People with Disabilities (NSW) Inc. v Minister for Disability Services

[2000] NSWADT 85

Set aside by Appeal: Set aside in part by appeal on 19/3/2001

CITATION:	People with Disabilities (NSW) Inc. -v- Minister for Disability Services [2000] NSWADT 85
DIVISION:	Community Services Division
PARTIES:	APPLICANT People with Disabilities (NSW) Inc. RESPONDENT Minister for Disability Services
FILE NUMBER:	004001
HEARING DATES:	02/05/2000
SUBMISSIONS CLOSED:	05/02/2000
DATE OF DECISION:	06/30/2000
BEFORE:	Hennessy N (Deputy President); Green J - Member; Moss J - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary decision
LEGISLATION CITED:	Disability Services Act 1993
CASES CITED:
REPRESENTATION:	APPLICANT G Kirk RESPONDENT G Williams
ORDERS:	No orders made.

1 The history of these and related proceedings began in 1996 when People with Disabilities NSW Inc (PWD) lodged an application with the then Community Services Appeals Tribunal (now a Division of the Administrative Decisions Tribunal) seeking a review of a decision of the Minister for Disability Services (the Minister) to adopt the transition plan in relation to the Peat Island Centre. For reasons which need not be set out here, those proceedings are still on foot.

2 On 26 July 1999, PWD lodged a further application with the Tribunal against three decisions by the Minister in relation to the Peat Island Centre. The three decisions were as follows:

A decision to approve financial assistance to the Department of Community Services under s 10 of the Disability Services Act 1993 to operate the Peat Island Centre.

A decision to provide financial assistance to the Department of Community Services under the Disability Services Act 1993 to operate the Peat Island Centre in circumstances where the terms and conditions on which this financial assistance is provided do not conform to s 12 of the Disability Services Act 1993.

A decision not to conduct a review of the Peat Island Centre under s 15 of the Disability Services Act 1993, or to conduct a review that is not in accordance with the requirements of that section.

3 Each of these decisions is potentially a “reviewable decision” by virtue of s 20(a), (b) and (d) of the Disability Services Act 1993 (DSA). These provisions state that:

For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions is reviewable by the Administrative Decisions Tribunal:
(a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1,

(b) a decision to provide financial assistance to an eligible organisation in relation to the provision of designated services if the terms and conditions on which the assistance is provided to the organisation do not comply with section 12,

(d) a decision not to conduct a review under section 15 or to conduct a review that is not in accordance with the requirements of that section.

4 In a letter to the Tribunal dated 7 August 1999 PWD clarified that the decision appealed under s 20(a) of the DSA relates to the annual approval of re-current financial assistance under the DSA. On 20 December 1999 the Tribunal dismissed the application for review of the decisions made under s 20(a) on the ground that agreements between parties implementing a decision approving the provision of financial assistance are not themselves reviewable decisions.

5 The application in relation to a decision purportedly made under s 20(b) was also dismissed on the ground that the terms and conditions on which the assistance is to be provided must relate to an approval of the provision of financial assistance before it can be reviewed by the Tribunal. We noted that PWD would have to make a fresh application identifying, with the assistance of the Minister, the document or documents containing the terms and conditions on which approval was given. This left the decision under s 15 and the decision to approve the transition plan as the two reviewable decisions to be determined by the Tribunal in relation to the Peat Island Centre.

6 On 2 February 2000 PWD filed a further application identify the following decisions under s 20(a) and s 20(b) as the decisions they wished to have reviewed:

A decision to approve financial assistance to the Department of Community Services under s 10 of the Disability Services Act 1993 to operate the Peat Island Centre

A decision to provide financial assistance to the Department of Community Services under the Disability Services Act, 1993 to operate the Peat Island Centre in circumstances where the terms and conditions on which this financial assistance is provided do not conform to s 12 of the Disability Services Act 1993.

7 PWD noted in a letter accompanying this application dated 2 February 2000 that the current application relates to the actual approval of financial assistance to the Department of Community Services to operate the Peat Island Centre, which has yet to be identified.

8 The purpose of the hearing on 2 May 2000 was to identify the decision or decisions, if any, made under s 20(a) in relation to the Peat Island Centre and to decide whether the application to review that decision or those decisions had been made within time. If not, the further question arose as to whether the application should be accepted out of time.

Preliminary decision

On 2 May 2000, following a preliminary hearing, the Community Services Division of the Tribunal made a preliminary decision in this matter in the following terms:

The decision of the Minister of Disability Services made on 8 April 1996, to approve the transition plan for Peat Island was not a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993.

On or soon after 8 April 1996 the Minister made a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993.

The Tribunal extends the time for the making of an application for a review of that decision to 2 February 2000 to People with Disabilities Inc pursuant to s 57 of the Administrative Decisions Tribunal Act 1997.

The Tribunal leaves open the question of whether the Minister for Disability Services has made any further decisions under s 10 of the DSA to approve financial assistance to the Department of Community Services to provide services at Peat Island.

9 On 8 June 2000, the respondent to these proceedings requested written reasons for this decision. These reasons are set out below.

Evidence

10 The Peat Island Centre is an accommodation support service providing residential accommodation to more than 100 residents, all with an intellectual disability.

11 The respondent tendered a statement dated 28 April 2000 from Mr Ken Pope, Director, Corporate Services in the Ageing and Disability Department (ADD). That statement explained that the Minister gives approval each year for ADD to provide annual “block” funding to the Department of Community Services (DOCS) for Supported Accommodation and Community Support services. Mr Pope’s understanding was that “block” funding is allocated within DOCS in accordance with a resource allocation formula developed by the Department.

12 Mr Frank Azzopardi, Management Accountant in the Department of Community Services, provided a statement dated 17 April 2000 which said, in part, that the funding from Treasury and ADD to DOCS is on an agreed historical basis. The total budget is disseminated throughout the Department of Community Services on the agreed allocation determined in the previous year. Areas of DOCS then allocate their budgets to the individual units within their administration. For the current financial year, the Department’s allocation from Treasury via ADD for direct DOCS disability services is $277.460m. $71.685m was allocated from Treasury directly with respect to the provision of administrative and support disability services. The sum of $8,686,753 was allocated by the relevant area to the Peat Island Centre in the 1999/2000 financial year.

13 ADD and DOCS entered into an Interim Funding Agreement which set out the standard terms and conditions to apply to funding. The Agreement expired on 30 June 1999 but was extended on two occasions, firstly to 1 October 1999 and then to 31 December 1999. Mr Williams, for the respondent, was under the impression that the agreement was entered into some time prior to February 1999. There was no other evidence of the date that the Agreement was originally entered into, or its current status.

Relevant legislative provisions

14 Section 6 of the DSA sets out the fundamental duty of the Minister to ensure that services for people with disabilities are provided and funded in accordance with the objects, principles and applications of principles set out in the DSA. Services which did not comply with these objects and principles when the legislation commenced in 1993, were given three years to comply, if the Minister determined within 2 months that a transition plan be prepared. The Peat Island Centre was one of the services where the Minister required a transition plan to be prepared. Section 6 states that:

(1) It is the duty of the Minister in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1.

(2) This section does not apply to a designated service that was being provided or funded by the Minister immediately before the commencement of this section until:

(a) 2 months after the commencement of this section, except as provided by paragraph (b), or

(b) 3 years after the commencement of this section if, within the 2-month period the Minister determines that a transition plan be prepared under section 7 in relation to the designated service.

15 Section 7(1) and s 7(10) relate to transition plans. Those sub-sections state that:

(1) The Minister may determine that a transition plan be prepared under this section in relation to a designated service:
(a) that, immediately before the commencement of section 6, was being provided or funded by the Minister to persons in the target group, either directly to those persons or indirectly through other persons or bodies, and

(b) that, in the Minister's opinion, does not conform in its provision or funding with the objects of this Act and the principles and applications of principles set out in Schedule 1.

(10) The provision or funding of a designated service is taken to comply with the requirements of section 6 if it complies with the requirements of a transition plan.

16 There are several effects of s 6 and s 7 which are worth noting at this stage. Firstly, s 6(2) makes it clear that the Minister’s duty as outlined in s 6(1) does not apply to designated services such as the Peat Island Centre, until three years after the commencement of the legislation, that is, until 8 April 1996. Secondly, even after the transition plan for the Peat Island Centre was adopted on 25 March 1996 (and gazetted on 8 April 1996) the provision or funding of that service is taken to comply with the requirements of s 6 if it complies with the requirements of a transition plan. The transition plan must provide for the service to be provided or funded as closely as possible in conformity with the objects and principles of the Act and must indicate the date by which the service will be provided or funded in full conformity with the objects of the DSA. (Section 7(4))

17 Section 10 provides that:

(1) The Minister may approve the provision of financial assistance:
(a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or

(b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services, or

(c) to a person or eligible organisation conducting, or proposing to conduct, an approved research or development activity for the purpose of enabling the person or organisation to conduct that activity.

(2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1.

18 This section makes no separate provision for designated services such as the Peat Island Centre which were required to prepare a transition plan. Consequently, it must be assumed that s 10 applies to all services, regardless of whether they were taken to conform with the objects of the Act or whether they were required to prepare a transition plan because they did not conform with the DSA. Mr Williams did not make any submission to the contrary.

19 However the provisions of s 11 and s 12 set out the details that must accompany the approval of financial assistance. Significantly, section 12(1) states that the terms and conditions must deal with “the extent to which the organisation must conform to the principles and applications of principles set out in Schedule 1.” Section 11 states that:

When approving the provision of financial assistance, the Minister must determine:
(a) the amount of the assistance or the manner in which the amount of the assistance is to be calculated, and

(b) the time or times at which, and the instalments (if any) in which, the assistance is to be paid, and

(c) the terms and conditions on which the assistance is to be provided.

20 Section 12(1) states that:

(1) The terms and conditions on which financial assistance may be provided to an eligible organisation in relation to the provision of designated services must deal with each of the following matters:
(a) the extent to which the organisation must conform to the principles and applications of principles set out in Schedule 1 in connection with the provision of those services,

(b) the purposes for which the financial assistance may be applied,

(c) the amounts to be applied for those purposes,

(d) the outcomes to be achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services, and their rights in relation to the provision of designated services or otherwise,

(e) the performance indicators to be used in measuring the outcomes achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services.

21 Financial assistance is dependent on the eligible person entering into an agreement with the Minister. Section 17 provides that:

(1) Financial assistance is not payable unless the person to whom it is to be paid enters into an agreement with the Minister on the same terms and conditions as those on which the provision of the assistance was approved.

(2) The Minister may, with the consent of the other parties, vary the terms and conditions of such an agreement and the agreement is taken to have been varied accordingly.

22 In this case, the relevant agreement with the Minister and DOCS is the Interim Funding Agreement between ADD and the DOCS which although it is not dated, was apparently entered into prior to February 1999. The Agreement was with ADD rather than the Minister, pursuant to an Instrument of Delegation signed by the Minister on 22 June 1998, which allows certain Departmental officers to enter into an agreement under s 17 for the provision of financial assistance to persons or organisations for whom financial assistance has been approved.

23 Section 10(1) of the DSA sets out the people or organisation for whom the Minister can approve the provision of financial assistance. In relation to the Peat Island Centre, the approval was given under s 10(1)(b) and the “eligible organisation” in this case is DOCS. Section 10 states that:

(1) The Minister may approve the provision of financial assistance:
(a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or

(b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services, or

(c) to a person or eligible organisation conducting, or proposing to conduct, an approved research or development activity for the purpose of enabling the person or organisation to conduct that activity.

Issue

24 The issue to be determined in these proceedings is, given that financial assistance is being provided to the Department of Community Services to provide services at the Peat Island Centre under the DSA, when and in what context did the Minister approve the provision of financial assistance? In addition, has more than one decision been made under s 10?

Respondent’s submissions

25 Mr Williams re-iterated his submissions in earlier matters relating to the Peat Island Centre that the decision by Minister Dyer in April 1996 to adopt the transition plan in respect of the Peat Island Centre is the only decision that can be identified as a decision taken under s 10(1) of the DSA to provide financial assistance to that service.

26 Section 7 of the DSA allows a service that did not conform to the DSA to prepare a transition plan setting out how that service proposed to conform with the DSA in the future. Under s 7(10) of the DSA, the provision or funding of a designated service is taken to comply with the requirements of section 6 if it complies with the requirements of a transition plan.

27 According to Mr Williams “the only purpose to be served by the adoption by the Minister of a transition plan was to enable the funding of the service. The intent of the adoption of a transition plan for any service was to fund the service under the DSA.”

28 In Mr Williams’ view a number of provisions of the DSA make it clear that the terms and conditions required by s 11 and 12 are not “immutably fixed” to the decision under s 10. For example, payments of instalments of financial assistance can continue for up to 5 years after the decision to approve financial assistance is made, yet s 15 requires that compliance with the terms and conditions, and the extent to which outcomes required under those terms and conditions have been achieved, must be assessed no less frequently than every three years.

29 Mr Williams concluded that the adoption by the Minister of the transition plan for the Peat Island Centre is the operative s 10 decision and the terms and conditions pertaining to the provision of financial assistance to DOCS were rolled up with other services provided by DOCS into the generic Interim Funding Agreement between ADD and DOCS.

Applicant’s submissions

30 PWD submitted that the scheme of the DSA requires that in order for financial assistance to be provided to the Peat Island Centre, there must first be a relevant approval by the Minister under section 10(1)(b). According to PWD, an approval of financial assistance under s 10 is made when the last step necessary to constitute an approval is made. According to PWD the signing of the Interim Funding Agreement and its subsequent extensions is evidence of the Minister’s prior approval of funding for DOCS to provide services through the Peat Island Centre.

31 While the approval may be oral or in writing, or partly oral and partly in writing, its terms must be known and identifiable. If this was not the case, the correctness of the decision could not be assessed by the Tribunal. The review of funding decisions was clearly envisaged by parliament when enacting the DSA. The Hon Mr Longley, then Minister for Community Services, when introducing the bill, said that:

. . . provisions within this bill ensure that the Community Services Appeals Tribunal will have jurisdiction to review disputed funding decisions to ensure that they have been made in accordance with procedural requirements and the principles of the bill.( Hansard Legislative Assembly, 11 March 1993, p 771)

32 That jurisdiction is given by s 20 of the DSA.

33 PWD went on to submit that:

Good administrative practice would suggest that it is desirable for an approval of financial assistance under the Act to be a conscious act of the Minister and to be in writing . . . Unfortunately, that does not appear to be the case in this instance. There being no clear single document evidencing all the elements of the approval, the approval must be identified from the range of material available.

Reasons

34 The first finding that the Tribunal made was that:

The decision of the Minister of Disability Services made on 8 April 1996, to approve the transition plan for Peat Island was not a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993.

35 There is no dispute that a decision has been made to approve the provision of financial assistance to DOCS to fund services at the Peat Island Centre and that this decision is a reviewable decision. “Financial assistance” and “funding” are both defined in s 4 to mean “financial assistance under this Act”.

36 Section 7 of the DSA relates to the preparation of transition plans for non-conforming services. The approval of the transition plan is a pre-requisite to non-conforming services receiving funding, but a separate decision is required under s 10 for the approval of the provision of financial assistance. Adoption of the transition plan cannot be the approval of the provision of financial assistance because under sections 11 and 12, certain specific details such as the amount of the assistance and the terms and conditions on which the assistance is provided must be stipulated. Section 11 requires that when approving the provision of financial assistance, the Minister must determine certain matters such as the amount of assistance and the terms and conditions on which the assistance is to be provided. Section 12 sets out the subject matter that the terms and conditions must deal with. Neither the transition plan itself, nor the Minister’s decision to adopt it, contain any of the information required by s 11 or s 12.

37 The conclusion that the adoption of the transition plan does not constitute approval of the provision of financial assistance is further supported by the fact that there is no provision in the DSA which states that the adoption of a transition plan by the Minister constitutes the provision of financial assistance under s 10(2). If that was parliament’s intention, it would have been expressed.

38 The second finding the Tribunal made was that:

On or soon after 8 April 1996 the Minister made a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993.

39 Since there does not appear to have been any explicit decision by the Minister pursuant to s 10 in relation to funding for DOCS to run the Peat Island Centre, following the adoption of the transition plan, the Tribunal should adopt a construction of events which is consistent with the law being complied with. It should also be noted that decisions under s 10 cannot be delegated.

40 The Interim Funding Agreement which sets out many of the terms and conditions required by sections 11 and 12 of the DSA was not signed until sometime prior to February 1999. In these circumstances, since the Peat Island Centre continued to receive funding, the most likely conclusion is that the Minister impliedly gave approval for the provision of financial assistance, at or around the time when the transition plan was approved, that is on or around 8 April 1993. While the terms and conditions of the approval, as required by s 11 and s 12, may not have been articulated at that time, they may be implied from other documentation not currently before the Tribunal.

41 The Tribunal also made a decision to extend the time for the making of the application:

The Tribunal extends the time for the making of an application for a review of that decision to 2 February 2000 to People with Disabilities Inc pursuant to s 57 of the Administrative Decisions Tribunal Act 1997.

42 Under s 55(1)(d) of the Administrative Decisions Tribunal Act 1997 (ADT Act), a person may apply to the Tribunal for a review of a reviewable decision only if:

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

43 Clause 15(3) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 states that:

(3) For the purposes of section 55 (1) (d) of the Act, an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the day on which an internal review is taken to have been finalised under section 53 (9) of the Act.

44 On 26 July 1999, PWD requested an internal review of the Minister’s decision to approve financial assistance. As far as the Tribunal is aware, no internal review has been conducted, and in the light of the current status of these proceedings, pursuant to s 55(2)(c) of the ADT Act, the application should proceed without the necessity for an internal review to be conducted.

45 Section 57 of the ADT Act provides that:

(1) Despite section 55 (1) (d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

46 Consequently, the Tribunal has the power to extend the time for the lodging of PWD’s application if the Tribunal is of the opinion that it has provided a reasonable explanation for the delay in making the application.

47 PWD has made a number of submissions in other proceedings relating to the Peat Island Centre in relation to whether their application is out of time. In the absence of a finding by the Tribunal of a date, or at least an approximate date, as to when the decision to approve the provision of financial assistance was made, it was not possible for them to formulate an explanation for any delay.

48 At the hearing, PWD submitted that the public had never been given notice of any decision to approve the provision of financial assistance at the Peat Island Centre. If such notice had been given, for example by publication in the gazette or a newspaper, PWD would have had an opportunity to make an application in relation to the decision at that time. By failing to advertise or publicise the decision in any way, PWD submitted that it should not be penalised for failing to make a timely application. PWD further submitted that the Minister had not put forward any evidence of prejudice should the application be accepted. PWD has been active in attempting to have the decision reviewed since the original application on 26 July 1999. This application was made on the assumption that a decision to approve financial assistance must have been made at around the end of the financial year.

49 The Minister’s submission, dated 11 October 1999, relates to PWD’s previous application, but was repeated in relation to the present proceedings. The point made in that submission was that PWD was aware in September 1996 when they lodged an application against the Minister’s decision to adopt the transition plan for the Peat Island Centre that “the transition plan was the necessary precursor to continuation of the provision of financial assistance.” The Minister went on to submit that:

Information about these funding decisions would have been available from the Department on request at the appropriate time. . . PWD were thus aware of the making by the then Minister of a decision integral to the provision of financial assistance to those services and its omission to lodge an appeal in regard to that aspect of the matter must fall on its own shoulders.

50 It should be noted that PWD’s application in relation to the adoption of the transition plan for the Peat Island Centre was lodged with the Tribunal on 1 May 1996 and is within time.

51 Given these submissions, the Tribunal is satisfied that PWD has provided a reasonable explanation for the delay in lodging an application in relation to any decision to approve the provision of financial assistance to the Peat Island Centre. They have never been notified, nor have they been able to determine after reasonable inquiry, when that decision, or decisions were made. Furthermore, the Minister has not provided any evidence of prejudice if the application is accepted.

52 The final observation of the Tribunal was that:

The Tribunal leaves open the question of whether the Minister for Disability Services has made any further decisions under s 10 of the DSA to approve financial assistance to the Department of Community Services to provide services at Peat Island.

53 That question will be determined at the next hearing.