SALVATION ARMY (NSW) PROPERTY TRUST and AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD
[2010] AATA 253
•13 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5203
GENERAL ADMINISTRATIVE DIVISION ) Re SALVATION ARMY (NSW) PROPERTY TRUST Applicant
And
AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD
Respondent
DECISION
Tribunal Senior Member Ms G Ettinger Date13 April 2010
PlaceSydney
Decision The Tribunal does not have jurisdiction to review the application. ..................[SGD]............................
Ms G Ettinger
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 – Authority of Federal Court - Tribunal has no jurisdiction.
Aged Care Act 1997 (Cth)
Accreditation Grant Principles 1999 (Cth) ss 2.29, 2.32, 3.15, 3.24, 3.25, 7.1
Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal [2009] FCA 1514
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121
Shergold v Tanner (2002) 209 CLR 126
REASONS FOR DECISION
13 April 2010 Senior Member Ms G Ettinger SUMMARY
1. Mr James Grealy made an application to the AAT for review of a decision of the Aged Care Standards and Accreditation Agency Ltd (the Agency), which is the Respondent in these proceedings. That reconsideration decision was dated 16 October 2009, and was to accredit Gill Waminda Aged Care Services RACS ID 0076, (Gill Waminda), an aged care service of the Salvation Army (NSW) Property Trust for a period of two years.
2. The relevant legislation is the Aged Care Act 1997 (the Act). The Commonwealth has devised accreditation standards which apply to proprietors of nursing homes. The process is set out in the Accreditation Grant Principles 1999 (“the Principles”).
3. As a preliminary matter, I have to decide whether the Tribunal has jurisdiction to review the decision not to vary the period of accreditation which, in this case, is two years. I am mindful that a similar issue came before Senior Member McCabe in Brisbane who found that the AAT had jurisdiction. However in the appeal from Senior McCabe’s decision, Collier J, in Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal [2009] FCA 1514, (Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal) held that the AAT does not have jurisdiction to review a decision made pursuant to section 2.32 of the Principles not to vary a period of accreditation made under section 7.1 of the Principles.
4. I am bound to apply her Honour’s decision. My reasons for my decision follow.
5. I note also that it is undisputed that the actual Applicant in this matter is the Salvation Army (NSW) Property Trust, and that Mr Grealy, who originally made the application for review, is an employee of the Applicant. Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, in such circumstances, the name of the Applicant can be changed without the need to lodge a further application. The Tribunal has, with the consent of the parties, authorised this change.
FACTS IN THIS MATTER
6. The facts in this matter are not in dispute, and can be stated briefly.
7. The Applicant Approved Provider, Salvation Army (NSW) Property Trust is responsible for the residential care service, Gill Waminda.
8. Gill Waminda was accredited for a three year period, which was due to end on 31 October 2009. It sought re-accreditation of an existing residential care service. I noted that the maximum period for which a residential care service may be accredited is three years. There is however no maximum period for accreditation proclaimed by legislation.
9. Between 25 and 27 August 2009, an assessment team of the Respondent carried out a site audit of Gill Waminda in accordance with the Principles, in response to an application for re-accreditation of Gill Waminda (section 2.29(2)(a)). In response to the assessment team’s site audit, the Respondent issued a site audit report. That site audit report found that the Applicant complied with 42 of the 44 expected outcomes of the Accreditation Standards as set out in the Quality of Care Principles 1997. The audit found that Gill Waminda did not, however, comply with expected outcomes in relation to 1.8, Information Systems and 2.4, Clinical Care. It also held that “there is no identified or immediate risk to the health, safety and well-being of residents” … and that the home would “undertake continuous improvement.” On 2 October 2009 the Accreditation Decision Maker decided pursuant to sections 2.27 and 2.28 of the Principles that Gill Waminda be accredited for a two year period, from 1 November 2009 to 1 November 2011. That is the original decision.
10. On 9 October 2009, the Applicant requested a reconsideration of the accreditation decision. The Agency’s Manager, Accreditation Policy and Quality Assurance made the reconsidered accreditation decision pursuant to section 2.32 of the Principles on 16 October 2009, confirming the Applicant’s re-accreditation period of two years. It was on the basis of this decision that the Applicant sought reconsideration of the decision to this Tribunal.
11. The Respondent has raised the issue of jurisdiction, as it submits the Tribunal does not have the power to provide the relief the Applicant seeks because of the way in which the legislative scheme operates.Before any substantive matter may be heard, I must first decide whether the Tribunal has jurisdiction to review the re-accreditation decision made in regard to Gill Waminda.
THE LEGISLATIVE CONTEXT
12. The relevant legislation is the Aged Care Act 1997 (the Act).
13. The Commonwealth has devised accreditation standards which apply to proprietors of nursing homes. The process is set out in the Accreditation Grant Principles 1999 (“the Principles”). The Principles were enacted pursuant to the Act which 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.
14. Section 7.2 of the Principles provides that an application may be made to the AAT for review of a reviewable decision. Section 7.1 sets out the various decisions that qualify as reviewable decisions, including, of relevance to the matter before me, a decision made pursuant to section 2.32 for variation of the period for which a residential care service is to be accredited. There are other reviewable decisions as shown below such as refusal of an application on reconsideration pursuant to section 2.38 of the Principles, and revocation of an accreditation (sections 3.15 and 3.24). Variation of a period of accreditation made pursuant to sections 3.15 and 3.24 is also reviewable.
15. Section 7.1 What is a reviewable decision
Each of the following decisions of the accreditation body is a reviewable decision:
Item
Decision
Section under which decision made
2 Variation of period for which residential care service is to be accredited 2.32 3 Refusal of an application on reconsideration 2.38 4 Refusal to include an applicant’s nominated assessor in an assessment team 2.44 5 Refusal to accept an applicant’s objection to a quality assessor 2.45 6 Revocation of an accreditation 3.15 and 3.24 7 Variation of a period of accreditation 3.15 and 3.24 8 Refusal of an application to review registrar’s decision to remove from register 8.6 Section 2.29 Telling applicant about decision to accredit
(1) Within 14 days after making a decision in relation to the application, the accreditation body must tell the applicant, in writing, of the decision.
(2) If the accreditation body decides to accredit a residential care service, the accreditation body must also tell the applicant, in writing, about:
....
(3) If the accreditation body decides to accredit a residential care service, the accreditation body must also give the applicant:
(a) a copy of the site audit report; and
(b) a certificate of accreditation for the service.
….
Section 2.32 Applicant may apply for reconsideration of period for which service to be accredited
(1)The applicant may, within 7 days after being told about the decision to accredit the residential care service, give to the accreditation body a written request to reconsider the period mentioned in paragraph 2.29(2)(a).
(2) The accreditation body must, within 7 days of receiving a request:
(a) decide whether or not to vary the period; and
(b) tell the applicant, in writing, about its decision.
(3)If the decision is to vary the period, the accreditation body must also give the applicant a replacement certificate setting out the revised period for which the service is to be accredited.
Section 3.25 Decision not to revoke accreditation
(1) If the accreditation body decides not to revoke the residential care service’s accreditation, the accreditation body must decide:
(a) whether there are any matters in respect of which improvements must be made to ensure that the service complies with its responsibilities for continuous improvement; and
(b) the need to agree on a timetable to make improvements in these matters; and
(c) the form and frequency of support contacts with the service by the accreditation body under this Part.
(2) The accreditation body must tell the accredited provider about the decision mentioned in subsection (1).
(3) The accredited provider may, in writing, within 14 days after being told about a decision under subsection (1), ask the accreditation body to reconsider the decision.
(4) If the accreditation body receives a request under subsection (3), it must decide whether to confirm its decision and give the accredited provider its decision about the request:
(a) in writing; and
(b) within 14 days of receiving the request.
The Applicant’s Argument
16. I have noted here in summary, the submissions of Mr A Koumoukelis of Gadens Lawyers who appeared for the Applicant. He submitted that the AAT has jurisdiction to review the decision made by the Agency under 2.32(2)(a) of the Principles. He also submitted that the decision of the Federal Court, in Aged Care Standards and Accreditation Agency Pty Ltd v Administrative Appeals Tribunal is wrong, and should not be followed.
17. He submitted that Collier J should have held that a decision made pursuant to section 2.32(2)(a) of the Principles is a reviewable decision within the meaning of section 7.1 of the Principles, and that the error made by her Honour was in failing to construe section 7.1 of the Principles, and the meaning of the expression “[v]ariation of period for which residential care service is to be accredited” in the context of the Table set out in section 7.1 of the Principles. This should include, he submitted, the structure of the Table set out in section 7.1 of the Principles, and the words appearing in and above that Table. He submitted that properly construed, the words appearing in and above the Table in 7.1 of the Principles, appearing as they do in a Table and not in a sentence, should be construed together with 2.29 and 2.32 of the Principles, and not in isolation from each other.
18. Mr Koumoukelis explained this as a two step process with the following features. He submitted that one had first to identify whether the section of the Principles under which the relevant decision has been made was a section of the Principles identified in the third column of the Table in 7.1 of the Principles under the heading “Section under which decision is made”.
19. Having identified that the relevant section under which the decision was made, is in the third column of the Table contained in 7.1 of the Principles, the second step, he submitted, was to read the words appearing in the second column of the Table, under the heading “Decision”, as containing a description of the subject matter for decision. Adopting this approach, he said, the words “[v]ariation of the period mentioned in 2.29(2)(a)” are facultative, ambulatory in nature, and descriptive of the subject matter for decision.
20. He explained that in the opinion of the Applicant, a decision made under section 2.32 of the Principles in respect of “[v]ariation of the period mentioned in 2.29(2)(a)” includes both a decision to vary the period mentioned in section 2.29(2)(a) of the Principles, and a decision not to vary the period mentioned in 2.29(2)(a) of the Principles. The result, Mr Koumoukelis said is that the words “[v]ariation of the period mentioned in 2.29(2)(a)” do not specify a criterion which the decision made by the accreditation agency has to satisfy in order to found the jurisdiction of the AAT to review the decision made by the accreditation agency under 2.32(2).
21. Mr Koumoukelis told me that there are three reasons for this approach. He submitted that firstly, the approach to construction is consistent with the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably: cf., Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134; Shergold v Tanner (2002) 209 CLR 126 at 136.
22. He submitted that secondly, the approach to construction of section 7.1 of the Principles favoured by Collier J in Aged Care Standards and Accreditation Agency Pty Ltd v Administrative Appeals Tribunal leads to the consequence that the only circumstance in which there is a conferral of jurisdiction on the AAT to review a decision made under 2.32 of the Principles is where the Agency determines to vary the period mentioned in 2.29(2)(a) to a period different from that requested by the Applicant in the application made under 2.32(1) of the Principles. He submitted that this would lead to an absurd result, and that there was no logical rationale for why the legislature would have intended that outcome. In that regard he submitted that if the Agency made a decision under section 2.32(2)(a) of the Principles to vary the period mentioned in 2.29(2)(a) to the period requested by the Applicant, there would be no need for the Applicant to seek a review of that decision to the AAT because the Applicant would have been successful in achieving the outcome it had sought.
23. He submitted, however, that if the Agency made a decision under section 2.32(2)(a) of the Principles not to vary the period mentioned in 2.29(2)(a), on the construction propounded by Collier J in Aged Care Standards and Accreditation Agency Pty Ltd v Administrative Appeals Tribunal, there would be no right of review of that decision by the AAT.
24. He submitted therefore, that the only circumstance where a right to review a decision made under section 2.32 of the Principles to the AAT would be exercised by an Applicant was where the Agency made a decision to vary the period mentioned under section 2.29(2)(a) to a period different from that sought by the Applicant. He submitted that this would lead to an absurd outcome.
25. Mr Koumoukelis also referred to the principle stated by the High Court in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, and submitted that it should have been applied and given effect by Collier J in construing 7.1 of the Principles. He submitted that this Tribunal, which has jurisdiction to review a decision made pursuant to section 2.32 of the Principles should not take a restrictive interpretation of section 7.1 of the Principles, which would defeat the intention of the legislative scheme favouring meaningful merits review of an Agency’s decisions.
The Respondent’s Argument
26. Mr M Palfrey, Special Counsel with Clayton Utz Lawyers, who appeared for the Respondent submitted, in summary, that the reconsideration decision made pursuant to section 2.32(2) of the Principles could, according to the Principles, only vary the period of re-accreditation (up or down), or decide not to vary it. Mr Palfrey noted that in this case, in terms of section 7.1, the decision had been not to vary the period, and to re-accredit for two years.
27. Mr Palfrey also referred me to the decision of Collier J in Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal, in particular at [22] and [35], where her Honour stated:
“[22] In these proceedings there is, in essence, only one question of substance for decision. Does “variation of period for which residential care service is to be accredited” within the meaning of s 7.1 of the principles and by reference to s 2.32 of the Principles, include a decision to confirm the period for which residentialcare service is to be accredited? If the answer to this question is no, the applicant will be successful in its appeal.
….
[35] Turning now to the terms of item 2 in the table in s 7.1 of the Principles, I consider that the meaning of the words “variation of period for which residential care service is to be accredited” is plain. There is no ambiguity to warrant further exploration in an attempt to identify the intention of Parliament. The intention of Parliament appears clearly in the words used – a reconsideration decision is reviewable when the accreditation body varies (either up or down) the period for which a residential care service is to be accredited. A reconsideration decision where the accreditation body simply confirms its original decision in relation to the period of accreditation is not a decision which “varies” that period – and it is not reviewable. To read into “variation” a meaning which includes “no variation” strikes me as absurd, and in stark contradiction to the specific language of s 7.1.”
28. Mr Palfrey submitted that the decision of the Manager, Accreditation Policy and Quality Assurance was not a variation of the period accredited, but a decision not to vary, and that applying Aged Care Standards and Accreditation Agency v Administrative Appeals Tribunal, there is no jurisdiction for this Tribunal to review the reconsideration decision dated 16 October 2009.
The Tribunal
29. There is no disagreement, and I accept that this Tribunal has no power to review the original decision made pursuant to sections 2.27 and 2.28 of the Principles (section 25, Administrative Appeals Tribunal Act 1975). The question which remains is whether the decision made by The Manager, Accreditation Policy and Quality Assurance, made pursuant to section 2.32(2) of the Principles is a reviewable decision. Section 2.32(2) of the Principles states that the accreditation body must within seven days of receiving a request decide whether or not to vary the period, and tell the Applicant about its decision in writing. What we know is that the Manager, Accreditation Policy and Quality Assurance (acting as the accreditation body), decided not to vary the re-accreditation period for Gill Waminda. It maintained the status quo, affirmed the period of re-accreditation of two years as decided in the original decision, and informed the Applicant of its decision. The Agency did not have to issue a replacement certificate because the accreditation period was not varied, and remained at two years.
30. I have to decide whether not varying the period, and affirming the original decision to award a period of two years’ re-accreditation, can be construed as a reviewable decision pursuant to the legislation and Principles.
31. The starting point is section 7.1 of the Principles under the banner of Part 7, Reviewable Decisions. The heading for section 7.1 is “What is a reviewable decision”, followed by “Each of the following decisions of the accreditation body is a reviewable decision”. It goes on to list under item 2, “Variation of period for which residential care service is to be accredited”, a decision made pursuant to section 2.32. On first blush then, it appears that there is jurisdiction.
32. Mr Koumoukelis argued that there can be three decisions under section 2.32, a decision to vary the period of accreditation up, or vary the period down, or indeed to keep the accreditation period the same as it had previously been, that is, not to vary.
33. I have reproduced section 7.1 as follows:
Section 7.1 What is a reviewable decision
Each of the following decisions of the accreditation body is a reviewable decision:
Item
Decision
Section under which decision made
2 Variation of period for which residential care service is to be accredited 2.32 3 Refusal of an application on reconsideration 2.38 4 Refusal to include an applicant’s nominated assessor in an assessment team 2.44 5 Refusal to accept an applicant’s objection to a quality assessor 2.45 6 Revocation of an accreditation 3.15 and 3.24 7 Variation of a period of accreditation 3.15 and 3.24 8 Refusal of an application to review registrar’s decision to remove from register 8.6
34. The crucial words in item 2 are “variation of period”, and it is this phrase over which the parties each have very different interpretations which they have put to me.
35. I must consider the natural meaning of “variation”, and the meaning of the phrase “variation of period for which residential care service is to be accredited”. The Shorter Oxford Dictionary (3rd edition) defines “variation” as follows:
“I. Difference, divergence, or discrepancy between two or more things or persons
II. 1. The fact of varying in condition, character, degree, or other quality; the fact of undergoing modification or alteration, esp within certain limits b. The action of making some change or alteration.”
“Vary” is defined as:
1. Of things: To undergo change or alteration; to pass from one condition, state, etc., to another... 2. To differ, to exhibit or present divergence, from something else.”
36. The Butterworths Encyclopaedic Australian Legal Dictionary defines “variation” as follows:
“Change, which may involve addition, excision, modification, substitution, qualification or otherwise but generally does not involve complete replacement.”
37. In Aged Care Standards and Accreditation Agency v Administrative Appeals Tribunal, Collier J referred to “vary” importing the notion of change in some form. I respectfully agree, noting that that is the case from the dictionary definitions I have transcribed above. Her Honour has also referred to case law as follows in that regard:
“I note, for example, the following comment of Andrews J in The King (Conway) v Justices of The County Tyrone (1906) 2 IrR 164 at 170:
The Court of Quarter Sessions, it will be observed, is empowered, on hearing the appeal, to confirm, vary or reverse the order appealed against. I think each of these three words has a separate and appropriate meaning. “Confirm” requires no explanation; “vary” in my opinion, means alter in part, as distinguished from discharging the entire order appealed against, and making a wholly different one; and “reverse”, in my opinion, imports more than discharge, and means “changed to the contrary”. (emphasis in original).”
Her Honour noted that in:
“In R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R. 336 at 340, after considering The King (Conway) v Justices of The County Tyrone Mitchell J (King CJ and White J agreeing) observed:
‘The dictionary meaning does not accord with that given by Andrews J in that there is no suggestion that the change or alteration must be a change or alteration only in part.’”
38. I am mindful that Collier J was satisfied from the above, and I respectfully agree that the common theme in both the dictionary and judicial commentary is that the plain meaning of “variation” entails an alteration of some kind. To that extent, “variation” is distinguishable from “confirmation”, which entails preservation of the status quo as occurred in the present case, with the confirmation of a two year period of re-accreditation for Gill Waminda.
39. As noted above, Mr Koumoukelis submitted that the Applicant’s approach to construction is consistent with the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably: (cf., Magrath v Goldsbrough Mort & Co Ltd and Shergold v Tanner). Issue cannot be taken with that proposition, and there can be no argument with that submission.
40. Both counsel also referred me to the decision of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297. I noted Gibbs CJ (at 304-305) as follows:
“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v. Adamson (1877) 2 App Cas 743 at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd. (1947) 74 CLR 629 at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the generally speaking “nothing remains but to give effect to the unqualified, words”: Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at p 455 There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd., (1965) 2 ALL 382, at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes, 12th ed., (1969), at p. 228 et seq., and Craies on Statute Law, 7th ed., (1971), at p. 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”, as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors (1913) AC 107 at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice.”
41. Mr Koumoukelis (emphasising that it is important to read 7.1 and 2.32 together), referred in particular to the further words of Gibbs CJ which follow,:
“On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.”
42. I noted that Collier J traversed the different items, their description and the sections as listed in section 7.1 of the Principles in paragraphs 37 and 38 of Aged Care Standards and Accreditation Agency v Administrative Appeals Tribunal. Her Honour concluded, and I respectfully agree, that the words in the middle column describe the actual decision which is reviewable, and, in the third column, refer to the section pursuant to which the reviewable decision is made. Notwithstanding the heading referring to reviewable decisions, I am satisfied that not every decision pursuant to each section is reviewable. I note in particular with relevance to the present case that in item 6 which reads: “Revocation of an accreditation”, and item 7 which reads: “Variation of a period of accreditation”, decisions made pursuant to sections 3.15 and 3.24 are reviewable, but as will be seen below, not every decision made pursuant to sections 3.15 and 3.24 is reviewable.
43. Sections 3.15 and 3.24 follow as relevant:
Section 3.15 Decision about review audit
(1) The accreditation body may decide:
(a) to vary the period of accreditation; or
(b) to revoke the accreditation of the service; or
(c) not to revoke the accreditation.
….
Section 3.24 Decision about review audit
(1) The accreditation body may decide:
(a) to vary the period of accreditation; or
(b) to revoke the accreditation of the service; or
(c) not to revoke the accreditation.
Note It is open to the accreditation body to make no change to the existing arrangements.
….
44. Accordingly “revocation of an accreditation” (item 6 of section 7.1), is a reviewable decision if made pursuant to sections 3.15 or 3.24. It seems “not to revoke the accreditation” is not a reviewable decision pursuant to item 6, (section 7.1), and sections 3.15 and 3.24.
45. In item 7, “Variation of a period of accreditation” made pursuant to sections 3.15 or 3.24 is a reviewable decision, while “Variation of period for which residential care service is to be accredited” (item 2), is also reviewable if made pursuant to section 2.32 of the Principles. However, the operative word is “variation” and I am satisfied from the dictionary definitions above, and the case law that “variation” should be given its usual meaning, being a change or ‘the fact of varying in condition, character, degree, or other quality; the fact of undergoing modification or alteration, esp within certain limits …” I am satisfied that prima facie the term “variation” in this context, means that there must be a change in the period. Therefore where there is no “variation”, just as occurs where there is no revocation in sections 3.15 and 3.24, there is no reviewable decision.
46. Collier J referred to Aickin J at 338-339, endorsing comments of Lord Scarman in Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231 at 239 where his Lordship said:
“If the words used by Parliament are plain, there is no room for the “anomalies” test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake.”
47. I have noted also the further words of Aickin J as follows:
“It is however not permissible to rely on a supposed failure to express the real intention by reliance on what the reader thinks the Parliament or the draftsman should have intended or should have said.”
48. I respectfully agree with Collier J that there is no ambiguity to warrant further exploration in an attempt to identify the intention of Parliament. The intention of Parliament appears clearly in the words used – a reconsideration decision is reviewable when the accreditation body varies (either up or down) the period for which a residential care service is to be accredited. A reconsideration decision where the accreditation body simply confirms its original decision in relation to the period of accreditation is not a decision which “varies” that period, and it is not reviewable.Whilst the Applicant may find that unpalatable, or illogical, and it is curious that both items 2 and 7 in section 7.1 deal with the subject matter of a variation of a period of accreditation, albeit expressed differently in each case, that appears to have been the result of the drafting, and perhaps the will of Parliament. The effect is that I am satisfied from the above that the decision not to vary the period of two years for which the residential care service, Gill Waminda was re-accredited, is not a reviewable decision. The application for review must be dismissed.
DECISION
49. The Tribunal does not have jurisdiction to review the application.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger
Signed:.....................[SGD].........................................................
AssociateDate of Hearing 25 February 2010
Date of Decision 13 April 2010
Solicitor for the Applicant Gadens Lawyers
Solicitor for the respondent Clayton Utz
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