People with Disability Australia Incorporated v The Minister for Disability Services
[2011] NSWADT 100
•11 May 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: People With Disability Australia Incorporated v The Minister for Disability Services [2011] NSWADT 100 Hearing dates: 9 November 2010 Decision date: 11 May 2011 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: 1.The applicant's application that if File No. 094045 is dismissed.
2.In regard to the applicant's application that is File No. 104009:
(a)within 14 days of the publication of these reasons for decision the respondent to file and serve written submissions identifying the power under which the decision to fund the Sunny Field Association was made and the operation of s6(2) and (3) of the Administrative Decisions Tribunal Act 1997 in regard to that decision,
(b)within a further 14 days, the applicant to file and serve written submissions in reply,
(c)the application is listed for further directions on 29 June 2011 at 10am.
Catchwords: Jurisdiction - application for dismissal - no identifiable decision - no identifiable reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Reviews and Monitoring) Act 1993
Community Services (Complaints, Reviews and Monitoring) Regulations 2004
Disability Services Act 1993
Disability Services Regulations 2008
Disability Services Regulations 2010Cases Cited: Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44
People with Disability Australia Inc v Minister for Disability Services [2009] NSWADT 259Category: Interlocutory applications Parties: People with Disability Australia Incorporated (Applicant)
Minister for Disability Services (Respondent)Representation: R Francois (Applicant)
P Singleton (Respondent)
Gilbert and Tobin Lawyers (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 094045 and 104009
REasons for decision
The applicant, People With Disabilities Australia Incorporated (PWD), has lodged 2 applications seeking review of two decisions of the Minister for Disability Services (the Minister).
In the first application, File No. 094045, PWD seeks review of the 'conduct' of the Minister in continuing to provide a 'designated service', as defined in the Disability Services Act 1993 (the DS Act) at the Summer Hill Group Homes (formerly known as The Grosvenor Centre).
In the second application, File No. 104009, PWD seeks review of the decision of the Minister, as announced in the media release dated 23 April 2010, 'to fund' the Sunny Field Association to provide services and accommodation at Wadalba Group Homes to people with intellectual disability exiting the Peat Island Centre. PWD asserted that the purpose of the funding was to provide 'designated services'.
PWD claims that the abovementioned 'conduct' and 'decision' of the Minister do not conform with the objects of the DS Act and the principles and application of those principles set out in Schedule 1 of that Act.
The Minister claims that the Tribunal does not have any jurisdiction to hear and determine either application and seeks orders that each application be dismissed. It is the Minister's contention that in each application, PWD has failed to identify a 'decision' of the Minister that is a reviewable decision. In this regard, counsel for the Minister, contended that the findings of the Appeal Panel in Minister for Disability Services v People with Disability Australia Inc . (CSD) [2010] NSWADTAP 44 equally applied to this application of PWD.
The Minister also contends, on the basis of the period in which PWD asserts the 'conduct' or 'decision' of the Minister occurred, the DS Act had no application in so far as it related to the Minister's function of facilitating the provision of 'designated services' (see section 8 of the DS Act), or the Minister's ability to approve financial assistance (see section 10 of the DS Act) as no 'services' were prescribed by regulation as 'designated services'.
For the reasons set out below I agree with the Minister that the Tribunal does not have jurisdiction to hear and determine the first application for review lodged by PWD (i.e. File No. 094045).
In regard to the second application for review lodged by PWD (i.e. File No. 104009), I have been unable to make any conclusive findings as to jurisdiction on the material provided. Hence, the application is to be listed for further directions.
Relevant legislation
Jurisdiction
It is not disputed the Tribunal's jurisdiction to review a decision of an administrator, must be sourced from an Act other than the Administrative Decisions Tribunal Act 1997 (the ADT Act), which provides that a decision made under the other Act is a decision that is reviewable by the Tribunal: see section 38 of the ADT Act.
Nor is it disputed that the relevant Act from which the Tribunal's jurisdiction is sourced in regard to these applications is section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS Act). That section relevantly provides as follows:
" 28 Applications to Administrative Decisions Tribunal for Review of Decisions
(1)A person may apply to the Tribunal for a review of any of the following decisions:
(a) a decision that is a reviewable decision under ..., section 20 of the Disability Services Act 1993, or ...
(b) ...
(c) a decision that was made by a relevant decision maker and is a class prescribed by the regulations for the purposes of this section,
(d) ...
(2)In this section: "relevant decision maker" means the following:
(a) ...
(b) ...
(c) the Minister for Disability Services ..."
For the purpose of these applications there are two relevant provisions from which the Tribunal's jurisdiction might be sourced. These are section 20 of the DS Act and the Community Services (Complaints, Reviews and Monitoring) Regulation 2004 (CS Regs).
Section 20 of the DS Act relevantly provides as follows:
" 20. Decisions that are reviewable by Administrative Decisions Tribunal
For the purposes of section 28(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 application 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,
(c) a decision to provide financial assistance to a person or eligible organisation in relation to the conduct of an approved research or development activity if the terms and conditions on which the assistance is provided to the person or organisation do not comply with section 13,
(d) ..."
On the material provided, PWD would appear to rely on section 20(a) of the DS Act for the purpose of its second application for review (File No. 104009).
Clause 5 of the CS Regs prescribes what decisions are reviewable by the Tribunal under section 28(1)(c) of the CS Act. That clause relevantly provides as follows:
" 5 Decisions subject to review by Tribunal
(1)Decisions of the following kind are prescribed classes of decisions for the purposes of section 28(1)(c) of the Act:
(a) ...
(b) a decision made by the Minister ... to provide, or to continue to provide, a designated service within the meaning of the Disability Services Act 1993, where the provision of the service in accordance with the decision does not conform with the objects of that Act or the principles or applications of principles set out in schedule 1 to that Act,
(c) ...
(2)...
(3)A decision of the kind referred to in subclause (1)(b) belongs to a prescribed class of decisions only if the decision relates to designed services that are provided directly or indirectly as referred to in section (8)(2)(a) of the Disability Services Act 1993.
(4)In particular, a decision of the kind referred to in subclause (1)(b) does not belong to a prescribed class of decisions if the decision relates to the provision of financial assistance referred to in section 8(2)(b) of the Disability Services Act 1993.
(5)Subclause (4) does not affect any right of the view that exists under section 20 of the Disability Services Act 1993.
Relevant powers and functions of the Minister under the DS Act
The DS Act makes provision for disability services for persons with disabilities. The objects of the Act are set out in section 5 and they include ensuring the provision of services necessary to enable persons with disabilities to achieve their maximum potential as members of the community (see section 5(a) of the DS Act).
Sub-section 8(1) provides that the Minister has the function of facilitating the provision of 'designed services' to persons in the 'target group' and sub-section 8(2) sets out how this function is to be exercised. In a summary form, these are by providing 'designated services' to the 'target group' directly or indirectly, the provision of financial assistance to the target group directly or indirectly, or by encouragement of the provision of services to persons in the target group.
Section 10 of the DS Act gives the Minister power to approve the provision of financial assistance to persons in particular circumstances as prescribed in that section. These circumstances include provision of financial assistance to the 'target group' and to eligible organisations providing 'designated services' to persons in the 'target group.'
A 'designated service' is defined in section 4 to mean 'a service that is provided or funded by the Minister and that is prescribed by the regulations, or that belongs to a class of services so prescribed, for the purposes of this definition.'
'Target group' is defined in section 5. It is unnecessary to recite it for the purposes of this application, other than to say it includes persons who have a disability.
Sub-section 6(1) of the DS Act provides that 'it is the duty of the Minister in providing and funding designated services to persons in the target group, ... 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.'
File No. 094045 - The Summer Hill Group Home
The Summer Hill Group Homes were built near the Grosvenor Centre at Summer Hill. The Grosvenor Centre use to provide long-term residential care for persons with disabilities. It is my understanding from the material that the Summer Hill Group Homes has provided such care, since late 2008, for a small number of persons with disabilities.
On 20 August 2009, in a letter to the Minister, PWD's solicitors, amongst other requests, sought an internal review of the Minister's decision to continue to operate the Summer Hill Group Homes. In its request PWD contended that the Minister's decision was reviewable by reason of paragraph 5(1)(b) of the CS Regs.
On 23 September 2009, the then Acting Legal Services Branch Manager of the Department of Aging Disability and Home Care (the Department) responded, on behalf of the Minister, to PWD's request. Although the response did not make any concession as to whether PWD had identified a reviewable decision and hence a right for internal review (see section 53 of the ADT Act), the Manager of the Legal Services Branch provided some information about the Summer Hill Group Homes and the number of persons residing in these homes. The response went on to say that the Summer Hill Group Homes were being operated in accordance with the DS Act and PWD were invited to state, with particularity, the respects in which the Summer Hill Group Homes did not comply with the DS Act.
On 20 October 2009, the solicitor for PWD replied to the letter of the Acting Legal Services Branch Manager. In that reply PWD made a formal request, pursuant to section 53 of the ADT Act, for internal review of the Minister's decision to continue to operate the Summer Hill Homes. The letter also pointed out that PWD's concerns about the operation of these Homes and other Centres operated by the Department had been well documented in earlier correspondence.
On 17 November 2009, the solicitor for the Minister responded to PWD's letter and said that the Minister did not accept that PWD had identified a reviewable decision within the meaning of the ADT Act . The solicitor noted that this was the position taken by the Minister in an application of PWD before the Tribunal concerning other Centres operated by the Department (see People with Disability Australia Inc v Minister for Disability Services [2009] NSWADT 259).
PWD lodged this application for review with the Tribunal on 15 December 2009. In that application for review, PWD stated that it was seeking review of 'conduct' of the Minister 'in continuing to provide a designated service at the Summer Hill Group Homes'. It was the contention of PWD, that in construing the meaning of the word 'decision' in section 28 of the CS Act, one must have regard to the meaning of that word as contained in section 6 of the ADT Act. That definition I note is not conclusive. In any event, PWD appears to contend that the 'conduct' of the Minister 'in continuing to provide a designated service at the Summer Hill Group Homes' is a 'decision' under section 28 of the CS Act because it is the 'doing or refusing to do any other act or thing' as provided in paragraph 6(1)(g) of the ADT Act.
I am not persuaded by this argument. In my view, consistently with section 38 of the ADT Act, in determining whether a decision of an administrator is a decision that is reviewable by the Tribunal one must first consider the terms of the legislative provision in the Act that vests the Tribunal with jurisdiction to review decisions of the administrator made under that Act. In this application the relevant provision is paragraph 5(1)(b) of the CS Regs. As set out above, this paragraph expressly provides that it is the 'decision' of the Minister to do, or continue to do a specified act; namely to 'provide or to continue to provide designated services. If the word 'decision' were replaced with the words in paragraph 6(1)(g) of the ADT Act, paragraph 5(1)(b) of the CS Regs would make no sense at all.
The Minister relies on the decision Minister for Disability Services v People with Disability Australia Inc . (CSD) [2010] NSWADTAP 44, in which the Appeal Panel held at [42] that paragraph 5(1)(b) of the CS Regs 'could not be re-interpreted to embrace as a "decision" the doing of the "act" of conducting a service, by picking up the extended meaning of "decision" in s 6(1)(g).' I agree with this conclusion, for the reasons stated by the Appeal Panel and those I have sated above.
As mentioned above, the Minister also contends that for the same reasons given by the Appeal Panel in Minister for Disability Services (supra) at [47], PWD has failed to identify, in this application, a definitive 'decision' to which its application for review relates. The Appeal Panel found that as a result of this failure PWD's application for review was premature.
In my view the same applies to this application. Yet, on the material before the Tribunal, it would appear that the Minister made a decision, at some time prior to PWD's internal review request, to provide 'designated services' and/or financial assistance to persons with a disability at the Summer Hill Group Homes. It is difficult to understand why the Minister has been so reluctant to specify when decisions of this nature were made. The DS Act clearly envisages that 'interested parties' should be given notice of decisions made by the Minister under the DS Act, so that these parties can seek internal review and external review of those decisions. I note the Appeal Panel at [95] indicated that in the event PWD had identified a reviewable decision, it would have dismissed the Minister's appeal in so far as it related to PWD's standing to seek review of that decision. I make no findings in that regard for the purpose of these applications other than to note that persons within the target group of the provisions in the DS Act are so often reliant on family, carers and organisations, such as PWD, to advocate on their behalf. If these persons and organisations are not provided with relevant information about decision made by the Minister under section 8 and 10 of the DS Act, it is difficult to see how, as intended by Parliament, a person with disabilities can be sure that decisions made for their benefit are made in accordance with the objects and principles of the Act. At the same time, interested parties who are provided with the relevant information and who wish to seek review of the decision must identify for the Minister those aspects of the decision which it is alleged do not comply with the specified objects and principles of the DS Act and why they do not comply.
As mentioned above, the Minister also contends that even if it were accepted that a decision of the Minister had been identified in regard to a Summer Hill Group Homes as a 'designated service', it was not a reviewable decision because, at the time there were no Regulations in force which prescribed what were 'designated service' for the purpose of the DS Act. As a matter of law the Minister may be correct as there was a period where no Regulations were in force from the date on which the Disability Service Regulations 2003 was repealed (1 September 2008) and the Disability Services Regulation 2010 came into operation (9 July 2010).
In light of my findings that PWD has not identified a decision of the Minister, it is unnecessary for me to make any findings on this issue in regard to this application PWD. However, it is an issue relevant to PWD's second application and it is discussed more fully below.
File No 104009 - the Wadalba Group Homes
The Minister appears to acknowledge that in this application, PWD has identified a 'decision' of the Minister. Yet a copy of that decision has not been provided to PWD or the Tribunal.
As mentioned above, the 'decision' is a decision the Minister made around 23 April 2010 to fund the Sunny Field Association to provide services and accommodation to people with intellectual disability exiting the Peat Island Centre. In its application for review, PWD contended that the services to be provided were 'designated services' within the meaning of the DS Act and that these services did not conform with the objects of the Act and the principles and application of the principles set out in Schedule 1 of the Act.
The Minister contends that at the time the decision was made, the services to which it related were not 'designated services' as no such services existed at that time. Hence the decision identified by PWD was not a decision under the DS Act that was reviewable.
Clause 4 of the Disability Service Regulations 2008 (i.e. 1 September 2009) (2008 DS Regs) defined 'designated service' as follows:
'(1) The class of services that consists of all services provided or funded by the Minister (including co-funded services provided or funded through the Home Care Service, but not including any other co-funded services) is prescribed for the purposes of the definition of designated service in section 4 of the Act.
(2) In this clause, co-funded service means a service that is provided or funded by the Minister in accordance with an agreement in force between the State and the Commonwealth under the Home and Community Care Act 1985 of the Commonwealth.
Clause 6 of the 2008 DS Regs. made provision for the Regs. to be repealed on 1 September 2009.
It was not until 9 July 2010 that the Disability Service Regulations 2010 (2010 DS Regs) came into force. Clause 4 of the 2010 DS Regs. is in exactly the same terms as clause 4 of the 2008 DS Regs.. As pointed out by the Minister, the 2010 DS Regs. do not contain any transitional provisions, yet the 2008 DS Regs had such a provision so far as it related to decision that had been made under the Disability Service Regulations 2003. Accordingly, there was a period of 10 months where there were no regulations prescribing a service to be a 'prescribed service' for the purpose of the DS Act.
I am unsure whether the Minister's position is that the decision to fund the Sunny Field Association was made pursuant to a power of function, other than that provided in the DS Act. Or, whether the argument of lack of jurisdiction is based purely on the technical ground of no regulations being in force at the time the decision the subject for review was made. That is, the Minister purported to have made his decision under the DS, but in fact the decision was ineffective or invalid because no regulations were in force, at the relevant time, prescribing for the purposes of the DS Act what services were 'designated services'. If this is the position of the Minister, then arguably any purported decision of the Minister under the DS Act during the period there were no regulations in force and which concerned 'designated services' must be treated in the same way.
The Tribunal's jurisdiction does not extend to issues in regard to the validity of a decision made pursuant to an Act. However, I note sub-section 6(2) and (3) of the ADT Act provides that for the purpose of that Act, a decision purported to be made under 'an enactment ' (i.e. an Act other than the ADT Act), is a decision for the purpose of the ADT Act. These subsections provide as follows:
'6(2) ... For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.
(3) ... For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it. '
Accordingly, if the decision of the Minister, relevant to this application, is a decision that was purportedly made in the exercise of the Minister's functions under section 10 of the DS Act they are arguably a reviewable decision, notwithstanding the fact that no regulations had been prescribed.
However, as I have indicated, PWD nor the Tribunal have been provided with a copy of the decision of the Minister, which concerns the provision of funding the Sunny Field Association.
As this issue has not been raised previously, it is appropriate to make orders for the parties to make written submissions in this regard and also direct the Minister to indicate the power under which the decision that is the subject of review in this application was made.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 11 May 2011
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