IO v Department of Family and Community Services, Community Services

[2012] NSWADT 158

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	IO v Department of Family and Community Services, Community Services [2012] NSWADT 158
Decision date:	01 August 2012
Jurisdiction:	Community Services Division
Before:	S Higgins, Deputy President
Decision:	Application dismissed as the tribunal has no jurisdiction to review the decision the subject of the application.
Catchwords:	Jurisdiction - whether the tribunal has jurisdiction to review a decision of the respondent administrator concerning the payment of a supported care allowance to an authorised carer
Legislation Cited:	The Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection Regulation 2000 Community Services (Complaints, Reviews and Monitoring) Act 1993
Cases Cited:	IO v Director-General, Department of Community Services [2008] NSWADT 267
Category:	Interlocutory applications
Parties:	IO (Applicant) Department Family and Community Services, Community Services (Respondent)
Representation:	IO (Applicant in person) V Nuygn (Respondent)
File Number(s):	124013
Publication restriction:	s 126 of the Administrative Decisions Tribunal Act 1997

REasons for decision

Introduction

1. In these reasons for decision the applicant is referred to by the pseudonym 'IO' (see section 126 of the Administrative Decisions Tribunal Act 1997 (the ADT Act)).

1. IO is an authorised carer under the Children and Young Persona (Care and protection) Act 1998 (the Care Act) and he has the day-day-care of his daughter. Parental responsibility for IO's daughter rests with the Minister, pursuant to an order of the Children's Court.

1. On 14 May 2012, IO lodged an application seeking review of a decision of the respondent to refuse his claim for back-payment of the supported care allowance for his day-to-day care of his daughter. The decision maker was Ms Freedland, Acting Deputy Chief Executive Operations. In her letter to IO, Ms Freedland said:

I inform you that both the legislation governing care allowances and Community Services 'Financial Guidelines for Children and Young People in Out-of-Home Care' set out that an allowance is to be paid where the child is in out-of-home care. I understand [name of applicant's daughter] is not in out-of-home care because (even though she is in the parental responsibility of the Minister) she is living with you as her father, in your own home.

1. In his application for review IO said his application was made in respect of a decision made under section 245(1)(a) of the Care Act as he believed Ms Freedland's decision was contrary to the law of New South Wales.

1. After having been served with IO's application for review, the respondent wrote to the applicant advising him that it was of the view that the decision for which he sought review was not a decision the Tribunal had jurisdiction to review. In the letter the respondent set out the basis on which it had formed this view and invited the applicant to withdraw his application.

1. The matter came before the Tribunal, on 5 July 2012, at a directions hearing. The applicant continued to press his application and argued that the Tribunal did have jurisdiction to review the decision of Ms Freedland. At the directions hearing I heard short oral submissions from both parties on the issue of jurisdiction and I reserved my decision on this issue. I have now considered the relevant legislation and the oral and written arguments made by the parties. For the reasons set out below, I find that the Tribunal does not have any jurisdiction to review the decision of Ms Freedland in regard to IO's claim for the supported care allowance.

Tribunal's jurisdiction

1. In a previous review application of IO, the Tribunal set out in detail the decisions the tribunal has jurisdiction to review: see IO v Director-General Department of Community Services [2008] NSWADT 267 at [27] [the 2008 decision]. At [10] to [12], in that decision the tribunal said:

10 The statute establishing the Tribunal, the Tribunal Act, circumscribes its jurisdiction. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal has a duty to decline to hear such cases: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) &anor(1961) 106 CLR 48.

11 Section 36(1)(b) of the Tribunal Act gives the Tribunal the power to review 'reviewable decisions'. A 'reviewable decision' is defined in section 8 to mean a 'decision of an administrator that the Tribunal has jurisdiction under an enactment to review'. (See also section 38 of the Tribunal Act.)

12 The Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act) sets out the parameters of the Tribunal's jurisdiction in the community services area. Section 28 of that Act provides:

28 Applications to Administrative Decisions Tribunal for reviews of decisions.

(1) A person may apply to the Tribunal for a review of any of the following decisions:

(a) a decision that is a reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 20 of the Disability Services Act 1993 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

(b) a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section,

(c) a decision that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section,

(d) a decision made by any State Minister, any Commonwealth Minister or any public authority, not being a relevant decision maker, if it is within a class of decisions that, with the consent of the Minister or public authority, is prescribed by the regulations for the purposes of this section.

1. As I have mentioned, IO contends that the decision of Ms Freedland is a decision falling within paragraph 28(1)(a) of the Community Services (Complaints, Appeals and Monitoring) Act 1993 and paragraph 245(1)(a) of the Care Act.

1. Paragraph 245(1)(a) of the Care Act is in the following terms:

245 Decisions that are reviewable by Administrative Decisions Tribunal

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

(a) a decision of the relevant decision-maker to authorise or not to authorise a person as an authorised carer, to impose conditions of an authorisation, or to cancel or suspend a person's authorisation as an authorised carer,

(b)...

1. Accordingly, the issue is whether the decision of Ms Freedland is a decision falling within paragraph 245(1)(a) of the Care Act?

The respondent's arguments

1. At the directions hearing, the respondent conceded that the applicant is an 'authorised carer' under the Care Act. The respondent also conceded, contrary to what Ms Freedland said in her decision, that the placement of IO's daughter with IO as the authorised carer is an 'out-of-home placement'.

1. Notwithstanding these concessions, the respondent adheres to its position that the decision of Ms Freedland is not a decision falling within the terms of paragraph 2451(1)(a) of the Care Act. It contends that it is a decision falling within the general discretion of the respondent in accordance with its policies in regard to supported care allowances for authorised carers.

IO's arguments

1. It is the contention of IO that the decision of Ms Freedland was in effect a decision to impose a condition on his authorisation as a carer. He asserted that in refusing to pay him the supported care allowance he was being treated differently to other carers authorised under the Care Act and hence a condition had been placed on his authorisation. In support of his argument IO said the respondent has previously, since the Minister obtained parental responsibility for his daughter, made payments to him in regard to the care of his daughter. He went on to say that his application raised an important matter of policy, as there were other authorised carers who were in the same position. He also said a denial of access to the tribunal was a denial of natural justice.

Consideration

1. As explained by the tribunal in its 2008 decision, the tribunal's power is not at large and its jurisdiction to review a decision of an administrator must be found in a statute other than the Administrative Decisions Tribunal Act 1997 (the ADT Act): see section 38. There is no dispute that a decision under paragraph 245(1)(a) of the Care Act is a decision over which the tribunal has jurisdiction to review.

1. In order to determine whether the decision of Ms Freedland is such a decision it is necessary to briefly examine the provisions in the Care Act and the Children and Young Persons (Care and Protection) Regulation 2000 (the Care Regulation) relating to authorised carers and out-of-home care.

1. Chapter 8 of the Care Act makes provision for out-of-home care, including authorised carers. The term 'out-of-home care' is defined in subsection 135(1) to mean 'residential care for and control of children or young persons that is provided (a) by a person other than a parent of the child or young person, and (b) at a place other than the usual home of the child or young person whether or not for fee, gain or reward.' The word 'parent' is defined in section 3 of the Care Act to mean the person having parental responsibility for the child or young person. In this application, I understand, the parent for the purposes of the Care Act is not IO but the Minister. Whether IO has any role as a 'parent' under the Care Act is dependent on the terms of the orders of the Children's Court in regard to his daughter. Whether IO does or does not have such a role is not material to the issue of jurisdiction.

1. Subsection 137(1) of the Care Act defines what is meant by the term ' 'authorised carer'. It is in the following terms:

137 Authorised carers

(1) In this Act, authorised carer means:

(a) the principal officer of a designated agency, or

(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer.

1. The term 'designated agency' is defined in section 139 of the Care Act. It includes the respondent and as I have explained there is no dispute that IO has been authorised as a carer by the respondent. S

1. Subsections 137(2), (3) and (4) of the Care Act make provision for the imposition of conditions of an authorisation. These particular subsections are in the following terms:

(2) The regulations may make provision for or with respect to the following:

(a) the making and determination of applications for authorisation,

(b) the authorisation of persons, by designated agencies or otherwise, as authorised carers,

(c) the imposition of conditions of an authorisation, including, but not limited to:

(i) the maximum number of children and young persons who may be placed in the care of an authorised carer (including the maximum number in specified age groups), and

(ii) the identification or description of children and young persons who may be placed in the care of an authorised carer,

(d) the period for which an authorisation remains in force,

(e) the cancellation or suspension of an authorisation.

(3) In the case of an authorised carer who is authorised by a designated agency, it is a condition of the authorisation that the carer must notify the designated agency if any person (other than the carer) who is of or above the age of 18 years is residing at the carer's home on a regular basis and has been doing so for a period of at least 3 months.

Note. See section 45 of the Commission for Children and Young People Act 1998 which provides for background checking under Division 3 of Part 7 of that Act of adult household members of authorised carers.

(4) Without limiting subsection (3), any such requirement to notify the designated agency applies even though the adult person who is residing at the carer's home was at any time residing at that home as a minor.

1. Section 157 of the Care Act sets out the extent of the authority of an authorised carer in respect to various aspects of the care of a child or young person (e.g. medical treatment, dental treatment and participation in school activities).

1. Regulation 21 of the Care Regulation enables a 'designated agency', to impose 'such reasonable conditions as it thinks fit' on the authorisation of a carer it proposes or has authorised. The regulation also makes provision for the 'designated agency' to vary or revoke such conditions at any time. Regulation 23, 24, 25, 26, 27, 28, 29 and 30 sets out a number of additional obligations and responsibilities on a person who is authorised as a carer under the Care Act. There is no mention of or reference to the payment of allowances to authorised carers in these provisions.

1. In my view, the word 'condition' as used in the Care Act and the Care Regulation, is to be construed so as to give it its ordinary meaning, which is defined in the Australian Concise Oxford dictionary (fourth edition) as follows:

Condition n 1 a stipulation; something upon the fulfilment of which something else depends ..

1. That is, a condition is that which is demanded, or required of a person who is authorised as a carer under the Care Act. A failure to do or meet what is demanded or required can lead to the person having his/her authorisation suspended or cancelled: see regulation 31 of the Care Regulations. On the other hand, the payment of an allowance for performing the tasks of an authorised carer cannot be categorised as a demand or requirement placed on the person authorised as a carer. It is, if anything, an entitlement arising from performing the tasks of an authorised carer.

1. Accordingly, I find that the decision of Ms Freeland is not a decision, which places a condition on IO's authorisation. That is, it is not a decision falling within paragraph 245(1)(a) of the Care Act. Nor is it a decision, which the tribunal has jurisdiction to review. In this regard I note the Care Act and the Care Regulation make no provision for the payment of an allowance to authorised carers. The only provision dealing with payments to authorised carers is section 161 of the Care Act, which entitles an authorised carer to be compensated for damage to his/her property that is caused by a child placed in their day-to-day care under the Act. Any decision made by an administrator in regard to such a claim, I note, is not reviewable by the tribunal.

1. For the reasons set out above, I find that the tribunal has no jurisdiction to review the decision the subject of this application. Hence the appropriate order is that IO's application is dismissed.

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Decision last updated: 07 August 2012