DON v Key Assets NSW Ltd

[2018] NSWCATAD 252

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DON v Key Assets NSW Ltd [2018] NSWCATAD 252

Hearing dates:

25 October 2018

Date of orders:

25 October 2018

Decision date:

25 October 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

1. The Tribunal decides that it has jurisdiction to review the decision to remove the children from the applicant's care on 24 July 2018.

 

2. The Tribunal decides to deal with the applicant’s application pursuant to s 55(6) of the Administrative Decisions Review Act 1997.

 3. The respondent’s application for summary dismissal is dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – Child protection – Tribunal’s power to review designated agency’s decision to remove child from authorised carer and place child in respite pending outcome of investigation
ADMINISTRATIVE REVIEW – Where application made to the Tribunal before internal review taken to be finalised – Whether it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

Legislation Cited:

Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Regulation 2012
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Reviews and Monitoring) Act 1993

Cases Cited:

DMG v Barnados Australia [2018] NSWCATAD 154
DOJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 211

Category:

Procedural and other rulings

Parties:

DON (Applicant)
Key Assets NSW Ltd (Respondent)

Representation:

Solicitors:
NLS Law (Applicant)
Harpers Legal (Respondent)

File Number(s):

2018/00269923

Publication restriction:

Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.

REASONS FOR DECISION

1. The respondent applied for summary dismissal of an authorised carer’s application to the Tribunal. The applicant wants the Tribunal to review the respondent’s decision to remove children from her care until an investigation into allegations against her has concluded. The respondent said that the Tribunal does not have jurisdiction to review a decision to place children in respite care.

2. I have found that the Tribunal does have that power.

Background

3. The applicant was the authorised carer of two children aged four and five. The children are her grandchildren and have lived with her since shortly after their birth.

4. The Department of Family and Community Services received risk of significant harm reports concerning the applicant and her husband on 23 and 24 July 2018.

5. The respondent (“the designated agency”) removed the children from the applicant’s care on 26 July 2018 and placed the children with another authorised carer in what it described as respite care. Its plan was for the children to remain with the temporary carer whilst the Department of Family and Community Services conducted an investigation into the allegations against the applicant and her husband.

6. On 13 August 2018, the applicant’s solicitor wrote to the designated agency asking it to review “the decision to place the children into respite care.” The designated agency replied, denying that this was a reviewable decision and declining to undertake the requested review.

7. The applicant applied to the Tribunal for review of the decision to remove the children from her care on 3 September 2018 and, on the same day, applied for a stay of the designated agency’s decision.

8. The designated agency applied to the Tribunal for summary dismissal of the applicant’s application on the bases that:

1. the decision to remove the children was not reviewable in the circumstances; and

2. the applicant had not applied for internal review of the decision or, if she had, the internal review was not taken to have been finalised.

9. The matter was listed for a stay hearing and a hearing of the summary dismissal application on 25 October 2018. I heard the summary dismissal application on that date and gave an oral decision. These are my reasons for that decision.

10. As it was not possible to deal with the stay application in the time available, I adjourned the hearing of that application until 31 October 2018.

Is the decision to remove the children a reviewable decision?

11. The Tribunal has power to review a decision that is an administratively reviewable decision under s 245 of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”): Community Services (Complaints, Reviews and Monitoring) Act 1993, s 28(1)(a); Administrative Decisions Review Act 1997, s 9(1); Civil and Administrative Tribunal Act 2013, ss 28 and 30.

12. 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, is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993: Care Act, s 245(1)(c). The “relevant decision-maker” is the person authorised by or under the Care Act to make the decision in question (Care Act, s 245(2)).

Power of removal

13. The parties agreed that the designated agency was the relevant decision-maker for the purposes of s 245 of the Care Act. Whilst I have accepted their joint position that a designated agency has authority to remove a child from an authorised carer’s care, which appears to be a widely-held view, I make the following comments.

14. There are very few provisions in the Care Act dealing with the powers of a designated agency in respect of an authorised carer and in relation to the children in the authorised carer’s care. Pursuant to s 140 of the Care Act, the designated agency that places a child in the out-of-home care of an authorised carer has a responsibility to supervise the placement. This is a possible source of the designated agency’s power to remove a child from the care of an authorised carer, assuming it has that power. The designated agency may also have delegated power from the Minister to remove a child from a carer, where the Minister has been allocated parental responsibility for a child under s 79(1) of the Care Act and delegates aspects of that responsibility to the designated agency. There was no evidence before me as to whether the Minister had allocated any aspects of parental responsibility to the designated agency and, if so, which aspects.

15. Section 182 of the Care Act provides that the Children’s Guardian may, by written notice, remove the responsibility for the daily care and control of a child or young person from the authorised carer. There is no similar express power conferred upon a designated agency. This might suggest it does not have the equivalent power. On one view, the designated agency’s powers, when concerned about the conduct of a carer, are limited to cancelling or suspending the authorisation of an authorised carer pursuant to cl 42 of the Children and Young Persons (Care and Protection) Regulation 2012. Once the authorised carer is no longer authorised, the designated agency could then remove the child from the person’s care. However, this possibility was not canvassed during the proceedings. As both parties accepted that the respondent had the relevant power of removal, and as this is a position supported by authority (DMG v Barnados Australia [2018] NSWCATAD 154 at [26]; DOJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 211 at [16]), I will proceed on the basis that it does.

Submissions made on behalf of designated agency as to jurisdiction

16. Ms Harper, for the designated agency, said that no decision has been made to remove responsibility for the daily care and control of the children from the applicant within s 245(1)(c) of the Care Act. She submitted that a decision to move the children into respite is, by its very nature, an intermediate, non-final decision. She submitted, further, that the agency has not made any long-term decision as to whether the children will be returned to the applicant’s care. For these reasons, in her submission, the Tribunal had no jurisdiction.

17. Ms Harper said in oral submissions that there were policy reasons why s 245(1)(c) does not extend to decisions to place a child in respite. If it did, she submitted, an agency would be inhibited in that it could be reviewed for every protective measure it took. This would not only clog the system, but make it untenable. Ms Harper stated that s 245(1) makes no mention of decision to place a child in respite and said that that was because the legislature did not consider this to be a reviewable decision.

Daily care and control

18. The designated agency’s submissions raise the question of what is meant, in s 245(1)(c), by responsibility for the daily care and control of a child.

19. Part 4 of Chapter 8 (“Out-of-home Care”) of the Care Act is entitled “Daily Care and Control.” It contains two provisions, ss 157 and 158.

20. Section 157(1) of the Care Act sets out many of the aspects of an authorised carer’s responsibility for the daily care and control of a child in his or her care. These are consenting to certain medical and dental treatment, correcting and managing the child’s behaviour, giving permission for the child to participate in activities and making “other decisions that are required in the day-to-day care and control of the child.” The authorised carer may exercise aspects of parental responsibility which have been delegated to him or her (Care Act, s 157(2)). The exercise of these functions is subject to any written direction given by the designated agency (Care Act, s 157(3)).

21. An authorised carer has limited powers to restrain a child who might seriously injure someone, under s 158 of the Care Act. An authorised carer is also entitled, under s 146 of the Care Act, to participate in the making of decisions, going beyond those relating to daily care and control, concerning the safety, welfare and well-being of a child in his or her care.

22. The words “daily care and control” of a child have their ordinary meaning. However, s 245(1)(c) of the Care Act is also informed by Part 4 of Chapter 8. A decision to remove, from a carer, responsibility for the daily care and control of a child, is a decision to remove from a carer responsibility for matters such as consenting to medical treatment, managing the child’s behaviour and making other daily care and control decisions about the child. As the applicant’s solicitor pointed out, there are no words of limitation in s 245(1)(c) requiring this to be a final decision. Rather, the use of the word “daily” indicates that, when responsibility for the care and control of a child, each day, is removed from an authorised carer, the decision is reviewable.

23. There is no real dispute that, following the removal of the children from the applicant’s care, the applicant has not been able to exercise the authority conferred by s 157(1) of the Care Act. It is clear that the designated agency has decided to remove this responsibility from the applicant, even though it may not yet have determined whether to give that responsibility back at some unspecified time in the future.

24. The designated agency’s policy arguments for its construction of s 245(1)(c), particularly on the basis that an agency should be entitled to make a non-reviewable decision to place a child in respite pending the outcome of an investigation, are not persuasive. Section 157 contemplates that the authorised carer has responsibility for a child’s day to day care, and is, at least on its face, inconsistent with a decision of the designated agency to place the child in “respite” for a period of months with another carer (or at all), without the authorised carer’s consent. The Act does not make any implicit or explicit provision for respite. It does not even use that term. Rather, it contemplates that when the responsibility for the daily care and control of a child is removed from the authorised carer, the carer will have a right of review.

25. The concept of “respite” is used in the Children and Young Persons (Care and Protection) Regulation 2012. Clause 33 provides for the authorisation of carers to provide respite for other authorised carers. It is unlikely that the carers chosen by the designated agency to provide “respite” care in this case are, in fact, providing respite for the applicant, given that she wants the children back. Rather, they are providing emergency or temporary care services for the designated agency.

26. The designated agency’s objection that my interpretation of s 245(1)(c) would make the system unworkable cannot be sustained. If an agency has real concerns that an authorised carer is behaving inappropriately, or placing a child at risk, the agency can suspend that carer’s authorisation. That is a reviewable decision. It is at least arguable that the Care Act does not envisage that the designated agency should be able to remove children from a carer for “respite” without the carer’s consent. There is no difficulty with the Tribunal reviewing decisions to remove a child from a carer whilst an investigation into the carer’s conduct is in place. It is in the interests of the child for an independent body to weigh the competing interests of the mutual attachment of a child and a carer with perceived risks to the child’s safety or welfare, in order to determine whether the removal of the child from the carer (whether temporary or not) is the correct and preferable decision.

27. For these reasons, I find that the designated agency’s decision to remove the responsibility for the daily care and control of the children from the applicant, pending the outcome of an investigation, is reviewable by the Tribunal under s 245(1)(c) of the Care Act.

Internal review application

28. I am satisfied that the letter dated 13 August 2018 from the applicant’s solicitor to the designated agency is an application for internal review. It clearly requests the agency to review the decision to place the children into respite care. Whilst it does not refer, in terms, to the removal of the responsibility for the daily care and control of the children from the applicant, this is partly because it is adopting the designated agency’s characterisation of the decision. It is clear that, in practical terms, the applicant is seeking review of the removal decision.

29. The applicant applied to the Tribunal on 3 September 2018. A person who was entitled to seek an internal review of the administratively reviewable decision, is not entitled to apply to the Tribunal unless the person has applied for the internal review and the review is taken to have been finalised (Administrative Decisions Review Act, s 55(3)). A review is “taken to have been finalised” if the applicant is notified of the outcome of the review or if the applicant is not notified of the outcome of the review within 21 days after the application was made (Administrative Decisions Review Act, s 53(9)).

30. The designated agency’s letter stating that the decision was not reviewable could be regarded as the outcome of the review. However, as no review was conducted, the better position is that the review was not taken to be finalised until 21 days after the application was made. This is because there was no “outcome” of which the applicant could be notified.

31. At the hearing, both parties appeared to agree that the application to the Tribunal was made less than 21 days after the internal review application was lodged. The date of 3 September 2018 is 21 days after the date of the letter seeking internal review. I do not have evidence as to whether the letter seeking internal review was posted or emailed to the designated agency, but it is addressed to a post office box and there is no mention of an email in the letter itself or in the applicant’s affidavit. If the letter was posted, it is likely to have arrived after the date which it bears. I find, on balance, that the application to the Tribunal was lodged less than 21 days after the internal review application was made.

32. The applicant was not entitled to apply to the Tribunal on the date she did by operation of s 55(3). The Tribunal may, however, deal with the application in these circumstances if it “is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests” (Administrative Decisions Review Act, s 55(6)).

33. I am satisfied that it is necessary to deal with the application in order to protect the applicant’s interests for the following reasons. The designated agency is now deemed to have refused the internal review application. More than 28 days have passed since this deemed refusal. If the Tribunal were to refuse to deal with the application, the applicant would not now be entitled to make a fresh application for internal review of the decision to remove the children without the consent of the designated agency (Administrative Decisions Review Act, s 53(2)(d)). It has already been three months since the children were removed from the applicant’s care. The decision has had an adverse effect on the applicant and it is necessary to deal with the application to protect her interests.

Orders

34. I make the following orders:

1. The Tribunal decides that it has jurisdiction to review the decision to remove the children from the applicant's care on 24 July 2018.

2. The Tribunal decides to deal with the applicant’s application pursuant to s 55(6) of the Administrative Decisions Review Act 1997.

3. The respondent’s application for summary dismissal is dismissed.

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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: 30 October 2018