Double Bay Aged Care Pty Ltd and Aged Care Quality and Safety Commissioner

[2023] AATA 2673

Double Bay Aged Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2673 (4 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/2116

Re:Double Bay Aged Care Pty Ltd

APPLICANT

AndAged Care Quality and Safety Commissioner

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:4 August 2023

Place:Sydney

The reviewable decision will be set aside and remitted to the respondent for reconsideration.

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Deputy President B W Rayment OAM KC

CATCHWORDS

AGED CARE – refusal of application for approval as provider of aged care (home care) – whether key personnel are suitable to be involved in the provision of aged care – change in key personnel – more information required regarding key personnel and financial circumstances of the applicant – decision under review set aside and remitted

LEGISLATION

Aged Care Quality and Safety Commission Act 2018 (Cth)

CASES

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

4 August 2023

1. The respondent decided not to approve the applicant as a provider of aged care (home care) and on internal review, that decision was affirmed. The applicant sought review in the Tribunal and I heard that application.

2. The respondent’s decision was made under s 63D of the Aged Care Quality and Safety Commission Act 2018, which provides as follows:

   63D  Commissioner must decide whether to approve person as provider of aged care

   1If a person makes an application under subsection 63B(1), the Commissioner must decide whether to approve the person as a provider of aged care within:

   (a)if a request for further information in relation to the application has been made under subsection 63C(1)—90 days after receiving the further information; or

   (b)otherwise—within 90 days  after receiving the application.

   Note: See Part 8B for the reconsideration of a decision not to approve a person as a provider of aged care.

   Approval as provider of aged care

   2The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:

   (a)the person is a corporation; and

   (b)the person is suitable to provide aged care; and

   (c)each individual who is one of the key personnel of the person is suitable to be involved in the provision of aged care.

   Suitability to provide aged care

   3In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:

   (a)the person’s experience in providing, at any time, aged care or other relevant forms of care;

   (b)the person’s demonstrated understanding of the person’s responsibilities as a provider of the type of aged care for which approval is sought;

   (c)the systems that the person has, or proposes to have, in place to meet the person’s responsibilities as a provider of the type of aged care for which approval is sought;

   (d)the person’s record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;

   (e)if, at any time, the person has been a provider of aged care or other relevant forms of care—the person’s conduct as such a provider and the person’s compliance with:

   (i)     the person’s responsibilities as a provider of that care; and

   (ii)    the person’s obligations arising from the receipt of any payments from the Commonwealth for providing that care;

   (ea)whether the person has at any time been convicted of an indictable offence;

   (eb)whether a civil penalty order against the person has been made at any time;

   (f)any other matters specified in the rules.

   4In 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.

   5The rules may specify the matters to which the Commissioner must have regard in considering any of the matters set out in paragraphs (3)(a) to (f).

   6Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care.

   Suitability of key personnel

   7In deciding whether an individual who is one of the key personnel of the applicant is suitable to be involved in the provision of aged care, the Commissioner must consider the suitability matters in relation to the individual.

   8Subsection (7) does not limit the matters the Commissioner may consider in deciding the matter mentioned in that subsection.

3. A question was raised by the applicant as to whether the reviewable decision was valid, and it was submitted that it was not valid.

4. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338, it was determined by majority (Bowen CJ and Smithers J, Deane J dissenting) that the phrase “made in exercise of powers conferred by an enactment” properly construed means in purported exercise of powers conferred by the enactment. A decision in fact thus gave the Tribunal jurisdiction, whether or not as a matter of law it was validly made.

5. I therefore reject the submissions made by the applicant referred to in [3] above, and I will review the matter decided in the reviewable decision, which relates to the suitability of the applicant to provide aged care.

6. The applicant itself has no experience in providing aged care, and in accordance with

   
   

   s 63D(4) the Commission may consider the matter in relation to any or all of the key personnel of the applicant. The expression “key personnel” is defined in s 8B of the Act, in the following terms:

   8B  Meaning of key personnel of a person or body

   1Each of the following is one of the key personnel of a person or body (the entity) at a particular time:

   (a)if the entity is not a State or Territory—a member of the group of persons who is responsible for the executive decisions of the entity at that time;

   (b)if the entity is not a State or Territory—any other person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the entity at that time;

   (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.

   2Without limiting paragraph (1)(a), a reference in that paragraph to a member of the group of persons who is responsible for the executive decisions of an entity includes:

   (a)if the entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001—a director of the body corporate for the purposes of that Act; and

   (b)in any other case—a member of the entity’s governing body.

7. The key personnel nominated in the papers before the Tribunal are the members of its managing committee, who, according to a document at T30, page 678 are to be “Ambrat” (Mr Ambrat Panjwani), who is to be CEO and Director of Nursing, “Vinesh” (Mr Vinesh Kumar Valecha) who is to be the CFO, and “Tareen” (Mr Arish Tareen), who is to be the General Manager Operations.

8. The Tribunal was told during the evidence that Mr Azam Mohammed is also proposed to be a member of the management committee, and to be employed as a consultant.

9. Thus the management committee is to consist of four persons.

10. In order to give approval under s 63D(2)(c) the respondent (and therefore this Tribunal) must be satisfied that each individual who is one of the key personnel is suitable to be involved in the provision of aged care. However, Mr Valecha will no longer be involved in the company’s affairs, and has moved to Canberra where he is now working in some unknown employment: Mr Panjwani at Transcript page 166. He was not called in the case. That presents a difficulty because the provisions of s 63B(2)(c) are not subject to any exception, but are mandatory. The Tribunal could not grant an approval to the applicant on the present evidence, even if it was minded to do so.

11. Moreover the CFO is likely to be quite important in the management of the applicant if it is approved. The financial documents on which Ms Roughley cross-examined Mr Mohammed were said by him not to have been corrected by him, even to take account of the sums he expected to be paid as a consultant, amounting to $40,000 to $60,000 per year at least from year two: Transcript page 85. The revised cash flow and financial projections provided by the applicant to the respondent at T10, page 408 contain no allowance for superannuation and the figure for insurance is not based upon any quote or broker’s advice. Moreover the advance from the loan by Mr Panjwani is stated at $45,000 according to note 1, not $30,000. As noted above, the document includes no payment of the kind suggested by Mr Mohammed. All of those things ought to be fixed in any further document provided to the respondent. Also, in my opinion, the applicant should consider making Mr Panjwani’s investment share capital rather than a loan, in order to reduce solvency concerns which may arise.

12. Mr Panjwani himself appears well-qualified to be the Director of Nursing, but does not appear to be experienced as a CEO. He has other employment at the present time. Mr Mohammed said that the members of the management committee will not be paid for their work until the company can afford to do so: Transcript page 76. One wonders whether that will apply to the new CFO when located, or to Mr Tareen, the proposed General Manger.

13. Mr Tareen was due to be called by the applicant, but was not produced because he was on holidays at the time of the hearing. His relevant experience seems to be as a claims manager for an insurance company and that is unlikely to make him suitable to be a General Manger or to be involved in aged care.

14. I think it is necessary for the Commissioner to be given more information about Mr Panjwani’s suitability to be the CEO of this company, about Mr Tareen’s suitability to be the General Manger and about the CFO yet to be appointed, as well as some further and better prepared information about the financial circumstances of the company so that the respondent can perform its duty under s 63D of the Aged Care Quality and Safety Commission Act 2018.

15. It therefore semes to me that the decision of the respondent must be set aside and the matter remitted to the respondent for redetermination.

16. Mr Mohammed’s preparation of a document sent to the respondent for the purposes of the application was not good. During Mr Panjwani’s cross-examination, it emerged that one of the documents sent by the applicant to the respondent related to one of Mr Mohammed’s own companies, not the applicant. That document should be revisited by the applicant to make it accurate for the purposes of the re-determination by the respondent.

17. Mr Mohammed is a retired Consul-General for Pakistan. He apparently has experience in handling compliance matters for two aged care companies for which he no longer works. He would negotiate his remuneration for each compliance matter ad hoc. He has no written contract of employment, specifying duties and salary. He said in evidence that all members of the management committee would not make a charge for their services until the company was established for several years. He said that he himself would make no charge for his services for the initial two to three years. No employment contracts have been prepared to be entered into by the applicant at this stage. That also should be reconsidered if the applicant is to seek to persuade the respondent to grant approval.

18. The reviewable decision will be set aside and remitted to the respondent for reconsideration.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 4 August 2023

Date(s) of hearing:	20-22 February 2023
Date final submissions received:	17 May 2023
Advocate for the Applicant:	Mr A Mohammed
Counsel for the Respondent:	Ms F Roughley with Ms E O'Connor Jardine
Solicitors for the Respondent:	Sparke Helmore Lawyers