Foundations Care Ltd v Children's Guardian

[2020] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Foundations Care Ltd v Children’s Guardian [2020] NSWCATAD 224

Hearing dates:

17-21 and 24 February 2020; final submissions provided 1 May 2020

Date of orders:

09 September 2020

Decision date:

09 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

(1) The respondent’s decision to suspend the accreditation of the applicant is set aside.

(2) In substitution for the respondent’s decision, the applicant’s accreditation is cancelled.

(3) The cancellation of the applicant’s accreditation is to take effect on 9 December 2020.

(4) The stay of the suspension decision is continued until the cancellation decision takes effect.

(5) The parties have liberty to apply should any issues arise in respect of the implementation of Order 3.

Catchwords:

ADMINISTRATIVE REVIEW – Child Protection – Where respondent made decision to suspend accreditation of applicant as a designated agency – Whether applicant compliant with child safe standards – Correct and preferable decision – Whether accreditation should be suspended or cancelled

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons (Care and Protection) Regulation 2012 (NSW)

Children’s Guardian Act 2019 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Ombudsman Act 1974 (NSW)

Cases Cited:

Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Foundations Care Ltd (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
R Reitano (Applicant)
M Gaven (Respondent)

Solicitors:
Hall Payne Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/00271182

Publication restriction:

Section 65 of the Civil and Administrative Tribunal Act 2013 applies to these proceedings. Section 65(2) to (4) provide:
(2) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings in the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings in the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty—
(a) in the case of a corporation—100 penalty units, or
(b) in any other case—50 penalty units or imprisonment for 12 months, or both.
(3) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Note that the Tribunal has made a decision about non-publication of certain material in these proceedings: see Foundations Care Ltd v Children’s Guardian (No 2) [2020] NSWCATAD 258.

REASONS FOR DECISION

1. The applicant (“Foundations Care”) is a designated agency which has oversight of children in foster care and of their carers.

2. Between January 2018 and May 2019, the Children’s Guardian conducted six onsite assessments of Foundations Care and various assessments of its policies and procedures, providing it with feedback after the assessments. The Children’s Guardian considered on each occasion that Foundations Care was non-compliant with a significant number of the NSW Child Safe Standards for Permanent Care (November 2015) (“the Standards”).

3. Foundations Care made a number of changes to its polices, procedures and practices with a view to achieving compliance with the Standards.

4. The Children’s Guardian suspended the accreditation of Foundations Care in August 2019. Foundations Care applied to the Tribunal, shortly afterwards, for a review of that decision. On Foundations Care’s application, the Tribunal ordered a stay of the suspension decision.

5. In November 2019, the Children’s Guardian conducted another onsite assessment of Foundations Care. The Children’s Guardian remained of the view that, although Foundations Care had made some improvements to its practices and procedures, it was still non-compliant with the Standards. In particular, the Children’s Guardian was of the view that Foundations Care had not demonstrated that it maintained adequate systems to ensure that it delivered consistent care to vulnerable children with complex needs.

6. In submissions filed on 2 December 2019, the Children’s Guardian submitted that, while her decision had been to suspend Foundations Care’s accreditation, “cancellation would be equally open to the Tribunal.”

7. At the hearing in February 2020, it was submitted for the Children’s Guardian that the Tribunal should cancel the accreditation of Foundations Care. It was said in closing submissions that this outcome was warranted having regard to the overwhelming evidence of Foundations Care’s consistent and sustained failure to demonstrate compliance with the Standards.

8. Foundations Care conceded that it was non-compliant with the Standards in mid-2018 but submitted that, at the time of the hearing, it was compliant. It submitted that the correct and preferable decision was to set aside the decision of the Children’s Guardian to suspend its accreditation.

9. I have found that Foundations Care was significantly non-compliant with the Standards for about eighteen months preceding the onsite assessment in May 2019. The evidence indicates that Foundations Care has been making various improvements to its practices and policies since at least mid-2018. However, I am not satisfied that the improvements it has made to date have made it compliant with the Standards or that it has implemented systems which will ensure its compliance in the future.

10. I do not consider that a suspension of the accreditation of Foundations Care would promote the safety, welfare or well-being of the children in the care of Foundations Care. Given that Foundations Care had about two years prior to the hearing to achieve compliance with the Standards, following the first onsite assessment in January 2018, I am not confident that it would be able to achieve compliance during a period of suspension, or that the suspension would achieve any other useful purpose. I consider that it has put the safety, welfare and well-being of children in its care at risk, through its non-compliance with the Standards, and that cancellation is the correct and preferable decision.

11. For these reasons, I have set aside the suspension decision made by the Children’s Guardian and, in substitution for that decision, have decided to cancel Foundations Care’s accreditation.

Background

12. Foundations Care was founded in 2005. It was accredited as a designated agency in 2012.

13. Foundations Care arranges, facilitates and manages foster and kinship care arrangements for children and young people. It also offers therapeutic residential out-of-home care options for children and young people with multiple and complex needs. As at 10 September 2019, it was responsible for over 150 children in care in New South Wales and employed 54 people in this State.

14. On 30 May 2014, Foundations Care entered into a Funding Deed with the Minister for Family and Community Services.

15. In January 2016, Foundations Care’s application for the renewal of its accreditation as a designated agency was granted, with accreditation to continue until September 2018.

16. In August 2017, the Office of the Children’s Guardian contacted Foundations Care to commence the accreditation renewal process.

17. In December 2017, Foundations Care submitted written policies and procedures to the Office of the Children’s Guardian for review.

18. In January 2018, onsite assessments were conducted at two of Foundations Care’s offices.

19. In March 2018, the Office of the Children’s Guardian provided feedback to Foundations Care on its policies and procedures, identifying areas of non-compliance. The Office requested Foundations Care to revise and resubmit those policies and procedures. Foundations Care did so in early May 2018.

20. In May 2018, the Office of the Children’s Guardian conducted another onsite assessment of Foundations Care.

21. On 30 May 2018, the Office of the Children’s Guardian provided feedback to Foundations Care on its revised policies and procedures, again identifying areas of non-compliance.

22. On 6 July 2018, the Children’s Guardian deferred the determination of Foundations Care’s application for renewal of its accreditation.

23. On the same day, the Office of the Children’s Guardian provided feedback to Foundations Care following the onsite assessments in January and May 2018, identifying areas of non-compliance. Foundations Care was required to prepare an action plan outlining how it intended to meet the Standards.

24. On 21 August 2018, the Ombudsman wrote to Mr Anthony O’Hare, the Chairman of the Board of Foundations Care, providing Mr O’Hare with information about an upcoming audit or review the Ombudsman proposed to conduct. The letter indicated that the Ombudsman considered that the concerns the Ombudsman’s Office had raised with Foundations Care about its systems and practices with respect to its identification of, and response to, reportable conduct, had not been addressed.

25. On 23 August 2018, Mr O’Hare wrote to the Children’s Guardian in response to the feedback given on 6 August 2018. He expressed the Board’s view that the current failures were “largely evidentiary and procedural,” but acknowledged that they were “unacceptable.” Mr O’Hare identified a number of factors contributing to the failures, referred to a restructure of the business which he considered would work more effectively and informed the Children’s Guardian that new systems had been successfully operating since late May 2018. Mr O’Hare also referred to various reforms to ensure the safety and welfare of the children for whom Foundations Care was responsible.

26. On 14 September 2018, the Assistant Ombudsman wrote to Mr O’Hare referring to a meeting held between staff of Foundations Care and staff of the Ombudsman’s Office on 6 September 2018. This meeting was part of the Ombudsman’s audit of Foundations Care’s systems for preventing, detecting and responding to reportable conduct and the review of its complaint handling systems. The letter identified failings of Foundations Care to notify the Ombudsman’s Office of reportable allegations as soon as practicable or within 30 days and expressed the view that there had been “a clear breakdown in the Ombudsman notification process.” The letter also identified issues of concern with Foundations Care’s reportable conduct investigative practice. The Assistant Ombudsman noted various actions Foundations Care was taking to address her concerns.

27. On 25 and 26 September 2018, staff members from the Office of the Children’s Guardian carried out a third onsite assessment of Foundations Care. The following day, Foundations Care re-submitted its policies and procedures to the Children’s Guardian.

28. On 2 October 2018, Ms Lorenti, of the Office of the Children’s Guardian, provided verbal feedback to Foundations Care about the onsite assessment and also emailed Foundations Care. In the email, Ms Lorenti noted that “[o]verall, we saw some progress in nearly all of the areas reviewed.”

29. On 6 October 2018, a Principal Investigator at the Office of the Ombudsman wrote to Ms Veivers, the Acting Chief Executive Officer of Foundations Care. The letter dealt with reportable conduct investigations and matters notified by Foundations Care to the Ombudsman.

30. On 7 November 2018, Ms Lorenti emailed Ms Veivers the feedback report for the third “indirect evidence submission” of Foundations Care. The term “indirect evidence” is used to refer to an agency’s policies and procedures. Ms Lorenti requested that the policies and procedures be resubmitted by 17 January 2019.

31. On 7 December 2018, a Principal Investigator at the Office of the Ombudsman wrote to Ms Veivers concerning the audit the Office was conducting of Foundations Care’s handling of reportable conduct allegations. The Principal Investigator requested Ms Veivers to review findings in specified matters.

32. In December 2018, staff of the Office of the Children’s Guardian undertook a fourth onsite assessment of Foundations Care.

33. On 24 January 2019, the Children’s Guardian wrote to Ms Veivers, informing her that it had been decided to defer the decision regarding the accreditation of Foundations Care with a view to conducting a further assessment in May 2019. The Children’s Guardian indicated that Foundations Care had demonstrated a level of improvement across some areas of practice, but that further improvements were still required. A feedback report was provided.

34. On 30 January 2019, Foundations Care and the Minister for Family and Community Services entered into a Program Level Agreement for the delivery of Permanency Support Program services.

35. On 20 February 2019, Ms Lorenti emailed Ms Veivers the feedback report for Foundations Care’s fourth indirect evidence submission. She requested a resubmission of policies and procedures by 8 May 2019.

36. On 5 and 6 March 2019, staff of the Office of the Children’s Guardian conducted a fifth onsite assessment.

37. On 6 March 2019, the Acting Deputy Ombudsman wrote to Ms Veivers providing final feedback on the Ombudsman’s audit. The Ombudsman reviewed twenty-five finalised reportable conduct investigations, relating to incidents between January 2017 and October 2018. The Ombudsman’s Office found that Foundations Care’s initial response was satisfactory in about a quarter of matters, that its information gathering was satisfactory in about one third of matters, that affording fairness to subjects of allegations had only been dealt with satisfactorily in two matters and that Foundations Care’s documentation was satisfactory in about a third of the matters assessed. Final risk management was assessed as satisfactory in about 60% of the matters.

38. The Acting Deputy Ombudsman also considered ten reportable notifications made by Foundations Care to the Ombudsman’s Office between 5 October 2018 and 5 February 2019. Only one of these was made within 30 days of the head of agency becoming aware of the allegations. The letter noted other deficiencies in the handling of these matters. The letter also commented upon deficiencies in Foundations Care’s complaint handling system.

39. On 22 March 2019, Ms Lorenti emailed Ms Veivers, Ms Middelbosch (the then general manager of Foundations Care) and Mr O’Hare, confirming verbal feedback provided at a teleconference on 11 March 2019. Ms Lorenti said that there had been some progress in some of the areas reviewed but identified other areas where there had not been any progress.

40. On 25 March 2019, the Department of Communities and Justice entered into a performance improvement plan with Foundations Care. The Program Level Agreement between Foundations Care and the Department provides that the Department may direct a service provider to prepare and comply with a performance improvement plan if the service provider fails to perform any of its obligations under the Agreement to the satisfaction of the Department.

41. On 3 April 2019, the Children’s Guardian wrote to Ms Veivers, informing her that she intended to issue a Notice of Intention to Suspend Accreditation if Foundations Care did not demonstrate compliance at the May 2019 assessment. The Children’s Guardian also imposed additional conditions upon the accreditation of Foundations Care, requiring that it arrange further training for staff in child protection by 31 May 2019, engage an external consultant to provide advice regarding reportable allegations and contact the NSW Ombudsman within five working days of becoming aware of allegations involving reportable child protection matters.

42. On 15 May 2019, the Department of Family and Community Services emailed Ms Middelbosch and Ms Veivers expressing concern that Foundations Care had not provided the Department with information demonstrating progress towards achieving the requirements of the Ombudsman or the Office of the Children’s Guardian.

43. In May 2019, the Ombudsman provided to the Office of the Children’s Guardian information about complaints made to the Ombudsman’s Office concerning Foundations Care.

44. Between 20 and 29 May 2019, staff of the Office of the Children’s Guardian conducted a sixth onsite assessment. On 24 May 2019, Foundations Care provided the fifth version of its written policies and procedures to the Children’s Guardian.

45. In July 2019, the Office of the Children’s Guardian provided Foundations Care with a feedback report arising from the May 2019 onsite assessment. The report stated that, while some improvements had been identified, a number of gaps and inconsistencies in practice across many standards remained.

46. On 4 July 2019, the Children’s Guardian wrote to Ms Veivers, informing her of the intention of the Children’s Guardian to suspend the accreditation of Foundations Care and inviting a response.

47. On 11 July 2019, the Department of Family and Community Services wrote to Ms Veivers concerning occasions where Foundations Care had apparently moved children and young persons without notifying the Department as it was required to do.

48. On 17 July 2019, Ms Veivers provided a detailed response to the Children’s Guardian’s letter of 4 July 2019. She submitted that Foundations Care “wholly or substantially” satisfied the accreditation criteria. She also contended that matters raised by the Children’s Guardian were misconceived, demonstrably incorrect and/or did not provide probative evidence of deficient practice. She addressed matters raised by the Children’s Guardian in her letter.

49. On 22 July 2019, the Department of Communities and Justice wrote to the Children’s Guardian to make her aware of recent complaints made about Foundations Care.

50. On 2 August 2019, the Children’s Guardian wrote to Ms Veivers providing her with notice of her decision to suspend the accreditation of Foundations Care for six months with effect from 1 November 2019, for failure to meet accreditation criteria. Her statement of reasons identified persistent non-compliance with the Standards particularly in respect of Foundations Care’s child protection obligations. She said that she remained concerned that Foundations Care does not have adequate systems to identify and manage risks to children and young people in a timely manner. She considered that Foundations Care was responding to issues as they were raised but that it continued to fail to meet the underpinning child protection obligations in the Standards.

51. On 5 August 2019, Foundations Care alleged a denial of natural justice in the making of the suspension decision. On 23 August 2019, the Children’s Guardian provided Foundations Care with a further 14 days to make submissions and indicated that she would withdraw the notice of suspension if persuaded that the accreditation of Foundations Care should not be suspended.

52. On 29 August 2019, the solicitors for Foundations Care wrote to the Children’s Guardian, providing a significant amount of material responding to the concerns expressed by the Children’s Guardian and inviting the Children’s Guardian to withdraw the suspension notice.

53. On 30 August 2019, Foundations Care applied to the Tribunal for review of the suspension decision.

54. On 20 September 2019, a Deputy Secretary of the Department of Communities and Justice wrote to the Children’s Guardian about Foundations Care, stating that “FC have been on a Performance Improvement Plan (PIP), with no demonstrated improvement.”1

12. On 26 September 2019, the Tribunal granted Foundations Care’s application for a stay of the suspension decision.

13. On 22 October 2019, the Children’s Guardian provided Foundations Care with a notice, varying its conditions of accreditation by imposing additional conditions on it. This included a condition requiring Foundations Care to work with an independent person selected by the Children's Guardian to monitor and report on the care and protection of children and young people.

14. Between 3 and 6 November 2019, Brett Faggotter, a senior accreditation officer at the Office of the Children’s Guardian, and Gemma Phillips, acting manager in accreditation and monitoring at the Office of the Children’s Guardian, attended Foundations Care’s premises at Lismore for an onsite assessment. They identified various deficiencies in Foundations Care’s practices, which were apparent to them on that occasion, in their evidence, which was later filed in the Tribunal proceedings.

15. On 7 November 2019, the Children’s Guardian varied the accreditation conditions again, such as to require Foundations Care to work with the Office of the Children’s Guardian which would monitor and report on the care and protection of children and young people in accordance with a monitoring plan. The variation occurred because agreement could not be reached as to an independent person to do the monitoring.

16. On 13 November 2019, a Principal Investigator for the Ombudsman responded to a request, made by the Children’s Guardian, for information concerning complaints about the safety of children placed with Foundations Care and feedback provided to Foundations Care, since 31 July 2019. The Principal Investigator identified that there had been two complaints, and provided information about them. The Principal Investigator also provided details of concerns it had raised with Foundations Care about its handling of issues concerning particular children.

17. On 15 November 2019, a Principal Investigator for the Ombudsman wrote to Ms Veivers, raising concerns relating to the handling of reportable conduct matters and asking for a response to specific questions.

18. On 13 December 2019, the Children’s Guardian wrote to Ms Veivers to provide feedback regarding the onsite assessment in November 2019.

19. In about January 2020, Ms Veivers, the principal officer of Foundations Care, was suspended. Ms Middelbosch was appointed to act as principal officer and also continued as general manager. Foundations Care did not appoint an acting chief executive officer when it suspended Ms Veivers, but Mr O’Hare indicated that the Board oversaw the position.

20. On 14 January 2020, Foundations Care advised the Children’s Guardian that Ms Veivers was no longer the principal officer and that this position was now held by Ms Middelbosch. [1]

    1. Johnson 2, LJ1-103.

21. On 6 February 2020, the Department sent Foundations Care a draft of a further performance improvement plan, for signature.

Relevant law

65. The applicant is a “designated agency” with the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) and the Children’s Guardian Act 2019 (NSW).

66. The Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount (Care Act, s 9(1)).

67. The Children’s Guardian Act commenced on 1 March 2020. At the time of the hearing, and of the events relevant to these proceedings, it was not in force. It made a number of amendments to the Care Act, including defining certain terms such as “designated agency” and “principal officer” to have the same meaning as in the Children’s Guardian Act; repealing s 140 (“supervisory responsibility of designated agency”) and inserting an equivalent provision in the Children’s Guardian Act; and omitting Chapter 10 (“Children’s Guardian”). It also amended the Ombudsman Act 1974 (NSW) by repealing Part 3A (“Child Protection”) and inserting equivalent provisions into the Children’s Guardian Act.

68. Neither party has submitted that the changes are material in terms of their impact on this review.

69. Arrangements for the provision of statutory or supported out-of-home care may be made only by a designated agency or the Children’s Guardian (Care Act, s 138(1)).

70. An organisation may apply to the Children’s Guardian for accreditation as a designated agency or for the renewal of accreditation as a designated agency (Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (“Care Regulation”), cl 45(1)).

71. The Minister is empowered to approve standards and other criteria for use in determining whether to grant an application for accreditation as a designated agency and what accreditation period will be granted (Care Regulation, cl 48(1)). The Minister has approved the Standards.

72. The Children’s Guardian may grant accreditation as a designated agency to an applicant if, in the opinion of the Children’s Guardian, the applicant wholly or substantially satisfies the accreditation criteria referred to in cl 48 of the Care Regulation (that is, the Standards) (Care Regulation, cl 49(1)).  A designated agency granted accreditation that did not wholly satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation must wholly satisfy the accreditation criteria within 12 months of its accreditation, if it has been granted full accreditation (Care Regulation, cl 45(1)(a)).

73. An accreditation is subject to the conditions set out in Schedule 3 to the Care Act, and the Children’s Guardian may impose other reasonable conditions on an accreditation (Care Regulation, cl 65(1) and (2)).

74. If a designated agency has applied for the renewal of an accreditation, the Children’s Guardian may, by notice in writing to the agency, defer determining the application (Care Regulation, cl 47(1)). The accreditation period is extended until an accreditation notice, given to the applicant by the Children’s Guardian, takes effect (Care Regulation, cl 62).

75. The Children’s Guardian may suspend or cancel the accreditation of a designated agency if satisfied of any of a number of specified matters (Care Regulation, cl 66(1), (2)). These include that the agency failed, at any time after the agency had been accredited for at least 12 months, to satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation (Care Regulation, cl 66(2)(g)).

76. Section 137(2)(b) and (b1) of the Care Act provide that the regulations may make provision for the authorisation of persons, by designated agencies, as authorised carers or as authorised carers on a provisional basis.

77. The Care Regulation makes provision in cl 30 for a person to apply to a designated agency to be authorised as an authorised carer and for the designated agency to determine the application. Designated agencies may cancel or suspend the authorisation of an authorised carer in certain circumstances (Care Regulation, cl 42).

78. A person affected by a decision of the Children’s Guardian to suspend the accreditation of a designated agency may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision (Care Regulation, cl 7(c)).

79. In determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act, s 63(1)).

Evidence and submissions

80. The Tribunal had before it at the hearing a significant amount of affidavit evidence from both parties. The Children’s Guardian also filed materials under s 58 of the Administrative Decisions Review Act and the parties tendered some documentary evidence.

81. The applicant relied upon affidavits of Anthony O’Hare, the Chairman and Managing Director of the Community Services Group, a group of companies including Foundations Care; Michelle Middelbosch, the General Manager of Foundations Care; Danielle Abdullah, Quality and Compliance Manager of Foundations Care; Olivia Smith, National Service Support Manager of Foundations Care; Leah Lawrence, also National Service Support Manager of Foundations Care; Jan (Bart) Middelbosch, Investigations Support Officer for Foundations Care; Graham Landon, the CEO of Community Services Australia Ltd, which is part of the Community Services Group; Kerri Busch, the People and Performance Leader for Foundations Care; Georgia Klipic, the Personal Assistant to the Company Secretary of Foundations Care; and Michelle Rissmann, the Director and Company Secretary of Foundations Care. Kim Nixon, Director of Kim Nixon Consulting Pty Ltd, provided a summary of evidence.

82. The Children’s Guardian relied upon affidavits made by staff of the Office of the Children’s Guardian, namely Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation; Julie Power, Senior Accreditation Officer in the Accreditation and Monitoring team; Gemma Phillips, Acting Manager in the same team; and Brett Faggotter, Senior Accreditation Officer. It also relied upon an affidavit of Philippa Welman, Director, Statewide Contracts at the Department of Communities and Justice.

83. Most of these witnesses were cross examined at the hearing.

84. The parties provided written submissions, both before and after the hearing, including submissions in reply, as well as Statements of Facts, Matters and Contentions.

85. Due to the very large amount of material before me, I have taken the unusual step of providing endnotes referencing the affidavit evidence by use of the witness’s surname followed by a number indicating whether it is the witness’s first second or third affidavit. I have done this principally so that the parties may easily identify the sources I relied upon to make my factual findings.

Consideration

86. The Tribunal, standing in the shoes of the Children’s Guardian, has power to suspend or cancel the accreditation of Foundations Care if satisfied that it failed, at any time after it had been accredited for 12 months, to satisfy the Standards (Care Regulation, cl 66(2)(g)).

87. Mr O’Hare, in oral evidence, acknowledged that Foundations Care was not compliant with the Standards in August 2018. He frankly accepted that there were “serious problems” at that time. Counsel for Foundations Care, Mr Reitano, accepted that the circumstance referred to in cl 66(2)(g) of the Care Regulation is engaged and that the Tribunal has power to suspend or cancel the accreditation of Foundations Care on the basis that it did not comply with the Standards in August 2018. However, he submitted that the Tribunal should exercise its discretion not to do so, given the changes made to its practices since that time.

88. Foundations Care stated, in its Statement of Facts, Matters and Contentions, filed on 12 February 2020, that it was “wholly and substantially compliant with the requirements of the Standards as at 29 August 2019.” It is likely that it meant “wholly or substantially” compliant. Mr O’Hare expressed the opinion, in oral evidence, that Foundations Care was “substantially compliant” with the Standards by January 2019. Ms Middelbosch also expressed the view in oral evidence that Foundations Care was now compliant and that all issues raised by the Children’s Guardian had been addressed. She then qualified her evidence and said that she could not speak to compliance with all the Standards, such as governance.

89. The discretion as to whether to suspend or cancel a designated agency’s accreditation, or to take no action, is, in its terms, unconfined. The factors which may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Care Act or Care Regulation some implied limitation on the factors to which the Children’s Guardian may legitimately have regard (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40). The power must of course be exercised for the purpose for which it was conferred (Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, Latham CJ at 68, Dixon J at 82).

90. The Children’s Guardian submitted that, “in accordance with accepted legal principle,” her evidence about the meaning and operation of the Standards should be accepted, citing Kirby J’s judgment in Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286 at [37]. This is not an accurate summary of the effect of that passage. Kirby J accepted, as a correct statement of law, the proposition that regard might be had to the decision of the primary decision-maker as part of the material before a tribunal, but also stated that ultimately it was for a tribunal to reach its own decision upon the relevant material.

91. I consider that it is for the Tribunal to determine the meaning of the Standards. Whilst it is appropriate to consider the Children’s Guardian’s interpretation of them, it should not simply defer to that interpretation.

Foundations Care’s submissions about relevant matters

92. Foundations Care raised a large number of matters as being relevant to the Tribunal’s assessment of its compliance with the Standards. Mr O’Hare gave evidence that Foundations Care had a “rogue” chief executive officer who “removed all practice documentation from the organisation, embarked on a management approach that provided no support to staff, was obstructive and uncooperative with external agencies and stakeholders and created overly complicated procedural approaches to practice that had not in any way been embedded.”[2] The employment of that chief executive officer with Foundations Care ceased on 24 September 2018.

    2. Johnson 2 [95].

93. Mr O’Hare’s evidence was that the Board of Foundations Care resolved, around this time, to rebuild its entire out of home care program “from the ground up.” He said the entire rebuild took 9 months and that the decision to rebuild was made 9 months before the May 2019 assessment.

94. Whilst bearing in mind that the former chief executive officer has not had an opportunity, in these proceedings, to respond to the allegations made against her, I have taken into account that Foundations Care “rebuilt” its out of home care program in the nine months preceding the May 2019 assessment.

95. Foundations Care was critical of the processes employed by the Office of the Children’s Guardian when making assessments of it. For example, Mr O’Hare considered that the Children’s Guardian did not give Foundations Care detailed feedback following onsite assessments or a proper opportunity to present its evidence during the on-site assessment in May 2019. [3] Mr O’Hare also considered that verbal feedback provided was inadequate. [4] Foundations Care’s submission is that the evidence against it “is based on mistaken or wrong assumptions about facts or other matters.”[5]

    3. O’Hare 2 [37]

    4. O’Hare 2 [100].

    5. O’Hare 2 [111].

96. I have taken into account Foundations Care’s concerns about the process and the evidence from the witnesses called for the Children’s Guardian to the effect that those concerns are unwarranted. Ultimately, I have formed my own view on the evidence provided. It is not necessary for me to make findings about the fairness or otherwise of the processes employed by the Children’s Guardian. This issue is principally relevant in that an unfair process might adversely affect an opinion given by a witness about Foundations Care’s level of compliance or suitability to continue as a designated agency. In my view, the opinions of the respondent’s witnesses were properly based upon the material provided to them by Foundations Care and Foundations Care’s witnesses had an opportunity to reply to that evidence (which they did).

97. The Tribunal’s role is to decide what the correct and preferable decision is having regard to the material then before it (Administrative Decisions Review Act, s 63(1)). Its role is not to review the conduct of the respondent, in the way it conducts onsite assessments or in any other way. I did not understand Mr Reitano, for Foundations Care, to suggest otherwise.

98. The Tribunal has carefully analysed the evidence before it and the basis on which particular witnesses have expressed opinions. Ultimately, the Tribunal has come to its own view as to the extent of Foundations Care’s compliance with the Standards.

99. Mr Reitano also submitted that the Tribunal should have regard to certain aspects of the evidence. One of these was the Children’s Guardian’s failure to call six of the eight assessors who attended onsite assessments at Foundations Care’s offices and, in particular, the lead assessor, Ms Lorenti. [6] This is not, in my opinion, a matter of significance. Foundations Care could have summonsed Ms Lorenti to appear but, as far as I am aware, did not. The Children’s Guardian is entitled to choose which witnesses she wishes to call. The hearing took six days and each party put forward a significant number of witnesses. In my view, there was no need for the respondent to call all of its eight assessors (or Ms Lorenti in particular) to give evidence and the calling of more witnesses would not have facilitated the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), (3)).

    6. Outline of Submissions on behalf of Foundations Care Ltd, 13 March 2020 at [4].

100. Mr Reitano also submitted that the Tribunal should treat the evidence of Ms Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation, with great caution. [7] This is because she had a “defensive demeanour” when giving evidence and because her evidence was generally based on an acceptance of what she read or was told by others. [8] Further, her evidence was “based on incomplete material or information.”[9]

     7. Foundations Care’s closing submissions [55].

     8. Foundations Care’s closing submissions [56].

     9. Foundations Care’s closing submissions [55].

101. I have borne in mind that Ms Johnson formed many of her opinions on the basis of material created by others (such as the assessors). However, I have also had regard to her experience as the person responsible for the Office of the Children’s Guardian’s assessment and monitoring programs for statutory out-of-home care and responsible for supervision of the accreditation team. She has been employed at the Office of the Children’s Guardian since 2006, initially as a senior accreditation officer and then as Manager, Accreditation and Monitoring (since 2008). Since January 2019, she has been Acting Director of Out-of-Home Care Systems and Regulation. I have borne in mind her experience and expertise when determining how much weight to give her opinions.

102. I do not consider that Ms Johnson’s evidence should be given less weight because of her “defensive demeanour.” I found her evidence to be balanced and fair. She accepted that the material in her affidavit, other than direct conversations with people, was taken from what other people had told her or documents prepared by other people. Whilst she was initially reluctant to accept that she did not know certain things when her knowledge of them was second-hand, I would not describe her as defensive. She did not always agree with the questions put to her, but she provided reasonable explanations when she disagreed.

103. Mr Reitano also submitted that, to the extent that Ms Johnson refers to complaints made to other bodies such as the Ombudsman, the Tribunal would not accept evidence of complaints as evidence of the trust of the facts complained about. [10] The Tribunal has not done so.

     10. Foundations Care’s closing submissions [55].

Parties’ submissions about compliance with the Standards

104. The position of the Children’s Guardian is that Foundations Care has been non-compliant with the Standards since January 2018.

105. The Children’s Guardian identified, in July 2018, that further evidence of compliance was required in relation to all 23 Standards, with the exception of Standard 7 (Confidentiality and Privacy), Standard 10 (Education), Standard 16 (Post-adoption support), Standard 18 (Recruitment), Standard 22 (Governance) and Standard 23 (Strategic Planning). The Children’s Guardian found, in January 2019, that further evidence of compliance was required in relation to the standards identified earlier other than Standard 8 (Emotional and social development), but that further evidence was also required in relation to Standard 18 (Recruitment). A feedback report in July 2019 identified concerns about compliance with Standards 1-6, 9, 11-15 and 17-23. The report stated, in relation to Standard 3 (Child Protection and Safety) that “the agency’s practice in this area requires significant improvement to meet the requirements of the Standard.” It found, however, that the evidence reviewed indicated that Foundations Care met the requirements for Standards 7, 8 and 10; and that Standard 16 was not applicable.

106. The Children’s Guardian nominated, in the post-hearing submissions, a number of the Standards with which Foundations Care was said to remain non-compliant (such as Standards 3 and 17). The Children’s Guardian’s position was that each of the Standards interrelate and non-compliance with one Standard affects an agency’s ability to meet the Standards as a whole.

107. The Children’s Guardian contended that Foundations Care has failed over a long period of time to demonstrate proper systems and processes and that it has been unable to demonstrate sufficient improvement in its practice, despite the extensive interaction and feedback from the Office of the Children’s Guardian and the NSW Ombudsman.

108. The Children’s Guardian submitted that the evidence establishes that:

1. “The Applicant failed to create, maintain or make available contemporaneous records in relation to a substantial number of the children in its care.

2. It is unable to demonstrate it maintains proper systems, such as training and support to staff, as it does not bring forward complete documents to enable the Respondent, or the Tribunal to make a proper assessment and analysis of the adequacy of its systems. For example, with respect to staff: a complete set of training material, training records, recent staff records and staff turnover for the immediate past period.

3. When properly analysed, in broad terms, the challenge devolves to an assertion by the Applicant that it may satisfy indicators of compliance by bringing forward isolated examples and without context.”

109. The position of the Children’s Guardian at the conclusion of the hearing was that Foundations Care’s history of non-compliance with the Standards since January 2018 “and the continued failure to meet the accreditation criteria is relevant to the exercise of the discretion.”

110. It was submitted for Foundations Care that:

“Much of the [Respondent’s Closing Submissions] focus upon matters of history rather than the position as at the date of the hearing or without regard to the evidence at the date of the hearing. There are two important aspects to this: first NCAT is required to determine the matter based upon the correct or preferable decision having regard to the material before it at the date of its decision (not the date of OCG’s decision and less relevantly not the date of an audit carried out a year ago or even two years ago) and second much of the history demonstrates that the position at the date of NCAT’s decision is in fact much different to that which historically applied and certainly much different to what applied in August 2018.”

111. I accept Foundations Care’s submission that, to the extent that there is evidence available as to the position as at the date of the hearing, the Tribunal is required to have regard to it. Its compliance history is also relevant. This is, partly, because the power to suspend or cancel the accreditation of a designated agency depends upon the Children’s Guardian (or the Tribunal standing in her shoes) being satisfied that the agency failed “at any time” after the first 12 months of accreditation “to satisfy” the Standards (Care Regulation, cl 66(2)(g)). It is also because Foundations Care’s compliance history is a factor which bears upon (but is not determinative of) its capacity to comply with the Standards in the future.

112. As indicated earlier in these reasons, the position of Foundations Care is that it is now compliant or substantially compliant with all of the Standards.

Improvements made by Foundations Care

113. In circumstances where Foundations Care conceded that it was non-compliant with the Standards in August 2018, but said that it has since become compliant, it is necessary to consider the extent of its compliance with the Standards at the time of the hearing.

114. One of my concerns in conducting this review has been that, despite demonstrated non-compliances in 2019 and earlier, the evidence as to Foundations Care’s activities since late last year is very limited. Most of Foundations Care’s affidavit evidence dates from November 2019 or earlier. The evidence provided by Foundations Care in February this year is filed as reply evidence (although the Children’s Guardian claimed, with some justification, that it was not properly characterised in this way).

115. There is evidence that Foundations Care has been taking steps to address the Children’s Guardian’s concerns throughout 2019 and also that it has continued to do so up to the hearing. However, there is very little evidence evaluating the effectiveness of the steps Foundations Care has taken since about mid-2019. There is some relevant evidence from the Children’s Guardian’s witnesses following an onsite assessment in Lismore in November 2019.

116. Foundations Care provided evidence that it had implemented positive changes to address issues raised by staff members of the Office of the Children’s Guardian over the last two years or so. The steps it took included (noting some of these may overlap):

1. engaging Kim Nixon Consulting, which provided child protection training to staff in May 2019 and continued to assist it after that; [11]

   11. Foundations Care’s submissions at [57].

2. acquiring new software and updating it and training staff in its use, to ensure that documentation is saved and managed appropriately; [12]

   12. Middelbosch 1 [14].

3. developing new risk assessments, which are designed to prompt staff to ensure that the relevant information is collected and considered; [13]

   13. Middelbosch 1 [6]-[11].

4. improving its Practice Guides in the first half of 2019; [14]

   14. Middelbosch 1 [15].

5. establishing a separate work group within the National Service Support Team with responsibility for monitoring progress of all case plans, including ensuring home visits are conducted within 28 days; [15]

   15. Middelbosch 1 [16].

6. in March 2019, implementing an electronic system to ensure that behaviour support plans are monitored and reviewed; [16]

   16. Middelbosch 1 [21]

7. implementing an electronic system of alerts for oversight about number of matters, which notifies staff when the annual carer review, including the annual safety review, are becoming due so preplanning can commence; and which notifies staff of when home visits are due; [17]

   17. Middelbosch 1 [26]

8. engaging a National Training Manager to facilitate training for carers; [18]

   18. Middelbosch 2, MM1.

9. completing all children’s case plans in February 2020; [19]

   19. Middelbosch 1 [32]

10. appointing Ms Middelbosch as principal officer and general manager in about January 2020; [20]

11. establishing the Investigations Support team, led by Mr Middelbosch; [21]

12. establishing electronic systems to manage risk and putting a process in place where every incident whether minor or trivial is assessed and there are clear reporting obligations; [22]

13. reviewing its policies and procedures concerning reportable conduct matters and updating the policies, procedures and supporting documents in relation to risk assessments; [23]

14. running weekly internal audits that monitor Foundations Care's performance against a number of key criteria. [24]

    20. Ms Middelbosch gave evidence at the hearing that all case plans had just been completed.

    21. Mr O’Hare and Ms Middelbosch both gave oral evidence to this effect at the hearing.

    22. B Middelbosch [54].

    23. Mr Middelbosch gave oral evidence to this effect at the hearing.

    24. B Middelbosch [54].

117. A table annexed to Ms Middelbosch’s affidavit of 27 November 2019 is said, by Ms Middelbosch, to detail Foundations Care's actions in respect of each of the indicators of compliance in respect of each standard. When asked about the document in cross examination, she described it as a “work in progress” as at 27 November 2019 and agreed that it represented an “ideal state of compliance.” She said that the document was the work of five people (including herself).

118. The language used in the document is variable in tense. Sometimes it indicates something has not yet happened (“New website currently in development, to be finalised in next 6 weeks. Will include a portal for carers…”), sometimes it appears to indicate that something has been done (“All CYP have been given their Child Rights Documentation”) and in others it suggests that the action is in the nature of a goal (“The development of an online home visit template that contains a section under the Safety, that prompts the caseworker to document…”). There is very little evidence before the Tribunal, other than the table itself, of whether the actions outlined in the table have been undertaken and, if so, of the effectiveness of those actions. Given that Ms Middelbosch conceded that the table represented an “ideal state,” I have considered it primarily as a plan for ensuring compliance, to which Foundations Care has committed.

119. Mr O’Hare’s evidence was that Foundations Care had implemented a significant number of changes as a response to the Ombudsman’s feedback in September 2018 and further feedback from the Office of the Children’s Guardian. [25] These included employing an investigator then an entire investigations team; clearing the backlog of unresolved cases; conducting an independent case review to determine any unreported matters; developing a tracking and reporting system, SIRAN, to track and manage incidents; providing relevant training to staff; and developing an online complaints system. [26] Mr O’Hare also pointed to significant changes made at Foundations Care in the nine months since about August or September 2018, when the Board conducted an investigation into the conduct of the former chief executive officer. These included the engagement of an entirely new management team, the development of a new digital case management system, the hiring of a compliance team and the engagement of industry consultants. [27]

     25. B Middelbosch [54]; Abdullah 1 [63].

     26. O’Hare 2 [96].

     27. O’Hare 2 [96].

120. Ms Middelbosch’s evidence was that, when she commenced working with Foundations Care in May 2018, some staff members who resigned reported that this was partly due to the inadequate level of supervision and support provided by the senior leadership team. [28] However, she said that the feedback she received in this regard has markedly reduced. [29]

     28. O’Hare 2 [93].

     29. Middelbosch 2 [22].

121. Ms Middelbosch gave oral evidence about two consultants engaged by Foundations Care, Kim Nixon and Penny Kay. She said that Penny Kay’s role was to provide group supervision and training to staff and to assist with case reviews. She said that Kim Nixon’s role was to assist in regard to reportable conduct. Ms Middelbosch also said that Kim Nixon has been engaged to provide independent carer reviews when there had been conflict.

122. Ms Olivia Smith, a National Service Support Manager at Foundations Care, gave evidence that she was offered very little supervision in her role as a case manager from June 2017 to August 2018. She said that, following the appointment of Ms Veivers as general manager in April 2018, and Ms Middelbosch as State manager around that time, her concerns about the support and guidance provided to staff had been addressed. It was her view that there had been “significant changes to systems, training and supervision” since she commenced her employment.

123. Ms Leah Lawrence, also a National Service Support Manager at Foundations Care, gave evidence that she commenced employment with Foundations Care in April 2014. She considered that, in contrast to the former chief executive officer, Ms Middelbosch was very supportive. She also considered that Ms Veivers was “very approachable.” Her view was that the new electronic case management system was much more effective than the previous system and that the practice guides were easier to navigate than the previous practice manual.

124. Mr Bart Middelbosch’s evidence is that, since he commenced employment with Foundations Care, he has observed systematic and practical improvement in terms of how it handles reportable conduct matters and investigations into incidents. Some of the systems improvements he identified were:

1. The establishment of the Investigations Support Team, led by him, to provide assistance and advice to caseworkers on questions relating to their reportable conduct obligations;

2. Establishing the National Support team, to ensure that particular tasks and actions are competed;

3. The running of weekly internal audits;

4. The upgrade of Foundations Care’s software;

5. The review of Foundations Care’s policies and procedures around reportable conduct matters and the update of the policies, procedures and supporting documents in relation to risk assessments.

125. Ms Michelle Rissman, the Director and Company Secretary for Foundations Care, gave evidence about some improvements made by Foundations Care. She stated that, among other things, Foundations Care was undertaking work to improve its training system and had appointed a training manager to ensure consistency in the training provided to staff; that Foundations Care had developed a new supervision template for managers that is designed to ensure managers are providing the appropriate levels of guidance and support to staff; and that Foundations Care established a HR department in January 2019, in order to provide staff with a further support and avenue to communicate feedback or concerns in relation to their roles.

126. The evidence of Foundations Care establishes that there have been some significant improvements to its practices, policies and procedures. However, having regard to the evidence as a whole, I am not satisfied that these changes have achieved the necessary level of compliance with the Standards. The reasons why I have not been able to reach that state of satisfaction are set out below in relation to particular standards.

Foundations Care’s record-keeping

127. In my assessment of Foundations Care’s degree of compliance with the Standards, I have chosen to consider, first, the adequacy of Foundations Care’s record-keeping. That is because a consistent theme of the Office of Children’s Guardian is that the records of Foundations Care were not adequate to enable its staff members to assess its compliance with the Standards. The Children’s Guardian submitted in her closing submissions:

“The necessity for the Applicant to demonstrate compliance with documentation and record keeping (Standard 17) assumes particular significance in this case as it is a critical factor that consistently affected each of the assessment processes and the Applicant’s ability to satisfy the Standards as a whole. Further, the significance of this Standard cannot be underestimated in the Applicant’s approach to this proceeding. Nor is not possible for the Applicant to demonstrate continuous improvement (as the Standards require) if there is no documented baseline against which to measure any improvement.

An inability to comply with this Standard necessarily affects all other Standards. For example: Relevant to Standard 3, is the importance of every step of an investigation (reportable or otherwise) being contemporaneously documented (Phillips1 at [28]). Accordingly, the Applicant’s approach to its evidentiary task to demonstrate compliance with the indicators of compliance with the Standards taken throughout the assessment processes and this proceeding is sufficient by itself for the Tribunal to make an order for which the Respondent contends…”[30]

30. Middelbosch 2 [23].

128. The Standard most relevant to record-keeping is Standard 17, “Documentation and record keeping.” The Standard is: “Children and young people have a permanent record of their histories which contains all relevant documentation.” The objective of this Standard is “Children and young people have access to records of their care arrangements.”

129. Record-keeping is, however, also relevant to other standards. An indicator of compliance with “Standard 2: Providing a positive care environment” is “[c]ritical incidents occurring within the care environment are reported, recorded and managed within the agency’s required timeframes and in accordance with mandated responsibilities.” An indicator of compliance with “Standard 3: Child protection and child safety” is “[a]ll reportable allegations are reported, recorded and managed within the required timeframes.” Similarly, an indicator of compliance with “Standard 8: Emotional and social development” is that “[c]hildren and young people’s emotional and social development and behavioural needs are assessed, recorded and addressed.”

130. Standard 17 gives expression to a designated agency’s statutory obligations to keep written records. Section 160 of the Care Act provides that “[e]ach designated agency must ensure that written, photographic and other records relating to the development, history and identity of a child and young person for whom the Minister has parental responsibility and for whom it has supervisory responsibility are maintained and are accessible to the child or young person.” A person leaving out of home care is entitled to these documents (Care Act, s 169).

131. Ms Michelle Middelbosch, who was, on 27 October 2019, then General Manager of Foundations Care, affirmed an affidavit on that date which responded to matters raised by the Office of the Children’s Guardian about Foundations Care’s record-keeping during the May 2019 onsite assessment. Queries and concerns about Foundations Care’s records and about the availability of particular documents were identified in a spreadsheet during and following that assessment. This was done at a level of specificity, in relation to particular documents relating to particular children. In her affidavit, Ms Middelbosch addressed each concern or query.

132. In about 47 instances, Ms Middelbosch explained that the reason Foundations Care and the Office of the Children’s Guardian could not locate a document at the time of the assessment was that the document was stored on a staff member’s desktop and not uploaded to the electronic database available to all staff members. [31] Sometimes, a document could not be located because it was incorrectly named in the electronic system. Some documents were located in caseworkers’ emails. This included a missing working with children check clearance, [32] a child’s school report[33] and a home safety check in relation to a carer. [34] A handwritten hard copy of reports about home visits, including from December 2018, was later located on the caseworker’s desk. [35] A birth mother’s new phone number was stored on a caseworker’s mobile telephone, but not entered into the system. [36]

     31. Respondent’s Closing Submissions at [65]-[66].

     32. Middelbosch 1 [43], [47], [53], [69], [85], [119], [127], [150], [165], [168], [170], [177], [181], [189], [204], [211], [215], [218], [251], [253], [257], [273], [310], [335], [342], [379], [397], [416], [419], [428], [457], [473], [505], [539], [581], [584], [586], [589].

     33. Middelbosch 1 [248].

     34. Middelbosch 1 [381].

     35. Middelbosch 1 [442].

     36. Middelbosch 1 [689].

“8 What are the objects of this Act?

The objects of this Act are to provide—

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)   recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)   that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

285. Further, the Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount (Care Act, s 9(1)).

286. Having regard to the object that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, and the principle that the safety, welfare and well-being of the child or young person are paramount, I consider that cancellation is the correct and preferable decision. I am not satisfied that setting aside the decision of the Children’s Guardian, or affirming the suspension decision, would promote the object of ensuring that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being or be consistent with the paramount principle. That object is best achieved, in my view, by cancelling Foundations Care’s accreditation, such that the children are placed under the care of another designated agency for the long term.

287. Mr Reitano, for Foundations Care, submitted that the Tribunal should have regard to the following issues when deciding what orders to make:

1. whether the care and protection of children and young people provided for by Foundations Care is such as provides for the safety, welfare and wellbeing of children and whether the environment provided to them is free of violence and exploitation and provides services that foster their health, developmental needs, spirituality, self-respect and dignity;

2. whether the children in Foundation Care’s care are being provided with a high standard of care;

3. the capacity of an organization that is non-compliant with the Standards to bring itself relatively quickly into conformity with the Standards;

4. the availability of other means to secure an appropriate outcome: such as the imposition of conditions upon accreditation.

288. For reasons given above, I am not satisfied that the care and protection of children and young people provided for by Foundations Care is such as provides for the safety, welfare and wellbeing of children. In my opinion, their safety, welfare and wellbeing has frequently been compromised through Foundations Care’s failure to comply with the Standards, in ways such as by failing to arrange medical appointments for children, failing to undertake risk assessments where these are needed, failing to investigate incidents, failing to ensure a child receives increased monitoring following an incident and failing to review care plans with the necessary frequency and regularity (the first issue). I also consider that the children in Foundations Care’s care have not been provided with a high standard of care (the second issue).

289. As already indicated, there is relatively little evidence as to Foundations Care’s degree of compliance at the time of the hearing in February 2020. There is a significant amount of evidence as to its state of compliance in May 2019 and some more focused evidence from about November 2019. I accept the Children’s Guardian’s submission that “[w]hat the Tribunal is left with is evidence from the respondent that indicates similar systemic problems remain and an absence of proper evidence from the applicant to establish compliance on the other.”[190] Whilst Foundations Care, as applicant, does not have any onus in these proceedings, the preponderance of the evidence is to the effect that it remains non-compliant with the Standards.

     190. Foundations Care’s closing submissions [28].

290. As to the third issue identified by Foundations Care, I do not consider that Foundations Care has the capacity to bring itself relatively quickly into conformity with the Standards. Foundations Care had over eighteen months to do this between the January 2018 onsite assessment and the date is evidence in chief was due (in November 2019). It had over two years to do this before the hearing. It had the benefit of a significant amount of feedback from the Children’s Guardian, the Ombudsman and the Department of Communities and Justice during this time, as well as the assistance of external consultants. It has not achieved the level of compliance which would reasonably be expected. Further, having regard to the written and oral evidence of people with leadership roles in the organisation, such as Mr O’Hare, Ms Middelbosch and Mr Middelbosch, I am not confident that any of them have the necessary skills and understanding to achieve compliance in the future. None of these witnesses displayed sufficient insight into Foundations Care’s failures in the past to give me confidence that they would not repeat the same mistakes, or make similar mistakes, in the future.

291. I am not satisfied that the imposition of conditions upon accreditation would achieve an appropriate outcome. As the Children’s Guardian submitted, Foundations Care has had conditions placed upon its accreditation since March 2019. [191] It is not a long term measure and is not feasible, as the Children’s Guardian submits, for her to continue to dedicate a significant amount of resources to monitoring Foundations Care. [192] Foundations Care has also been subject to a performance improvement plan since early 2019 and the evidence is that this did not achieve the necessary improvement. For reasons given above, I am not confident that Foundations Care has the capacity to achieve compliance with the Standards and there is no reason to believe that this could be achieved through the imposition of conditions where that has not worked in the past.

     191. Respondent’s submissions in reply [54].

     192. Respondent’s submissions in reply [32].

292. Foundations Care submitted that, in the midst of the current health crisis, cancelling its accreditation would “have enormous ramifications for the children and young people under Foundations Care’s care, the carers of those children, the staff of Foundations Care and many others in the community well beyond those that might accompany such a decision in ordinary circumstances.”[193]

     193. Respondent’s submissions in reply [32].

293. The applicant’s consultant, Ms Kim Nixon, gave evidence at short notice towards the end of the hearing to address the likely effects of cancellation. Her evidence was limited to evidence concerning the effect of cancellation on children and young people. She did not give any evidence about the extent of Foundations Care’s compliance with the Standards.

294. Ms Nixon’s evidence was that cancellation of Foundations Care’s accreditation would result in all of the 143 children and young people in its care needing to transfer to a different accredited agency or back to the Department of Communities and Justice. She said that the children would need to start again to build a relationship with a new caseworker and this would be stressful for them. Her opinion was that all of their history may potentially be lost as the records may not transfer with them. She also considered that it was unlikely that the Department in regional towns would have capacity to take on 143 children or that funded service providers would be able to do so.

295. Ms Wellman, the Department’s Director of Statewide contracts, gave evidence that, if a suspension or cancellation decision were made by the Tribunal, it would be the responsibility of the Department to manage the transition of children and carers from Foundations Care’s case management. Her opinion was that the carers would remain the same and the Department would ensure that the children’s needs remained at the forefront. She agreed that children would need to develop relationships with new case workers and that this could be stressful for children.

296. In terms of availability of service providers, Ms Wellman gave evidence that there were seven funded service providers in the Northern New South Wales area and seven in the New England district. Most had current capacity within their contracts to take on additional children and young people. She said that it could take up to six months to transition, but that the Department could fast track transition if given 90 days to do so.

297. Ms Wellman disagreed with Ms Nixon’s opinion that children’s histories could be lost. She said that the process required a thorough handover of records from one agency to another and that s 170 of the Care Act required a designated agency to keep records for seven years after designated agency responsible for child or young person.

298. I find that, despite the disruption which the transfer to new caseworkers will entail, the cancellation of Foundations Care’s accreditation is in the best interests of the children concerned. The carers will remain constant, providing that they are considered suitable to continue in that role. Foundations Care has a statutory obligation to keep their records under s 170(1) of the Care Act. I am satisfied, on Ms Welman’s evidence, that there are sufficient service providers available to take on additional children and young people. The children will be placed with a new agency which has been accredited on the basis that it is compliant with the Standards. That is the outcome most likely to promote the safety, welfare and wellbeing of the children currently in the care of Foundations Care.

299. I will allow three months for the cancellation order to take effect, so that the transition may be managed appropriately. I will also grant liberty to the parties to apply, should issues arise in managing the transition process.

Orders

300. I make the following orders:

1. The respondent’s decision to suspend the accreditation of the applicant is set aside.

2. In substitution for the respondent’s decision, the applicant’s accreditation is cancelled.

3. The cancellation of the applicant’s accreditation is to take effect on 9 December 2020.

4. The stay of the suspension decision is continued until the cancellation decision takes effect.

5. The parties have liberty to apply should any issues arise in respect of the implementation of Order 3.

**********

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

Registrar

Amendments

21 October 2020 - Amendment to [179], name changed to "Child B".

21 October 2020 - Amendment to [198], reference to the "Care Act" corrected to the "Children's Guardian Act".

Endnotes

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

Amendments

11 November 2020 - Identifying information redacted.

Decision last updated: 11 November 2020