RSL (Qld) War Veterans' Homes Ltd T/a RSL Care and Aged Care Standards and Accreditation Agency Ltd

[2009] AATA 684

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 684

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1524

GENERAL ADMINISTRATIVE DIVISION		)
Re		RSL (QLD) WAR VETERANS’ HOMES LTD T/A RSL CARE

Applicant

And AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date9 September 2009

PlaceBrisbane

Decision The Tribunal has jurisdiction to review the application.

......................[Sgd]........................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Whether Tribunal has jurisdiction to review a reconsideration decision not to vary the period for which a residential care service is to be accredited – Tribunal has jurisdiction – Reconsideration decision is in practical sense a variation rather than affirmation – Restrictive interpretation would defeat legislative intent

Aged Care Act 1997 (Cth) ss 80, 85

Accreditation Grant Principles 1999 (Cth) ss 2.32, 7.1

REASONS FOR DECISION

9 September 2009 Senior Member Bernard J McCabe         

1.      The Commonwealth has devised accreditation standards which apply to proprietors of nursing homes. The accreditation process is set out in the Accreditation Grant Principles 1999 (“the Principles”). The Aged Care Standards and Accreditation Agency Ltd (“the agency”) is an accrediting body under the Principles. The applicant in these proceedings is RSL (Qld) War Veterans’ Homes Ltd. The applicant operates an aged care facility at Rowes Bay. The applicant’s facility has been accredited since 27 February 2006. It sought re-accreditation from the agency when its original three year accreditation period was expiring. After completing the accreditation process, the agency decided the applicant should be accredited for a period of two years from 30 March 2009. The applicant had expected to be accredited for three years. It says most nursing homes are accredited for three years and does not think it has been dealt with appropriately. The applicant sought reconsideration of the decision. On 18 March 2009, the agency completed its reconsideration and decided not to vary the original decision to accredit for two years. The decision was made pursuant to s 2.32 of the Principles.

2.      The applicant has asked the Tribunal to intervene. The agency has raised a question of jurisdiction. It says the Tribunal may not have the power to provide the relief the applicant seeks because of the way in which the legislative scheme operates.

The legislative scheme

3.      

The Principles were enacted pursuant to the Aged Care Act 1997 (“the Act”). The Act provides for subsidies to be paid in connection with the supply of aged care and accommodation services. A service provider is only eligible for financial support if it meets the accreditation standards. The Commonwealth has contracted with an accrediting body – the agency – to undertake the accreditation process pursuant to

s 80-1 of the Act.

4. Section 85-8 of the Act says the Tribunal has the power to deal with reviewable decisions (defined in s 85.1) that have been confirmed, varied or set aside pursuant to ss 85-4 or 85-5 by the Secretary upon reconsideration. Section 85 does not refer to decisions of the accreditation agency made pursuant to the Principles.

5.      

The Tribunal’s power to review the decisions of the agency is found in s 7.2 of the Principles. The agency points out that the power is expressed to be limited to “reviewable decisions”. Section 7.1 sets out the various decisions that qualify as reviewable decisions. The agency says the relevant reviewable decision is a “Variation of period for which residential care service is to be accredited” pursuant to s 2.32 of the Principles. I note the reconsideration decision at folio 5 of the

T-Documents refers the decision being made pursuant to s 2.32 of the Principles.

6. The agency says the decision to accredit (pursuant to s 2.27 of the Principles) and the period for which the entity is to be accredited (under s 2.28) are not listed as reviewable decisions. Only the reconsideration of the decision to accredit comes before the Tribunal, and only where the reconsideration decision varies the period under review. The agency argues a decision not to vary the period of accreditation that was determined in the original decision is not itself a reviewable decision because it is not a “Variation of period for which residential care service is to be accredited” (emphasis added) within the meaning of s 7.1 of the Principles.

7.      If this interpretation of the law is correct, an adverse decision over the period of accreditation (for example, a decision to accredit for a shorter period) that is affirmed in the course of an internal review process is practically unreviewable by the Tribunal.

8. The applicant says that would be a surprising outcome. It points out that the agency provided the applicant with information at the time of the accreditation decision informing the applicant it had a right of appeal to the Tribunal in relation to decisions over the period of accreditation and any variation to that period. A copy of that material was provided to the Tribunal, and I accept the applicant’s account of what it says. The applicant goes on to submit that a sensible reading of the legislative scheme requires the Tribunal to accept the Parliament intended that the Tribunal should have power to review decisions in relation to the period for which a service provider is accredited, amongst other things. The applicant referred me in this regard to item 7 in s 7.1 of the Principles, which refers to a “Variation of a period of accreditation” pursuant to ss 3.15 or 3.24 of the Principles. While s 3.15 is inapplicable because it deals with decisions made prior to 1 January 2001, the applicant says the variation of an accreditation period pursuant to s 3.24 is clearly intended to be reviewable. The applicant says the agency is effectively using the wording of the Principles to frustrate meaningful review of its decisions. That cannot be what the Parliament intended when the legislation was passed.

9.      I should say at once that I do not think the Tribunal is empowered to review the decision merely because the agency mis-described the appeal rights in the information it provided to the applicant. The power of the Tribunal to undertake a review is derived from the legislation, not from the conduct of the parties.

10. While the outcome contended for by the agency may surprise at first glance, the agency suggests it is not unusual when one has regard to the operation of the Principles. The agency’s written submissions dated 17 July 2009 point out that a reviewable decision made under s 3.24 would be subject to the same objection if the reviewable decision affirmed what had already been decided at first instance. The Tribunal would only have the power to deal with the outcome of the reconsideration if the reconsideration varied what had already been decided. As I understand it, the agency is arguing that the legislative scheme has intentionally created an administrative regime in which an adverse decision can only be reviewed once. If it is unchanged upon review – even if that review is an internal review, rather than an independent review conducted by the Tribunal – that is the end of the matter.

11. I accept that the interpretation contended for by the agency is open upon a plain reading of the words of the Principles. It is arguably the most obvious interpretation of what is written. But it does seem to be at odds with the purposes of the legislative scheme. That scheme has created an accreditation process that is administered by a private organisation. It is no surprise in the circumstances that the Principles should provide for appeal rights in respect of decisions of the agency which go to questions of accreditation. The scheme contemplates an internal reconsideration of a decision as the first step in the appeal process, but did the Parliament intend that the process should end there if the internal review affirmed what had already been decided? The answer to that question appears to depend on the nature of a reviewable decision under the Principles.

12.     A reviewable decision is, first and foremost, the product of a review of the original decision. But that review is not simply a reconsideration of the process that was undertaken at first instance. The Principles appear to contemplate the agency starting afresh and reviewing all of the material on reconsideration with a view to reaching a fresh decision as to what should be done. A perusal of the text of the reconsideration decision in this case confirms that is what occurred here. Where, as here, the agency decides on reconsideration of that material that the original decision to change the accreditation period was right, it is effectively adopting the decision that the period of accreditation be varied from what it was before the original decision. The outcome of the reconsideration decision is, in a practical sense, a variation rather than an affirmation. To treat it as anything else would be to prefer an overly restrictive interpretation of the words in the Principles that appears to defeat the intentions of the legislative scheme. That scheme favours meaningful administrative review of the private agency’s decisions.

Conclusion

13.     The Tribunal has jurisdiction to deal with the proceedings.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.........................[Sgd].....................................................
  Michael Buckingham, Associate

Date of Hearing  30 June 2009
Date of Decision  9 September 2009
Applicant was self-represented     
Solicitor for the respondent     Clayton Utz Lawyers