Helping Hugs Family Day Care Pty. Ltd. and Secretary, Department of Education

This matter concerned an appeal by Helping Hugs Family Day Care Pty. Ltd. against a decision by a delegate of the Secretary of the Department of Education to cancel its approval as an approved child care service. The Department had identified numerous instances where Helping Hugs had allegedly failed to comply with the conditions of its approval, including inaccurate reporting of care sessions, exceeding educator-to-child ratios, and failing to implement effective governance arrangements. The delegate concluded that these failures demonstrated Helping Hugs was not a suitable person to operate a childcare service and that cancellation was the appropriate sanction.

The Administrative Appeals Tribunal was required to determine whether Helping Hugs had failed to comply with the conditions of its continued approval as an approved child care service under the Family Assistance Law (FAL), and if so, whether this non-compliance justified the cancellation of its approval. The Tribunal considered allegations of reporting care for children who were too old or at secondary school, care provided by overseas educators, late reporting and enrolments, overlapping sessions, absences before and after care, and exceeding educator to child ratios.

The Tribunal found that Helping Hugs' failure to take reasonable care had led to numerous reporting errors, resulting in substantial overpayments and placing the health, safety, and wellbeing of children at risk. While acknowledging the seriousness of these failures, which Helping Hugs conceded were "human error," the Tribunal reviewed the actions taken by Helping Hugs to improve its compliance. Based on this review, the Tribunal determined that cancellation was no longer warranted, but that sanctions should be imposed.

Consequently, the Tribunal set aside the decision to cancel Helping Hugs' approval. In substitution, the Tribunal granted approval on the condition that the number of educators allocated to the service does not exceed 45 and the number of child care places does not exceed 315. The Tribunal also determined that Helping Hugs had received an overpayment of $65,654.10 and ordered that the balance of monies held in trust be remitted to the Respondent. To ensure ongoing compliance, the Tribunal mandated that gap payments must be deposited directly with the service, not individual educators.