Martindale ACF Pty Ltd and Chief Executive Officer, Australian Aged Care Quality Agency
[2017] AATA 2783
•21 December 2017
Martindale ACF Pty Ltd and Chief Executive Officer, Australian Aged Care Quality Agency [2017] AATA 2783 (21 December 2017)
Division:GENERAL DIVISION
File Number: 2017/4256
Re:Martindale ACF Pty Ltd
APPLICANT
AndChief Executive Officer, Australian Aged Care Quality Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President K Bean
Member I ThompsonDate:21 December 2017
Place:Adelaide
1.The material time for the Tribunal’s purposes is the time of or contemporaneous with the reviewable decision.
2.We propose to hear the parties further as to the precise date or timeframe by reference to which we are to make our decision.
………………………………………
Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE – Health – Aged care – Review by Administrative Appeals Tribunal of decision to revoke accreditation of nursing home – Tribunal’s task to determine what was the correct or preferable decision – Whether decision to revoke accreditation contains a temporal element – Point of time to which the Tribunal is to address itself – Relevance of evidence of matters that occurred after the date of the decision under review.
LEGISLATION
Australian Aged Care Quality Agency Act 2013, s 2.3, 2.7(3)(a)(ii), 53 and div 2
Administrative Appeals Tribunal Act 1975, ss 25, 43
Migration Act 1958, ss 303 and 306
Aged Care Act 1997, ss 65‑1, 65‑2, 85‑1
Quality Agency Principles 2013, ss 2.30, 2.35, 2.42, 2.43, 2.45, 2.66, 2.68, 2.70
Accreditation Grant Principles 1999Quality of Care Principles 2014, Sch 2, Accreditation Standards 1.1, 2.1, 3.1 and 4.1
CASES
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments (2004) 138 FCR 428
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
The Uniting Church in Australia Property Trust (Q) and Secretary, Department of Health and Ageing [2010] AATA 536
Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing [2009] AATA 840
Commissioner of Taxation v Salenger (1988) 19 FCR 378Griffiths and Migration Agents Registration Authority [2001] AATA 240
REASONS FOR DECISION
Deputy President K Bean
Member I Thompson21 December 2017
In these proceedings the applicant seeks review of the reconsideration decision by the respondent (the Agency) on 6 July 2017 to affirm a decision to revoke the applicant’s accreditation as an approved provider of aged care services at the Martindale Nursing Home at Gawler in South Australia. The reviewable decision fixed the revocation date at 4 August 2017.
The Agency’s reconsideration decision followed a review audit pursuant to s 2.42(1) of the Quality Agency Principles 2013 (the Quality Principles), the outcome of which was a determination by a delegate of the CEO revoking the accreditation of the service under s 2.42(1)(a)(i).
The reviewable decision referred to a significant level of failure to meet the expected outcomes of the Accreditation Standards at the Martindale Nursing Home and asserted that there was a serious risk to the safety, health and wellbeing of care recipients at that nursing home. The reviewable decision included a finding that only 14 out of 44 expected outcomes were met.
It is common ground that the applicant had operated the Martindale Nursing Home for several years prior to the reviewable decision. Notably, the Agency had conducted a reaccreditation audit in February 2017 when the home was assessed as meeting 44 out of the 44 Accreditation Standards. It was reaccredited for three years from May 2017 to May 2020. However, following a contact visit to the home, the Agency undertook a full review audit in May 2017 and advised the applicant, on 26 May 2017, that the home met only 14 out of 44 of the Accreditation Standards, and that it had determined to revoke the accreditation effective from 7 July 2017.
The applicant applied to the Agency in accordance with s 2.68 of the Quality Principles to reconsider its decision to revoke accreditation. That application was unsuccessful and the reviewable decision affirmed the decision to revoke the home’s accreditation, but changed the date of revocation to 4 August 2017.
The applicant has applied to the Tribunal to review the reviewable decision pursuant to s 2.70 of the Quality Principles. The applicant contends that the Agency did not make the correct or preferable decision. Numerous grounds in support of that contention are attached to the application for review. In brief, those grounds include criticism of the review audit process and its findings.
The matter was listed for hearing before the Tribunal for five days commencing on 31 October 2017. However, prior to the hearing, an issue arose in relation to the point in time at which the Tribunal is obliged to conduct its review of the reviewable decision. Both parties provided written submissions on that point and they addressed the issue orally in a hearing convened for that purpose on 31 October 2017. The balance of the hearing dates was vacated pending the determination of this preliminary issue, which has significant implications for the evidence which would be called by the parties.
For reasons we will go on to explain, further written submissions directed to this issue were provided subsequently, and a further preliminary hearing was also held on 15 December 2017.
THE LEGAL CONTEXT
The statutory framework
Section 53 of the Australian Aged Care Quality Agency Act 2013 (the Act) empowers the Minister to make the Quality Principles, by legislative instrument, which must be consistent with the Aged Care Act 1997 (the Aged Care Act).
The Quality Principles set out the framework for accreditation of residential care services and certain other care services. The accreditation processes include assessments and reaccreditations. Various forms of audits provide the mechanism for assessments which lead to decisions by the CEO of the Agency regarding accreditation, revocation, and reaccreditation. The Quality Principles provide for monitoring and review of accredited services.
The Quality Principles also provide for site audits and review audits. In addition, assessment contacts are permitted to enable the Agency to assess ongoing compliance and continuous improvement in relation to a service and to identify whether there is a need for a review audit, among other functions (s 2.30). The CEO of the Agency is empowered by s 2.35 of the Quality Principles to arrange for a review audit of an accredited service if certain criteria are met. One of them is consideration by the CEO on reasonable grounds that the approved provider of the service may not be complying with the Accreditation Standards or other responsibilities under the Aged Care Act in relation to the service (s 2.35(1)(a)).
The CEO of the Agency must comply with certain criteria in making a decision following a review audit. Those criteria are important to the current issue and they are set out in ss 2.42 and 2.43 of the Quality Principles, as follows:
2.42 CEO must make decision about accreditation of service after receiving review audit report
(1)Within 14 days after receiving a review audit report about an accredited service, the CEO of the Quality Agency must:
(a) decide:
(i) to revoke the accreditation of the service from a specified date; or
(ii) not to revoke the accreditation of the service; and
(b)if the CEO decides not to revoke the service’s accreditation—decide whether to vary the period for which the service is accredited.
(2) In making the decisions mentioned in subsection (1), the CEO:
(a) must take into account:
(i) the review audit report; and
(ii)any response given to the CEO by the approved provider under subsection 2.40(2); and
(iii)any relevant information given to the CEO, or to the assessment team that conducted the review audit, by a care recipient or former care recipient of the accredited service, or by a representative of a care recipient or former care recipient; and
(iv)any relevant information about the approved provider given to the CEO by the Secretary; and
(v)whether the CEO is satisfied that the approved provider will undertake continuous improvement in relation to the service, measured against the Accreditation Standards or Flexible Care Standards (as applicable), if the service’s accreditation is not revoked; and
(b) may take into account any other relevant matter.
(3)The CEO must record, in writing, the decisions made under subsection (1) and the reasons for the decisions.
2.43 Decision to revoke accreditation of service
(1)If the CEO of the Quality Agency decides under subparagraph 2.42(1)(a)(i) to revoke the accreditation of an accredited service, the CEO must decide:
(a)whether there are any areas in which improvements in relation to the service would be necessary to ensure that the Accreditation Standards or Flexible Care Standards (as applicable) are complied with; and
(b)the arrangements for assessment contacts with the approved provider of the service.
(2)The CEO must record, in writing, the decision about the matters mentioned in subsection (1).
Where a decision has been made to revoke accreditation, the CEO is also required by s 2.45 to notify the approved provider of the service in writing of the decision to revoke accreditation. The notification must include reasons for the decision, the date the revocation is to take effect, areas in which improvements would be necessary for compliance with the Accreditation Standards, arrangements for further assessment contacts and, finally, the way in which the approved provider may apply for reconsideration of the decision. The CEO must comply with s 2.45 within 14 days after receiving the review audit report.
The CEO of the Agency may reconsider a decision to revoke the accreditation of a service (s 2.66 of the Quality Principles). Reconsideration of a decision to revoke accreditation may be requested by the approved provider of the service and in that event the CEO must reconsider the decision in accordance with s 2.68 of the Quality Principles, which provides relevantly as follows:
2.68CEO must reconsider decision on request by relevant person
(1)If a request for reconsideration of a decision is made by a relevant person for the decision in accordance with section 2.67, the CEO of the Quality Agency must:
(a) reconsider the decision; and
(b) do one of the following:
(i) confirm the decision;
(ii) vary the decision;
(iii) set the decision aside and substitute a new decision.
The CEO must notify the approved provider of the service of the reconsideration decision in writing. A reconsideration decision to revoke the accreditation of an accredited service must be notified in writing to the relevant person within 56 days after the CEO received a request for reconsideration (s 2.68(2)(a)).
Section 2.70 of the Quality Principles allows for applications to this Tribunal for review of decisions of the CEO of the Agency under s 2.68(1), which includes a decision to revoke the accreditation of an accredited service.
Relevant cases
The leading case in relation to the issue currently before us is the High Court decision in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi).
Shi involved a review by the Administrative Appeals Tribunal of a decision by the Migration Agents Registration Authority to cancel the registration of a migration agent. The High Court held that the Tribunal could take into account facts and circumstances at the time of its review, noting that the relevant sections of the Migration Act 1958 (the Migration Act) applied to general characteristics which might change over time as opposed to the state of evidence at a particular time.
The joint judgment of Hayne and Heydon JJ in Shi emphasised the need to focus on the language of the applicable statutes. In that case the intersecting operation of s 25 and s 43 of the Administrative Appeals Tribunal Act (the AAT Act) had to be considered in relation to ss 303 and 306 of the Migration Act. Their Honours observed that it has been long established that:
The question for the determination of the Tribunal is not whether the decision which the decision‑maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.[1]
[1] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 314, [98] (emphasis in original).
Their Honours also stated:
Once it is accepted that the Tribunal is not confined to the record before the primary decision‑maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision‑maker to act; there is nothing in the AAT Act which would provide such a limitation.[2]
[2] Ibid 315, [99].
Their Honours concluded that the provisions of the Migration Act did not fix a particular time as the point which was critical to assess the migration agent’s fitness to undertake the task of immigration assistance. They continued:
Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element.[3]
[3] Ibid 315, [101] (citation omitted).
In her judgment, Kiefel J, with whom Crennan J agreed, referred to the time issue and observed:
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision‑maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[4]
[4] Ibid 328, [143] (citation omitted).
Kirby J stated that the Tribunal is not “ordinarily confined”[5] to material which the primary decision‑maker was considering, or events prior to the time of that decision. His Honour noted, however, that there are exceptions to the general approach, namely that:
the particular nature of the “decision” in question may sometimes, exceptionally, confine the Tribunal’s attention to the state of the evidence as at a particular time.[6]
[5] Ibid 300, [43].
[6] Ibid 301, [46] (citations omitted).
Another decision which is highly relevant for our purposes is the decision of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments (2004) 138 FCR 428 (Kenna). Kenna was a case that involved a decision to vary the accreditation period of an aged care service. The earlier legislative regime, which applied at the time of that decision, has features which have been retained under the current regime through the Quality Principles. While the features are not identical, the decision‑making process was similar to the process in this case.
In Kenna the Federal Court stated that “[a]n important aspect of a decision made under s 3.24 of the Principles is that it is a decision that must be made within 14 days of the accreditation body receiving the review audit report”.[7] A similar requirement exists under the current legislation.
[7] Aged Care Standards and Accreditation Agency Ltd v Kenna Investments (2004) 138 FCR 428, 435, [27].
The Federal Court in Kenna also referred to the timing of the decision as follows:
A further important aspect of a decision made under s 3.24 of the Principles is that it is a decision that can only be made following a review audit. The accreditation body has no general power under s 3.24 to revoke or vary a period of accreditation.[8]
The same consideration applies under the current legislation.
[8] Ibid 436, [28].
The Federal Court in Kenna referred to the function of the Tribunal as follows:
The function that the Tribunal undertakes on review of a decision under s 3.24 is not … part of an administrative continuum in the sense that the function undertaken by the Tribunal when reviewing a decision that a person does not have an ongoing entitlement to a pension, or benefit may be part of an administrative continuum (see Freeman v Secretary, Department of Social Security at 345). A decision under s 3.24 may only be made in the circumstances identified in Pt 3 of Div 3 of the Principles. These circumstances include that the accreditation body, believing on reasonable grounds that there may not be compliance with standards or responsibilities, has arranged a review audit and has received the review audit report. … the decision of the accreditation body must be made within fourteen days of the end of the above process.[9]
Similar considerations apply in the present case.
[9] Ibid, [29].
In Kenna, the Federal Court decided that the Tribunal should determine the review “on the basis that the Tribunal is restricted to consideration of factual material pertaining to the time within which the variation decision was required to be made”.[10] The Federal Court also observed as follows:
This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal’s decision, that evidence must … bear on the merits of the decision as at the time that it was required to be made”.[11]
[10] Ibid 437, [33].
[11] Ibid 436‑437, [31].
THE INITIAL POSITIONS OF THE PARTIES
As we have indicated, the preliminary issue which the Tribunal must decide is the point in time by reference to which the Tribunal must make its decision.
The applicant contends that the Tribunal must address itself to the situation at the time of the Tribunal’s decision rather than the time of the Agency’s decision. Conversely, the Agency contends that in the conduct of its review the Tribunal must address itself to the situation at the time of the Agency’s decision rather than the time of the Tribunal’s decision. Both parties initially presented a written outline of their submissions and they elaborated on these at the hearing on 31 October 2017.
In its initial written outline of submissions, the applicant contended that the Tribunal may take into account factual material that relates to the period subsequent to the reviewable decision, including material evidencing improvements in the practice and procedure of the service provider measured against the Quality Principles. By examining the interrelationship between the aged care legislation and the AAT Act, the applicant contended that the reconsideration decision‑maker and the Tribunal should each make their decision by reference to the circumstances which pertain at the time of their decision. Otherwise the review would bear more resemblance to a judicial review rather than a merits review which, in general, should not be limited to a moment in time.
In its initial outline of submissions, the Agency contended that the legislative regime which the Federal Court considered in Kenna was similar to the legislative regime under consideration by this Tribunal. The Agency submitted that:
the Tribunal must follow the decision in Kenna and hold that it is not open to an approved provider to seek to undermine the significance of the findings of the review audit report by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit.
The Agency contended that the reasoning in Kenna was not overruled by the decision of the High Court in Shi, with which it was consistent:
On the contrary, the Court in Kenna approached the issues for determination in precisely the same way as the High Court in Shi: as a matter of statutory construction, recognising that the question was one to be answered by characterising the nature of the decision under review and asking whether it involved a temporal limitation that tied it to a particular point in time.
In accordance with the doctrine of precedent, the Agency contended that the Tribunal is bound by the Federal Court decision in Kenna.
For its part, the applicant submitted that the Tribunal is not bound to follow the reasoning in Kenna, which was decided before the High Court decision in Shi. The applicant contended that Kenna is distinguishable from the present case because the Federal Court in Kenna did not examine the interrelationship between the relevant legislation as required by the High Court in Shi.
The applicant also made reference to the decision of the Administrative Appeals Tribunal in The Uniting Church in Australia Property Trust (Q) and Secretary, Department of Health and Ageing [2010] AATA 536 (The Uniting Church). That case involved a consideration of responsibilities which approved providers have under the Aged Care Act and the previous legislative regime for accreditation and compliance with the Quality of Care Principles 1977 (the Quality of Care Principles). The respondent in that matter, the Secretary, Department of Health and Ageing, conceded that the Federal Court decision in Kenna was no longer to be regarded as good law in cases such as the one under consideration, because of the decision in Shi. The Tribunal stated:
In light of that concession it seems to me that it is enough to say that evidence of events subsequent to the date of the decision may, (but not must), be considered as being demonstrative of the extent or otherwise of shortcomings on the day of the decision.[12]
We note the Agency in the present case is not bound by the concession made by the respondent in The Uniting Church decision.
[12] The Uniting Church in Australia Property Trust (Q) and Secretary, Department of Health and Ageing [2010] AATA 536, [44].
Having regard to the submissions of the parties, the first question for us is whether we are in fact bound to follow the Federal Court’s decision in Kenna, with the result that it is not open to or necessary for us to form our own view on the ‘material time’ issue.
IS THE TRIBUNAL BOUND TO FOLLOW KENNA?
Having carefully considered this issue, we acknowledge it is a finely balanced question. There are strong similarities between the legislative regime under consideration in Kenna and that under consideration by us. We also accept that Shi did not in any way overrule the decision in Kenna, and the parties in Shi appear to have accepted that Kenna was correctly decided.[13]
[13] Shi v Migration Agents Registration Authority [2007] HCA Trans 601 (5 October 2007), 5.
On the other hand however, the statutory framework in Kenna was not identical with that of concern to us, and the general legal context in which Kenna was decided was fundamentally changed by Shi. We note this is evident from Branson J’s prescient observations to the effect that limited assistance was gained from seeking to categorise the decision as either a cancellation or revocation decision on the one hand, or an approval or entitlement decision on the other. As we understand it, that was a reference to a paradigm then approved by the relevant authorities,[14] but which was subsequently disapproved by Shi. Arguably, that process of reasoning was only made necessary by the fact that the decision under consideration did not fit neatly into either of the then relevant categories.
[14] See for example, Griffiths and Migration Agents Registration Authority [2001] AATA 240, [39].
In addition, we note there are aspects of the reasoning in Kenna which do not sit altogether comfortably with Shi. In particular, Branson J placed considerable emphasis on the fact that a decision with respect to accreditation was required to be made within 14 days of the review audit, which in her view gave a degree of primacy to the review audit report and suggested it was not the intention of the legislative scheme that this be undermined by “factual material remote in time from the review audit report”.[15] On our analysis of it, we see little in the Shi decision which supports this approach to the question of the material time for the Tribunal’s purposes. On our reading, Shi requires attention to be given to a variety of factors including the substantive nature of the decision under review, the extent to which it involves a “temporal element” and the practical implications of adopting an earlier point in time as the relevant time. For example, the Court in Shi made reference to the awkwardness which would result if the Tribunal could not have regard to later events in determining whether a migration agent was a “fit and proper person”, citing the example of an agent having committed a criminal offence subsequent to the decision under review.[16]
[15] Kenna 436, [30].
[16] Shi 302, [49].
We see little reference to considerations of this kind in the Kenna decision, despite their obvious apparent relevance viewed from the perspective of Shi. For example if Kenna had been decided after Shi, we would expect it to have included more discussion of the extent to which the decision under review involved a temporal element, and the extent to which the statutory framework differed from that under consideration in Shi. We would also have expected to see some discussion of the practical implications of adopting an earlier time as the material time, such as for example the possibility of subsidies to nursing home residents being withdrawn notwithstanding non-compliances having been remedied soon after the date of the decision under review.
We should add that we have not overlooked the submission made by the Agency, to the effect that it is not open to us to depart from Kenna, unless and until it has been expressly overruled by a court, and we acknowledge the aspect of the doctrine of precedent on which this submission is based.[17] However, as we have already noted, the High Court’s decision in Shi fundamentally changed the approach required to be taken by the Tribunal to assessing the material it is permitted to take into account in reviewing a given decision. In circumstances where such a fundamental change to the law is effected by a decision of the High Court, we have reservations as to the soundness of the proposition advanced by the respondent. Given the perverse consequences which would potentially flow from it, we are not persuaded it would be appropriate for us to take that approach here.
[17] Commissioner of Taxation v Salenger (1988) 19 FCR 378, 387.
For these reasons, we have ultimately concluded that we are not strictly bound to apply Kenna, although we accept the decision is relevant to the task before us and we should have regard to it, to the extent it is consistent with Shi.
That then leaves the question of what the material time is for our purposes, having regard to the approach to determining this question outlined by the High Court in Shi.
WHAT IS THE MATERIAL TIME FOR THE PURPOSES OF THE TRIBUNAL’S REVIEW?
Before continuing, we should explain that having reached the above conclusion, we communicated this to the parties and gave the respondent an opportunity to make further submissions as to what conclusion we should reach as to the material time on the basis we were not bound to follow Kenna. Both parties subsequently provided further written submissions, and also made further oral submissions at a hearing convened for that purpose on 15 December 2017.
Contentions
In this context, the applicant relied heavily on the decision of the Tribunal in Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing [2009] AATA 840 (Kirralee), in which the Tribunal reviewed a decision of the Secretary to impose sanctions under s 65-1 of the Aged Care Act. Kirralee was decided after the High Court’s decision in Shi.
Ultimately, the Tribunal in Kirralee had to consider one sanction only, which was a restriction of the approved providers’ bed quota by 13. The applicant service provider in that case submitted that the relevant date for determination was the day on which the reconsideration occurred or the date the Tribunal determined the case. The respondent submitted that the question for the Tribunal was whether the imposition of sanctions was appropriate having regard to non-compliance at or before the time the sanction was imposed. The Tribunal considered the judgments in Shi. In the absence of a legislative imperative to do so, the Tribunal considered that it should follow the practice of taking all of the circumstances into account which are relevant as at the date of its determination. However, the Tribunal accepted that a temporal limitation may arise “by necessary implication having regard to the terms of an Act”.[18]
[18] Kirralee, [22].
In Kirralee the Tribunal was required to consider s 85-1 of the Aged Care Act which it found did not suggest that a temporal limitation was required. Furthermore, in consideration of s 65-2 of the Aged Care Act, the Tribunal did not accept that a temporal limitation would arise.
We note that s 65-1 of the Aged Care Act concerns the imposition of sanctions by the Secretary if the circumstances in that section are met. Section 65-2 requires the Secretary to consider specified matters in deciding whether it is appropriate to impose sanctions on an approved provider for non‑compliance with its responsibilities. Addressing the practicalities of the matter before it, the Tribunal observed in relation to the imposition of sanctions as follows:
If, by the time a decision is reconsidered or the Tribunal gives a determination after review, compliance has occurred and especially where, as in this case, compliance has been sustained over a reasonable period of time, and the facts themselves do not suggest a long-established pattern of systemic breaches, then there is little point in imposing a sanction. Where compliance has improved, but is still requiring more attention, different considerations may apply. Each such case will turn on its own facts.[19]
[19] Ibid, [31].
In our view, the facts of this case are not similar to the facts in Kirralee. This review does not deal with sanctions.
In addition to relying on Kirralee, the applicant contended that:
The objects of the Aged Care Act 1997 include … the protection of the health and well‑being of the recipients of aged care services. It is contrary to such an object as well as contrary to common sense to suggest (as the Respondent now suggests) that vulnerable people who are the recipients of aged care services should be subjected to the disruption, trauma and indignity of being “decanted” because a decision in May to revoke accreditation should only be reviewable by reference to temporally anchored evidence even if the evidence available to the Tribunal at the time of its decision might reveal a position which made being “decanted” unnecessary.[20]
[20] Applicant’s further submissions dated 12 December 2017, [13] (emphasis in original).
In his oral submissions on behalf of the applicant, Mr Harris QC also placed reliance upon the language of continuous improvement used in the Act and the Accreditation Standards. He submitted that it would be at odds with the ethos of continuous improvement reflected in the Act and the Accreditation Standards for the Tribunal not to have regard to improvements made by the applicant in the context of determining whether the applicant’s accreditation should be revoked.[21] He also relied upon aspects of the Accreditation Standards which are expressed in the present tense, drawing an analogy with the provision under consideration in Shi. He further submitted that it would be perverse and undesirable if the Tribunal could not take account of information which suggested, for example, that the Accreditation Standards were met shortly after the relevant date.
[21] See for instance ss 2.3, 2.7(3)(a)(ii) and div 2 of the Act and Accreditation Standards 1.1, 2.1, 3.1 and 4.1 found in the Quality of Care Principles Sch 2.
In his further written and oral submission on this issue, Mr Rebikoff for the respondent contended that even if the Tribunal was not bound to follow Kenna, there were “a number of features of the legislative regime established by the Quality Principles that distinguish it from the regime considered in Shi, and suggest that it does contain a ‘temporal element’ that limits the Tribunal’s review to the circumstances existing as at the time of the Agency’s decision”.[22]
[22] Respondent’s further submissions dated 1 December 2017, [10].
The respondent pointed out that the power conferred by s 2.42 of the Quality Principles is a power to take action in response to, and because of, the findings of an audit which occurred at a particular point in time. The respondent contended that:
So much is apparent from the fact that a decision to revoke the accreditation of a service under s 2.42 of the Quality Principles:
(a)can only be taken following a review audit (it is not a general power which can be exercised at any time);
(b)must be made within 14 days following the review audit (it cannot be made at a time which may be distant from the review audit);
(c)must be made by reference to the findings of the review audit and information provided in response to those findings (it cannot be made without regard to those findings); and
(d)is expressly described by reference to the review audit in the heading of the relevant division (“Decision following review audit”) and section (“CEO must make decision about accreditation of service after receiving review audit”).[23]
[23] Ibid, [11].
Accordingly, the respondent contended that the question raised by the provision is inherently tied to a particular point in time.
In addition, the respondent contended that “it would profoundly change the character of the question to be addressed by the Tribunal under the relevant provisions of the Quality Principles if the Tribunal were to conduct its review by reference to the circumstances existing at the time of its decision rather than the time of the review audit”.[24] In those circumstances, the respondent contended, the Tribunal would not be addressing the same question as the Agency.
[24] Ibid, [13].
The respondent further contended that it was consistent with the purpose of the legislative regime under the Quality Principles to construe the relevant provisions as being subject to a temporal limitation of the kind contended for. The respondent also pointed to the narrow timeframes allowed under the Quality Principles for response to a review audit and for a decision to be made in response to a review audit, and submitted that “it would undermine the highly prescriptive nature of that regime if the Tribunal were to base its decision on factual material which was not connected with that process and had not been the subject of the same detailed and intensive review”.[25]
[25] Respondent’s further submissions dated 1 December 2017, [16].
Analysis
Noting the statutory context, the relevant provisions of the legislation and the authorities which have been referred to, we consider that the review of the decision of the respondent under s 2.68(1) of the Quality Principles, confirming the decision of a delegate under s 2.42 of the Quality Principles, is a decision that involves a temporal limitation that ties it to a point in time. We draw that conclusion through our characterisation of the nature of the decision under review. That is a decision as to whether a criterion was met or not met at a particular point in time. In particular, the decision in question is whether, in light of a review audit report, the accreditation of the provider should be revoked or the period of accreditation should be varied.
Having regard to the broader context, we acknowledge that there might be seen to be some significant advantages associated with taking the approach urged on us by the applicant. In particular, this would allow the Tribunal to have regard to steps taken after the reviewable decision to remedy non‑compliances, the extent to which the service was now compliant and, if applicable, how long it had been compliant for as at the date of the Tribunal hearing. On one view, it would be preferable for the Tribunal to have regard to those matters prior to potentially revoking the accreditation of a service. That would avoid a scenario whereby the Tribunal may make a decision revoking accreditation in circumstances where the non‑compliances found to exist at the time of the review audit had been remedied soon after the reviewable decision, and the service had had an impeccable compliance record since then. It might be thought that it would not serve the interests of the residents or the broader public for accreditation to potentially be revoked in those circumstances, by reference to its past compliance record.
After careful consideration however, we have nevertheless concluded that this is not the approach contemplated by the statutory framework.
We accept the Agency’s submission that the statutory framework makes the content of the review audit central to a decision of the kind before us. It is also important to note that the function of the Tribunal in this review does not include the acquisition of all of the powers of the Agency. The Tribunal acquires only those powers necessary to review the Agency’s decision. Similarly, in Shi, the function of the Tribunal relating to one of the issues before it under the Migration Act was discussed by Kiefel J in this way:
The Authority’s decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority’s disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct”.[26]
[26] Shi, [147].
We do not have powers that would allow us to undertake an investigation equivalent to the review audit by reference to a later point in time, and nor is it our function to do so. In our view, this tends to support the proposition that we are required to make our decision by reference to the same point in time addressed by the review audit and the reviewable decision, albeit we can have regard to additional material not available to the reviewable decision‑maker. That is consistent with the proposition that our function is to review the decision made by the respondent rather than to make a quite different decision directed to a different point in time. Our role is to provide merits review of the decision in question, rather than an alternative mechanism for evaluating ongoing compliance by the applicant, external to the Agency given that task under the statutory framework.
It is clear from ss 2.43 and 2.45 that the intention of the Quality Principles is that where accreditation is revoked, the provider is advised of the areas in which improvements are required, and given an opportunity to address these, in part through further assessment contacts, which are clearly contemplated notwithstanding revocation of accreditation. In our view, where a provider was seriously non‑compliant at the time of revocation but subsequently remedies those non‑compliances with a view to becoming accredited once again, the remedy for that provider is to seek reaccreditation based on their improved compliance performance. Having regard to the statutory scheme, it would be inappropriate and is not intended in our view that the Tribunal engage in a process of determining whether a service should be reaccredited based on its current and recent compliance, under the guise of reviewing a decision to revoke accreditation. We accept the Agency’s submission that where a provider falls below the minimum standard, in effect the statutory scheme shifts the cost of continuing to operate pending any reaccreditation onto the provider. As the Agency has pointed out, this greatly increases the incentive for a provider to ensure they comply with the Accreditation Standards.
We also note that ordinarily our decision will take effect on the same date as the reviewable decision.[27] It would be an odd result in our view if we were to effectively reinstate the accreditation of the applicant from the date of revocation, based on its current and recent compliance rather than compliance as at the date of revocation.
[27] The AAT Act, s 43(6).
As we have indicated, in our view the Tribunal’s role within this statutory scheme is a specific and narrowly defined one. That function is to provide merits review to a service in circumstances where the service contends the decision to revoke was not the correct or preferable decision. The Tribunal’s role is not to conduct an investigation into the question of whether, despite a justified decision to revoke accreditation, the service should now be reaccredited based on its subsequent compliance performance. Once that conclusion is reached, it becomes apparent in our view that our decision must be made by reference to a date close in time to the date of the reviewable decision.
CONCLUSION
For these reasons we conclude that the task before us is to determine whether as at the time contemporaneous with the reviewable decision, the preferable decision was to revoke the accreditation of the service, or vary the period for which it was accredited. We note the parties have not addressed the question of what precisely the material date is. On our analysis, the possibilities are the date of the original revocation decision or the time within which that was required to be made, or the date of the reviewable decision or the time within which that was required to be made. We will invite the parties to address us further on this issue.
DECISION
The material time for the Tribunal’s purposes is the time of or contemporaneous with the reviewable decision.
We propose to hear the parties further as to the precise date by reference to which we are to make our decision.
I certify that the preceding 67 (sixty‑seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Member I Thompson
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Associate
Dated: 21 December 2017
Date(s) of hearing: 31 October 2017 and 15 December 2017 Date final submissions received: 12 December 2017 Counsel for the Applicant: Mr A Harris QC Solicitors for the Applicant: Ms E McGettigan
O'Loughlins LawyersCounsel for the Respondent: Mr S Rebikoff Solicitors for the Respondent: Mr K Maat
Australian Government Solicitor
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