafter, it became apparent that the document which had been provided was provided in error and that there was yet a further document which contained the relevant information. There was clearly confusion in respect of which policy document applied. One document had been obtained from another aged care provider without its apparent permission ("the copied document"), the sources had been acknowledged. Further, the copied document applied to an aged care facility, and not home care and accordingly its inclusion was irrelevant. However, the later version which was submitted nevertheless included such policy. Mr Mohammed submitted that there was no requirement to submit every policy with its Application for Approval. He did not explain the relevance of the aged care policy inclusion. Rather, he submitted that the critical documents which had been supplied were more than adequate to meet the regulatory requirements.
The Tribunal finds that there has been confusion in respect of the documents submitted to the Respondent for consideration. Further, confusion exists concerning the extent to which such documentation is required.
The requirements under the Aged Care Act are complex. The associated Principles which form part of the regulatory framework are both comprehensive and detailed. Added to the complication is the fact that there was an amendment by the recent introduction of the Amendment Act in 2019.
The Applicant lodged its Application for Approval under the statutory regime which applied prior to the introduction of the Amendment Act. In support of its application, the Applicant has made errors in identifying the prevailing requirements by referring to outdated provisions, as discussed above. For example, the current version of the User Rights Principles 2014 in reference to the responsibility of approved providers of home care to provide security of tenure, was wrongly included in the Applicant’s policies. The Respondent urges the Tribunal to find that such failure demonstrates a lack of understanding of the Applicant’s responsibilities.
The Applicant has provided numerous policies in support of its application such as System, Policy and Procedures Manual for Meeting Aged Care Quality Standards; Policies and Procedures to meet Regulatory Requirements; Staff Training and Continuous Improvements against each Quality Standards; Policy and Procedures Manual which includes Financial Management Policy and HR Policy; Policy on COVID 19: Prevention and Management; Welcome Pack; and sample forms for the provision of a monthly statement for clients.
Mr Mohammed has stated that such policies and procedures have been prepared over a period of approximately two years from a variety of sources. The Respondent submits that, whilst there has been the provision of such documents, it is apparent that many have been plagiarised from other sources. In response, Mr Mohammed has readily acknowledged that numerous sources were considered and incorporated where appropriate, and that an acknowledgement of such sources readily appears on the documents. Since there is no prescribed standard policies prepared by the Respondent for use in an enterprise as a home care provider, Mr Mohammed stated that it is necessary to improvise to formulate a policy which best suits the Applicant.
Finding
The Respondent is correct in its submission that the text of the documents provided are not necessarily those of the Applicant, as the Applicant readily acknowledges. The fact that other sources have been used to formulate the policies does not render them invalid. However, the Tribunal is not satisfied, both from the information provided by Mr Mohammed, and from the documentation which has been provided by the Applicant, that it does have a clear understanding of its responsibilities as an approved provider of home care both in relation to the quality of care and in relation to user rights and accountability. The copying of documents and submitting them to the Respondent does not establish that the Applicant has any depth of understanding of the policies.
In summary, the Tribunal has no confidence that the Applicant possesses a clear understanding of the requirements: the inclusion of erroneous documents; out of date documents and the copying of documents on the website and from an aged care provider point to a lack of fundamental understanding of the requirements. The requirement of paragraph 63D(3)(b) is not satisfied.
PARAGRAPH 63D(3)(C): THE SYSTEMS THE PERSON HAS, OR PROPOSES TO HAVE, IN PLACE TO MEET THE PERSON’S RESPONSIBILITIES AS A PROVIDER OF AGED CARE FOR WHICH APPROVAL IS SOUGHT
The Quality of Care Principles 2014 states the content of the care or service to be provided and states that such care or service must be provided by the approved provider in a way that complies with the Aged Care Quality Standards set out in Schedule 2: see Part 2 – Residential care services, section 7. Schedule 3 of the Quality of Care Principles 2014 is entitled “Care and services for home care services”. Part 1 thereof is entitled “Care and services” and defines the services which are to be provided by way of personal services, activities of daily living, nutrition, hydration and meal preparation and diet, management of skin integrity, continence management and mobility and dexterity.
Support services are also stated in paragraph 2 of Part 1 and are identified as including cleaning, personal laundry services, arranging for dry-cleaning of care recipient’s clothing and bedding, gardening, medication management and rehabilitative support.
Accompanying the Application for Review are numerous policies formulated by the Applicant. One such document is entitled System, Policy and Procedures Manual for Meeting Aged Care Quality Standards (“the manual”). Detailed provisions are set out in the manual which are intended to address the systems to be adopted by the Applicant. The manual is intended to complement the Applicant’s “Policy and Procedures to meet Regulatory Requirements”, which states:
requirements are regularly monitored and updated whenever there is a change in regulations
Specifically, the Applicant’s Care Manual was amended on three occasions during the hearing. The final version, known as Revision 7 was effective from 1 June 2020.
During the hearing the Respondent asserted that the manual failed to address important matters such as a medication policy. The applicant had only provided an extract of an administration of medicine policy which was cross-referenced to the “Policy and Procedure on medication”. However, there was no medication policy contained in the Policy and Procedures Manual. The Applicant then referred the Tribunal to another document which it had submitted during the hearing in support of its application which contain detailed provisions concerning medication and treatment and other matters designed to address the requirements of Schedule 3. The Tribunal considers that each document should be complete in itself to satisfy each requirement.
The final Care Manual was reduced from 50 pages to 13 pages. It contains no meaningful content and is incomplete.
The Applicant has not provided its Forms Manual. Further, a Clinical Governance Framework (referred to in the Policy and Procedure Manual) has been included but only as an annexure to the Policy Procedure for Meeting and Exceeding Aged Care Standards.
No systems have been developed which are specific to the business, staff and operating environment.
The Applicant’s Care Manual was said to have been drawn from the Department of Health, International Organization for Standardization (ISO), Victorian Government website and American Nursing Association websites. Closer examination establishes that most, if not all the content had been plagiarised.
The Applicant’s Clinical Safety and Care Manual and Guidelines included policies which were relevant to residential care but not home care.
The Applicant’s Policy and Procedure on Meeting Regulatory Requirements stated that “[regulatory] requirements are regularly monitored and updated whenever there is a change in regulations”: yet the Welcome Pack included sections 17 and 21 of the Aged Care Act which had been superseded.
There are financial matters and actions referred to in the next section which the Tribunal finds are wholly incorrect and inconsistent.
Finding
For the reasons set out above, the Tribunal is not satisfied that the Applicant possesses the requisite systems in place to meet the requirements.
PARAGRAPH 63D(3)(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
The Respondent submits that the Applicant’s current financial systems are non-existent. The Respondent refers to the evidence adduced during the hearing which establishes that cash payments were received and were placed in a wooden box kept by Mrs Azam, and that a record of receipts for monies for services provided are recorded in a paper exercise book. However, the Applicant made statements accompanying its Application for Approval which clearly implied that it already had elaborate electronic systems in place for record-keeping.
The Respondent submits that as required by provisions within the Aged Care Act, the provision of subsidies is rigidly regulated and will require sophisticated systems for the recording of subsidies. The Respondent refers to the subsidy principles referred to in Chapter 3, Part 3.2 which relates to home care subsidy and particularly to Part 3.2 sections 45-2; 47-1; 47-4 and 48-1, each of which are relevant to the payment of home care subsidy and claims for subsidies.
The Applicant has provided statements in its Application for Review which the Respondent asserts were misleading. One such example is discussed below.
An extract of a tax return relating to the Applicant has been provided recording that in the tax period ending 30 June 2019, an amount of $2200 was paid to the Australian Taxation Office.
A bank statement has been provided for the Applicant commencing on 1 January 2019 to 2 April 2020. It records that deposits are made during this period from several persons.
Mr Mohammed, who represented the Applicant before this Tribunal, informed the Tribunal that the nursing services provided to clients of the Applicant were arranged by his wife, Mrs Azam, and the occupational therapy services were provided by his daughter.
Erroneous information
Section 3.4.1 of the Application for Approval is entitled: “You must describe how your organisation will meet its financial management responsibilities”. In response, the Applicant asserted:
“Our effective management Corporate Governance have established a sound Financial System with embedded financial risk management”.
Another statement in the same paragraph provides:
“Our IT systems including e-HCP, MYOB, Scan, MS-Office integrates information and feeds into our accounting policies and procedures and generate financial and operational data to facilitate decision-making and steering the Company towards targets. Our accounting policies meets Australian Accounting Standards”.
Another statement contained the following:
“Our system utilizes Excel for reconciliation of bank statements, reconciliation with DSS subsidies and preparing ACFR reporting (iii) MYOB for ATO, Payroll, HR and Caring financial statements”.
The Applicant readily acknowledge that such services are not yet in existence. However, Mr Mohammed explained that the statements are intended to convey what will occur once approval is given for the Applicant to be an aged care provider. Mr Mohammed stated that the answers were provided in anticipation of how the organisation “will meet its financial management responsibilities” as is stated in section 3.4.1 and was not to be intended to be a statement of existing fact.
Deposit of $45,000
Another issue concerned a statement about the provision of a deposit. In the same section of the Application for Approval, the following statement is made:
“The CEO has loaned $45,000 to the Company which will be returned to her after five years”.
Such statement appears also in the three-year projections of the Applicant as follows:
“Note: Founding Director loan of $45,000 will be returned only in the 4th year subject to positive Cash Flow in the 4th year”.
Bank records for the Applicant record a transfer of $45,000 on 14 January 2019 which are described as “refund loan ceo”. On 30 January 2019, the amount of $45,000 was withdrawn and was described as “loan temp return”. In the bank account of Mrs Azam, the loan to the company of $45,000 is recorded as the return of the “loan temp return” on 30 January 2019.
Mrs Azam testified that it was not intended that the loan of $45,000 to the company would be permanent and was only provided if the company was successful in its Application for Approval as an aged care provider.
Cash payments for services
The Applicant asserted that monies were paid in cash to Mrs Azam from the inception of the company in respect of aged care services provided to clients. Mrs Azam testified that she would receive the money in cash, and from the cash would make payment of disbursements to staff and for other costs incurred in operating the business, and that she would make payments into the company’s bank account on occasions. A handwritten statement of monies received, recorded on a single sheet of paper apparently removed from an exercise book was provided. Such payments were transferred to the applicant’s bank account. Mrs Azam stated that the monies which remained after disbursements were kept in a wooden box known as the cashbox.
The bank statement for the Applicant records that on 14 January 2019, deposits were made of $950 and $550 stated to be for the client Dr Javed, and a further $640 was deposited in respect of the disability client. On the following day a transfer was made for another client in the amount of $60. Thereafter no deposits were made thereafter until 13 September 2019 when an amount of $350 was deposited. On 15 October 2019, a further $210 was deposited. Further deposits were made during February, March and April 2020.
The Respondent challenged the true purpose of such deposits. The Respondent submitted that such payments that were made on 14 January 2019 were colourable, to give credibility to the application. The Respondent relied upon the fact that such deposits were made only four days before the Application for Approval was lodged.
Further, the Respondent claimed that the sporadic nature of the deposit suggested that the business of the Applicant was virtually non-existent and that the funds deposited did not represent fees for services allegedly provided.
Finding
The statements made by the Applicant concerning its accounting systems were false when it asserted in its Application for Approval made on 18 January 2019 that the Applicant had:
“established a sound Financial System with embedded financial risk management”.
The Tribunal finds that the accounting systems are virtually non-existent. Such a statement cannot be read in the way claimed by the Applicant, namely that it was a statement of future intent, when the tense used is clearly in the present tense. No qualification was contained in the statement to suggest that the electronic systems would be created after approval had been granted.
When making its Application for Approval, the Applicant asserted in one statement that the deposit of $45,000 will be held by the company for five years and in another statement, for four years. Neither statement was proved to be accurate. The deposit for the stated purpose, then the withdrawal is both erratic and unexplained except for the statement by Mrs Azam that she sought a repayment of the funds.
The deposit of monies said to be for client care is sporadic. Long periods existed between the dates when deposits were made, for example 15 January 2019 to 13 September 2019 and 15 October 2019. Services were said to be provided to Dr Javed and two payments were apparently received on 14 January 2019. The next two payments are made more than a year later, in March and April 2020. It is not possible to reconcile the fact that the monies were held by Mrs Azam, then paid into the account of the Applicant. If they were truly funds of the Applicant received in respect of care, there is no explanation why the funds were not paid immediately into the bank account of the Applicant rather than held in a wooden box.
The Tribunal also notes that no receipts were recorded in the cashbook for a client of the Applicant, Mr Syed Hilal for nursing claimed to have been provided between October 2018 and January 2019.
There are conflicting statements concerning the date when the care commenced to be provided by the Applicant, either October 2018 or January 2019. Further, whilst Mrs Azam stated that care was provided in October 2018, the cashbook records payments from July 2018. Deposits were made into the Applicant’s bank account in January 2019 yet, as pointed out by the Respondent, there are significant gaps between the transactions in the Applicant’s bank account (15 January 2019 to 13 September 2019) when cash deposits into the applicant’s bank account were made.
The Tribunal finds that the services were neither continuous nor ongoing. In respect of Dr Javid, two payments were made on 14 January 2019 with the next two payments occurring in March and April which again reflects a lack of continuity.
The Respondent maintains that the deposits were made to add credibility to the application bearing in mind that the deposits made within days of the Application for Approval being lodged. The Tribunal accepts there is certainly a link between the date of the deposits commencing and the Application for Approval but does not necessarily draw any unfavourable inference from this fact alone.
Generally, the Tribunal is not confident that the existing systems of the Applicant satisfy the requirements of paragraph 63D(3)(d). Whilst Mr Mohammed has university qualifications, there is no evidence that he has any training in bookkeeping or accountancy. The bookkeeping entries on the page of the exercise book are elementary.
PRINCIPLES
The Tribunal refers to the following authorities:
(a)In Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248, the Tribunal considered an application to review the revocation of Riverside’s approval as a provider under the Aged Care Act which had been granted in respect of an aged care facility. In considering the requirements of a manual known as The Standards and Guidelines for Residential Aged Care Services Manual, the Tribunal observed that each standard contained in the manual “is intended to give a clear statement of expected performance, to provide criteria to evaluate how well a service is performing and to identify gaps or opportunities for improvement.” The Tribunal considered the standards of quality management services expected of a nursing home as stated in the standards and said:
“They are what is described as an “integrated matrix” and no standard can be considered in isolation from the others.… If a nursing home fails to meet a criteria, it fails to meet an expected outcome and so fails to meet one of the standards and, ultimately, fails to comply with the Residential Care Standards.”
(b)In Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963, Pearl Aged Care sought approval to be a provider of home care under the Aged Care Act. The Tribunal found that the Applicant had no experience in providing home care and that seriously misleading information had been provided in the application form. The other essential criteria for approval were also inadequate. The Tribunal, following the approach in Riverside said at [108]:
“As noted above, the various responsibilities of an approved provider of aged care form an integrated matrix, such that if a provider fails to comply with one of the criteria to meet one of its responsibilities, it is taken to have failed to comply with its responsibilities under the Act.”
Based upon the above authorities, the misleading and false statements concerning the financial systems of the Applicant is sufficient to warrant the application failing, let alone the other matters which the Tribunal has referred to above.
Whilst the Applicant is correct that there are no forms provided for some of the information to be supplied, and that employees need not have any special qualifications, the test is whether or not the Applicant has satisfied the Respondent that it possesses the requisite experience and knowledge to conduct a business and to deal with funds which the company would receive from the Commonwealth if approved. The Tribunal does not have the requisite confidence that the Applicant possesses such experience.
DECISION
The Tribunal finds that the decision under review should be affirmed as the correct or preferable decision.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
..............................[sgd]..........................................
Associate
Dated: 19 January 2021
Dates of hearing: 28, 29, 30 September, 1 October 2020 Date final submissions received: 26 November 2020 Advocate for the Applicant: Mr A Mohammed Counsel for the Respondent: Mr M Sherman Solicitors for the Respondent: Ashurst
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