SH and Executive Officer Of the State Administrative Tribunal
[2008] WASAT 192
•26 AUGUST 2008
SH and EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL [2008] WASAT 192
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 192 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | CCS:2/2008 | 22 AUGUST 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 26/08/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Decision of the Executive Officer affirmed and the application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SH EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL |
Catchwords: | Application for review of decision of CEO of Department for Child Protection Application rejected by Executive Officer of the State Administrative Tribunal under s 44(1)(c) of the State Administrative Tribunal Act 2004 (WA) CEO had not made a reviewable decision Executive Officer correct to reject the application Decision to reject the application affirmed |
Legislation: | Children and Community Services Act 2004 (WA), s 89, s 90(1), s 90(3), s 91, s 92(1), s 93, s 94 State Administrative Tribunal Act 2004 (WA), Pt 3, s 8, s 13(1), s 14, s 17(1), s 44(1), s 44(3)(a) |
Case References: | Nil |
Orders | 1. The decision of the Executive Officer is affirmed and the application for review is dismissed. |
Summary | SH lodged an application for review of a decision which he said had been made by the CEO of the Department for Child Protection under the Children and Community Services Act 2004 (WA) about the care of his grandson and granddaughter. ,On advice from the Department for Child Protection that no relevant decision had in fact been made by the CEO, the Executive Officer of the Tribunal rejected the application pursuant to s 44(1)(c) of the State Administrative Tribunal Act 2004 on the ground that it did not comply with the enabling Act. ,SH asked the Executive Officer to refer his decision to the Tribunal for review.,The Tribunal found that SH had not exhausted the procedures in the Children and Community Services Act 2004 (WA) for internal review of matters concerning his grandchildren and that no reviewable decision had yet been made. It found that the Executive Officer had correctly rejected the application and affirmed his decision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : SH and EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL [2008] WASAT 192 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : 22 AUGUST 2008 DELIVERED : 26 AUGUST 2008 FILE NO/S : CCS 2 of 2008 BETWEEN : SH
- Applicant
AND
EXECUTIVE OFFICER OF THE STATE ADMINISTRATIVE TRIBUNAL
Respondent
Catchwords:
Application for review of decision of CEO of Department for Child Protection - Application rejected by Executive Officer of the State Administrative Tribunal under s 44(1)(c) of the State Administrative Tribunal Act 2004 (WA) - CEO had not made a reviewable decision - Executive Officer correct to reject the application - Decision to reject the application affirmed
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Legislation:
Children and Community Services Act 2004 (WA), s 89, s 90(1), s 90(3), s 91, s 92(1), s 93, s 94
State Administrative Tribunal Act 2004 (WA), Pt 3, s 8, s 13(1), s 14, s 17(1), s 44(1), s 44(3)(a)
Result:
Decision of the Executive Officer affirmed and the application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Selfrepresented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 SH lodged an application for review of a decision which he said had been made by the CEO of the Department for Child Protection under the Children and Community Services Act 2004 (WA) about the care of his grandson and granddaughter.
2 On advice from the Department for Child Protection that no relevant decision had in fact been made by the CEO, the Executive Officer of the Tribunal rejected the application pursuant to s 44(1)(c) of the State Administrative Tribunal Act 2004 (WA) on the ground that it did not comply with the enabling Act.
3 SH asked the Executive Officer to refer his decision to the Tribunal for review.
4 The Tribunal found that SH had not exhausted the procedures in the Children and Community Services Act 2004 (WA) for internal review of matters concerning his grandchildren and that no reviewable decision had yet been made. It found that the Executive Officer had correctly rejected the application and affirmed his decision.
Background
5 On 24 July 2008, the Tribunal received an application by SH for review of decisions said to have been made by the CEO of the Department for Child Protection (the Department). The application was made on the Tribunal's standard form by which applications can be made under s 94 of the Children and Community Services Act 2004 WA(the CCS Act).
6 Section 94of the CCS Actenables a person to seek review by the Tribunal of a decision of the CEO of the Department in relation to a care plan.
7 SH's grandson and granddaughter have been in the care of the Department since 2007. His grandson has severe physical and intellectual disabilities and has spent most of his life in hospital and in a care facility. His granddaughter lives with a carer under a protection order.
8 In his application to the Tribunal, SH outlined his grievances about arrangements for him and other family members to see his grandchildren, and the grounds on which he sought review of decisions by the CEO, including that the Department had failed to comply with the objects and principles of the CCS Act; to follow proper procedures and
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- accord SH procedural fairness; and to adequately and fairly to deal with his complaint.
The decision of the Executive Officer
9 As SH's application did not refer specifically to a decision of the CEO or attach a notice of such a decision, the Executive Officer of the Tribunal made inquiries of the Department to establish whether or not a reviewable decision had in fact been made.
10 On 1 August 2008, the Executive Officer received a letter from Ms Cowan, Senior Legal Officer for the Department. Ms Cowan advised that she was instructed that a meeting had been scheduled for 12 August 2008 to prepare and implement a care plan in accordance with s 89 of the CCS Act. She further advised that "it would seem that" SH had not applied for an initial review in accordance with s 93 of the CCS Act and nor had the CEO made a decision under s 93(6)(a) or s 93(6)(b) which would permit SH to seek review by the Tribunal under s 94.
11 On 1 August 2008, the Executive Officer of the Tribunal wrote to SH acknowledging receipt of his application and advising that he had rejected it under s 44(1)(c) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) on the ground that it did not comply with the CCS Act.
12 The Executive Officer advised SH that applications under s 94 of the CCS Act can only be made in accordance with the procedures set out in that Act, that is, after a review by a Case Review Panel and report to the CEO, and after the CEO makes a decision on the request for review. The Executive Officer suggested that SH contact the Department to clarify the steps he needed to take to request review by a Case Review Panel. He also advised that SH was entitled to ask the Executive Officer to refer his decision to reject the application to the Tribunal for review.
13 By letter dated 4 August 2008, SH asked the Executive Officer to refer the matter to the Tribunal for review pursuant to s 44(3)(a) of the SAT Act.
Provisions of the Children and Community Services Act 2004(WA)
14 The CCS Act sets out a scheme by which:
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- a) decisions of the CEO concerning a child in his care are to be reached, documented, and made known to various persons important in the child's life; and
b) a process by which review may be sought, initially internally and ultimately by the Tribunal, of those decisions.
15 As soon as practicable after a child comes into the CEO's care, the CEO must prepare and implement a written care plan which identifies the needs of the child and the measures to be taken to address those needs, and decisions about the care of the child including about where she or he will live and contact with family or other persons significant in her or his life: s 89(1) and s 89(2).
16 As soon as practicable after preparing a care plan, the CEO must ensure that a copy is given to specified persons: s 89(6).
17 The CEO must review the operation and effectiveness of every plan at regular intervals, not exceeding 12 months, and provide a written report on the outcome of the review to specified persons: s 90(1) and s 90(3).
18 A case planning decision means a decision set out in a care plan for a child: s 91.
19 The CEO must establish a case review panel, comprising not less than three members with relevant skills and experience, for the purpose of reviewing case planning decisions: s 92(1).
20 The child, a parent, any carer or any other person considered by the CEO to have a direct and significant interest in the welfare of the child may apply for review of a case planning decision: s 93(1).
21 An application for review of a case planning decision must be made to the CEO within 14 days after the applicant receives a copy of a care plan or modification of a care plan, setting out the relevant case planning decision. The CEO may extend this period in special circumstances: s 93(3).
22 The CEO must refer the application for review to a case review panel for its consideration and the panel must report to the CEO on its recommendations in respect of the application: s 93(4) and s 93(5).
23 The CEO must consider the report and may confirm, vary or reverse the case planning decision; substitute another decision; or refer the matter back to the case review panel for further consideration and report: s 93(6). The
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- CEO must give the applicant written notice of his decision and the reasons for it: s 93(7).
24 A person who is aggrieved by a decision made by the CEO under s 93(6)(a) or s 93(6)(b) may apply to the Tribunal for review of that decision.
SH's submissions
25 At a hearing on 22 August 2008, SH presented his arguments as to why he says the Executive Officer should accept his application for review of decisions made by the Department about his grandchildren.
26 SH told the Tribunal that first his grandson, and then his granddaughter, have been in the care of the CEO since 2007. He is aggrieved about decisions that have been made for their care and the contact he and other family members are allowed to have with them. He says these decisions comprise the care plans for his grandchildren.
27 The Department confirms that care plans for SH's grandchildren have not yet been made in accordance with the CCS Act but, following the meeting on 12 August 2008, they are being finalised and SH will receive written copies shortly.
28 SH has referred the Tribunal to a letter dated 22 May 2008 from Nick Trahanas, District Director with the Department. It is not necessary to set out the details of Mr Trahanas' response other than to say that it is a response to a formal complaint lodged by SH with the Department on 27 March 2008 including about delay by the Department in reaching decisions about care for, and contact with, his grandchildren. The letter is not a notice from the CEO given under s 93(7) of a decision made under s 93(6)(a) or s 93(6)(b).
29 SH submits that Mr Trahanas was acting on the delegated authority of the CEO in responding to his complaint and that the requirements for review by the Tribunal had therefore been met. However, when the details of the legislation were explained to him, he accepted that there has not been a request for review by a case review panel or decision by the CEO following a recommendation by a case review panel as the CCS Act requires. He accepted also that Mr Trahanas' letter is not the same as the written notice required by s 93(7).
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Reasons for decision
30 For the following reasons, the Tribunal confirms the decision of the Executive Officer to reject SH's application for review.
The SAT Act
31 The Tribunal has the jurisdiction described in Pt 3 of the SAT Act: s 8
32 A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned: s 13(1). A matter in which the Tribunal has jurisdiction comes within either its original or its review jurisdiction: s 14.
33 If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes with the Tribunal's review jurisdiction: s 17(1). Such a decision is a "reviewable decision" for the purposes of the SAT Act.
34 Section 44 of the SAT Act enables the Executive Officer to reject an application on the ground that -
a) it is made by a person not entitled to make it;
b) it is made after the time limit before which the application is required by the rules of the enabling Act to be made; or
c) it does not otherwise comply with [the SAT] Act or the enabling Act.
35 If the Executive Officer rejects an application, the applicant may ask him to refer his decision to the Tribunal for review: s 44(3)(a).
The CCS Act
36 The scheme in the CCS Act by which a decision of the CEO may be reviewed by the Tribunal is clear.
37 The Tribunal's jurisdiction arises in relation to a decision made by the CEO under s 93(6) to:
a) confirm, vary or reverse a case planning decision; or
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- b) substitute another decision for the case planning decision.
38 Even if the decisions made so far about SH's grandchildren could be said to comprise a care plan for the purposes of the CCS Act (which the Tribunal does not agree they do), there is no decision by the CEO made under s 93(6)(a) or s 93(6)(b) that the Tribunal can review.
Conclusion
39 There is no reviewable decision for the Tribunal to review and the Executive Officer was correct to reject the application.
40 SH is understandably frustrated about what he sees as the delay in making and implementing care plans for his grandchildren. It appears that process is now underway. If SH is aggrieved by a case planning decision contained in either care plan, he is entitled to ask the CEO of the Department to review that decision. The CEO will be obliged to refer his application to a case review panel which must consider the application and report to the CEO with its recommendation. If SH remains aggrieved after receiving written notice from the CEO of his decision following that review, he is entitled to apply to the Tribunal for review of that decision.
Order
1. The decision of the Executive Officer is affirmed and the application for review is dismissed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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