Q v Wyong Shire Family Day Care
[2007] NSWADT 79
•5 April 2007
CITATION: Q v Wyong Shire Family Day Care [2007] NSWADT 79 DIVISION: Community Services Division PARTIES: APPLICANT
Q
RESPONDENT
Wyong Shire Family Day CareFILE NUMBER: 064016 HEARING DATES: 21 February 2007 SUBMISSIONS CLOSED: 28 February 2007
DATE OF DECISION:
5 April 2007BEFORE: Britton A - Deputy President; Monaghan-Nagle L - Non Judicial Member; Moss J - Non Judical Member CATCHWORDS: Child care provider registration - cancellation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Children's Services Regulation 2004
Family Day Care and Home Based Child Care Services Regulation 1996CASES CITED: Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257
YG & GG v Minister for Community Services [2002] NSWCA 247
McDonald v Guardianship Administration Board [1993] 1 VR 521REPRESENTATION: APPLICANT
RESPONDENT
In person and R Payer, agent
K Marco and A Dixon, agentsORDERS: The Respondent’s decision to remove the Applicant’s name from the register of family day care carers is affirmed.
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
- (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
1 The Applicant has applied to the Administrative Decisions Tribunal for review of the decision made by Wyong Shire Family Day Care and In-Home Care Services, the Respondent in these proceedings, to deregister her as a family day care carer. The Respondent is a licensee of a children’s service approved to provide family day care and the Applicant was a family day care carer until her registration was terminated in August 2006.
2 In a letter dated 9 August 2006, the Respondent notified the Applicant of its decision to remove her name from the register it is required to maintain. Brief reasons were given for that decision. These relate to the Applicant’s alleged failure to comply with relevant safety standards and regulations.
3 The Applicant contends that the decision was unfair and unjust. She argues that the matters on which the Respondent relied were factually inaccurate, trivial or have now been addressed. She contends that it is telling that over five years she has cared for more than one hundred children and, in that time, not one child has been injured nor has any complaint of mistreatment been levelled against her. She also points to the many parents, whose children she has cared for during this period, who attest to the loving care she provided.
Jurisdiction
4 The decision to remove the Applicant’s name from the Respondent’s register is reviewable by this Tribunal: s 38(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and cl 123A of the Children’s Services Regulation 2004 (the 2004 Regulation).
5 The Tribunal Act provides that a person can apply to the Tribunal for review of a ‘reviewable decision’ such as a decision to remove their name from a family day care register, but only where an internal review is taken to be finalised (s 55(1)(b)).
6 The Applicant did not request an internal review. The Respondent did not advise her that she had a right to have an internal review, as it was required to do under s.48(1)(b) of the Tribunal Act.
7 An application for review must be lodged with the Tribunal within 28 days of receiving notice of the decision (s 55(1)(d)). Here the application was lodged a few days out of time. The Applicant explained that she was late in making her application as first, she was not told she could ‘appeal’ the decision and, second, she was unaware she was required to do so within 28 days.
8 Section 55(2) gives the Tribunal a discretion to review a decision that has not been the subject of an internal review where it is satisfied that it is necessary ‘in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned’ (s 55(2)(c)). On written application the Tribunal has the power to extend the time for making an application, where it is of the opinion that a reasonable explanation for the delay has been provided (s 57(1)).
9 The Respondent does not object to the application being determined despite it being out of time and not the subject of an internal review. We have decided to exercise our discretion to proceed to conduct our review notwithstanding these procedural shortcomings because there was no material delay in lodging the application and the Respondent failed to comply with its statutory obligations to advise the Applicant of her rights of review.
10 In a document issued to the Applicant headed ‘Implementation of complaint handling Procedure’, the Respondent wrote ‘If complaint has not been resolved … then the complainant has the right to contact the following organisations ... Four organisations were nominated one being the Tribunal. (The contact details given for the Tribunal was the phone number of a Department of Community Services (DoCS) officer).
11 It is troubling that nearly three years after the commencement of the 2004 Regulation which conferred upon carers a statutory right of review in the event of their deregistration as a carer, that the Respondent provided the Applicant with inaccurate information. This suggests that further education of licensees working in this area might be desirable.
Non-compliance with regulations and policies
12 The decision to remove the Applicant’s name from the register had apparently been delegated by the Respondent to a sub-committee of its Board of Management, the Grievance Sub-Committee.
13 In a letter to the Applicant dated 9 August 2006 the Respondent set out the grounds for its decision, which, for convenience, can be categorised as eleven separate allegations. It told the Tribunal that there were ‘other issues’ it could raise but had decided not to in these proceedings. No evidence of these alleged ‘other issues’ was provided to the Tribunal and we proceed on the basis that the matters set out in the letter of 9 August 2006 are the sole relevant complaints/allegations concerning the Applicant.
14 Set out below are the allegations relied upon and the Applicant’s response. We have not detailed all allegations.
15 Allegation One: Driving children in ‘unsafe’ vehicle. It is not in issue that throughout the relevant period carers were required to have regular inspections of any vehicle used to transport children, to ensure, among other things, that the seating complied with relevant safety standards. The Applicant concedes that as found by the Respondent in February 2002 her car had not been inspected. She thought it unlikely that she would have used her car at that time as it could not accommodate the number of children in her care, which she recalled to be five. In any event she claimed that the safety check was nothing more than a cursory inspection to ensure that the children’s seats and restraints were fitted correctly.
16 Allegation Two: Tablets accessible to children. The Applicant admits that when staff visited her home in 2002 they discovered tablets on the kitchen bench, which was accessible to children. She claims that they were vitamin supplements, not, as alleged, prescription drugs.
17 Allegation Three: Children playing in unfenced yard. The Respondent alleged that the Applicant had permitted children in her care to play in an unfenced front yard. The Applicant conceded that the front yard was unfenced but claimed that the children were not permitted to play in that area. She claimed that the only time children would have access to the front yard was when they arrived or left her home in the company of their parents.
18 Allegation Four: Renovations commenced without notifying Respondent. The Respondent required carers to notify it before home renovations were commenced. The Applicant concedes that she failed to do so before renovating her kitchen in March 2004. She claimed that at the time she had not been aware that she was required to do so.
19 Allegation Five: Broken glass accessible to children. Area Co-ordinator Frances Camillieri, recorded in a Home Visit Report, dated 23 April 2004, that on a visit to the Applicant’s home on that day, she saw a broken window leaning against the front of the house in an area accessible to children.
20 The Applicant disputes that the window was in the location alleged. On her account, the builder working on the house at the time would have removed it ‘almost immediately’ and placed it in the side passage to the house, which was inaccessible to children. In any event she claims that the children could not access the front entrance of her house except on arrival or departure.
21 Allegation Six: Transporting children by unauthorised person. In January 2005 a neighbour of the Applicant transported three children in her care without the authorisation of either the Respondent or the children’s parents. The Respondent asserts that this was in breach of its ‘Car Safety’, ‘Supervision’ and ‘Routine Outings and Excursions’ policies.
22 The Applicant admits the facts on which this allegation was based but points to the following:
- first, she had volunteered the information about the incident to the Respondent, albeit after the incident;
second, the neighbour worked for the local area health service as a driver;
third, she has known him for a long period and believed him to be trustworthy;
fourth, the children were never out of her sight — she was driving directly behind the neighbour at all times;
fifth, had the children not been driven by the neighbour, they would have missed out on an excursion as her car could not accommodate all of them.
24 The Applicant does not dispute the above. She argues however that the risk to the children has been overstated. She claims that the non-complying taps were over a spa bath and out of reach of the children. Furthermore she maintains that no child was allowed to use the bathroom without supervision.
25 She agrees that there had been a delay in rectifying the problem but contended that this delay had been unavoidable. She pointed out that the solution initially proposed by the Respondent’s staff, i.e. fitting covers over the taps, had proved to be unsatisfactory, as suitable covers could not be found. Rectification was then delayed because of builder unavailability.
26 Allegation Eight: Administering medication without authority. The Respondent requires carers requested to administer medication to a child to complete and maintain a pro forma ‘Medication Form’. That form sets out the name of the medication, when it is to be administered and the dosage. The parent is then required to ‘sign off’ on these details. The carer is required to certify on the form when the medication was administered and the dosage given. (See also 2004 Regulation, cl. 81.)
27 In July 2006 the Applicant gave medication to a child notwithstanding that the parent had not ‘signed off’ on the Medication Form. It is not in issue that the parent had requested the Applicant to administer the medication, that the correct dosage was given and that the only part of the form not completed was the parent’s signature. The sole complaint was the absence of written authorisation. The Applicant claimed it was common for parents to forget to sign the register in their rush to get to work, as has happened in this case. She also pointed out that the medication was ‘nothing more’ than over-the-counter pain relief.
28 Allegation Nine: Children leaving premises without authorisation. On 10 April 2006 the Applicant advised the Council that two primary school aged brothers, in her care, had ‘run off’. Shortly after they were reported missing the boys were found at home and unharmed.
29 Following this incident, staff of the Respondent and the Applicant agreed that a ‘Management Plan’ was needed and, that as part of that plan, the front door which the boys had used to leave the house, should be locked and the key kept with the Applicant at all times. The Applicant undertook to develop a ‘Before and After School Management Plan’ and submit it to the Respondent.
30 Three months later during a visit to the Applicant’s home the Respondent’s officers noticed that there was a key in the front door lock which was accessible to the children. One of the boys who had ‘run off’ had opened the front door to a visitor during their visit. At the time of that visit the Applicant had not submitted a Management Plan as agreed. Nor is there evidence that one had been developed.
31 The Applicant concedes that the key had been left in the front door. She claims that it was an oversight and that she had been distracted as by then she was aware that her performance was under scrutiny. She claimed that the ‘key solution’ was in any event inadequate. She pointed out that it was simply not possible to in effect ‘lock up’ school-age children.
Parental Support
32 The Applicant gave evidence that she enjoyed the support of the great majority of parents and was generally able to work through any problems that arose concerning their child/ren.
33 In support of that claim she tendered testimonials from six parents all of whom spoke highly of her capabilities and aptitude as a carer. The mother of the boys who had absconded from her care (see Allegation Nine) wrote that her sons had at that time been troubled by issues unrelated to the Applicant and would have found a way to ‘escape no matter what’. She wrote that the Applicant was the ‘perfect role model’ and surrounded her boys with positive things and always did her best for them. Parents of a three year old girl who had been in the Applicant’s care since she was six weeks old stated that their daughter was very much ‘at home’ in the Applicant’s care. They spoke of the ‘special bond’ that had developed between their daughter and the Applicant.
34 Another mother spoke of her ‘deep regret’ that her son could no longer be cared for by the Applicant. She spoke in glowing terms of the range of activities and routine the Applicant had provided to her son.
35 All parents indicated they were prepared to speak to their references. All indicated that they ‘would not hesitate’ to return their children to the Applicant if her name was restored to the register.
36 One parent who provided a testimonial attended the proceedings and gave oral evidence in support of the Applicant’s application. She stated that her son, who had been with the Applicant for 18 months, was devastated when he left. She testified that he had been ‘very happy’; that she never had any concerns about the quality of the care provided by the Applicant or her son’s health and safety.
Legislative provisions
37 The licensing of family day care services is governed by the Children and Young Persons (Care and Protection) Act 1998 (‘1998 Act’) and the 2004 Regulation. By the operation of the savings and provisional transitional provisions of the 2004 Regulation, since 30 September 2004 the Respondent is taken to be the holder of a licence under the 1998 Act.
38 The licensee of a family day care children’s service (the licensee) is required to maintain a register of family day care carers, which sets out certain particulars. (Clause 101(1)). The licensee is not to enter the name of a person on that register for the service unless the person is an adult who, in the opinion of the ‘authorised supervisor’:
- (a) has an appropriate understanding of young children’s needs and development, including:
(i) the individual differences between children, and
(ii) activities that stimulate a child’s growth and development, and
(iii) nutrition, health, hygiene and safety, and
(iv) behaviour management, and
(b) is responsive to children, and
(c) is physically and emotionally able to care for young children, and
(d) is the holder of a current first aid certificate or is otherwise appropriately qualified to provide first aid in a medical or other emergency, and
(e) is able to communicate effectively with adults, and
(f) is aware of and sensitive to the needs of young children and their families, including children from a range of cultures and religions and children with disabilities, and
(g) is a fit and proper person to be concerned in the provision of the service, and
(h) has a general understanding of the relevant requirements of this Regulation.
- (a) an inspection is carried out of the prospective carer’s home, and
(b) an assessment is made as to whether the prospective carer’s home is adequate for provision of the service.
- (a) the carer fails to comply with an obligation that this Regulation requires the licensee to impose on the carer (cl 101(1)(a)) ;
(b) any part of the carer’s home used in connection with the service fails to comply with requirements set out in Part 3 of the Regulation relating to facilities and equipment requirements (cl 101(1)(b)).
- Nothing in this clause prevents the licensee of a family day care children’s service from removing the name of a family day care carer from the family day care register for the service at any time and for any reason.
42 In conducting this review, the Tribunal ‘stands in the shoes’ of the administrator, Wyong Shire Family Day Care and In-Home Care Services, and is required to make the ‘correct and preferable decision’ having regard to the material before it (Tribunal Act, s 63). This includes not only the material that was available to the Respondent at the time the original decision was made (Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]) but any material that postdates that decision (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). In making its decision, the Tribunal is instructed to observe the principles enunciated in s 9 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act), which include that the safety, welfare and well-being of the child or young person must be the paramount consideration. Section 201 of the Act sets out the objects of that part of the legislation, which deals with children’s services. They are:
- (a) to ensure the safety, welfare and well-being of children in children’s services, and
(b) to promote certain standards for those services, and
(c) to ensure, as far as possible, that all persons working in children’s services are suitable for such work.
- (a) the paramount consideration in the provision of children’s services is the best interests of children ,
(b) children should receive services that meet their individual needs (including the needs of children with a disability) and enhance their physical, emotional, cognitive, social and cultural development,
(c) parents have both a right and a responsibility to be involved in the making of decisions by a children’s service in so far as those decisions affect their children.
What the parties say
45 The Respondent’s main complaint is that over a period of time the Applicant repeatedly failed to comply with the 2004 Regulations (or its predecessor, the Family Day Care and Home Based Child Care Services Regulation 1996) and its own policies and procedures. It contends that this non-compliance is indicative of a pattern of conduct over an extended period. It contends that despite the best efforts of staff to assist and support the Applicant, the non-compliance escalated.
46 The Applicant contends that many of the incidents relied upon by the Respondent are trivial. She argues that since 2002, 12 allegations have been made which were spread more or less evenly throughout the period. This, she argues could not be characterised, as the Respondent contends, of a ‘pattern of escalating non-compliance’. She argues that regard must be had to mitigating circumstances that existed in the early part of the period, when her father was dying of leukaemia.
47 The Applicants points out that since commencing as a family day carer she has cared for over a hundred children, and none have been injured or seriously hurt while in her care. She points to the evidence before the Tribunal of the very large number of parents who believe she has provided exemplary care. Parents, she argued were well placed to provide a reliable assessment of the quality of care she has provided.
48 She argues that in making the decision the Tribunal should have regard to the not insignificant investment she has made to her home in order to comply with the 2004 Regulations.
Our decision
49 Clause 101(3) of the 2004 Regulation grants licensees of a family day care children’s service a very broad discretion to remove a family day care carer from the register. The clause provides that the licensee may do so ‘any time and for any reason’. Clearly, such a reason must be lawful and have a proper and rational foundation, but within those limits the discretion is remarkably wide. In determining what factors to have regard to in the exercise of this discretion, the objects and the principles of the legislations provide useful guidance as do the matters a licensee must have regard to in deciding whether to enter the name of a person on the Register. (ss 201 and 202 of the 1998 Act and clause 101(1) of the 2004 Regulation).
50 A glance at the 2004 Regulations reveals that family day care services are now heavily regulated. They prescribe minimum standards about a wide range of matters such as the storage of dangerous equipment, food preparation, record keeping, health and safety, to name but a few. In addition carers are required to provide equipment that is adequate and sufficient and provide a program of activities that are age-appropriate, stimulating, educational and balanced.
51 What is apparent from a review of the regulatory framework in which family day care now sits, is that Parliament intended that family day care services meet certain exacting standards. The safety net of regulation, which underpins this sector, has been set high. It is apparent that it is no longer sufficient for a family day care carer to possess those essential and intangible attributes that are the hallmark of quality care, such as the ability to relate to children. They must also meet the standards set out in the Regulations.
52 It is against that regulatory framework that the allegations concerning the Applicant are to be judged.
53 It is incontestable that she has many fine attributes as a carer. She is supported in this application by a large number of parents who attest to her many qualities and the deep affection their children have for her.
54 It is very much in her favour that throughout the period under review there is not a shred of evidence to suggest that she mistreated any child or that anyone in her care was injured or harmed.
55 However, even if those allegations which the Applicant disputes are not taken into account, (namely allowing children to play in an unfenced yard; glass being left at the front of the house), the Respondent’s records reveal a troubling pattern of non-compliance.
56 The Applicant it would seem has not in our view developed sufficient insight into why some aspects of her conduct are troubling. A number of examples bear this out. The first is Allegation Six involving the neighbour driving children on an excursion. As the evidence shows, nothing untoward happened and the children were safe and uninjured. We have no doubt the Applicant would not have entrusted her charges to a person she thought might have a poor driving record or otherwise be thought of as unreliable. Nonetheless it was an example of very poor judgement. Her evidence given in these proceedings did not persuade us that she had now understood why it was inappropriate for the neighbour to drive the children. While she now recognises that it was a breach of the Respondent’s guidelines, she did not appear to us to appreciate why the Respondent — charged with the supervision of close to one hundred carers — cannot be expected to delegate to each, the right to decide whom and in what circumstances third parties will be permitted to escort children in care.
57 The medication incident (Allegation 8) provides a further troubling example. The Regulations unambiguously state that a carer must ensure that medication is not administered without the written authorisation of the child’s parent (cl 81(2) (a)). That requirement has apparently been imposed in order to minimise the risk of human error. The Applicant concedes she was at fault however her evidence did not suggest that she fully appreciated why safeguards, such as requiring the written authority from a parent, were necessary or desirable. We were left with the impression that she saw it very much as yet another example of bureaucratic regulation. Disturbingly there is no evidence of any positive steps being taken by the Applicant after this incident occurred, to ensure that she would not find herself in the same position again.
58 When asked by the Tribunal what steps she would take if her name was restored to the register the Applicant replied that she would be more diligent in attending to paperwork but could not point to any other strategy she might employ. We were not left with any confidence that she would be able to consistently juggle the difficult task of providing full time care to children in her home and complying with the rules and regulations now imposed on carers.
59 A review of the history of this matter suggests that the Respondent could have taken more active steps to bring to the Applicant’s attention the possible consequences of a continued breach of the Regulations and rules. Also it would seem that in the early part of the period under review the administrative requirements imposed on carers could have been simplified and more ‘user friendly’.
60 The issue for us to decide is what is the ‘correct and preferable’ decision. In our view not every breach of the Regulations or a licensee’s policy warrants the removal of a carer from the register. To do so would be arbitrary and in our view not in the best interests of children in family day care. The nature and frequency of any non-compliance must be taken into account. Here the Applicant has repeatedly failed to comply with the requirements imposed on carers. While some are minor in nature, taken overall we believe there has been substantial non-compliance over a significant period. Critically we could not be satisfied that she would be prepared to take steps to ensure that this pattern of non-compliance is not repeated. For these reasons despite her many fine qualities as a carer we affirm the Respondent’s decision.
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