Kenna Investments Pty Ltd and Aged Care Standards and Accreditati on Agency Ltd
[2004] AATA 173
•20 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 173
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1638
GENERAL ADMINISTRATIVE DIVISION ) Re KENNA INVESTMENTS PTY LTD Applicant
And
AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date20 February 2004
PlaceSydney
Decision The Tribunal is not restricted in its consideration of the variation decision to the factual material pertaining to the time when the reviewable decision was made.
...............................................
[sgd} The Hon R N J Purvis Q.C
Deputy President
CATCHWORDS
Health and Aged Care - interlocutory decision - if application allows evidence to be tendered to the factual situation after appealable decision dated 7 October 2003
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Surinakova v Minister for Immigration and Local Government and Ethnic Affairs (1991) 26 ALD 203
Jebb v Repatriation Commission (1988) 8 AAR 285
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Confidential and Industry Research and Development Board (2000) 59 ALD 232
Comptroller General of Customs v Akai (1994) 50 FCR 511
Re Webb and Tax Agents Board of Queensland (1992) 28 ALD 464
Re Harts Pty Ltd and Tax Agents Board of Queensland (1997) 97 ATC 2148
Re Birdseye and Companies Auditors and Liquidators Disciplinary Board and others (2001) 65 ALD 281
Griffiths and Migration Agents Registration Authority [2001] AATA 240
Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248.
REASONS FOR DECISION
20 February 2004 The Hon R N J Purvis Q.C., Deputy President the issue for decision
1. The issue, the subject of the present application, arises at the commencement of the hearing of an application by Kenna Investments Pty Ltd (“the Applicant”) for review of a determination made by an officer of the Aged Care Standards and Accreditation Agency Ltd (“the Respondent”) on 7 October 2003. This determination was to the following effect (T1/3):
“I Victoria Crawford, Manager Operations Services of the Aged Care Standards and Accreditation Agency Limited (the “Agency”) decided on 7 October 2003 that the period of accreditation of Eddystone Nursing Home RACS ID 25760 (the “Service”) will expire on 4 September 2004.”
2. In the reasons for decision it was stated (T1/10):
“…
7.4In deciding on the period of accreditation I considered the extent of the non-compliance and its affect on residents. The non-compliance has a significant affect on residents and compromises their wellbeing.
I also considered that the Service is undertaking continuous improvement and reviewed the Improvement Outline submitted by the approved provider and noted that some actions have been completed while others are of an ongoing nature. However, I also considered the Service’s history of non-compliance. Deficiencies were identified in May 2002 relating to restraint and in November 2002 relating to information systems. The Service was then compliant at the time of the site audit in March 2003 but within six months the Service is non-compliant with four Expected Outcomes. I am not satisfied that the Service is capable of monitoring its compliance with the Accreditation Standards and take timely action to ensure this as required for a long period.
That Accreditation Grant Principles 1999 require that an accredited provider ensure that the residential care service complies with the Accreditation Standards and its other responsibilities under the Act (section 3.18). The responsibility clearly lies with the accredited provider (ie the approved provider who has been given a certificate of accreditation for the residential care service) to maintain compliance.
7.5 I have decided not to vary the period of accreditation.
7.6 The period of accreditation will expire on 4 September 2004.
7.7This period of accreditation will provide the Service with the opportunity to address the non-compliance, consolidate the improved systems and then be reviewed within 12 months. The Service will also have the opportunity to demonstrate that it is capable of monitoring its compliance with the Accreditation Standards for the duration of this accreditation period.”
3. The Applicant seeks to tender material at the hearing of the review application that relates to factual events that have occurred since 7 October 2003 and indeed up to the time of the present hearing. That is the Tribunal, it is submitted, is able to take into account available evidence up to the date of its decision and accordingly is not precluded from taking into account “whether the deficiencies which were identified in the review audit have been rectified in whole or in part”.
4. In its Statement of Facts and Contentions, the Applicant contends:
“(a)the decision under review should be set aside, and the original accreditation period should be reinstated;
(b) the reduction in the accreditation period is excessive in all the circumstances;
(c)inadequate weight or no weight has been given to improvements made and being made at Eddystone, and to the applicant’s history of responding quickly to rectify deficiencies;
(d)…”
5. It is maintained on behalf of the Respondent that the review by the Tribunal is limited by reference to the point in time when the decision to vary the accreditation was made, that is 7 October 2003.
history of the substantive application
6. As detailed in the Applicant’s Statement of Facts and Contentions and as agreed to by the Respondent, the present interlocutory application arises in the following circumstances:
(a) The Applicant is the proprietor of Eddystone Nursing Home (“the Nursing Home”), a facility, which provides care for 71 high care residents.
(b) On 21 January 2003, the Applicant made an application for accreditation for residential aged care services in respect of the Nursing Home.
(c) A site audit of the Nursing Home was conducted on 4 and 5 March 2003. The Nursing Home was found to be compliant with all of the Accreditation Standards and the assessment team made a recommendation for accreditation.
(d) On 16 May 2003, the Accreditation Coordinator NSW/ACT decided to accredit the Nursing Home for a period of three years. The effective date of accreditation was 21 July 2003.
(e) By a letter dated 4 August 2003, the Manager of the Aged Care and Planning Branch, Department of Health, notified the Aged Care Standards and Accreditation Agency that “a number of concerns were highlighted during a detailed analysis of two anonymous information calls lodged with the Department’s Aged Care Complaints Resolution Scheme on 18 July 2003, including wound management, infection control, documentation systems and behaviour management. Areas of non-compliance with the Accreditation Standards as outlined in Schedule 2 of the Quality of Care Principles 1997 (“Quality of Care Principles”) may be indicated”.
(f) An Assessment Team conducted a review audit of the Nursing Home from 12 August 2003 to 15 August 2003 inclusive. On 21 August 2003, the assessment team reported compliance with 38 expected outcomes of the Accreditation Standards, and non-compliance with six expected outcomes.
(g) On 29 August 2003, the Applicant responded to the report, noting inter alia that the majority of the issues raised in the information calls were not confirmed during the review audit, that the content of the report did not correspond with statements made at the assessment team’s exit interview and that no opportunity was afforded to the Applicant to deal with a number of matters raised in the report.
(h) On 4 September 2003, the Agency notified the Applicant that a decision had been made to vary the accreditation period, that the accreditation period would now expire on 4 September 2004 and that an application for accreditation for a further period must be lodged no later than 13 March 2004.
(i) On 16 September 2003, the Applicant requested a reconsideration of the Agency’s decision.
(j) On 7 October 2003, the Manager, Operations Services of the Agency came to a different view from the assessment team which conducted the review audit and determined that the Nursing Home was non-compliant with only four expected outcomes of the Accreditation Standards.
(k) The manager, Operations Services of the Agency nonetheless decided not to vary the period of accreditation, which will expire on 4 September 2004.
(l) On 14 October 2003, the Applicant applied to the Tribunal for review of the Manager’s decision.
scheme of the legislative principles
7. The Aged Care Act 1997 (“the Act”) provides for financial support to be given for the provision of aged care services through the payment of subsidies. The Commonwealth pays residential care subsidies and section 42-1 of the Act requires that services must be accredited in order to receive residential care subsidies. Chapter 4 of the Act sets out the responsibilities that approved providers must comply with to receive such Commonwealth funding (sections 53-1 to 68-6). The quality of the care that is to be provided to residents is set out at section 54-1 of the Act included amongst which is compliance with the accreditation standards made under the Act.
8. The accreditation standards are detailed in the Quality of Care Principles Schedule 2 and are the minimum standards against which the quality of care provided to the residents is assessed. The accreditation standards consist of 44 expected outcomes. The Accreditation Grant Principles 1999 (“the Principles”) set out the procedures to be followed by the Respondent for the accreditation of residential care services. Where the Respondent believes, on reasonable grounds, that there may be inter alia non-compliance with a standard, it may arrange for a review audit of the service (section 3.21). Review audits must be carried out by assessment teams consisting of registered quality assessors (sections 2.41 and 2.42). Following a review audit, the Respondent may decide to revoke the services accreditation, to vary the period of accreditation or to not revoke the accreditation (section 3.24).
9. By the decision, dated 7 October 2003, the Respondent confirmed, under section 3.24 of the Principles, the decision of 4 September 2003 that the Nursing Homes period of accreditation should expire on 4 September 2004.
principles relevant to evidence admissible on review by the administrative appeals tribunal
10. Section 43(1) of the Administrative Appeals Tribunal Act 1975 provides for review by the Tribunal:
“…
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…”
11. In considering whether a decision under review was the correct or preferable one, the Tribunal does so on the basis of the material before it (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419). The nature of such material may well depend upon whether the Tribunal is to decide the matter as at the date of the original decision or the date of the decision on review. If it be the former then the Tribunal may receive evidence of facts occurring after the date of the reviewable decision but only as such facts bear upon the factors which led the original decision-maker to make the decision at that time. That is, as expressed in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, the Tribunal can receive evidence of prospective developments which may throw light on the situation as at the date the decision was required to be made or, as noted in Surinakova v Minister for Immigration and Local Government and Ethnic Affairs (1991) 26 ALD 203 at 205, as showing that the probability of the subsequent event happening is one that could be taken into consideration.
12. If the Tribunal’s decision is to be one made at the date of its review then the Tribunal may receive evidence of facts occurring up to the time of its decision as they relate to or bear upon the issue that requires to be determined.
13. In the context of the present substantive application, the Tribunal is to decide whether the decision made to vary the accreditation period was the correct or preferable decision and if not whether the original accreditation period should or should not be varied in some other way or whether the accreditation of the Applicant should or should not be revoked.
14. The “general approach” of the Tribunal as propounded by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 is:
“…to regard the administrative decision making process as a continuum and to look upon the Tribunal’s function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the Tribunal considers the applicants entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision.”
15. This approach was confirmed by his Honour in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344. In Freeman (supra), the Court considered the cancellation of a pension and in that context the issue was whether, having regard to the facts proved before it, the decision to cancel was the correct or preferable one not whether there was an entitlement to a pension as at the date of the Tribunal’s decision. As was stated at 345:
“Regard must always be had to the nature of the decision which is under review. In Re Tiknaz [Re Tiknaz and Director General of Social Services (1981) 4 ALN 44], Re Easton [Re Easton and Repatriation Commission (1987) 6 AAR 558] and in McGourty’s case [McGourty v Repatriation Commission (1988) 9 AAR 87], the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the tribunal’s decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the tribunals decision.
…
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less then would be the jurisdiction of the tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit, which the tribunal should recognise when formulating its decision. However, if the tribunal comes to the view that the decision to cancel was the correct or preferable decision then no further matter remains for the tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim…
…
However, the nature of a cancellation of the pension is different in substance and effect from that of suspension. A decision suspending a pension has an ongoing effect and the suspension may be terminated at any appropriate time. It may be well within the ambit of the tribunal’s decision to terminate a suspension if the facts before the tribunal showed that the pension or benefit ought to have been suspended only up to a particular date. A decision cancelling a pension does not have ongoing effect in that way. A decision cancelling a pension or benefit brings to an end the entitlement to a pension or benefit. Entitlement to the pension or benefit only revives on the lodging of a proper claim for the grant of the pension or benefit.”
16. In the present case the variation of the accreditation period is not in the nature of a cancellation or revocation. Revocation is available as an alternative to variation or non-revocation. A decision to vary "“has an ongoing effect” and the variation may be terminated or again varied or revoked at any appropriate time (section 3.21, 3.23, 3.24 of the Principles).
17. As was noted in Re Confidential and Industry Research and Development Board (2000) 59 ALD 232 at 235, the Federal Court in Comptroller General of Customs v Akai (1994) 50 FCR 511 at 421 said:
“The tribunal is an administrative tribunal and as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be…In exercising its role, … the tribunal within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of the decision…
It is true that the review to be conducted by the tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the tribunal will be limited to deciding the question by reference to that point of time. … Ordinarily … the Tribunal will not be limited to the evidence before the decision-maker although obliged to address the question the decision-maker addressed.”
18. The distinction to be drawn between registration and cancellation decisions and, as may be, variation of accreditation decisions and revocation of accreditation decisions has been considered by the Tribunal (see Re Webb and Tax Agents Board of Queensland (1992) 28 ALD 464; Re Harts Pty Ltd and Tax Agents Board of Queensland (1997) 97 ATC 2148; Re Birdseye and Companies Auditors and Liquidators Disciplinary Board anor (2001) 65 ALD 281 and Griffiths and Migration Agents Registration Authority [2001] AATA 240. In Griffiths at paragraph 39 the relevant principles, with which, with respect I agree, were stated as:
“39… Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made. Where the decision under consideration relates to an entitlement (be it a pension or registration), the Tribunal may consider whether that entitlement exists at any time up to the date of the hearing.
40. In both cases, regard may be had to all relevant evidence to determine the facts that are relevant in reviewing the particular decision…”
19. And further in Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248 at paragraph 201:
“…The distinction between revocation (or cancellation) decisions and decisions refusing approval in the first place has been considered in a number of cases … The essence of that distinction in the context of the case we must consider is that, should we come to the view that the decision to revoke either or both the approval and the allocation of places was the correct or preferable decision at the time it was made, that is the end of the matter. Unlike a decision to refuse approval or an allocation of places, we cannot consider ongoing entitlement and whether approval would have been given at any time up to the time at which a final decision is made…”
20. In the present case it may be a matter of equating a refusal to allocate places as in Riverside Nursing Care (supra) with a refusal to maintain an accreditation period, this in contrast to a cancellation or revocation of the accreditation itself.
characterisation of the reviewable decision
21. The Respondent contends that the evidence admissible on a review of the decision of 7 October 2003 is that which pertains to whether the variation of the accreditation date was the correct or preferable decision at the time it was made.. It is not, it is said, a matter of considering “ongoing entitlement” and whether “the original accreditation” would have been given [or restored] at any time up to the time at which a final decision is made (see Riverstone Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care (supra) at para 201).
22. The Applicant maintains to the contrary, that is by contending that the Tribunal is not confined to determining the Applicant’s accreditation period on the basis of evidence pertaining to the factual situation at the date on which the decision was made but on the basis of evidence available to it up to the date of its decision.
23. In light of the authorities earlier discussed, it is necessary for me to characterise the reviewable decision. Is such a decision in the nature of a cancellation, revocation or termination of a right or benefit earlier issued or conferred requiring consideration of the factual situation then existing and the then justification of cancellation, revocation or termination? Or is it something else, such as refusing a right or benefit that was being sought? What is the effect of the decision that was made? Has there in fact been a cancellation or revocation of a benefit, that is a cancellation or revocation of the accreditation to the year 2006 and then a granting of a benefit that is of accreditation to September 2004? Matters then pertaining to the cancellation would be those relevant to the state of affairs at 7 October 2003 and matters pertaining to the new accreditation would be those existent at the time of the decision. Is there then, within the meaning of section 3.24 of the Principles, a distinction to be drawn between a variation of the period of accreditation consistent with an administrative continuum (Freeman (supra) page 345), a variation of which can occur after any review audit (section 3.21 of the Principles), and a revocation that concludes the possibility of any further action or review?
24. In the latter case, the Applicant would have no entitlement to restoration of an accreditation or variation of an accreditation until it has lodged a further application for accreditation, whereas in the case of a variation the affect may not only relate to the period but also “further support contacts with the service” (section 3.233 of the Principles).
25. Use of the phrase “administrative continuum” as noted earlier in these reasons, as I see it, is intended to refer to a continuing relationship between an administrative body such as the Respondent and a beneficiary of a right, service or benefit such as the Applicant. The decision to vary an accreditation period is a decision open to the Respondent following a review audit. I have earlier noted this facility. It is also relevant to observe that the nature of a decision to vary an accreditation period is not concerned merely with a reappraisal of the factors which may be taken into account when determining whether to re-accredit a service and the duration of the accreditation period under section 2.27 of the Principles.
26. The latter observation well illustrates the “continuum” of the relevant relationship. In the event of a further review audit occurring, the powers conferred on the Respondent by section 3.24 of the Principles are enlivened and may again be exercised. It is only in the event of the accreditation being cancelled or revoked that entitlement to restoration of an earlier accreditation period or variation of an accreditation period is not available. Unlike the position in Riverside (supra) there is, in the present matter, an ongoing accreditation, which can be the subject of further favourable or adverse attention by the Respondent.
decision
27. Consistent with what has been stated above and an appreciation of the nature and effect of the relevant decision in the context of the principles, there remains a continuing relationship between the Applicant and the Respondent such as to preclude a finding that the variation to the period of the accreditation can be seen as “in the nature of a cancellation decision”. Revocation is the like of cancellation. Variation as in the present instance in my opinion is not.
28. Accordingly, the question to be determined by the Tribunal at the hearing of the substantive application is whether the decision of 7 October 2003 to vary the Applicant’s accreditation period was the correct or preferable decision having regard to all of the relevant evidence adduced before it up to the date of its decision. The Tribunal is not restricted in its consideration of the variation decision to the factual material pertaining to the time when the reviewable decision was made.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: A Krilis .......................................................................................
AssociateDate/s of Hearing 11 and 12 February 2004
Date of Decision 20 February 2004
Counsel for the Applicant Ms R Henderson
Solicitor for the Applicant Mr S Meigan
Counsel for the Respondent Ms K Eastman
Solicitor for the Respondent Mr A Field
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