IO v Department of Family and Community Services (CSD)

[2012] NSWADTAP 42

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	IO v Department of Family and Community Services (CSD) [2012] NSWADTAP 42
Hearing dates:	2 October 2012
Decision date:	30 October 2012
Before:	Judge K P O'Connor, President
Decision:	Appeal dismissed
Catchwords:	JURISDICTION - Community Services - Children in Out of Home Care - Decision not to make financial assistance payment to Carer - Whether Reviewable - Held No Jurisdiction - Appeal Dismissed. Children and Young Persons (Care and Protection) Act 1998, s 245
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
Cases Cited:	IO v Department of Family and Community Services [2012] NSWADT 158
Category:	Principal judgment
Parties:	IO (Appellant) Department of Family and Community Services (Respondent)
Representation:	Counsel M Allars (Respondent) In person (Appellant) Dr V Nguyen (Respondent)
File Number(s):	129027
Publication restriction:	s 126 of the Administrative Decisions Tribunal Act 1997
Decision under appeal	Citation: IO v Department of Family and Community Services [2012] NSWADT 158 Date of Decision: 2012-08-01 00:00:00 Before: Community Services Division File Number(s): 124013

REASON FOR DECISION

1. On 14 May 2012 the appellant lodged an application for review with the Tribunal naming the Minister for Family and Community Services as the respondent. The Tribunal declined to hear the application of the ground that it was outside jurisdiction: IO v Department of Family and Community Services [2012] NSWADT 158 (1 August 2012, Higgins DP).

1. On 7 August 2012, the appellant lodged an appeal pursuant to the Administrative Decisions Tribunal Act 1997, ss 112, 113.

1. I convened a directions hearing in relation to the appeal on 2 October 2012. Both parties were present, the appellant without representation, and the Minister represented by Ms Allars of counsel.

1. Both parties made oral submissions going to the substance of the dispute, and the procedure to be followed to dispose of the matter.

1. I decided that, as a presidential member, I should hear the appeal sitting alone (as permitted by the ADT Act in relation to appeals involving ancillary functions of the Tribunal, jurisdiction being such a function: s 113(2E)).

1. After discussion with the parties, I directed that the appeal proceed thereafter on the papers as permitted by the ADT Act, s 76.

Circumstances

1. The appellant is the natural father of a daughter who is in his care. The material before the Tribunal below and before the Appeal Panel is limited. As I understand the matter, as at 2004 the appellant was living apart from the daughter's mother. In that year she was removed from the care of the mother, and the Children's Court gave parental responsibility to the Minister: see generally the Children and Young Persons (Care and Protection) Act 1998, ss 79-81. (I will refer below to this Act as the 'Care and Protection Act', it was called the 'Care Act' by the Tribunal below.) As I understand the material, the daughter was placed with the appellant, with him being regarded as an authorised carer to a child in 'out-of-home' care (as to which, see ss 159A ff).

1. The appellant is of the view that he is entitled to support for the financial costs associated with his daughter's care and upbringing, in the same way that, for example, a non-related authorised carer might be provided with financial support. Section 161 gives the Director General power, in respect of any child or young person in out-of-home care, to grant financial assistance to the carer.

1. The appellant attached to his original application to the Tribunal a letter written on behalf of the Minister (11 April 2012) declining to grant him financial assistance. The author, Ms Freeland of the Department, described his claim as one for 'back-payment of $94,872 for the day to day care you have provided to your daughter [name] since 28 April 2004, plus an additional $5,500 dental costs'. She said:

'I can 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] 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.

Similarly, contingency costs such as dental fees are only paid where an allowance is possible, and so, such costs are not paid to parents as per the agency's Financial Guidelines. Therefore, in light of these definitions, I am declining your request.'

Jurisdiction

1. Section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 provides relevantly that:

(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 ... section 245 of the Children and Young Persons (Care and Protection) Act 1998.

1. The appellant relied on s 245(1) of the Care and Protection Act which provides:

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.

1. The respondent has acknowledged that the Minister is a decision-maker who exercises the kind of powers referred to in s 245(1)(a); and that the appellant is an authorised carer within the meaning of s 245(1)(a). In contrast to what was said in the letter of 11 April 2012, I now understand that the respondent acknowledges that the placement of the daughter with the appellant is an 'out-of-home placement' within the meaning of the legislation.

1. It will be seen that s 245(1) confers jurisdiction in relation to decisions relating to: authorisation, the imposition of conditions on an authorisation, and cancellation and suspension of an authorisation.

1. Section 161 empowers the Director General to give financial assistance to authorised carers. There is no reference to, say, 'decisions made under s 161' in the conferrals of jurisdiction made by s 245; nor is there any reference to a generic category such as, say, 'review of decisions concerning financial assistance payments.'

1. The appellant has contended, however, that by refusing to provide him with financial assistance the Minister has 'imposed a condition on his authorisation', and accordingly the Tribunal has jurisdiction pursuant to s 245(1)(a). The appellant sees the position he finds himself in as unfair and discriminatory as compared to other out-of-home carers. He does not accept that a natural parent who is undertaking the support of a child for which the Minister is responsible may be seen as not having a case for financial support of the kind that might be accepted in the case of a person who is not the natural parent.

1. The Tribunal commenced by examining relevant provisions of Chapter 8 (ss 134-172) of the Care and Protection Act: in particular, s 137(1) (the meaning of 'authorised carer'); the power to make regulations imposing conditions on authorisations, s 137(2)(c); and the extent of the authority conferred on the authorised carer in respect of various aspects of the care of the child, such as dental treatment, education and medical treatment. The Tribunal referred to other possibly relevant provisions in the regulations relating to conditions, and concluded at [21] that 'There is no mention of or reference to the payment of allowances to authorised carers.'

1. The Tribunal then turned to the dictionary meanings of the word 'condition'. It closed its reasons as follows:

22 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 ..

23 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.

24 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.

Consideration

1. In my view the Tribunal dealt correctly with the matter. In the ordinary course, one would expect to see any specific condition imposed on an authorisation stated in clear terms in the instrument attesting to the authorisation. The instrument might take the form of a letter from the Minister (or the Department on the Minister's behalf) granting the authorisation, a formal certificate of authorisation or a pocket sized licence required to be carried as proof by the holder (as occurs in some areas of regulation). The appellant does not point to any express statement of a condition appearing on the relevant instrument.

1. He contends, in effect, that the authorisation is subject to conditions that have not been expressly articulated in the instrument of authorisation but nevertheless attach to it. There appears to be two possibilities: a condition that, though not articulated, is necessarily to be implied as attaching to the authorisation, or a legislatively imposed general condition that need not be set out in the authorisation.

1. Put at its highest, the appellant's contention, as I understand it, is that there is necessarily to be implied a 'condition' that an out-of-home carer will receive financial assistance in accordance with the relevant policy for the care and upbringing of a child placed in his care.

1. In my view, powers given to an administrator to attach conditions to a licence or authority are designed to allow the administrator to deal with particular issues relevant to the activity regulated in the public interest by the licence or authority.

1. Licensing is not a bilateral exercise in the way a private contract might be, with conditions that impose burdens on both parties. In the ordinary course an administrator might impose burdensome conditions on the licensee; it is unlikely that the administrator would impose conditions that are burdensome to the administrator. The 'condition' that the appellant seeks to find is one that in effect places an obligation on the Minister to administer the financial assistance guidelines in a particular way for cases such as his, where the carer is a natural parent.

1. Typically the conditions would go to such matters as the duration of the authority, the manner of its performance and more detailed constraints that might be appropriate and are consistent with the purpose and function of the authority. In keeping with this understanding, the categories of conditions to which there is specific reference at s 137(2) go to 'the maximum number of children who may be placed in the care of an authorised carer' and the 'identification and authorisation' of the children or young persons placed in care. Section 137(2) leaves open the possibility of there being other conditions. One would expect that those conditions might embrace some of the more detailed aspects of care, such as the town or part of the State in which a child is to be housed, proximity to the wider family, school arrangements and the like.

1. The fact that the Parliament has given the Minister a discretion to provide financial assistance does not make financial assistance a condition of authorisation. It is a separate and distinct subject matter. The scheme of the Act, in separating clearly the subjects of authorisation (s 137) and financial assistance (s 161) reinforces that view.

1. The appeal is dismissed.

Decision last updated: 31 October 2012