Onecare Limited and Aged Care Standards and Accreditation Agency Limited

[2006] AATA 751

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/77

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ONECARE LIMITED

Applicant

And AGED CARE STANDARDS AND ACCREDITATION AGENCY LIMITED

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date24 August 2006

PlaceHobart

Decision The application for stay is refused.

[Sgd Ms A F Cunningham)        

Senior Member

CATCHWORDS

Application for Stay - 'public interest' - need to ensure Aged Care Home remained accredited pending outcome of appeal - stay refused

Saitta Pty Ltd v Commonwealth [2001] FCA 817

Neviskia Pty Ltd v Podger (2000) 63 ALD 257

Aged Care Act 1977

Administrative Appeals Tribunal Act 1975

Accreditation Grant Principles 1999

ADJR Act

THESE ARE THE WRITTEN REASONS FOR THE DECISION IN THE MATTER OF ONECARE LIMITED AND AGED CARE STANDARDS AND ACCREDITATION AGENCY LIMITED T2006/77 GIVEN ORALLY ON 24 AUGUST 2006

REASONS FOR DECISION

1 September 2006 Ms A F Cunningham (Senior Member)   

1.      This is an application for a stay of a decision made by the Aged Care Standards and Accreditation Agency Limited pending the final hearing and determination of the applicant’s application for review by this Tribunal.  The application for review relates to the respondent’s decision to vary the period of accreditation for the Umina Park Home for the Aged from 15 February 2008 to 15 February 2007.   The original decision of the respondent was made on 22 March 2006.  The applicant sought a reconsideration of this decision which was affirmed on 26 April 2006.

2.      On 26 May 2006 the applicant lodged an application for review with the Administrative Appeals Tribunal.  This application for stay of decision was lodged on 16 August 2006.

3.      The applicant operates an aged care service in Burnie known as Umina Park Home for the Aged.  Aged care facilities must be accredited in order to receive Federal Government subsidies.  The accreditation given to aged care services varies for periods of between one to three years.  The process of accrediting aged care services is undertaken by the respondent.  Umina Park was previously accredited by the respondent for the period 15 February 2005 to 15 February 2008 as advised by letter from the respondent dated 8 December 2004.  This was subsequent to a site audit conducted at Umina Park. 

4.      Since October 2005 there have been a number of support contacts conducted by the respondent.  The respondent found non-compliance with expected outcomes for medication management.  A review audit was conducted between February and March 2006 and non-compliance was found in respect of two expected outcomes in relation to behavioural management and privacy and dignity.

5.        The decision to vary the accreditation period by 12 months was made on 22 March 2006.  The applicant was informed by letter and advised that an application to be accredited for the period following 15 February 2007 needed to be received by the respondent by no later than 24 August 2006, which is this day.  At the hearing of the application for stay on 23 August 2006, the respondent's counsel informed the Tribunal and the applicant that the application could be made within one month from today to ensure accreditation by January 2007 prior to the expiration of accreditation on 15 February 2007 pursuant to the respondent's decision.

6.        The reconsideration of the respondent's decision on 26 April 2006 affirmed the accreditation period but found non-compliance with one expected outcome rather than the two found by the assessment decision on 22 March 2006.  The respondent contends that the applicant had complied with the expected outcome in relation to privacy and dignity following the decision of 22 March 2006. 

7.         The application for stay refers to the decision of the respondent dated 22 March 2006 whereas the application for review is with respect to the respondent's decision of 26 April 2006.  It was agreed at the hearing of the application for stay that the decision under review is that of 26 April 2006 and the applicant sought the Tribunal's leave to amend the application for stay accordingly.  Mr Palfrey on behalf of the respondent advised the Tribunal that his written submissions had been made with respect to the decision of 22 March 2006 and he had not really addressed the subsequent decision.

8.       The application for stay is made pursuant to section 41(2) of the Administrative Appeals Act 1975 which states as follows:

“The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.

9.        Clearly, the application should relate to the decision which is the subject of review, that is the decision of 26 April 2006.  Whilst the respondent's submissions do only refer to the decision of 22 March 2006, they mostly relate to the principles to be applied in the exercise of the Tribunal's discretion to consider an application for stay.  In the Tribunal's view the respondent would not be prejudiced if the application for stay is varied to delete the decision of 22 March 2006 and substitute the decision of 26 April 2006, and the amendment is made accordingly.

10.      The Tribunal must consider whether it is desirable to grant the stay for the purpose of securing the effectiveness of the hearing and determination of the application for review.  If a stay is granted, it means that the applicant does not need to apply for accreditation until later next year and that the accreditation until February 2008 will stand, pending the outcome of the appeal.  If the appeal is upheld, the accreditation until February 2008 will stand.  If the appeal is dismissed, the applicant's accreditation will terminate in February 2007.

11.      Even if the hearing of this appeal is progressed and heard say in early 2006 and a decision given later that month, the Tribunal was informed that this will not allow sufficient time for the accreditation process to be completed prior to the expiration of accreditation in February 2007.  Mr Palfrey advised the Tribunal that a period of five months is required from the time the application is lodged in order to complete the desk audit, site audit, subsequent report and for a decision to be made.

12. The Tribunal was referred to the Accreditation Grant Principles 1999 and in particular to Subdivision 3 which sets out a timetable for the accreditation process. This timetable is not disputed by the applicant. The applicant says that it would wear the outcome of the lack of funding being provided in the event that there is a gap in the accreditation period. But there is also the issue of the uncertainty for the residents of the home if the accreditation is further delayed. The outcome of the accreditation process is that the applicant receives Federal Government funding of several millions of dollars. It is likely that the applicant depends on this funding for its continued operation.

13.      If a stay is not granted, the applicant would need to make an application for accreditation forthwith.  The applicant says that the fee involved is $11,000 and the consequent diversion of resources and costs could amount to a further $20,000.  If the appeal is upheld then the applicant's application is in vain, the applicant contends, and a waste of resources and money which had been spent unnecessarily.  The respondent argues that in the overall scheme of things, the expenditure of $11,000 and the consequent diversion of resources is not significant when the applicant expects to receive many millions of dollars in funding.

14.      Mr Palfrey argued that the process of accreditation involving site audits and reports can only be in the interests of the current users and the public in the general, including those potential users.  Mr Palfrey referred the Tribunal to a decision of Sundberg J in Neviskia Pty Limited v Podger (2000) 63 ALD 257, and in particular at page 260, paragraph 7, where he stated:

“There is a very strong public interest in ensuring that nursing home standards are complied with, that appropriate monitoring and auditing takes place and that sanctions are imposed on those who fail to comply with the required standards.  The applicant must be held to the general requirement that it show a serious question or point of substance, even though it will suffer hardship or loss or damage if the relief sought is not granted before it is appropriate to restrain the respondent from carrying out his duties and exercising his powers or staying or suspending his decisions”. 

15.      Mr Palfrey also referred the Tribunal to the objects of the Aged Care Act 1997, and in particular to section 2-1 of the Act which include amongst other things:

“... the need to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;  to protect the health and well-being of the recipients of aged care services;  to ensure that aged care services are targeted towards the people with the greatest needs for those services and;  to encourage diverse, flexible and responsive aged care services that meet the need of the recipients”.

Mr Palfrey submitted that the accreditation process is part of the regulatory framework which promotes and protects the interests of persons receiving the care. 

16.      Mr O'Bryan argued on behalf of the applicant that the respondent has now confirmed that there is no evidence of non-compliance and no reason to expect that accreditation will not be granted.  Mr Palfrey pointed out that compliance has been effected since the previous decision and report and is not relevant to the reasons for the original decision.  Mr Palfrey contended that the original decision to vary the accreditation period was made on the basis of the then existing non-compliance, together with the history of non-compliance, details of which he provided in his written submissions.

17.      The issue for the Tribunal is one of balancing the interests of the applicant and the consequences of not granting the stay application and whether the effectiveness of the appeal process will be impeded.  In my view not granting a stay will not impact on the effectiveness of the appeal process, but granting a stay may have an impact on the interests of those using the services, as well as the operators.  If a stay is granted and the appeal is unsuccessful, it is most unlikely that the accreditation process will be completed in time, ie by February 2007.

18.      On balance, the process of accreditation can only further protect the interests of those using the service by ensuring high quality care, the provision of high quality care.  The consequential financial detriment suffered by the applicant is outweighed in my view by the potential public benefit. 

19.      The applicant has not disputed the history of non‑compliance, but the facts giving rise to the decision under review.  In fact, the applicant agrees that the service has taken action to comply in accordance with the report directives.

20.      I also refer to a decision of Gray J in Saitta Pty Limited v Commonwealth (2001) FCA 817 where he observed (at [36]):

“The argument put on behalf of the applicant seemed to assume that the object of the Act is to confer on approved providers of aged care the right to conduct profitable businesses.  Examination of (the Act) dispels such a notion very quickly.  The objects set out in (s)2-1 mention providers only in relation to their accountability.  It is plain that (the Act) is directed to the benefit of those receiving and requiring care.  The use of private businesses to provide care is incidental to the provision of the legislation and subordinate to it.

21.      Whilst the decisions that have been referred to are decisions pursuant to the provisions of the ADJR Act, the principles are relevant and the hearing was dealing with the same Aged Care Act as before this Tribunal.

22.      The respondent contends that to grant a stay undermines the Scheme created by the Act and Principles and renders the respondent's role as an accreditation body ineffective.  In response, Mr O’Bryan for the applicant submitted or asks in what circumstances would it then be appropriate to grant a stay? 

23.      The Tribunal is not saying that a stay is not appropriate in any case, but the timeframes of this particular case put the service at risk and its residents face the uncertain position of there being a period where the service would not be accredited with the consequential risk of not having sufficient funds to run the service.

24.      The applicant had the option of pursuing an appeal with this Tribunal in March 2006 and could have applied for a stay when it lodged its Notice of Review.  The Tribunal was informed that whilst the letter from the respondent advised that the application must be lodged by 24 August 2006, the applicant effectively has one month from this date to make application to ensure a decision by January 2007.  In the Tribunal's view, this is the preferable outcome for the service and its users, and for the above reasons the application for stay is refused.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  23 & 24 August 2006

Date of Decision  1 September 2006

Counsel for the Applicant              Mr S O’Bryan

Solicitor for the Applicant              Mr G Wilson, Wilsons Lawyers Pty Ltd

Counsel for the Respondent         Mr M Palfrey

Solicitor for the Respondent         Clayton Utz