K and CEO Of the Department Of Child Protection
[2008] WASAT 92
•6 MAY 2008
K and CEO OF THE DEPARTMENT OF CHILD PROTECTION [2008] WASAT 92
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 92 | |
| CHILDREN AND COMMUNITY SERVICES ACT 2004 (WA) | |||
| Case No: | VR:80/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 6/05/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The Tribunal's jurisdiction to review the decision of the CEO continues despite the making of a new care plan | ||
| B | |||
| PDF Version |
| Parties: | K CEO OF THE DEPARTMENT OF CHILD PROTECTION |
Catchwords: | Review of decision of CEO of Department for Child Protection Child in the care of the CEO Case planning decision concerning contact with mother Mother aggrieved by decision Internal review by case review panel Panel recommended to CEO that case planning decision be upheld CEO upheld decision Mother sought review by Tribunal Whether the making of a new care plan meant the Tribunal no longer had jurisdiction to review the CEO's decision No evidence of material change to the decision under review Tribunal's jurisdiction to review the decision of the CEO continues despite the making of a new care plan |
Legislation: | Children and Community Services Act 2004 (WA), s 89, s 90, s 91, s 92, s 93 Mental Health Act 1996 (WA) State Administrative Tribunal Act 2004 (WA), s 47, s 62(3) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : CHILDREN AND COMMUNITY SERVICES ACT 2004 CITATION : K and CEO OF THE DEPARTMENT OF CHILD PROTECTION [2008] WASAT 92 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 MAY 2008 FILE NO/S : VR 80 of 2007 BETWEEN : K
- Applicant
AND
CEO OF THE DEPARTMENT OF CHILD PROTECTION
Respondent
Catchwords:
Review of decision of CEO of Department for Child Protection Child in the care of the CEO Case planning decision concerning contact with mother Mother aggrieved by decision Internal review by case review panel Panel recommended to CEO that case planning decision be upheld CEO upheld decision Mother sought review by Tribunal Whether the making of a new care plan meant the Tribunal no longer had jurisdiction to review the CEO's decision No evidence of material change to the decision under review Tribunal's jurisdiction to review the decision of the CEO continues despite the making of a new care plan
(Page 2)
Legislation:
Children and Community Services Act 2004 (WA), s 89, s 90, s 91, s 92, s 93
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 47, s 62(3)
Result:
The Tribunal's jurisdiction to review the decision of the CEO continues despite the making of a new care plan
Category: B
Representation:
Counsel:
Applicant : Mr P Hill
Respondent : Mr R Bell
Solicitors:
Applicant : Mental Health Law Centre
Respondent : Department for Child Protection
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant sought review of a decision of the CEO of the Department for Child Protection concerning contact with her son who is in the care of the CEO. The decision was part of a care plan which the CEO is obliged by the Children and Community Services Act 2004 (WA) to prepare for each child in her care.
2 In the course of the proceedings before the Tribunal, the CEO reviewed the care plan, as she is required to do at least once in every 12 months. A plan was prepared for the forthcoming year and the CEO published a report of her review.
3 The respondent argued that the making of a new plan meant the Tribunal no longer had jurisdiction to determine the proceedings before it; if the applicant was aggrieved by a decision in the new plan, she had to seek a fresh internal review as provided for in the Children and Community Services Act 2004 (WA) and, if still aggrieved, she could lodge a fresh application for review by the Tribunal.
4 The Tribunal did not accept the respondent's contentions. The Children and Community Services Act 2004 (WA) provides for review of a case planning decision, as defined, and not of the care plan. There was no evidence to support a finding that the case planning decision by which the applicant was aggrieved was materially different following the CEO's review.
5 The Tribunal found it had jurisdiction to continue to determine the proceedings.
Background
6 Reasons for this decision were given orally on 1 May 2008. This written version is based on the transcript of the oral reasons. The Tribunal has made an order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to protect the identity of the applicant and her son and has amended the transcript accordingly.
7 The applicant seeks review of a decision of the CEO of the Department of Child Protection (the Department) concerning contact with her teenage son (referred to here as "the child"). The child has been in the care of the Department since he was a few months old for reasons related to the applicant's mental illness which at different times
(Page 4)
- has led to her voluntary and involuntary admission to hospital for treatment. The child has lived with his present foster parents since he was very young. The applicant also has a daughter, younger than her son, who lives with her.
8 As required by the Children and Community Services Act 2004 (WA) (the Act), in October 2006 the CEO prepared a care plan for the child which included decisions about how, and when, he and his mother, and he and his sister, would have contact.
9 The applicant did not agree with that part of the plan concerning contact with her son and sought review by a case review panel established by the CEO for that purpose. The case review panel considered the application for review and recommended to the CEO that the decision about contact be upheld. By letter dated 13 April 2007, the CEO advised the applicant that she had accepted that recommendation.
10 On 2 May 2007, the applicant lodged her application for review with the Tribunal. The Tribunal subsequently made programming orders and listed the matter for hearing on 8 and 9 August 2007. The hearing dates were vacated when the applicant became unwell and was admitted to hospital under the Mental Health Act 1996 (WA). Further directions hearings were held on 7 September 2007 and 7 November 2007 with a view to seeing whether the matter could be listed for hearing.
11 In the meantime, the CEO reviewed the care plan for the child as required by the Act to do at least every 12 months. As a result, a new care plan has been made for 2007-2008.
Submissions
12 The Tribunal has not seen the new care plan (although it notes that counsel for the applicant maintains that a document submitted by the respondent is in fact the new care plan). The respondent has declined to provide a copy on the ground that to do so would contaminate the determination of the preliminary issue concerning jurisdiction.
13 It is not clear how seeing the plan would contaminate the Tribunal's decision and the Tribunal does not accept that it would.
14 It is common ground that the original plan was modified on the recent statutory review. The extent of the modification is not clear. The applicant contends that the new plan is not materially different. The respondent maintains it is materially different in form and content but has not provided evidence to support that assertion.
(Page 5)
15 It is relevant whether the content of the current care plan is materially different from that which was the subject of the application; it may be that the decision under review effectively no longer exists, the application has no subject matter, and it would be meaningless to talk of a "reviewable decision".
16 In the absence of the opportunity to see the plan for itself, or other evidence, the Tribunal is not satisfied that the current plan is materially different from the plan of which the applicant originally sought review.
The issue
17 The respondent's main argument is that the care plan which is the subject of the application has expired and been replaced by the new care plan for the year 2007-2008 with the effect that the Tribunal no longer has jurisdiction to determine the proceedings. The respondent maintains that, if she is aggrieved by this new plan, the applicant must seek a fresh internal review and, if aggrieved by the outcome of that process, a fresh review by the Tribunal.
18 The applicant maintains that, regardless of whether a new plan has been prepared, there is in effect only one plan for the purpose of these proceedings and the Tribunal's jurisdiction continues regardless of the CEO's statutory review and publication to parties of a new plan.
Relevant provisions of the Children and Community Services Act 2004
19 As soon as practicable after a child comes into the CEO's care, the CEO must prepare and implement a care plan for the child: s 89(2).
20 A care plan means a written plan that identifies the needs of the child, outlines steps or measures to be taken to address those needs, and sets out decisions about the care of the child including decisions about where the child will live and contact with family or other persons significant in the child's life: s 89(1).
21 The CEO may modify a care plan at any time the CEO considers it appropriate to do so: s 89(4).
22 As soon as practicable after preparing or modifying a care plan, the CEO must ensure that a copy of the plan or modification, as the case may be, is given to specified persons including a parent: s 89(6).
(Page 6)
23 The CEO must review the operation and effectiveness of every plan at regular intervals not exceeding 12 months. The CEO must prepare a written report on the outcome of the review and give a copy of the report to the child, a parent, any carer and any other person the CEO considers has a direct and significant interest in the child's wellbeing: s 90(1) and s 90(3).
24 A case planning decisionmeans a decision set out in a care plan for a child: s 91.
25 A parent, among others, who is aggrieved by a case planning decision may seek review of that decision, initially by a process of review within the Department and, if still aggrieved, by this Tribunal. The CEO must establish a case review panel for this purpose: s 92(1).
26 An application for review of a case planning decision must be made to the CEO within 14 days after the applicant receives a copy of a care plan or modification of a care plan setting out the relevant case planning decision: s 93(3). The CEO may extend this period in special circumstances.
27 The CEO must refer the application to a case review panel for its consideration and the panel must report to the CEO on its recommendations in respect of the application: s 93(4) and s 93(5).
28 The CEO must consider the report and may confirm, vary or reverse the case planning decision; substitute another decision; or refer the matter back to the case review panel for further consideration and report: s 93(6). The CEO must give the applicant written notice of his or her decision and the reasons for it.
29 A person who is aggrieved by a decision made by the CEO under s 93(6) may apply to the Tribunal for review of that decision.
Reasons for decision
30 The respondent maintains that it serves no purpose for the applicant to pursue her current application. But that is not the question before the Tribunal; that is a different matter and goes to whether, if there is jurisdiction, the applicant should be allowed to continue her application or whether it should be dismissed as lacking in substance or one of the other grounds in s 47 of the SAT Act.
(Page 7)
31 The Tribunal does not accept the respondent's contention that the Tribunal's jurisdiction is extinguished by the mere making of "a new plan".
32 The fact that the CEO reviews (and may modify) a care plan at least every 12 months supports the view that there is, in effect, one continuing plan, rather than a whole new plan each 12 months. It is notable that the Act refers only to the obligation on the CEO to publish a report of her review.
33 The care plan cannot be said to "expire" in any usual sense of the word, and merely reviewing or modifying a care plan does not constitute the making of a new plan in any real sense. This is so even if, in practice, a new document is prepared and a report of the review provided to parties. Whether a plan, and the decisions it contains, is "a new plan" in the way the respondent contends will depend on what is in the document following the review.
34 The respondent's contention would give rise to a situation in which Tribunal proceedings would be defeated, and the entire process have to start again, when, for any reason, the proceedings have not been determined before the statutory review of the plan. This would be so even if the "new plan" was identical in all respects.
35 The position put by the respondent would lead to the situation where a plan that is almost due for its statutory review could be modified by the CEO pursuant to s 89(4) and, where a person exercises their right to seek review of the modified plan, the process would be defeated and the Tribunal stripped of jurisdiction merely by the timing of the statutory review.
36 It is relevant in this regard that the Act does not require an application to the Tribunal to be made within any specified period.
37 More importantly, however, the Act specifically provides that review may be sought of a case planning decision, not of a care plan. For most practical purposes, the distinction is insignificant; the care plan is simply the written document setting out matters including decisions about the care of the child.
38 However, it is relevant here because it is the case planning decision that is under review. For as long as that decision is in effect, it does not cease to exist merely because the plan is reviewed or modified.
(Page 8)
39 The applicant continues to be aggrieved by the decision of the CEO regarding contact between herself and her son. That decision appears to have been modified in some way but to be substantially the same decision.
40 It may be that, on review or modification of a particular care plan, a case planning decision is made that is materially different from a previous case planning decision. Where proceedings are before the Tribunal, it might be that the Tribunal would no longer have jurisdiction in that case but that is not a matter that needs to be decided here.
41 The Tribunal is satisfied that its jurisdiction to review the decision of the CEO continues despite the review of the care plan.
42 Counsel for the applicant has advised the Tribunal that since these proceedings commenced, the applicant has been able to reach some agreement with the Department about contact with her son and she may not see a need to continue with her application. The proceedings are adjourned for six weeks to enable counsel to take further instructions and advise the respondent and the Tribunal.
43 Order
1. The Tribunal has jurisdiction to continue the review.
2. The proceedings are adjourned to 10 am on 23 June 2008.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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