Nl v Director-General Department of Community Services

[2009] NSWADT 227

CITATION:	NL v Director-General Department of Community Services [2009] NSWADT 227
DIVISION:	Community Services Division
PARTIES:	APPLICANT NL RESPONDENT Director-General Department of Community Services
FILE NUMBER:	094020
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	16 July 2009
DATE OF DECISION:	2 September 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Jurisdiction - no internal review
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Appeals and Monitoring) Act 1993 Children and Young Persons (Care and Protection) Act 1998
REPRESENTATION:	APPLICANT In person RESPONDENT D Wells, solicitor
ORDERS:	1.Providing the applicant applies in writing to the Director-General, Department of Community Services, for an internal review of the subject decision within seven days of the date of these orders the Tribunal will deal with the application for review lodged by the applicant on 25 May 2009. 2.If the applicant does not apply for internal review within seven days, the application for review lodged by the applicant on 25 May 2009 will be dismissed. 3.If the applicant applies for internal review within seven days the matter is to be listed for directions at a date, to be fixed by the Registrar, but not earlier than 28 days of the date of these reasons. If the internal review decision is provided earlier than 28 days from the date of these orders either party may apply to have the matter listed at an earlier date.

REASONS FOR DECISION

1 In March of this year, two children were removed from the care of the applicant and her husband. The applicant and her husband are authorised carers. Life Without Barriers is a designated agency responsible for supervising the placement of the children with the applicants.

2 The children had been in the care of the applicants for about two years. The trigger for their removal was because they had been left with the applicant’s brother, while the applicant, her husband and their teenage children went on a short overseas trip. The applicant’s brother is not an authorised carer. When officers of the Department of Community Services learned of this, the children were removed from the care of the applicant’s brother and placed with an authorised carer.

3 According to the applicant, on returning from overseas in late March, she made numerous enquiries of both DoCS and LWB in an effort to find out about the children and whether they would be returned. She claimed she was given little information. On her account she expected that the children would eventually be returned to her care.

4 In early May 2009, the applicant learnt through the children’s then current carer that she had been asked to provide long-term care to the children.

5 On 25 May 2009 the applicant applied to the Tribunal for review of the decision to remove the children. A month later she made an application for a stay of that decision. The Director-General contends that the Tribunal is without jurisdiction to review or stay the decision to remove the children, as the applicant has not applied for an internal review. These reasons address this jurisdictional issue.

Basis of Tribunal’s jurisdiction

6 To understand the parties’ submissions it is necessary to set out the statutory provisions that give the Tribunal power to review a decision to remove a child from an authorised carer.

7 Section 36(1)(b) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides that this Tribunal may review ‘reviewable decisions’. A ‘reviewable decision’ is defined in s 8 of the Tribunal Act to mean ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review’.

8 The relevant enactment in this case is the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act). Section 28(1)(a) of that Act provides that a person may apply to the Tribunal for review of a decision made under section 245 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act). Section 245 provides:

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:
…
(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

9 It is common ground that the decision to remove the children falls within the scope of paragraph (c). It would appear that the relevant decision-maker is the Director-General of the Department of Community Services. While not raised by either party it may be that the relevant decision-maker is the Minister who has parental responsibility for the subject children following orders made by the Children’s Court. For the purpose of these reasons is not necessary to determine whether the relevant decision-maker is the Director-General or the Minister.

Compliance with s 55 of the Tribunal Act

10 Section 53 of the Tribunal Act provides that where an administrator makes a reviewable decision, an interested person may apply for an internal review of that decision. The application for an internal review must be in writing (s 52(2)(a)). Where, as in this case, written reasons have not been requested the application for internal review must be made within 28 days (or such later date as the administrator may allow) after the person was notified of the making of the reviewable decision (s 53(2)(d)(ii)).

11 Section 55(1) of the Tribunal Act provides that a person may make an application to the Tribunal for review of a reviewable decision only if:

…

(b) where the person was entitled to seek an internal review of the decision—the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and
…

12 Where, as in this case, the administrator has not been requested to provide written reasons or conduct an internal review, the application to the Tribunal for review must be made within 28 days after the day on which the applicant was notified of the making of the reviewable decision: s 55(2)(b)(ii).

Failure to apply for internal review

13 The applicant contends that she was not told that she had a right of internal review. The Director-General disagrees. To resolve this factual dispute it is necessary to sketch in some background facts.

14 On 25 May 2009, the applicant lodged an application with the Tribunal for review of the decision to remove the children. At a directions hearing on 28 May 2009, Ms Harvey, solicitor for the Director-General, pointed out that three months had lapsed since the children were removed and yet an application for internal review had not been made. For this reason, she explained, the Director-General opposed the Tribunal dealing with the application for review.

15 At that hearing the applicant was directed to apply for an internal review. The applicant undertook to do so. Ms Harvey provided the applicant with her contact details and on receipt of the application agreed to forward it to the appropriate officer within the Department. Ms Harvey indicated that once the internal review had been conducted the Director-General would not object to the review proceeding, notwithstanding that the application to the Tribunal predated the application for internal review.

16 The matter was listed for further directions on 16 July 2009.

17 On 23 June 2009, the applicant filed an application for a stay of the decision to remove the children. At the hearing on 29 June 2009 the Director-General objected to the Tribunal dealing with the application on the basis that the applicant had not taken steps to request an internal review as directed.

18 The applicant told the Tribunal that she had been told by the ‘DoCS complaint line’ that as the matter was ‘with the ADT’ no decision could be made ‘about the internal review’. She said she understood from the last directions hearing that Ms Harvey was to contact her, not vice versa.

19 In the course of that hearing, at the request of the Tribunal, Mr Wells representing the Director-General, made inquiries about the advice the applicant had been given by the Department’s Complaints Unit. Mr Wells gave this report of what he was told by the officer who had dealt with the applicant:

The applicant had contacted the Unit on two occasions—in April and June 2009.

On the first occasion he tried to return her call without success.

On the second occasion, 22 June 2009, he spoke with the applicant who advised that she worked for LWB. She outlined the circumstances surrounding the removal of the children.

He advised her to speak with LWB and, as according to her it was not before the Tribunal, she could seek an internal review and, if unhappy with that decision, make an application to the Tribunal.

20 The applicant challenged that account.

21 Directions were made giving the applicant an opportunity to provide her version of events about the steps she took after the last directions hearing to apply for the internal review. The respondent was given an opportunity to reply.

22 On 3 July 2009 the applicant filed with the Tribunal a three page statutory declaration setting out the background to the removal of the children; her concerns about the conduct of the investigation by the DoCS and various other matters. She did not provide any information about steps she took after the first directions hearing to request an internal review.

23 The Department filed written submissions on 15 July 2009. Attached to those submissions was a copy of an email to Mr Wells from the Complaints unit officer, referred to above, dated 30 June 2009 detailing the Unit’s dealings with the applicant. That account is broadly consistent with that conveyed by Mr Wells at the 29 June 2009 hearing. The officer gave this account of his conversation with the applicant on 22 June:

She initially stated that she had applied to the ADT but later retracted this and said she was ‘thinking’ of doing so.

She said she learnt of the [final] decision through the children’s carer and had received nothing in writing from the DoCS or LWB.

He informed her that the above did not constitute ‘formal notification’ and that LWB would need to seek this on her behalf—‘I emphasised this because as she was a carer with LWB, their LWB caseworker and manager were responsible for pursuing this on her behalf’.

He also advised the applicant that she can:
i. ask LWB to ensure they receive written reasons for the Department’s alleged decision not to return the children;
ii ask LWB to request an internal review;
iii. if dissatisfied with that decision she or LWB can apply to the ADT.

Findings and conclusions

24 The uncontradicted evidence is that the applicant has never been given written notice that she had a right of internal review. She was advised at the second hearing she could make that application.

25 I do not accept the applicant’s claim that on 28 May 2009 the Complaints Unit told the applicant that an internal review could not proceed as the matter was ‘before the ADT’. She made no mention of that claim in her statutory declaration and it directly contradicts the account given by the Complaints Unit officer. His uncontradicted account is that he had been told that the matter was not before the ADT and his advice was based on that assumption. The applicant has not in my view provided a satisfactory explanation as to why she did not make an application for internal review after being directed to do so.

26 While I accept the account given by the officer, in my view the advice he provided to the applicant was not entirely accurate—even if accepted that he had been told that the matter was not ‘before the ADT’. I will return to consider this issue.

Should the Tribunal deal with the application for review?

27 Section 55(3) of the Tribunal Act provides that the Tribunal may deal with an application for the review of a reviewable decision even though the applicant has not applied for an internal review if the Tribunal is satisfied that:

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the reviewable decision of the administrator concerned.

28 Necessary to protect the applicant’s interests The applicant has an interest in the decision to remove the children having been their carer for over two years. In the event that the Tribunal does not deal with the application she will have lost the opportunity to have the subject decision reviewed. For that reason I am satisfied that it is necessary for the Tribunal to deal with the application to protect the applicant’s interests.

29 Application to the Tribunal made within a reasonable time Section 55(4) of the Tribunal Act provides that in determining whether an application to the Tribunal was made within ‘a reasonable time’ for the purposes of s 55 (3), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and
(b) …
(c) such other matters as it considers relevant.

30 When applicant became aware of the making of the decision From the information provided, it would seem that the Director-General made two separate but related decisions, each of which fall within the scope of s 253(1) of the Care and Protection Act. The first was made in March 2009, when it was decided not to return the children to the applicant’s care on her return from overseas, at least until investigations had been completed. The second, and apparently final decision, appears to have been made in early May 2009, after receipt of a report prepared by Life Without Barriers following an investigation into allegations about the applicant and her husband.

31 The applicant became aware of the first decision shortly after it was made. It would seem that the second decision was made in early May. According to DoCS officer Trevor Sutton, he advised LWB that a decision had been made not to return the children to the applicant and her husband on 4 May 2009. If correct it would seem that the applicant learned of that decision about the same time. On her account she became on 2 May 2009 the children’s carer told her that she had been asked to care for the children on a permanent basis.

32 Other matters In my view the following matters are relevant to this decision: (i) Notification of the decision Section 48 of the Tribunal Act requires an administrator who makes a reviewable decision to take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the decision, and the right of the person to have the decision reviewed.

33 Neither LWB nor the Department provided the applicant with written notice of the initial or subsequent decision or her right to have those decisions reviewed.

34 (ii) Failure to comply with directions While there is a conflict in the evidence about the verbal advice given to the applicant, she was directed at the directions hearing on 28 May 2009 to apply for internal review. She has not provided a satisfactory explanation why she failed to do so.

35 (iii) Accuracy of information provided to the applicant The information provided to the applicant by the Complaints Unit was not entirely accurate and could have added to the applicant’s confusion. It is to be recalled that the officer had been told that the matter was not ‘before the ADT’ and the information provided was based on that false assumption. The information was nonetheless incorrect in two material areas.

36 First, the applicant was told that she should ask LWB to apply to the Director–General for reasons for the decision to remove the children and an internal review. There is no statutory requirement that the applicant use LWB as an intermediary. The Tribunal Act gives an ‘interested person’ a right to request an administrator to provide written reasons and/or conduct an internal review, of a reviewable decision (ss 49(1) and 53(1) of the Tribunal Act). An ‘interested person’ is defined to mean ‘a person who is entitled under an enactment to make an application to the Tribunal for a review of a reviewable decision…’(s 4 of the Tribunal Act). Section 29(1) of the CAMA Act provides that an application may be made to the Tribunal [in respect of a decision made under s 245 of the Care and Protection Act] by ‘any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned’. In my view LWB and the applicant are both ‘interested persons’ that is, both have a genuine interest in the decision to remove the children.

37 Second, the information provided by the Complaints Unit suggested that once the applicant became aware that a decision had been made, she should await ‘formal notification’ and that ‘LWB would need to do this on her behalf’ — ‘I emphasised that as she was a carer with LWB carer, their LWB caseworker and manager were responsible for pursuing this [requesting formal notification] on her behalf’.

38 Once a reviewable decision is made, it is not necessary for an interested person to await written notification of that decision, before requesting reasons or an internal review. While an administrator is obliged to give written notice of their decision to ‘any interested person’ the failure to do so does not deprive an ‘interested person’ from exercising their rights (see ss 48(1), 49(1), 53(1) and 58(2) of the Tribunal Act). It is the ‘making of’ the reviewable decision, not the provision of written notice, that triggers the right contained in Chapter 5 of the Tribunal Act.

39 Findings and decision Within three weeks of learning of the ‘final’ decision the applicant applied to the Tribunal for review. It is of concern that at no stage was she provided with written notification of either the subject decision or her rights of review. It is also of concern that she was provided with some incorrect information.

40 While those factors favour the exercise of the power to deal with the applicant’s application for review, they must be weighed against her failure to apply for an internal review after being directed to do so or provide an explanation for failing to do so.

41 While the factors are finely balanced, I have decided to exercise my discretion to deal with the application for review, notwithstanding that the applicant has not applied for an internal review. Central to the scheme of merits review in NSW is the requirement imposed on administrators to provide clear and unambiguous written advice to interested persons about the merit review process once a reviewable decision is made. No doubt the failure to do so in this case contributed in part to the applicant’s apparent confusion after the first decision was made. It does not explain of course why the applicant did not seek an internal review after the first hearing or somewhat perplexingly why she told the Complaints Unit that she had not made the application to the Tribunal.

42 . Had the applicant received written information about her review rights I would have reached a different decision. My decision is made subject to the condition that the applicant must apply for an internal review within seven days of the date of these reasons.

ORDERS

1. Providing the applicant applies in writing to the Director-General, Department of Community Services, for an internal review of the subject decision within seven days of the date of these orders the Tribunal will deal with the application for review lodged by the applicant on 25 May 2009.

2. If the applicant does not apply for internal review within seven days, the application for review lodged by the applicant on 25 May 2009 will be dismissed.

3. If the applicant applies for an internal review within seven days, the matter is to be listed for directions at a date, to be fixed by the Registrar, but not earlier than 28 days of the date of these reasons. If the internal review decision is provided earlier than 28 days from the date of these orders either party may apply to have the matter listed at an earlier date.