Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner - [2020] AATA 963

Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963 (24 April 2020)
Division:GENERAL DIVISION
File Number(s): 2018/0974
Re:Pearl Aged Care Services Pty Ltd
APPLICANT

AndAged Care Quality and Safety Commissioner
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:24 April 2020
Place:Sydney

The reviewable decision is affirmed.
....................[sgd]....................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
HEALTH AND AGED CARE – Refusal of application for approval as an approved provider of Aged Care under section 8-1 and 8-5 of the Act – whether the applicant has experience in providing aged care or other relevant forms of care – whether the applicant demonstrated understanding of its responsibilities as a provider of the type of care for which approval is sought – the applicant’s records of financial management, and the methods that the applicant uses, or proposes to use in order to ensure sound financial management – the systems that the applicant has, or proposes to have in place to meet its responsibilities as a provider of the type of care for which approval is sought – Pearl Aged Care Services Pty Ltd does not satisfy the requirements of the Act – Applicant is not suitable to provide Aged Care – reviewable decision affirmed
LEGISLATION
Accountability Principles 2014 (Cth) – ss 29-38, 47-51, 52-53
Aged Care Act 1997 (Cth) – ch 6, ss 8-1, 8-1(1), 8-2, 8-3(1), 8-3(2), 8-3(5), 8-5, 9-1A, 9-1, 9-2, 9-3, 9-3A, 9-3B, 9-4,11-3, 21-3, 53-1, 54-1, 56-2, 63-1, 63-1AA, 63-1A, 87-1, 87-2, 87-3, 88-1, 88-2, 88-3, 89-1, 85-4, 96-1
Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) – sch 1-4, item1, item 35
Aged Care (Transitional Provisions) Act 1997 (Cth) – ch 4, ss 60-2
Aged Care (Transitional Provisions) Principles 2014 (Cth) – ch 4
Approval of Care Recipients Principles 2014 (Cth) – ss 7
Approved Provider Principles 2014 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) – ss 3(c), 3(h), 4(2), 4(11)(b) and (c), 4(13)(a), 14(a)(ii), 17A(3)(c), 24
Quality of Care Principles 2014 (Cth) – sch 4, ss 1(2) item 1.1, 1(2) item 1.4, 1(2) item 1.6, 1(2) item 1.7, 1(2) item 1.8, 2(2) item 2.1, 3(2) item 3.1, 3(2) item 3.4
Records Principles 2014 (Cth)
User Rights Principles 2014 (Cth) – cl 16(1)(a), 16(1)(b)
CASES
Riverside Nursing Care Pty Ltd and Secretary Department of Health and Aged Care [2003] AATA 248
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
24 April 2020
THE REVIEWABLE DECISION

Pearl Aged Care Services Pty Ltd, the Applicant, is seeking to be an approved provider of home care, a type of aged care, pursuant to the Aged Care Act 1997 (Cth) (the Act). It has applied for approval twice. A previous application for approval was made on 1 January 2017. The application for approval the subject of these proceedings was made on 4 September 2017.
The Secretary, Department of Health Respondent was the Respondent until 1 January 2020 when the aged care regulatory functions of the Secretary were transferred to the Aged Care Quality and Safety Commissioner (the Commissioner). The Commissioner is taken to have been substituted for the Secretary in all court or tribunal proceedings relating to those functions, as a result of the commencement of Schedules 1 to 4 of the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) (the Amending Act) on 1 January 2020.[1]
[1] Item 35 of Schedule 4 to the Amending Act.
As the Applicant was unrepresented, it is appropriate to set out the relevant provisions.
Item 35 of Schedule 4 to the Amending Act provides that if:
(a)the Secretary is a party to proceedings in any court or tribunal; and
(b)the proceedings relate to a transferred function; and
(c)immediately before the transition time, the proceedings are still pending;
the Commissioner is substituted for the Secretary, from that time, as a party to those proceedings.
Transferred function is defined in item 1 of Schedule 4 of the Amending Act to include a function or power relating to the approval of a provider of aged care under Division 8 of the Aged Care Act 1997 (Cth).
Transition time is defined in item 1 of Schedule 4 of the Amending Act to mean the commencement of Schedule 4.
Section 2 of the Amending Act states that Schedule 4 commences on 1 January 2020.
The Amending Act is available at >
The reviewable decision was made by a delegate of the Commissioner on 31 January 2018. It reconsidered and confirmed a deemed rejection decision which was made on 4 December 2017 as a consequence of the Respondent not making a decision within 90 days of receiving the application and then reconsidering the matter of its own motion.
ISSUES
Under subsection 8-1(1) of the Act, the Respondent must make a decision to approve the Applicant as a provider of aged care if:
(a)the Applicant made an application under section 8-2 of the Act;
(b)the Respondent is satisfied that the Applicant is a corporation;
(c)the Respondent is satisfied that the Applicant is suitable to provide aged care; and[2]
(d)the Respondent is satisfied that none of the Applicant’s key personnel is a disqualified individual.
[2] ss 8-3(2) of the Act.
The Respondent accepts that the Applicant made an Application under section 8-2 of the Act on 4 September 2017, that the Applicant is a corporation, and that none of the Applicant’s key personnel is a disqualified individual.
“Aged care” is defined in the Act to be one or more of three types: residential care, home care and flexible care.
The issue to be determined by the Tribunal is whether the Applicant is suitable to provide aged care in accordance with section 8-3 of the Act. This requires consideration of the following matters under subsection 8-3(1):
(a)the Applicant’s experience in providing aged care or other relevant forms of care;
(b)the Applicant’s demonstrated understanding of its responsibilities as a provider of the type of care for which approval is sought;
(c)the systems that the Applicant has, or proposes to have, in place to meet its responsibilities as a provider of the type of care for which approval is sought;
(d)the Applicant’s record of financial management, and the methods that the Applicant uses, or proposes to use, in order to ensure sound financial management;
(e)if the Applicant has been a provider of aged care - its conduct as a provider, and its compliance with its responsibilities as a provider, and its compliance with its responsibilities as a provider and obligations arising from the receipt of any payments from the Commonwealth for providing that aged care; and
(f)any other matters specified in the Approved Provider Principles.
The Applicant has not previously been a provider of aged care. Accordingly, the Tribunal is not required to consider its conduct as a provider. However, each of the factors listed in paragraphs (a) to (d) is relevant to the Tribunal’s determination of the Applicant’s suitability to provide home care.
Subsection 8-3(5) of the Act provides that the Approved Provider Principles may specify the matters to which the Respondent must have regard when considering each of the matters in subsection 8-3(1)(a)-(f). The Approved Provider Principles2014 (Cth) specify no such matters.
Each of the matters set out in ss. 8-3(1) may be considered in relation to any or all of the Applicant’s key personnel (subsection 8-3(2) of the Act).
THE REGULATORY REGIME
While the issues can be stated simply, the regulatory regime is complex. It will be referred to where it is relevant to the consideration of the issues to be determined.
THE FACTUAL BACKGROUND
The Applicant was incorporated on 8 June 2016. It applied for approval to provide aged care on 1 January 2017. On 4 July 2017 the Respondent advised Mr Hyder, now the sole director of the Applicant, that the application had not been approved and provided the notice under section 8-5 of the Act that was dated 3 July 2017. He replied on the same day emphasising the experience of the Applicant’s team and expressing his distress and disappointment with the decision which he considered was “purely based on discrimination and based of (sic) our ethnic background. Probably our name & ethnic background … I guess.” He requested a review of the decision. Further email correspondence followed, which included Mr Hyder’s request for additional time beyond the 28-day period within which to submit the request for review because of a hand injury.
His request was granted on 18 July 2017 when he was advised that the due date was 29 August 2017, the request for review had to be in writing and set out the reasons for the request, including his claims against the reasons for the original decision not to approve the application as outlined in the notice dated 3 July 2017 addressed to him. No request was submitted.
On 4 September 2017, Mr Hyder “re-lodged our new application for Approved Home Care”. The covering email stated:
We are lodging my application with all necessary documents as per guidelines and requirements within this email attachment.
As we’ve been trying for the last 2 years for approved home care; we hope and pray that, our application wold get the best of your consideration this time.
He signed the application form and dated it 28 August 2017.
A series of emails from Mr Hyder to the Respondent shows that he had some difficulty lodging the application and supporting documents, which he found very frustrating. He claimed he had to send about 20 emails during that process.
Some supporting documents related to a director of the Applicant who was no longer a director at the time of the hearing of this matter and is therefore not relevant. Relevant documentation included identification information for the key personnel of the organisation: Ms XYZ, Mr Nag and Mr Hyder.
Attachments to the application included:
·The Corporate Structure;
·Pearl Aged Care Services Business Model;
·Projected Financial Business Plan;
·Certificate of Registration of the Applicant;
·National Police History Checks for each of the three key personnel;
·Copies of Ms XYZ’s Certificate III in Aged Care issued on 9 April 2013, and Diploma of Early Childhood Education and Care dated 5 August 2016;
·Copies of Mr Hyder’s Diploma of Information Technology (Network Engineer) awarded in August 2004 and his Bachelor of Applied Computing dated 8 April 2011; and
·Copies of Mr Nag’s Certificate IV Aged Care Work (Community Services) issued in November 2009, Diploma of Disability dated 16 December 2013, Bachelor of Nursing dated 18 December 2013 and degrees of Master of Health Management and Master of Public Health, both dated 29 July 2016.
On 25 October 2017, the Respondent advised Mr Hyder that that the Applicant’s completed application had been received and that the Act required that a decision be notified within 90 days of receiving the application and that unless further information was required, the due date of the delegate’s decision was 3 December 2017.
On 4 December 2017, the Respondent notified Mr Hyder that a decision had not been made within the 90 day period because of a high volume of applications and therefore under the Act the application was taken to have been rejected but that under section 85-4 of the Act the delegate was satisfied that there was sufficient reason to undertake an “own motion” reconsideration and he would be notified of the outcome.
On the same day, Mr Hyder queried the time frame for that process and advised that:
We applied for NDIS & we got the approval within 2 weeks to provide our services to a wide range of registration areas.[3]
But, it has been close to 2 years, we’re trying to get the approval…
[3] NDIS is the National Disability Insurance Scheme which is established by the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
On 11 December 2017, Mr Hyder advised the Respondent that he had recently been nominated as the Australian of the year due to the recognition of his previous social and voluntary work, and attached a letter from the Chair, National Australia Day Council, who acknowledged his nomination.
The National Disability Insurance Agency (NDIA) approved the Applicant to be a registered provider in New South Wales of 13 specified supports. Registration for 11 supports was effective from 23 November 2017, from 16 December 2017 for another, and from 17 January 2018 for another. The supports for which the Applicant is a registered provider with the NDIA are:
·Household Tasks
·Innov Community Participation
·Comms & Info Equipment
·Community Nursing Care
·Assistive equip-Recreation
·Home Modification
·Assist-Travel/Transport
·Custom Prosthetics
·Assist Prod-Pers Care/Safety
·Interp/Translate
·Accommodation/Tenancy
·Personal Mobility Equipment
On 15 December 2017, Mr Hyder advised the Respondent that:
We’ve managed to upload our website, flyer and domain email ID under Pearl Care Services.
A copy of the “Pearl Care Services” flyer was attached. It referred to the domain and related to the provision of supports as a registered provider for the NDIS. The Applicant appears to use the name Pearl Care Services, sometimes including “Pty Limited”, for its NDIS business although the Applicant was granted the approval.
On 16 January 2018, in response to an inquiry from the Respondent, Mr Hyder advised the landline number assigned “for Pearl Care Services Pty Ltd”.
A document dated 31 January 2018 was entitled “Assessment of the Application from Pearl Aged Care Services Pty Ltd to become an approved provider of Home care under the Aged Care Act 1997”. The result of the decision was to “Confirm” the decision to reject the application. The Applicant was notified of the decision and the reasons for decision on the same day.
On 23 February 2018, the Applicant lodged an application for review in the Tribunal.
A further Application for Approval to Provide Aged Care dated 18 March 2018 made by the Applicant was provided in the supplementary T documents but has not been referred to in these proceedings.
On 13 July 2018, the Respondent was notified that the Applicant had lodged an application for review in this Tribunal.
Mr Hyder provided an undated statement to the Tribunal “regarding the injustices I’ve faced, during my application process to apply for in home care service under the following grounds”. Fourteen paragraphs followed. He complained about:
·a lack of guidance in filling out the application;
·not being asked for further information;
·the application being designed to grant approval only to established home care businesses;
·never being asked to provide policies and procedures, although the failure to do so was a reason for refusing the application;
·the number of emails he had to send to lodge the second application so that it appeared that the system was designed to fail from the beginning;
·the content of various paragraphs in the decision letter;
·an inability to provide information in the application form when the word limits were 160 to 300 words;
·bias and injustice in the decision making; and
·discrepancies between the first and second decisions and the difference in the questions in the two application forms.
The Applicant provided to the Tribunal a 52-page document entitled “Pearl Aged Care Services Policies and Procedures” (P&P 1).
The Applicant also provided copies of the first application to become an approved provider of home care and the decision, the application form submitted to the Respondent which has resulted in the present application and the decision of 3 December 2017, and a copy of the application to this Tribunal.
Included in the supplementary T documents was a 29-page document entitled “Guidance for Applicants seeking approval to provide aged Care”.
At the hearing on 2 April 2019, Mr Hyder provided:
·the letter dated 29 January 2018 from the NDIA to the Applicant notifying approval to provide 13 supports in New South Wales.
·A printout of an excel spread sheet entitled “Aged Care Service List – NSW as at 30 June 2016”.
·a letter from the NDIA to Mr Hyder dated 23 January 2019 requesting, within 21 days from receipt of the letter, documents relating to the Respondent’s decision to refuse the Applicant’s 4 September 2017 application to become an approved provider of aged care services.
Mr Hyder told the Tribunal on 2 April 2019 that he had not been able to provide information about the Applicant’s NDIS business because the NDIA was “agitated”, wanting to know why the application to become an approved provider of aged care services dated 4 September 2017 had been rejected. Mr Hyder said that he was vulnerable. He also referred to family circumstances which caused him to be unable to concentrate. He said that he could provide documents.
The Tribunal granted an adjournment until 15 May 2019 and directed that the Applicant provide its evidence by 9 April 2019 and the Respondent in reply by 16 April 2019.
On 9 April 2019 the Applicant provided an email and copies of:
·Four printouts of NDIS forms for access, change of circumstances, consent to exchange information, and application for a review of a reviewable decision.
·Pearl Care Client Satisfaction Survey.
·Pearl Care Hazard Identification Checklist.
·Pearl Care Service Pty Ltd Incident, Injury, Trauma and Illness Record Form.
·Disability Care Worker Needed for Pearl Care Services Pty Ltd (a job advertisement).
·Pearl Care Services Client Activity Observation Report.
·Pearl Care Services Policies & Procedure comprising 50 pages.
·Pearl Care Services Contractor/Employee Training Survey.
·Pearl Care Services Pty Ltd NDIS Service Agreement.
·Contractors Agreement (Pearl Care Services Pty Ltd and The Contractor).
·Brochure about Pearl Care Services Pty Ltd as an NDIS provider.
At the hearing on 15 May 2019, the Applicant provided a copy of a redacted invoice and timesheet for Pearl Care Services Pty Ltd and Mr Hyder gave oral evidence. The Tribunal reserved its decision.
On 16 May 2019, Mr Hyder sent additional material to the Tribunal which he said was in answer to questions he had been asked at the hearing the previous day. He described the material as being copies of service agreements with existing NDIS clients, invoices to various NDIS clients, and evidence that Ms XYZ was working for one family day care provider and affiliated with another, and had 120 hours of work placement in aged care while completing Certificate III in Aged Care.
At a telephone directions hearing on 19 June 2019, the Tribunal decided that it would not allow the Applicant to rely on the material provided after the hearing given that the hearing on 2 April 2019 had been adjourned to allow it to put on material, it had the period since the application was lodged in February 2018 to put on evidence, and had been directed to do so by 30 October 2018.
CONSIDERATION
The Applicant’s experience in providing aged care or other relevant forms of care
The Applicant has had no experience providing aged care. It claims to have had some experience providing supports as a registered provider under the NDIS, which the Respondent accepted was a relevant form of care. In relation to the NDIS business, Mr Hyder said that the Applicant had six regular clients and four irregular clients and then said it had one irregular client and that the number fluctuates. He also said that he “has lots of autistic kids” as clients.

During the hearing on 15 May 2019, Mr Hyder was challenged about the lack of documents showing the services provided to NDIS clients. Mr Hyder said that there was a privacy issue and that he had provided “empty” documents to show a sample of the process in place. He said that he could provide the documentation for the business in 48 hours if the Tribunal needed it.
Mr Hyder’s view was that providing in-home aged care was the same as what the Applicant was doing for under-65s as a registered NDIS provider of supports. He did not see any reason why the Applicant could not satisfy the same level of service providing in-home aged care.
The Applicant relied on the qualifications and experience in aged care of Ms XYZ and Mr Nag. Their qualifications are accepted. Mr Hyder talked about the hours of practical experience each had while studying for those qualifications. He said that Ms XYZ had changed to in-home child care but she used to tell him about aged care facilities. He referred to Mr Nag’s experience as a Level 4 registered nurse. Mr Hyder talked about his personal experience with his father’s ill-health.
Mr Hyder talked about the Applicant’s experience running the NDIS business. He said that he was the “entrepreneur initiator” and looks after marketing, recruitment and management of staff. He said that Ms XYZ supervises staff, deals with compliance issues, and liaises with the parents of children who are clients. She has five years’ experience in childcare in her home. He trained Ms XYZ to pay the six or seven full and part-time staff on a weekly basis. She would have a similar role in the aged care business. He said that he had made her the company secretary of the Applicant on the ASIC website. The most recent ASIC Current & Historical Organisation Extract in evidence was dated 13 December 2018. It does not reflect his evidence.
In the Application Form, the Applicant claimed that Ms XYZ had experience running a day care business, CMMF, and that Mr Hyder also had experience running a childcare business as CEO and being responsible for compliance, standards and policy implementation, and working as a manager in that industry. There was no evidence to support Mr Hyder’s claims. Documents produced under summons by the Department of Education and Training (DET) did not support a finding that Ms XYZ ran CMMF. They do show that she was an educator engaged by CMMF as an independent contractor to care for children. The compliance activities undertaken by DET resulted in the cancellation of CMMF’s approval under family assistance law because it had failed to comply with certain conditions for continued approval, including because it was not suitable to operate a childcare service and had consistently provided inaccurate reports and false statements.
The claims in the Application Form about Ms XYZ’s experience were seriously misleading. Mr Hyder signed the Application Form. It follows that I do not accept claims made by the Applicant about the experience or expertise of Mr Hyder, Ms XYZ or Mr Nag unless they are supported by independent reliable evidence.
Mr Hyder said that Mr Nag is currently supervising assisted nursing care and looks after compliance issues. I infer that relates to the NDIS business. Mr Hyder intends making Mr Nag head of operations, supervising any in-home nursing.
In the Application Form, the Applicant stated that Mr Nag has experience in areas including disability, intellectual disability, aged care and community service.
There is a lack of reliable, independent evidence or detail about the length and nature of the experience Ms XYZ and Mr Nag have had providing aged care. There is no supporting evidence of Mr Nag’s experience in the other areas referred to.
There is a lack of evidence about which supports the Applicant provides in relation to the NDIS, how long it has been providing the support or supports, or who provides the support(s). Mr Hyder’s evidence suggested that support was provided by people who do not have any qualifications under the supervision of Mr Nag or Ms XYZ. It is not apparent how that supervision occurs. The Applicant has few NDIS clients.
The Applicant provided two documents setting out policies and procedures. As described above, the first was provided before the first hearing and was included in the supplementary T documents. It was entitled “Pearl Aged Care Services Policies & Procedures” (P&P 1) and comprised 52 pages. The second was provided after the adjourned hearing. It was entitled “Pearl Care Services Policies & Procedures” (P&P 2) and comprised 50 pages.
Mr Hyder’s evidence about when P&P 1 and P&P 2 were prepared was inconsistent. A comparison of the two documents leads to the following conclusions:
(i)P&P 2 is directed to the requirements of the NDIS.
(ii)P&P 1 was an amended version of P&P 2 in which references to NDIS specific language and references had been deleted and in their place were inserted many references to the Home Care Common Standards and language more appropriate to the provision of home care for the aged.
(iii)The amendment process was incomplete.
(iv)Neither policy is dated.
There are statements in respect of each of the 24 policies in P&P 1 and P&P 2 that it will be reviewed on a two-yearly basis, or if it is no longer appropriate for various reasons. P&P 1 has been provided in support of an application. It is not unreasonable that it is undated, but provision for filling in a date of issue and a date of review would be expected. P&P 2 represents the policies and procedures document for the existing NDIS business. There is no date on the document from which to calculate when the two years will have elapsed and the review needs to occur. Mr Hyder repeatedly said that the document was being reviewed. This deficiency is a significant flaw in the document and reflects poorly on the experience and capacity of the Applicant.
Following are two other examples of documents provided by the Applicant that are of little assistance in establishing that it has relevant experience.
The advertisement entitled “Disability Care Worker Needed for Pearl Care Services Pty Ltd” states that “Certificate 3 or 4 in disability services is preferred, but not essential”. It states that an ABN was required because the work would be on “contract and casual basis initially”. The job included “guiding & assisting to household cleaning, cooking & outdoor activities”.
A “Client Activity Observation Report from Pearl Care Services” for a client, D, was entitled “D’s Report on his cognitive development activities”. It records observations of and conversations with D from about 9 am to 10.30 am, and “recommendations”. The writer is not identified. Neither the role nor qualification of the writer is specified. The document is unsigned and undated. It does state that D was first introduced to the writer on 4 October 2018 “approx. 3 months ago”. It is not clear from the content of the document which of the supports for which it is registered with the NDIS the Applicant was providing to the client. The document includes a reference to cleaning. The support/s could be household tasks and/or community nursing.
There is very limited evidence of the experience of the Applicant, its key personnel, employees or contractors in providing any relevant form of care. The evidence about the quality and nature of the care that the Applicant has provided is negligible. No weight is given to this consideration.
The Applicant’s demonstrated understanding of its responsibilities as a provider of the type of care for which approval is sought
Following is a summary of the responsibilities of an approved provider of aged care services under the Act.
Chapter 4 of the Act sets out the responsibilities of approved providers. Section 53-1 provides:
Approved providers have responsibilities in relation to * aged care they provide through their * aged care services. These responsibilities relate to:
·The quality of care they provide (see Part 4.1);
·User rights for the people to whom the care is provided (see Part 4.2);
·Accountability for the care that is provided and the basic suitability of their * key personnel (see Part 4.3).
Sanctions may be imposed under Part 7B of the * Quality and Safety Commission Act on approved providers who do not meet their responsibilities.
Section 54-1 of the Act sets out in the responsibilities of an approved provider in relation to quality of the care provided. Relevantly, they are to maintain an adequate level of appropriately skilled staff to ensure that the care needs of recipients are met, to comply with the applicable care and services requirements specified in the Quality of Care Principles, which set out Home Care Standards, and to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles.
The responsibilities in relation to user rights where care is provided through home care are set out in section 56-2 of the Act. They prohibit approved providers from charging more for services than is permitted under the Act, require approved providers to provide care and services in accordance with the agreement between the provider and the care recipient, to comply with specified requirements of the User Rights Principles, to protect the personal information of the care recipient and to comply with the requirements of the Act in relation to resolution of complaints.
Section 63-1 of the Act sets out the responsibilities of an approved provider in relation to accountability. Those responsibilities include complying with requirements in relation to record keeping, monitoring processes, and such other responsibilities as are specified in the Accountability Principles.
Chapter 6 (Administration) of the Act, includes Part 6.3 (Record keeping). An approved provider must keep records that enable claims for payment of subsidies to be properly verified and proper assessments to be made of the provider’s compliance with its Chapter 4 responsibilities. Those records must be kept for three years, calculated in a specified way.[4] An approved provider must keep records of the kind and in the form specified in the Records Principles.[5]
[4] ss 88-1(1) of the Act.
[5] s 88-2 of the Act.
Chapter 4 of the Aged Care (Transitional Provisions) Act 1997 (Cth) (the Transitional Provisions Act) (Responsibilities of approved providers) and the Aged Care (Transitional Provisions) Principles 2014 (Cth) made pursuant to that Act, relevantly set out the responsibilities of an approved provider of home care in relation to home care fees, including the maximum daily amount of home care fees payable by the care recipient.
Section 96-1 of the Act provides that the Minister may make various Principles, including Quality of Care Principles, User Rights Principles, Accountability Principles and Records Principles.
The Quality of Care Principles 2014 (Cth) specify the care and services that an approved provider of home care may provide to care recipients and contain the Home Care Standards, which are set out at Schedule 4 as the Home Care Common Standards.
The Home Care Common Standards contain a series of standards and expected outcomes for approved providers of home care, reflecting the principles that:
·service provider demonstrates effective management based on a continuous improvement approach to service management, planning and delivery;
·each service user has access to services and receives appropriate services through a partnership between user and provider; and
·service users have access to information about their rights.
The User Rights Principles 2014 (Cth) specify responsibilities of an approved provider of home care, including in relation to:
· the security of tenure a provider must provide to care recipients;
· access to an advocate to the home care service being provided;
·the rights and responsibilities of care recipients, which are set out at Schedule 2 in a ‘Charter of care recipients’ rights and responsibilities’;
·the information the provider must give to the care recipient, which includes information that must be provided before the home care commences, information that must be provided where a care recipient intends to move to another home care service, information regarding the care recipient’s individual budget and monthly expenditure, and information regarding unspent amounts; and
·the requirements for home care agreements, which must be entered into between the provider and each care recipient, including the contents of such agreements and the process by which such agreements are entered into.
The Accountability Principles 2014 (Cth), specify responsibilities of approved providers in relation to:
·providing certain information to the Respondent;
·financial reporting; and
·ensuring persons with certain convictions do not provide aged care.
The Records Principles 2014 (Cth), specify the types of records about care recipients, staff members and allegations or suspicions of reportable assaults that must be kept and retained by approved providers.
The responsibilities of a provider of home care under the Act are comprehensive and detailed. They form an integrated matrix such that if a provider fails to comply with one of the criteria to meet one of its responsibilities, it is taken to have failed to comply with its responsibilities under the Act.[6]
[6] Riverside Nursing Care Pty Ltd and Secretary Department of Health and Aged Care [2003] AATA 248 at [207].
Quality of care
The Applicant stated in the Application Form that it will ensure its employees are “well trained” and that it will “assign sufficient staffs for our day to day operation”, which suggests that it may understand that an approved provider of home care is required to maintain a number of appropriately skilled staff to ensure the care needs of care recipients are met.[7]
[7] ss 54-1(1)(b) of the Act.
The Home Care Common Standards are set out at pages 4 to 6 of P&P 1. While the amendment process deleting NDIS references resulted in many references to the Home Care Common Standards being the basis of the 24 policies and performance standards in the policies in P&P 1, the policies do not appear to be directed to achieve those standards.
The following appears in P&P 1 in the Policy Statement in the first policy “Service Access”:
Eligibility for agency services is defined in the Aged Care Act 1997 as a person having a home care that:
(i)is attributable to an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment, or a combination of such impairments;
(ii)is permanent or likely to be permanent;
(iii)results in:
· a substantially reduced capacity of the person for communication, social interaction, learning or mobility; and
· the need for continuing support services.
Our Home Care Services policy also limits services access to people who are over the age of 65 at the point at which they apply to be eligible for services.
The agency’s funded activities, as stated in its funding agreement with the Home Care Services are supported community living, family support, and community access and its geographic area of operation in Australia.
The eligibility criteria for “agency services … defined in the Aged Care Act 1997” are a summary of the criteria in s 24 of the NDIS Act for a person to meet the disability requirements. They are not criteria in the Aged Care Act 1997 (Cth). The reference to age 65 reflects that the NDIS does not apply to people over that age. “Supported community living, family support and community access” appears to refer to supports for which the applicant is registered for the NDIS, rather than the application it has made to provide home care under the Act.
“Local area co-ordinator”, is NDIS terminology and is referred to throughout P&P 1. It is not terminology relating to the provision of aged care under the Act. Mr Hyder sought to explain its use. His explanation was unconvincing.
“Policy 5: Participation and Integration” claims to be framed “based on the Home Care Common Standards”. The content of the policy does not reflect the Home Care Common Standards. It appears to be directed to the NDIS scheme.[8]
[8] See the NDIS Act, sections 3(c), 3(h), 4(2), 4(11)(b) and (c), 4(13)(a), 14(a)(ii), 17A(3)(c) and 24.
“Policy 8: Management Committee Members Code of Conduct” does not demonstrate an understanding that the provider of home care has to implement corporate governance processes that are accountable to stakeholders as required by the Home Care Common Standards.[9]
[9] s 1(2), item 1.1.
“Policy 13: Police Clearances/WWC for Contractor/Employees and Volunteers” is not directed to the provision of aged care under the Act. “WWC” refers to Work With Children Check. The policy content does not reflect the Accountability Principles 2014, Part 6 – Responsibilities in relation to certain staff members and volunteers.
While P&P 1 purports to be based on the Home Care Common Standards, it is not. Any content that may be consistent with the Home Care Common Standards is because the NDIS and the aged care regulatory regime are both directed to vulnerable people, being the disabled and the aged respectively, and some principles of care are similar.
The Applicant has failed to demonstrate an understanding of the responsibilities of an approved provider of home care in relation to quality of care.
The provision of and continued reliance on P&P 1 demonstrates that the Applicant has not engaged with the regulatory regime for aged care, despite the guidance to that regime provided in the Application Form, the reviewable decision, the document entitled Guidance for Applicants seeking approval to provide aged Care, and the Commissioner’s detailed Statement of Facts, Issues and Contentions. That is a fundamental failure which leads to the conclusion that the Applicant is not suitable to provide aged care. However, as the Commissioner provided detailed analysis of the evidence and the regulatory regime, it is appropriate to address that analysis. Generally, I have found it to be correct.
User Rights
The Applicant has not provided details of its fee structures, or any policies governing the fees it intends to charge for its services. It has not demonstrated that it understands those responsibilities as set out in section 56-2 of the Act relating to user rights.
The Applicant has not referred directly to the other responsibilities listed in section 56-2 of the Act or to the User Rights Principles in the material before the Tribunal. It has addressed the substance of some of the responsibilities in the Application Form and P&P 1, including:
·having an agreement in place prior to providing services to a care recipient (section 56-2(e));
·having a complaints handling mechanism (section 56-2(i)); and
·protecting the personal information of care recipients (section 56-2(h).
The Applicant mentions advocates in some of its policies including Policy 3: Decision Making and Choice and Policy 7: Complaints and Disputes, but it does not acknowledge the responsibility of an approved provider of home care to allow access to people acting for bodies that have received advocacy grants as specified in subsection 56-2(j) of the Act and clause 16(1)(b) of the User Rights Principles 2014.
Section 56-2(f) of the Act and clause 16(1)(a) of the User Rights Principles 2014 refers to an approved provider’s responsibility to provide security of tenure to care recipients receiving home care. Mr Hyder did not demonstrate an understanding of this responsibility in his oral evidence. He said that he had read about it but could not recall exactly. It was not referred to in P&P 1.
The applicant has not demonstrated an understanding of the responsibilities of an approved provider of home care in relation to user rights.
Accountability

Accountability responsibilities are set out in section 63-1 of the Act and the Accountability Principles 2014. The Applicant has not acknowledged in the material it has provided that an approved provider of aged care is to notify the Respondent of the information specified in Chapter 2 Part 2.1, Division 9 of the Act.
The Applicant stated in the Application Form that it would investigate any assault or serious breach of conduct by its employees and report it to the “appropriate authority” as soon as practicable and take steps to protect the client, but P&P 1 contains no policy that would be followed in such a situation. The Applicant has not demonstrated that it understands the responsibilities in relation to reporting of alleged and suspected assaults set out in section 63-1AA of the Act and Part 7 of the Accountability Principles 2014.
In the Application Form the Applicant specified steps it would take to ensure that none of its key personnel was a disqualified individual. Those steps align with the requirements in section 63-1A of the Act and section 6 of the Accountability Principles, however, P&P 1 contains no policy or procedure to give effect to the statement in the Application Form.
As stated above, Policy 13: Police Clearances/WWC for Contractor/Employees and Volunteers does not reflect the Accountability Principles in Part 6, clause 50(1) which requires a police certificate that does not record that the person has been convicted of murder or sexual assault or any other form of assault.
The Applicant has not demonstrated that it understands the responsibilities of an approved provider of home care in relation to accountability.
Administration and Record keeping
The Act and Records Principles set out extensively the records an approved provider of aged care must retain. The Applicant has provided general statements about its proposed record keeping in the Application Form under the heading “To ensure proper information management”, for example, developing a data base to keep records about staff, prospective clients, customer complaints, financial transactions and staff payroll, using a “customized excel sheet” and “customized accounting software” “to keep track of our customer services, compliance requirements & financial records”, having a “robust scanning system” to maintain an electronic copy of official documents, ensuring that the office manager is aware of the confidentiality and sensitivity of all client documents, and maintaining records of all subsidies and claims. It mentioned accounting and aged care software it might use.
There is no policy addressing record keeping in P&P 1. Record keeping is mentioned in some of the policies.
For example, “Policy 4: Privacy, Dignity and Confidentiality” states that “the agency will only collect information about the client that can be shown to be directly relevant to effective service delivery and the agency’s duty of care responsibilities”.
“Policy 8: Management Committee Members Code of Conduct” states that the Management Committee will “ensure the keeping of such accounting records as correctly explain the agency’s transactions and financial position”.
The Applicant’s evidence has not referred to any of the provisions of Chapter 6 of the Act or to the Records Principles. The Applicant has no policy to ensure it retains the records that must be retained by an approved provider of aged care. The references in the Applicant’s evidence to information it would collect shows that it would not collect all the information that the Records Principles require a provider of aged care to collect. The Applicant has not demonstrated that it understands the requirements of Chapter 6 of the Act or the Records Principles.
Fees
The Applicant has not provided any detail of the fees it proposes to charge care recipients, or how it would ensure such fees comply with the requirements of the Transitional Provisions Act and the Aged Care (Transitional Provisions) Principles. In the Application Form, the Applicant lists policies it would have to manage service users’ fees, budgets, monthly statements, invoices and subsidies received. Those policies rely on the Applicant working with service users to decide how best to utilise the funding available to them and giving service users control over how much they spend on advice and services. They do not acknowledge the limit on the fees an approved home care provider can charge to care recipients in accordance with s 60-2 of the Transitional Provisions Act and the Aged Care (Transitional Provisions) Principles.
Conclusion – the responsibilities of a provider of home aged care
The Applicant has provided some evidence that is consistent with having some understanding of some responsibilities an approved provider of aged care has under the Act and the Home Care Common Standards. However, the Applicant has not demonstrated that it understands the extent of the responsibilities contained in the Quality of Care Principles, the User Rights Principles, the Accountability Principles, the Records Principles, or the Transitional Provisions Act.
The systems that the Applicant has, or proposes to have, in place to meet its responsibilities as a provider of the type of care for which approval is sought
As noted above, the various responsibilities of an approved provider of aged care form an integrated matrix, such that if a provider fails to comply with one of the criteria to meet one of its responsibilities, it is taken to have failed to comply with its responsibilities under the Act. Similarly, if the Applicant fails to demonstrate that it has sufficient systems in place to meet the responsibilities of an approved provider of home care, that is a sufficient basis for the decision-maker to find that the Applicant does not have systems in place to meet those responsibilities, and accordingly is not suitable to provide home care.
The Applicant has included some information about the systems it has, or proposes to have, in place to meet the responsibilities of an approved provider of aged care in the Application Form, P&P 1 Policy Document, the documents it has prepared for its NDIS business and Mr Hyder’s evidence.
P&P 1 contains 24 policies for the running and management of the Applicant’s business, each of which contains a policy statement and a set of procedures. Those policies and procedures do not demonstrate that the Applicant has, or proposes to have, systems in place that will enable it to meet the responsibilities of an approved provider of home care.
As described above, P&P 1 was an amended version of a document prepared for the NDIS business and the policy titled “Service Access” sets out the eligibility criteria for the NDIS, not the eligibility criteria under the Act.

Section 21-3 of the Act provides that a person is eligible to receive home care if:
(a)the person has physical, medical, social or psychological needs that require the provision of care; and
(b)those needs can be met appropriately through home care services; and
(c) the person meets the criteria (if any) specified in the Approval of Care Recipients as the criteria that a person must meet in order to be eligible to be approved as a recipient of home care.
Section 7 of the Approval of Care Recipients Principles 2014 (Cth) specifies further criteria for a person to be eligible for home care. They are that the person has been assessed as requiring the relevant level of care, prefers to remain living at home and has been assessed as being able to live at home with the support of home care.
The Applicant’s policy restricts access to home care services it provides to individuals who meet the disability requirements for access to the NDIS. That is not what the Act requires. The restriction is inconsistent with the Home Care Common Principles which include the principle that each service user’s access to services is based on consultation with the service user, equity, consideration of available resources and program eligibility.[10]
10 Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 2(2), item 2.1.
The Applicant’s Policy 1, Service Access, lists procedures that include accepting referrals from parties including ‘local area coordinators’, making a determination about a prospective service user’s eligibility, and offering to place a prospective service user on a waiting list. This is not the role of an approved home care provider set out in the Act. The Act provides that the Respondent must ensure the care needs of a person who has applied to receive aged care are assessed, and that the Respondent will then approve the application if satisfied that the person is eligible to receive aged care.[11] The Applicant’s Policy 1, Service Access, demonstrates that it lacks understanding of the role of an approved provider of home care and systems in place that will ensure it complies with the responsibilities of an approved provider of aged care.
[11] ss 22-4 and 22-1 of the Act.
The balance of the policies contained in the Policy Document relate to:
·the ways the Applicant intends to interact with service users;
·aspects of the Applicant’s proposed management and governance processes; and
·matters relating to the Applicant’s engagement of employees, contractors and volunteers.
The Applicant has several policies relating to its interactions with service users. They are entitled ‘Individual Needs’, ‘Decision Making and Choice’, ‘Privacy, Dignity and Confidentiality’, ‘Participation and Integration’, ‘Valued Status’, ‘Complaints and Disputes’, ‘Managing Challenging Behaviours’ and ‘Maintaining a Safe Living Environment’. As outlined above, many of these policies fail to demonstrate an adequate understanding of the responsibilities of a provider of home care. Therefore, the systems established under those policies will not enable the Applicant to meet the responsibilities of an approved provider of home care.
The Applicant’s policies relating to its proposed management processes are entitled ‘Management Committee Members Code of Conduct’, ‘Expenditure Delegations’ and ‘Insurance and Indemnity Arrangements’. It is prudent that a business maintain relevant insurance policies and have policies about the authorisation of expenditure, however they are not responsibilities imposed on an approved aged care provider under the Act or any of the applicable principles. The Home Care Common Standards do impose responsibilities on approved home care providers to implement corporate governance processes that are accountable to stakeholders.[12] However, as outlined in paragraph 86 above, the system established in the ‘Management Committee Members Code of Conduct’ does not reflect the responsibilities of an approved provider of home care. The proposed system will not enable the Applicant to comply with the responsibilities of an approved provider of home care.
[12] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 1(2), item 1.1.
The Applicant’s policies that relate to the engagement of employees, contractors and volunteers are entitled ‘Equal Employment Opportunity’, ‘Contractor/Employee Recruitment and Selection’, ‘Police Clearances/WWC for Contractor/Employees and Volunteers’, ‘Contractor/Employee Training and Development’, ‘Contractor/Employee Supervision and Appraisal’, ‘Managing Sub-Standard Contractor/Employee Performance’, ‘Occupational Health and Safety’, ‘Contractor/Employee Grievances’, ‘Use of Volunteers’, ‘Contractor/Employee and Volunteer Code of Conduct’, ‘Manual Handling Procedures’ and ‘Private Use of Agency Motor Vehicles’. As discussed in paragraph 97 above, the Applicant’s policy in relation to police checks indicates it understands that an approved provider of aged care has a responsibility to conduct such checks, but the system it establishes would not enable the Applicant to comply with the requirements of the Accountability Principles.
The Applicant’s policies relating to training and supervising employees and contractors do establish a system for staff training and development and would assist the Applicant to maintain an adequate number of appropriately skilled staff, in compliance with the responsibilities of an approved provider of aged care.[13] The other policies relating to the engagement of employees, contractors and volunteers do not relate to responsibilities of an approved provider of home care under the Act or any of the applicable principles.
[13] ss 54-1(b) of the Act; Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 1(2), item 1.7.
P&P 1 is the policy and procedure document the Applicant has provided in support of its application to be an approved provider of home care. However, there are details of the Applicant’s systems set out in the Application Form that are not reflected in P&P 1. They relate to:
·client-directed care;
·assessment, monitoring and review of service users’ needs;
·service users with special needs;
·provision of information to staff and clients; and
·its business model and organisational structure.
In the Application Form, the Applicant specified the following principles to be followed for providing client-directed care:
·the directors of the Applicant will personally visit service users to review the service delivery model;
·different levels of care are available to service users depending on their needs; and
·a service user’s care plan will be developed in consultation between the Applicant and the service user.
P&P 1 does not directly reflect the first two principles. Policy 2 refers to seeking the client’s and family’s input in determining specific “support” needs and constructing an individual service plan to meet the “agreed support needs” which is consultation. However, those principles and P&P 1 are not sufficient to meet the responsibilities of an approved provider of home care listed in the User Rights Principles. The Applicant has not demonstrated that it has systems in place to provide client-directed care in a way that meets the responsibilities of an approved provider of home care.
The Applicant set out its process for assessing, monitoring and reviewing care recipients’ needs at pages 21 to 24 of the Application Form. It gave, as an example, managing skin integrity. It does not include an overall policy to govern the assessment of care recipients’ needs. Its monitoring involves providing monthly statements setting out each client’s package and budget expenditure, and asserting that there will be a monitoring process, which will involve both management and staff. How that would be implemented is not stated.
P&P 1 includes the following. Policy 2 states the individual service plan will be reviewed at least annually “or sooner if the client’s or family’s circumstances, needs or preferences change significantly, or a request is made to undertake a review”. Policy 3 refers to a review of the individual service agreement/plan “at least annually”. P&P 1 does not include policies to give effect to a process of assessment, monitoring and review of a care recipient’s needs. After the first hearing, the Applicant provided a copy of Pearl Care Client Satisfaction Survey for its NDIS business. Assuming that was provided to show what it would do as an aged care provider, one of the questions asked how the service could be improved. The document does not state how often the survey would be provided to a service user. It does not reflect a process of assessment or monitoring of a care recipient’s needs.
The Applicant has not demonstrated it has or intends to have a system in place for assessing, monitoring and reviewing care recipients’ needs.
At page 24, the Application Form requires:
Consideration of the delivery of care to persons with dementia and/or special needs, as defined in section 11-3 of the Act.
Note: The applicant should consider the Quality of Care Principles 2014 in the response.
The Applicant stated that it will support people with physical and intellectual disabilities, and noted Aboriginal clients and clients with dementia as groups with special needs. The Applicant stated it will provide care to Aboriginal clients by carefully selecting and training a team of Aboriginal staff, but did not indicate what the selection and training processes would involve or how they would ensure the service provision was culturally appropriate. The Applicant provided some strategies for communication and relieving distress and agitation.
Aboriginal clients and clients with dementia are ‘people with special needs’ within the definition set out in section 11-3 of the Act. They are two of the ten groups listed in that definition. The Applicant has not identified any of those other groups or indicated how it would deliver care to them. P&P 1 states the Applicant will structure its programs and services ‘in a culturally normative and age appropriate manner’. It has not provided any policies to ensure that people with special needs receive appropriate care. It has not identified a comprehensive system to deliver care to people with special needs within the meaning of section 11-3 the Act.
The Applicant stated in the Application Form that it will rely on a website to provide information to its staff and service users, and that complaints from service users will be lodged through this website.[14] That is not an appropriate means of communication with aged care recipients. Reliance on communications through a website does not comply with the responsibility of an approved provider of aged care to provide each care recipient with information in a format appropriate to their needs.
[14] At pages 11, 17 and 28.
In support of its application, the Applicant provided an organisation chart, a business model and the Business Plan. The organisation chart depicts the ‘proposed future corporate structure for the Pearl Aged Care Services’. It includes 31 roles. The Application Form contains details of four key personnel, one of whom is no longer involved with the Applicant. The Business Plan refers to hiring four staff and a team leader. Only three staff members are included in the calculation of projected income and expenditure.[15] It is not apparent how or when the Applicant will transition to the proposed corporate structure, or how it intends to fund the additional wages expenditure. The lack of clarity leads to the conclusion that the Applicant has not demonstrated that it will have sufficient staff or management to ensure it complies with the responsibilities of an approved provider of home care.
[15] At page 2 of the Projected Financial/Business Plan for Pear (sic) Aged Care Services.
The Applicant’s Business Model comprises an introductory meeting with the service user, a home safety check, offering and negotiating services, signing a service agreement and providing an information pack, service review and evaluation, and monitoring and customer feedback. The same information appears at page 12 of the Application Form. The Home Care Common Standards require clients to be provided with information to assist them in making their choice.[16] At page 20 of the Application Form, the Applicant described how the home care agreement will be developed, including working with the client to identify their goals and designing the care plan to reach those goals. The Applicant does not refer to the requirement to provide information to assist a service user to make their choice in P&P 1. The Applicant has not made clear what information it is going to provide in the “information pack”. In any event, it is proposed to be given after the service agreement has been signed, rather than to assist the person to make the decision whether to sign the service agreement.
[16] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 3(2), item 3.1.

The Act and the Home Care Common Standards require service users to have access to advocacy services.[17] The Applicant has not referred to advocacy anywhere in its application. There are references to advocates in P&P 1, but none that acknowledges this requirement.
[17] s 56-2(j) of the Act; Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 3(2), item 3.4.
As set out above, some of the Applicant’s policies would assist it to fulfil its responsibilities as an aged care provider, some would not assist it to do so. It has no policies or systems in relation to other responsibilities.
An aged care provider has the responsibility to identify and manage risks, to ensure the safety of service users.[18] The Commissioner contended that the Applicant had no relevant policy. Policy 23 in P&P 1 does address this responsibility.
[18] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 1(2), item 1.6.
The same policy is in P&P 2. After the first hearing, the Applicant provided a “Pearl Care Hazard Identification Checklist” which has been prepared for its NDIS business. It states that it is for recording daily inspections and that the checklist is to be conducted and signed off on “fortnightly/monthly” basis. The table provides for daily recordings for a week. It is to be signed off by the employee/contractor. The inconsistent statements mean that it is not clear how often the “daily inspections” are to be done. Inferring that the Applicant uses the checklist to implement Policy 23 in the NDIS business and proposes to do so as a provider of aged care, effective implementation is doubtful.
Responsibilities of an aged care provider for which the Applicant has not proposed a system or policy include:
·Understanding and engaging with the community in which it operates;[19]
·Managing physical resources to ensure the safe delivery of care and services to service users and staff;[20]
·Providing service users with access to an advocate of their choice;[21] and
·Providing information about its service provision and financial reports to the Respondent.[22]
[19] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 1(2), item 1.4.
[20] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 1(2), 1.8.
[21] Quality of Care Principles 2014 (Cth), Schedule 4 – Home Care Common Standards, s 3(2), item 3.4.
[22] Accountability Principles 2014 (Cth), ss 29 – 38.
The Applicant has not proposed systems that are sufficient to ensure it would meet the responsibilities of an approved provider of home care.
The Applicant’s record of financial management, and the methods that the Applicant uses, or proposes to use, in order to ensure sound financial management
The only records the Applicant provided that may relate to the financial records of its NDIS business were a blank time sheet form and a redacted Invoice for 11 hours of service over three days. There was no information about the financial management systems it uses for its NDIS business.
Policy 8 in P&P 1 is entitled “Management Committee Members Code of Conduct”. There is no evidence of the proposed membership or of the committee’s responsibilities. Policy 9 refers to an Executive Officer and a Service Manager. Their roles are not defined. Neither of those roles was referred to in the Application Form or the proposed corporate structure. In the Application Form, the Applicant stated that Ms XYZ would be the Office Manager overseeing the day to day operation of the business which was described as maintaining accounts, payroll, expenses, procurement and cash flow, generating weekly, fortnightly and monthly financial report to keep a track of the financial and business performance records. She was said to have in depth knowledge and skills in MYOB software. Mr Nag was described as the Head of Operation for the business. His duties are not specified. Mr Hyder’s role was to be an “important part of the key decision making” and be responsible for recruitment and training.
Policy 9, Expenditure Delegations, requires the Management Committee to formally approve “all formal legal contracts”, and authorises the Executive Officer to approve expenditure up to $1,000 and the Service Manager to approve expenditure up to $500, “provided that the purchase is within approved budget parameters”.
Policy 10, Insurance and Indemnity Arrangements, provides for the maintenance of appropriate insurance policies.
The Applicant proposed the following in the Application Form as the methods it would use to “ensure sound financial management”:
·     A robust scanning and photocopy system for all invoices and expenses;
·     Customized accounting software to track return on investment and payback analysis;
·     Deploying MYOB to track day to day business income and expenses;
·     Deploying Easy Payroll Software to track staff wages, tax and superannuation;
·     Deploying a comprehensive data base for financial, operational, staff and customer information;
·     Using internet banking;
·     Keeping track of monthly bank statements to track income and cash flow;
·     Monthly meetings of “our management” and directors to discuss financial and operational progress;
·     Generating financial statements on a weekly, fortnightly and monthly basis;
·     The Office Manager overseeing all claims and charges; and
·     Engaging an accountant to ensure subsidies, claims, and compliance is up to date, to generate financial projection and prepare audit report for the financial year.
That information is relevant to financial management.
In the Application Form, the Applicant stated that the directors would arrange funding to begin the business. One of those directors is no longer involved. Mr Hyder was the other director. There is no independent reliable information to show that he has the financial capacity to fund the establishment of the business. He claims that Ms XYZ is now a director. Assuming that is so, there is no reliable information about her capacity to finance a business.
In the Application Form, the Applicant pointed to the expertise and experience of the former director to demonstrate that he had “a fair understanding of financing, income & expenses of a care industry”. It also referred to Mr Hyder’s degree of Bachelor of Commerce:
“major in management & accounting from overseas. So, he has 3 years experiences working in overseas maintaining balance sheet and accounting for an organization. (He) has further 3 years experience of managing childcare industry working as a manager. He has good understanding of funding, cash flow and expenses in terms of a care industry”.
The unsupported claims about Mr Hyder’s expertise and experience are not accepted, including his claim to have worked as a manager in the childcare industry.
The Respondent argued that there was an inconsistency between the Application Form and the Business plan in relation to the budget allocation to marketing and business development, the first allocating 20-30% and the latter only 1.58%. In context, the 20-30% was a future projection, for sometime after the first 12 months of business. The latter was expenditure from the outset. It is not inconsistent.
The claim in the Application Form that the former director and Mr Hyder would develop customized accounting software is not accepted because the former director is no longer involved and there is no reliable supporting evidence that Mr Hyder has the expertise to develop accounting software to do what was claimed.
The Applicant has provided some evidence that is relevant to the financial management of the proposed business but other information raises questions which remain unanswered, about what is being proposed and the capacity of the Applicant to ensure sound financial management of the proposed business.
Mr Hyder’s complaints
Mr Hyder’s complaints set out at paragraph 37 do not assist the Applicant in this case. The directions and questions in the Application Form refer to the principle relevant statutory provisions. There was a 29-page document available entitled “Guidance for Applicants Seeking Approval to Provide Aged Care” which was available on the agency’s website. In any event, whether guidance was given or available is not a consideration that is relevant to the decision in this case. The Applicant had to satisfy the criteria to be approved as a provider of aged care. That will be easier for an existing provider than for an Applicant seeking approval for the first time. The regulatory regime is extensive and complex. It is designed to protect vulnerable people. I do not accept that the Applicant was prevented from providing information because of the word limits. For example, it attached its answer about the corporate structure. The Applicant’s difficulty was that it did not engage with the aged care regulatory regime, other than in response to questions in the Application Form which were directed to that regime. The provision of P&P 1 as an aged care policy document exemplifies that difficulty.
CONCLUSION
For the reasons set out above, the Applicant is not suitable to provide aged care, as required by subsection 8-1(1)(c) of the Act, based on the considerations set out in subsections 8-3(1)(a)-(d) of the Act.
The reviewable decision is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................[sgd]......................................................
Associate
Dated: 24 April 2020

Date(s) of hearing: 2 April 2019 and 15 May 2019

Date final submissions received: 16 May 2019

Applicant: In person

Solicitors for the Respondent: Mr T Galvin- Maddocks Lawyers

Date(s) of hearing:	2 April 2019 and 15 May 2019
Date final submissions received:	16 May 2019
Applicant:	In person
Solicitors for the Respondent:	Mr T Galvin- Maddocks Lawyers