Nouh Family Day Care Pty Ltd and Secretary, Department of Education

Nouh Family Day Care Pty Ltd (Nouh FDC) sought review of a decision by the Secretary of the Department of Education to cancel its approval as an approved child care service. The dispute arose from numerous alleged breaches of the conditions of its provider approval, including overcharging fees, child swapping, claiming care for ineligible children, and failing to notify the Department of changes in key personnel. The matter was heard by Ms Anna Burke AO, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Nouh FDC had failed to comply with the conditions for its continued approval as an approved child care service under the family assistance law, and if so, whether such non-compliance justified the cancellation of its approval. The specific breaches identified by the Department included failure to update key personnel and address details within the required timeframe, inadequate record-keeping for older children and child swapping, and submitting inaccurate attendance reports leading to claims for ineligible care and overpayments of child care benefit.

The Tribunal found that Nouh FDC had a significant and frequent history of non-compliance and misreporting across numerous areas, resulting in thousands of inaccurate attendance reports and instances where child care fee assistance was claimed for ineligible care, leading to substantial overpayments. While Nouh FDC argued that cancellation should be a last resort and that many breaches occurred under previous ownership or were due to system issues, the Tribunal noted that the new director, Ms Hamieh, had purchased the business despite not believing she could pass the tests to become a registered provider in her own right, indicating a potential lack of capability to operate such a service. The Tribunal concluded that the health and safety of children, protection of government subsidies, and the blatant disregard for public funds were paramount concerns.

Ultimately, the Tribunal affirmed the decision to cancel Nouh FDC's approval. The Tribunal was satisfied that cancellation was the appropriate sanction due to the egregious nature of the breaches, which highlighted systematically flawed or non-existent governance arrangements. The Tribunal considered that failure to cancel the approval posed a risk to the appropriate care of children, particularly in light of breaches concerning educator to child ratios, and that the protection of government subsidies could not be ignored.