Southern Cross Community Health Care Pty Ltd v Chief Commissioner of State Revenue

[2021] NSWSC 1317

Supreme Court

New South Wales

Medium Neutral Citation:

Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317

Hearing dates:

10, 11, 12, 13, 27, 31 May, 21 June 2021 (Submissions 3 September 2021)

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Equity

Before:

Emmett AJA

Decision:

The Court makes the following orders:

(1)   Direct the plaintiff, by no later than 4:00pm on 29 October 2021, to bring in short minutes to reflect the conclusions reached in these reasons;

(2)   The plaintiff pay the defendant’s costs of the proceedings; and

(3)   Reserve leave to the parties to apply, by no later than 4:00pm on 12 November 2021, for further directions if there is a dispute as to the calculation of payroll tax or interest or as to the costs of the proceedings.

Catchwords:

TAXES AND DUTIES — payroll tax — liability — employment agents — interpretation of Payroll Tax Act 2007 (NSW), s 37(1) — meaning of “client” — whether workers provided in and for the client’s business — whether quadripartite arrangements between attendant care worker, recipient of care, funder of care and provider of care workers are employment agency contracts

TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), Sch 2 cl 8 — meaning of “the Crown” — meaning of staff “employed in connection with” public hospitals or local health districts — meaning of work “in connection with the conduct” of public hospitals or health districts — whether exclusively engaged in relevant work

TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), s 40(2) — whether client declaration requirement essential to exemption availability — failure to obtain client declarations

TAXES AND DUTIES — payroll tax — wages — payments under relevant contracts — interpretation of Payroll Tax Act 2007 (NSW), s 32(2)(b)(iii) — meaning of “90 days” — whether a “day” in a financial year is constituted by 8 hours of work however dispersed throughout the year or a 24 hour period during which any amount of work is performed

TAXES AND DUTIES — payroll tax — wages — payments to contractors — independent contractors or common law employees — indicia of common law employment

TAXES AND DUTIES — administration — interest — remission — Taxation Administration Act 1996 (NSW), s 25 — remittal of premium interest — conflicting factors — prior audits and investigations concluded payroll tax not payable — absence of full and frank disclosure — partial success on appeal

Legislation Cited:

A New Tax System (Australian Business Number) Act 1999 (Cth), ss 8, 18

Aged Care Act 1997 (Cth), Pt 3.2, Divs 8, 14, s 61-1

Area Health Services Act 1986 (NSW), ss 11, 25

Civil Procedure Act2005 (NSW)

Disability Act 2006 (Vic)

Disability Inclusion Act 2014 (NSW), s 4

Disability Inclusion Regulation 2014 (NSW), Sch 1

Eight-hours Act 1916 (NSW)

Government Sector Employment Act 2013 (NSW)

Health Administration Act 1982 (NSW), s 9

Health Services Act 1988 (Vic)

Health Services Act 1997 (NSW)

Home Care Service Act 1988 (NSW), s 4

Interpretation Act1987 (NSW), ss 5, 13

Miscellaneous Acts (Area Health Services) Amendment Act 1986 (NSW)

Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 11C, 43(3)

National Disability Insurance Scheme Act 2013 (Cth), ss 6, 13, 15

NSW Trustee and Guardian Act 2009 (NSW), ss 5, 11

Pay-roll Tax Act 1971 (NSW), ss 3C, 10

Payroll Tax Act 2007 (NSW), ss 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17, 32, 33, 34, 35, 37, 38, 39, 40, 50, 51, 63, 100, Sch 2 cll 7, 8, 9, Sch 3 cl 8

Pay-roll Tax (Amendment) Act 1979 (NSW)

Pay-roll Tax (Amendment) Act 1983 (Vic)

Pay-roll Tax (Further Amendment) Act 1977 (NSW)

Public Sector Employment and Management Act 2002 (NSW)

Public Sector Employment Legislation Amendment Act 2006 (NSW)

Public Service Act 1999 (Cth)

Social, Community, Homecare and Disability Services Industry Award 2010, cl 25.1

State Insurance and Care Governance Act 2015 (NSW)

State Revenue Legislation Amendment Act 2005 (NSW)

State Revenue Legislation Further Amendment Act 1999 (NSW)

State Revenue Legislation (Miscellaneous Amendments) Act 1998 (NSW)

Statute Law (Miscellaneous Provisions) Act 2016 (NSW), Sch 4 cl 2

Superannuation Guarantee (Administration) Act 1992 (Cth), s 12

Supreme Court Act 1970 (NSW)

Taxation Administration Act 1996 (NSW), ss 3, 10, 18, 21, 22, 24 ,25, 86, 91, 94, 95, 97, 100, 103, 103A, 104, 105, 101, 119

Cases Cited:

Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702

Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (NSW) [2019] NSWSC 657; (2019) 109 ATR 879

Bridges Financial Services Pty Ltd v Chief Commissioner of State Revenue [2005] NSWSC 788; (2005) 222 ALR 599

Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144

Commissioner for Superannuation v Miller (1985) 8 FCR 153

Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91

Drayton v Martin (1996) 67 FCR 1

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346; [2015] FCAFC 37

Grain Growers Ltd v Chief Commissioner State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359

Harrington Park Children Services (NSW) Pty Ltd v Chief Commissioner of State Revenue [2008] NSWSC 266; (2008) 71 ATR 143

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44

HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2018] NSWSC 820; (2018) 108 ATR 84

Jamsek v ZG Operations Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119

Lease A Leaf Property Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 41; (2011) 85 ATR 273

Leffanue v Southern Cross Community Health Care Pty Ltd [2020] FWC 3122

Moore Park Gardens Management Pty Ltd v Chief Commissioner State Revenue [2006] NSWCA 115; (2006) 62 ATR 628

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; 1 All ER 433

Smith’s Snackfood Co Ltd v Chief Commissioner State Revenue [2012] NSWSC 1116; (2012) 90 ATR 342

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Tasty Chicks Pty Ltd v Chief Commissioner State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Trust Co of Australia Ltd v Chief Commissioner of State Revenue [2002] NSWADT 21

UNSW Global Pty Ltd vChief Commissioner of State Revenue [2016] NSWSC 1852; (2016) 104 ATR 577

Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773; (2018) 108 ATR 63

WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALJR 681

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1979

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 March 2006

Theodor Mommsen, Paul Krueger and Alan Watson (eds), The Digest of Justinian (1985, University of Pennsylvania Press) 19.2.9.5; 19.2.19.9; 19.2.19.10; 19.2.35.pr; 19.2.22.2; 19.2.51.1

World Health Organisation, “Continuity and Coordination of Care: A Practice Brief to Support Implementation of the WHO Framework on Integrated People-centred Health Services” (2018, Geneva)

WW Buckland, A Textbook of Roman Law: From Augustus to Justinian (3rd rev ed, 1963, Cambridge University Press)

Category:

Principal judgment

Parties:

Southern Cross Community Healthcare Pty Ltd (Plaintiff)
Chief Commissioner of State Revenue (Defendant)

Representation:

Counsel:
E Collins SC with C Burnett SC and A Hammond (Plaintiff)
R Seiden SC with D Mitchell and D Woods (Defendant)

Solicitors:
Colin Biggers & Paisley Pty Ltd (Plaintiff)
Crown Solicitor of New South Wales (Defendant)

File Number(s):

2018/185670

Publication restriction:

Nil

Judgment

Introduction

1. The plaintiff, Southern Cross Community Health Care Pty Ltd (Southern Cross), is engaged in the business of arranging for the provision of in-home attendant care services (Care Services) for the disabled, frail and aged (Participants). It does so by arranging for the provision of Care Services by support workers or attendant care workers (Support Workers). Southern Cross makes such arrangements at the behest of various authorities (the Funders), which pay Southern Cross for the provision of such services under contractual arrangements between Southern Cross and the Funders. Southern Cross remunerates the Support Workers, who have no contractual arrangement with the Funders or the Participants. These proceedings are concerned with the liability of Southern Cross for payroll tax under the Payroll Tax Act 2007 (NSW) (the Payroll Tax Act) in respect of remuneration paid to Support Workers by Southern Cross in the years ended 30 June 2012, 2013, 2014, 2015 and 2016 (the Relevant Tax Years).

2. Southern Cross has received payroll tax assessment notices dated 11 July 2017 in respect of payments made to Support Workers during the Relevant Tax Years (the Assessments). By the Assessments, the defendant, the Chief Commissioner of State Revenue (the Commissioner), required payment, by 1 August 2017, of sums totalling $6,234,619.67, being payroll tax totalling $6,184,685.11 and interest totalling $867,731.83 (as at the time of the Assessments), less $817,797.27 already paid by Southern Cross. The total interest claimed by the Commissioner is $2,931,967.00 as at 30 April 2021 consisting of market rate interest of $533,967 and premium rate interest of $2,378,000. On 9 October 2017, Southern Cross lodged objections to the Assessments. By letter of 18 April 2018, the Commissioner disallowed the objections (the Objection Decision).

3. By its amended summons filed on 4 March 2021, Southern Cross now appeals from the Objection Decision under the Taxation Administration Act 1996 (NSW) (the Administration Act). Southern Cross claims orders that the Commissioner withdraw each of the Assessments or, in the alternative, reassess Southern Cross. Against the possibility that it fails in those claims, Southern Cross seeks orders that the Commissioner remit interest imposed. Before outlining the issues raised by the appeal, it is desirable to explain the legislative scheme under which the issues arise.

The Payroll Tax Act

4. Under s 6 of the Payroll Tax Act, payroll tax is imposed on all taxable wages. Under s 7, the employer by whom taxable wages are paid or payable is liable to pay tax on the wages. Section 8 deals with the ascertainment of the amount of payroll tax payable and, under s 9, a person who is liable to pay payroll tax on taxable wages must pay the tax within seven days after the end of the month in which the wages are paid or payable, except in the case of June, in which case the person must pay the tax within 21 days after the end of the month.

5. Under s 13 of the Payroll Tax Act, wages means wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee. Under s 14, wages includes fringe benefits and, under s 17, wages includes superannuation contributions.

6. Under s 10 and s 11, wages are taxable wages, relevantly, if:

• the wages are paid or payable by an employer for or in relation to services performed by an employee wholly in New South Wales,

• the employee or the employer is based in New South Wales, or

• the wages are paid or payable in New South Wales.

However, exempt wages are not taxable wages. I shall deal with exempt wages below.

7. Division 7 of Pt 3 of the Payroll Tax Act deals with “contractor provisions”. Under s 32, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person, either supplies to another person services for or in relation to the performance of work, or has supplied to the designated person the services of persons for or in relation to the performance of work. However, relevantly for present purposes, a relevant contract does not include a contract of service or a contract under which the designated person during a financial year, in the course of a business carried on by the designated person, is supplied with services for or in relation to the performance of work, where those services are provided for periods that, in the aggregate, do not exceed 90 days in that financial year. ^[1]

   1. See s 32(2)(b)(iii).

8. Section 33 provides that a person who during a financial year, under a relevant contract, supplies services to another person, or to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work, is taken to be an employer in respect of that financial year. Under s 34, a person, who during a financial year performs work for or in relation to which services are supplied to another person under a relevant contract is taken to be an employee in respect of that financial year. Amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract are taken to be wages paid or payable during that financial year. ^[2]

   2. Section 35.

9. Division 8 of Pt 3 of the Payroll Tax Act, which includes ss 37 to 40, deals with “employment agents”. Under s 37, an employment agency contract is a contract under which a person (an employment agent) procures the services of another person (a service provider) for a client of the employment agent. An employment agency contract, under which services are supplied by an employment agent, or a service provider is procured by an employment agent, is not a relevant contract for the purposes of Division 7. ^[3] Under s 38, the employment agent under an employment agency agreement is taken to be an employer and, under s 39, the person who performs work for or in relation to which services are supplied to the client under an employment agency contract is taken to be an employee of the employment agent.

   3. Section 32(3).

10. Under s 40(1), any amount paid or payable to or in relation to the service provider in respect of the provision of services in connection with an employment agency contract is taken to be wages paid or payable by the employment agent under the employment agency contract. However, s 40(2) provides that s 40(1) does not apply, relevantly, to an employment agency contract to the extent that an amount, benefit or payment referred to in s 40(1) would be exempt from payroll tax under Pt 4, had the service provider been paid by the client as an employee. Section 40(2) applies only if “the client” has given to the employment agent, in the form approved by the Commissioner, a declaration to that effect.

11. Part 4 of the Payroll Tax Act deals with “exemptions”. Division 3 of Pt 4 deals with “health care service providers”. Under s 51, which is in Div 3 of Pt 4, wages paid or payable by a health care service provider are exempt wages if:

• the wages are paid or payable for work of a kind ordinarily performed in connection with the conduct of a health care service provider; and

• the wages are paid or payable to a person engaged exclusively in that kind of work.

12. Part 3 of Sch 2 to the Payroll Tax Act, which has effect by the operation of s 100, deals with “exemptions”. Division 2 of Pt 3 of Sch 2, which consists of cll 7 to 10 inclusive, deals with “health care service providers”. Under s 51(3) and cl 7 of Div 2 of Pt 3 of Sch 2, a health care service provider is a public hospital or a hospital that is carried on by a society or association otherwise than for the purpose of profit or gain to the individual members of the society or association.

13. Clause 8 of Div 2 provides that wages paid or payable by the Crown in respect of staff employed in connection with a public hospital or a Local Health District are exempt if:

• the wages are paid or payable for work of the kind ordinarily performed in connection with the conduct of public hospitals or of the Local Health District concerned; and

• the wages are paid or payable to a person engaged exclusively in that kind of work.

The Administration Act

14. Section 86 of the Taxation Administration Act 1996 (NSW) (the Administration Act) provides that a taxpayer who is dissatisfied with an assessment that is shown in a notice of assessment served on the taxpayer may lodge a written objection with the Commissioner. Under s 91 of the Administration Act, the Chief Commissioner must consider such an objection and either allow the objection in whole or in part or disallow the objection. Under s 94, the fact that an objection is pending does not in the meantime affect the assessment or decision to which the objection relates and tax may be recovered as if no objection were pending. Division 1 of Pt 5, which deals with interest in respect of tax defaults, applies to an amount of tax required to be paid following the determination of an objection. ^[4]

    4. Section 95 of the Administration Act.

15. Under s 97 of the Administration Act, a taxpayer may apply to the Supreme Court for a review of a decision of the Commissioner that has been the subject of an objection if the taxpayer is dissatisfied with the Commissioner’s determination of the objection. A review by the Supreme Court is taken to be an appeal for the purposes of the Supreme Court Act 1970 (NSW).

16. In such an appeal, the Court is required to consider the correct application of the provisions of the Payroll Tax Act to the relevant materials before the Court and has power to confirm or revoke the assessments or make an assessment or other decision in place of the assessments. ^[5] Under s 101(1) of the Administration Act, the Court may make any order as to costs or otherwise as it thinks fit. Under s 119(b) of the Administration Act, the Commissioner’s notice of assessment is prima facie evidence, for the purposes of a review proceeding, that the amount and all particulars of the assessment are correct. As the appellant, Southern Cross bears the onus of proving, on the balance of probabilities, all matters necessary for the relevant questions to be answered in its favour. ^[6]

    5. See Tasty Chicks Pty Ltd v Chief Commissioner State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41 at [12]-[20].

    6. See s 100(3) of the Administration Act.

17. For the purposes of the Administration Act, a tax default is, relevantly, a failure by a taxpayer to pay, in accordance with the Payroll Tax Act, the whole or part of tax that the taxpayer is liable to pay. ^[7] Under s 21, if a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last date for payment until the day it is paid at the interest rate from time to time applying under Div 1 of Pt 5 of the Administration Act.

    7. Section 3.

18. Under s 22 of the Administration Act, the interest rate applying under Div 1 of Pt 5 is the sum of the market rate component and the premium component. The market rate component is the Bank Accepted Bill rate rounded to the second decimal place or the rate specified for the time being by order of the relevant Minister published in the Gazette. The Bank Accepted Bill rate in respect of any day is defined in s 22(4) by reference to the yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia. The premium component is 8% per annum. Under s 24, if judgment is given by or entered in a Court for an amount of unpaid tax, the interest rate determined in accordance with Div 1 of Pt 5 continues to apply, to the exclusion of any other interest rate, until the tax is paid. Under s 25 the Commissioner may, in such circumstances as the Commissioner considers appropriate, remit the market rate component or the premium component of interest or both, by any amount.

Grounds of Review

19. The Commissioner assessed Southern Cross for payroll tax on the basis that remuneration paid by Southern Cross to Support Workers in the Relevant Tax Years was subject to payroll tax as wages on the basis that the Support Workers were common law employees of Southern Cross. That is to say, he treated the Support Workers and Southern Cross as being parties to contracts of service. In its amended appeal statement of 25 July 2019, Southern Cross contends that the Support Workers are not common law employees.

19. However, Southern Cross also contends that some or all of the payments made by it to Support Workers in the Relevant Tax Years are not subject to payroll tax because they were made in relation to employment agency contracts and were exempt under s 40 and cl 8 in Sch 2 of the Payroll Tax Act. Southern Cross says, in the alternative, that if its arrangements with Support Workers are not employment agency contracts or are not exempt under s 40 and cl 8 in Sch 2, some of the payments fell within s 32(2)(b)(iii) of the Payroll Tax Act.

20. The issues as to liability raised in the appeal may be summarised as follows:

Issue (1)A   Whether the arrangements between Southern Cross and the Support Workers are employment agency contracts within the meaning of s 37(1) of the Payroll Tax Act.

Issue (1)B Whether, if the arrangements between Southern Cross and the Support Workers are employment agency contracts, the exemption in cl 8 of Sch 2 would apply to the Support Workers.

Issue (1)C   Whether, if the arrangements between Southern Cross and the Support Workers are employment agency contracts and the exemption in cl 8 of Sch 2 would apply to the Support Workers, the requirement for a declaration to the effect referred to in s 40(2) is essential for the application of the exemption.

Issue (2)   Whether, if the arrangements between Southern Cross and the Support Workers are not employment agency contracts, the Support Workers are “employees” of Southern Cross by reference to the common law meaning of that term.

Issue (3) Whether, if the arrangements between Southern Cross and the Support Workers are not employment agency contracts and the Support Workers are not common law employees, payments to any of those Support Workers satisfy the 90-day rule in s 32(2)(b)(iii) of the Payroll Tax Act.

Issue (4) If Southern Cross is liable to pay any payroll tax, whether any amount of interest charged by the Commissioner on that payroll tax should be remitted, in whole or in part, under s 25 of the Administration Act.

22. If, in relation to any Support Worker, each of Issues (1)A, (1)B and (1)C is answered “yes”, payments to that Support Worker will not be liable to payroll tax. If, in relation to any Support Worker, Issue (1)A is answered “yes” and either Issue (1)B or Issue (1)C is answered “no”, or Issue (1)A is answered “no” and Issue (2) is answered “yes”, the payments by Southern Cross to that Support Worker would be taken to be wages under s 40(1) of the Payroll Tax Act. If, in relation to any Support Worker, Issue (1)A is answered “no”, Issue (2) is answered “no” and Issue (3) is answered “yes”, some of the payments will not be liable to payroll tax. If, in relation to any Support Worker, each of Issue (1)A, Issue (2) and Issue (3) is answered “no”, the payments by Southern Cross to that Support Worker would be taken to be wages under s 40(1) of the Payroll Tax Act. Issue (4) only arises if Southern Cross has any liability for payroll tax in respect of the Relevant Tax Years.

Issue (1)A, Issue (1)B and Issue (1)C: Sections 37, 40 and cl 8 of Sch 2

23. Southern Cross contends that the arrangement between it and each Support Worker constitutes an employment agency contract under s 37 of the Payroll Tax Act because it consists of a contract under which Southern Cross procures the services of the Support Worker for a particular Funder. Southern Cross contends that the Funders are its “clients” for that purpose and that s 40(2) applies to some or all of the payments by it to the Support Workers because:

• amounts paid by it to the Support Worker would be exempt from payroll tax under cl 8 of Sch 2 had the Support Worker been paid by the relevant Funder as an employee of the Funder, having regard to the following:

○   each of the Funders, being New South Wales Government entities or Commonwealth Government entities, is “the Crown”;

○   each of the Support Workers works in connection with a public hospital or Local Health District;

○   the work of each of the Support Workers is of a kind ordinarily performed in connection with the conduct of public hospitals or the Local Health District concerned; and

○   each of the Support Workers is engaged exclusively in that kind of work; and

• each of the Funders has given, or has been asked to give, to Southern Cross a declaration as referred to in s 40(2).

Accordingly, Southern Cross says, such payments made by it to each of the Support Workers are not wages and are therefore not subject to payroll tax.

24. The Commissioner, on the other hand, contends that the Court should not be satisfied that the Support Workers provide services in an employee-like manner to the Funders such that it could not be said that a Support Worker swells the workforce of the relevant Funder. Accordingly, the Commissioner says, there is no employment agency contract between Southern Cross and a Support Worker.

25. The Commissioner contends that Southern Cross provides services to Participants of a kind that the Funders do not provide and that the Participants are aware that the services are being provided by Southern Cross. The Commissioner disputes that the Funders are “clients” of Southern Cross for the purposes of s 37 of the Payroll Tax Act. Further, the Commissioner says, the Support Workers do not provide their services for public hospitals or Local Health Districts and they do not work in connection with public hospitals or Local Health Districts. Finally, the Commissioner says, the Support Workers do not undertake work of a kind ordinarily performed in connection with public hospitals or Local Health Districts.

26. In any event, the Commissioner says, the Funders have not provided the declaration referred to in s 40(2), which is an essential requirement for the exemption relied on by Southern Cross. Accordingly, the claimed exemption under s 40 is said to fail on that basis alone.

Issue (2): Common Law Employment Relationship

27. Payroll tax is payable on “wages” paid or payable to “an employee”. The term “employee” is not defined in the Payroll Tax Act and therefore has its general common law meaning. Southern Cross contends that the true character of the relationship between it and each of the Support Workers is not one of employment at common law. Rather, it says, having regard to the totality of the relationship, each of the Support Workers is more properly considered to be an independent contractor rather than a party to a contract of service giving rise to an employment relationship between Southern Cross and the Support Worker.

28. Southern Cross relies on the following indicia as pointing towards an independent contractor relationship and away from a common law employment relationship:

• Each of the Support Workers expressly agreed in writing with Southern Cross that he or she would not receive any of the usual incidents of an employment relationship, such as sick pay, annual holiday pay or redundancy payments, such that they were self-employed;

• Each of the Support Workers performed his or her services away from the premises of Southern Cross and without any presence by Southern Cross at the relevant locations of service;

• there was no control by Southern Cross over any of the Support Workers in undertaking the services performed nor a right to exercise control, in that the overall scope of the services performed by each of the Support Workers is determined by the relevant Funder, the Participant for whose benefit the services are performed and the treating doctor of that Participant and, within that framework, each of the Support Workers determined how to perform the services provided by him or her;

• each of the Support Workers was free to perform similar services for other entities unrelated to Southern Cross;

• none of the Support Workers was required to wear a uniform;

• each of the Support Workers was free to reject engagements, to nominate his or her own working hours and to arrange for another of the Support Workers to undertake some of his or her engagements;

• each of the Support Workers supplied his or her own motor vehicles and mobile telephones and was not reimbursed by Southern Cross for expenses incurred in relation to those matters;

• each of the Support Workers was personally liable in relation to the services performed by him or her and was insured in relation to such liability;

• each of the Support Workers agreed to indemnify Southern Cross against liability for loss or damage arising out of the performance of the relevant services by the Support Worker;

• each of the Support Workers generally lodged tax returns identifying himself or herself as self-employed, claiming deductions accordingly; and

• following a detailed investigation by the Fair Work Commission, a determination was made that the Support Workers were independent contractors.

Issue (3): 90-day Rule

29. Alternatively to Issue (1) and Issue (2), Southern Cross contends that some of the payments made by it to Support Workers fall within the exclusion in s 32(2)(b)(iii) of the Payroll Tax Act on the basis that they were payments to Support Workers who provided services to Southern Cross for periods that do not exceed 90 days in any Relevant Tax Year. Southern Cross contends that the provisions should be construed such that the prerequisites of s 32(2)(b)(iii) will be satisfied by reference to numbers of hours worked by Support Workers in a year rather than by reference to the number of days on which a particular Support Worker worked during a year. Southern Cross bases its contention on the premise that 8 hours worked is equivalent to one day.

Issue (4): Remission of Interest and Penalties

30. Southern Cross contends that, to the extent that any payroll tax shortfall remains after the resolution of the three issues set out above, the Court should exercise the discretion conferred by s 25 of the Administration Act to remit the interest charged in full or should at least remit the premium element. Southern Cross asserts that its payroll tax affairs have been audited by the Commissioner on four previous occasions and, on each occasion, the Commissioner confirmed that no additional payroll tax was payable in respect of the Support Workers. Southern Cross contends that its operations and its relationship with the Support Workers have not changed since the Commissioner last found that payments made to Support Workers were not subject to payroll tax. Southern Cross complains that the Commissioner has not given an adequate explanation as to why his position has changed, with retrospective effect. It contends that, in the circumstances, the interest charges, particularly the premium rate, served to act as a penalty.

The Evidence

31. The parties tendered a substantial number of documents evidencing the arrangements, during the Relevant Tax Years, between Southern Cross and Funders, between Southern Cross and Support Workers and between Southern Cross and Participants. The volume of the material was necessary having regard to the period to which the dispute relates, the number of Funders and the number of Support Workers. In addition, affidavit evidence was given by officers and employees of Southern Cross, including Ms Barbara Merran and Ms Deborah Dubos, both of whom were cross-examined.

32. Ms Merran is the Public Affairs Director of Southern Cross. She has been a registered nurse since 1974 and has had experience in providing home care for injured and disabled persons. She and was the founding President and was involved in the establishment of the Attendant Care Industry Association, which is the peak body for attendant care service providers operating throughout Australia. In 1984, Ms Merran and her partner, Mr Alexander Djekic, established the business now operated by Southern Cross and she has been the Public Affairs Director of Southern Cross for more than 30 years and has been a director of Southern Cross since October 1985. Mr Djekic has been the Managing Director of Southern Cross since 4 October 1985.

33. Ms Dubos is the Manager of Community Support and Services for Southern Cross. She has been a registered nurse since 1980 and commenced employment with Southern Cross in October 2000 and, although her title has changed from time to time, her role has been the same since that time. Before 2000, Ms Dubos held various positions in nursing and has numerous qualifications in nursing. From October 1999 to May 2000, Ms Dubos was seconded to the Western Sydney Area Health Service as an Associate Director of Nursing and Community Services. During the Relevant Tax Years, Ms Dubos was the manager of two Southern Cross teams, who reported to her. One was the Service Delivery Team and the other was the Community Support Co-ordinators Team. I shall describe the functions of the two teams below when dealing with the arrangements between Southern Cross and Support Workers.

34. Southern Cross and the Commissioner also adduced opinion evidence. Professor Jeffrey Braithwaite, who is director of the Australian Institute of Health Innovation, prepared two reports for Southern Cross. Associate Professor Christopher Kewley of the University of Newcastle also prepared two reports for Southern Cross. Dr Stephen Duckett, director of the health programme at the Grattan Institute, prepared a report for the Commissioner and Mr Paul Preobrajensky, who is a health service manager with 25 years of experience in the hospital and aged care service sector, also provided a report for the Commissioner. Professor Braithwaite, Assoc Prof Kewley and Dr Duckett also provided a joint report dated 26 October 2020 (the First Joint Report). It is interesting, although not decisive, that the report referred to Participants as “clients”. In addition, Assoc Prof Kewley and Mr Preobrajensky provided a joint report dated 28 October 2020 (the Second Joint Report). All four gave concurrent oral evidence. Ultimately, there was no significant difference of opinion and the findings made below are based on their reports.

Overview of the Relevant Arrangements

35. Southern Cross is engaged by Funders to supply Support Workers to perform care services for Participants. That entails a quadripartite arrangement designed to ensure that adequate care is provided for Participants. The four parties to the arrangements are:

• Funders, which require care to be provided to Participants and make payments to Southern Cross;

• Southern Cross, which sources and administers Support Workers to provide care for Participants and makes payments to the Support Workers;

• Support Workers, who provide care to Participants and who are paid by Southern Cross; and

• Participants, who receive care without making any payment for that care.

36. Payments made by Funders to Southern Cross are based on the hours of care provided by Support Workers. Southern Cross categorises Participants into five groups according to their needs and the type of care they receive, as follows:

• Participants with spinal cord injury (SPI);

• Participants with acquired brain injury (ABI);

• Participants in need of home and community care;

• Participants in need of home care packages; and

• Miscellaneous Participants.

The first two categories have high needs and make up approximately 66% of total revenue received by Southern Cross from the Funders. The other categories make up approximately 22%, 6% and 6% respectively of total revenue.

37. Southern Cross adduced evidence consisting of documents and files in relation to some 39 Participants, who were selected by way of example as to the arrangements made for the provision of care services to Participants. Those documents and files were the subject of the opinion evidence adduced by both Southern Cross and the Commissioner. The First Joint Report considered a cohort of 38 Participants, and the Second Report considered a cohort of 39 Participants, although the two groups were entirely identical, save for one. The Second Joint Report appears to have included one extra Participant, number 195, who was not dealt with in the First Joint Report. There was clinical complexity in the case of all of those Participants, such that even those classified as “less complex” might have “high needs” and therefore a high risk of decompensating, needing to go into hospital quite quickly, and ending up in an intensive care unit if there was any change in the continuity of the care that they received. Thus, even low-needs Participants would need to interact with medical or allied health professionals on a regular basis by reason of their condition, having regard to “the multi-comorbidities” of such Participants.

38. Southern Cross sought to identify Participants who were said to be representatives of particular categories of Participants who received benefits funded by various Funders. The Commissioner co-operated in that endeavour without conceding that the requirements of cl 8 of Sch 2 were met in relation to any Support Worker. Southern Cross identified some 10 categories of Participants in relation to various Funders and sample Participants said to be representative of Participants in each of those categories. The Commissioner indicated the extent to which he accepted that the Participants were representative of any particular category. The extent of agreement between Southern Cross and the Commissioner is set out in Appendix 1 to these reasons.

39. Mr Preobrajensky described, in relation to a number of Participants:

• the condition and resultant medical and care needs of the Participant;

• the programmes by which the Participants received medical and care services from Southern Cross;

• how the services provided by Southern Cross and Support Workers were funded;

• how Southern Cross came to provide services for the particular Participant, including how a care plan was developed;

• the interactions between Southern Cross and the relevant State and Commonwealth entities necessary for Southern Cross and Support Workers to provide care to the Participants; and

• whether, if the services provided by Southern Cross were not provided at home, the Participant would be in a public hospital and, if not, where the Participant would likely be.

40. A table prepared by Assoc Prof Kewley and Mr Preobrajensky in the Second Joint Report indicated, in relation to the 39 Participants, the condition suffered by the Participant, the hours of care provided per week, the kinds of care provided to the Participant by Support Workers and the relevant Funder. The table is set out in Appendix 2.

Structure of Health Care during the Relevant Tax Years

41. The history of home care provision in New South Wales can be assessed at two levels, being the National or State policy framework and the service delivery framework. It was not until the late 1960s and early 1970s that the Commonwealth adopted a significant interest in home care services, when more generous Commonwealth grants to States and charitable organisations for home care services began. By the early 1980s, policy had begun to be concerned about the burgeoning cost of residential care for the elderly and the increasing preference of many older people to stay at home as long as possible, rather than being forced to move into residential care as their frailty increased. Policymakers became concerned about people in hospitals who were not in an acute-phase but had nowhere else appropriate to go. Those trends lead to an incoherent approach to services at homes, being a Commonwealth-State cost-shared home and community care programme and a parallel development of “community aged care packages” and “extended aged care at home” arrangements, each fully funded by the Commonwealth as part of the Commonwealth’s residential aged care funding. Both packages were counted as part of the planning ratios used for residential aged care policy and funding. Policy and funding of aged care continued to have quite a different underlying framework from disability services, including in aged care an emphasis on planning and rationing service access.

41. In New South Wales, provision was much more consolidated, mostly into two not-for-profit organisations, being the Home Care Service of New South Wales (Home Care Service) and the Sydney Home Nursing Service. The former provided “domestic assistance”, mostly by non-professional staff, while the latter provided professional nursing services, often with a holistic model. The role of Home Care Service expanded over time away from domestic support to support for “activities of daily living” for older people, constant with the developing Commonwealth support for home care for older people. By 2000, the Home Care Service had become incorporated into the NSW Department of Ageing, Disability and Home Care (ADHC) and the Home Care Service was subsequently privatised. The legislation incorporating the Home Care Service was repealed in 2016. ^[8] In contrast, the Sydney Home Nursing Service had a religious foundation but, eventually, its services were absorbed into the area health services when the latter were created. In addition to those publicly funded home nursing and home care services, private organisations also provided services to individuals and families with the means to pay for them. Over time, as incomes improved, more private nursing agencies were established to provide private in-home support.

    8. See Home Care Service Act 1988 (NSW), which was repealed by cl 2(a) of Sch 4 to the Statute Law (Miscellaneous Provisions) Act 2016 (NSW) with effect from 28 June 2017.

42. The Commonwealth and New South Wales Governments have, over time, divided responsibility for the provision of acute care, general practice care, aged care, disability care, and rehabilitation care for people at home and in the community. Thus, a “National Health Reform Agreement” set out the respective formal responsibilities of the Commonwealth and New South Wales Governments. In broad terms, the Commonwealth Government was responsible for medical services, pharmaceutical services and private health insurance. The State Government was responsible for public hospital services, including mental health services provided through public hospitals or Local Health Districts. The Commonwealth had chief responsibility for primary health care and aged care and has funded and supported a range of health services. The State manages the infrastructure and operation of public hospitals and Local Health Districts. During the Relevant Tax Years, the Commonwealth transferred responsibility for much of the expenditure on healthcare to the States.

43. The various government funded in-home care programmes varied from Funder to Funder. In New South Wales, Local Health Districts adopt a five-step approach to the transfer of care to the home of the Participant involving multidisciplinary planning, assessment and integration, the object of which is to allow for the seamless and safe transition of care between service and healthcare providers. The process requires close consultation between the relevant providers about the level and type of service required for the transfer and ongoing care of a particular Participant.

44. During the Relevant Tax Years, the functions of public hospitals included diagnosis and treatment. Staff involved in those functions include medical and nursing staff, pharmacists and staff who support diagnostic services such as radiology and pathology, as well as allied health professionals such as physiotherapists. Those health professionals are supported and managed by administrative and clerical staff. There is also a range of domestic staff including cleaners, gardeners and security officers.

45. During the Relevant Tax Years, there were 15 Local Health Districts and 3 specialty networks in New South Wales, most of which were responsible for a particular geographic area. The functions of Local Health Districts are set out in s 10 of the Health Services Act 1997 (NSW). Broadly, their role is to lead and govern a geographical area with responsibility for ensuring that the care provided is of suitable quality and is safe and effective. In addition to the work performed in public hospitals, the work of staff and people connected with Local Health Districts included:

• overall governance responsibilities for the district, including support for the board of the Local Health District;

• managing the public hospitals and community health services within the district;

• co-ordination and liaison with other services relevant to the district, such as local government, private hospitals, general practitioners, private medical specialists, emergency services and other community groups; and

• interfacing with primary health care networks.

The Ministry of Health “purchases” public hospital services and other services from Local Health Districts and their relationship is governed by annual service agreements.

Management of Participants

47. For lower-needs Participants, such as the frail aged, care was sometimes also assessed in the context of a hospital admission. The main avenue through which care was assessed for lower-needs Participants involved the work of Local Health Districts. Local Health Districts are responsible for ensuring that the health care provided in the relevant area is of suitable quality and is safe and effective. All of the Participants referred to in the First Joint Report and the Second Joint Report who are subject to home care packages and some who are subject to home and community care were subjected to an assessment by an aged care assessment team prior to the receipt of services. Aged care assessment teams are part of Local Health Districts.

48. Local Health Districts applied a five-step approach to care co-ordination. First, transfer of care planning began prior to admission for planned patients and as soon as possible after admission for emergency patients. For emergency admissions, a Transfer of Care Risk Assessment had to be completed within 24 hours of the patient being admitted as part of the admission and treatment process. That information was required to be available for the multidisciplinary team or person responsible for planning care co-ordination and patient transfer needs. If the patient being admitted was a Participant with Southern Cross, that would be the first point of the transitioning of responsibility for care between Southern Cross and the treating hospital.

49. Secondly, health professionals from all disciplines were required to work closely together. The multidisciplinary team fulfilled that function and included the patient, the patient’s family and any referring agency in the communication and care planning process. If care of the patient was to transition on discharge to a “community agency” that was often the first point of contact between the community agency, such as Southern Cross, and the treating hospital.

50. Thirdly, an estimated date of discharge was established as soon as possible after admission. The establishment of the date of discharge communicates to the patient, carer, staff and referring agency the timeframes for care delivery. If a patient was to be discharged as a Southern Cross Participant, both Southern Cross and the Participant’s general practitioner would be informed of the estimated date of discharge.

51. Fourthly, referrals to care and service providers outside the core multidisciplinary team were expected to be made in a timely manner, when clinically appropriate, and within the agreed estimated date of discharge timeframe. That was a further critical contact point between a community agency such as Southern Cross and the treating hospital if the care of the patient was to transition to a Southern Cross Support Worker on discharge.

52. Fifthly, on discharge and transition of care from the hospital to a community agency or primary caregiver, a Transfer of Care Checklist was completed. The Transfer of Care Checklist included outcomes of care received in the hospital and a treatment plan to provide for the Participant’s ongoing clinical and personal needs on discharge. Where care was being transitioned to Southern Cross, that was a further critical contact point in the transition of care and required a clinical handover.

53. An important aspect of Southern Cross’s case concerning the characterisation of the work performed by Support Workers was demonstrating the need for a “seamless” transfer of the care of Participants from hospital care to the care of Support Workers provided by Southern Cross. In that regard, a distinction can be drawn between the terms “clinical handover” and “transition of care”. The former term describes the transfer of care from one health professional to another, which is limited in its capacity to capture the broad range of issues involved with the transfer of a patient and the care responsibilities of the patient from one part of the health care system to another. The latter term refers to the various points to which a patient moves or from which the patient returns, being a particular physical location and includes transitions between home, hospital, residential care settings and consultations with different care providers. Thus, the term “transition of care” is broader than “clinical handover” because it encompasses the clinical aspects of integrated care transfer and other factors, such as the wishes, experiences and needs of the patient. Transition of care was an integral part of a patient’s journey through the health care system.

54. Transitions from one care setting to the next were often accompanied by changes in health status. Patients transferred between health care sectors may have had a new diagnosis, a new treatment or a change in functional status that affected the ability of the patient to manage his or her own condition outside of the health care setting. A patient’s journey through the health care system could involve a number of interfaces between primary, community and hospital care.

55. In ordinary circumstances, a Participant received care after he or she had suffered serious injury and his or her condition had stabilised and a hospital or Local Health District wished to discharge the Participant into the community. Care needs for high-needs Participants (those suffering from SCI and ABI) were assessed by a specialist clinical team before the Participant was discharged from hospital. Thus, each of the Participants suffering from SCI or ABI was discharged from a public hospital into the care of either Southern Cross or some other home care provider or, in the case of young children, the parents of the child.

56. Before the discharge of a Participant, a Support Worker attended the hospital and was trained by hospital staff in caring for the particular Participant. Once trained, the Support Worker provided care for the Participant in hospital. The “Care Needs Assessment” prepared by a hospital treating team for a Participant upon discharge was intended to replicate the care that was provided to the Participant in the hospital as a patient in a stabilised condition prior to discharge. When a Participant was discharged, which often involved a gradual process involving one or more short homestays followed by short returns to hospital, Support Workers provided care similar to the care provided in hospital but modified for the home environment of the particular Participant.

57. Ongoing assessment of the care needs of a particular Participant was undertaken in the light of the care prescribed by the specialist team and often in consultation with the specialist team. Generally, a Participant would need to interact with medical and allied health professionals on a regular basis, with a high-needs Participant continuing to have contact with the specialist team throughout his or her life, including visits to hospital outpatient clinics. Such hospital visits had the object of reviewing the status of the treatment of the Participant in order to see whether the Participant required alterations to current prescriptions, such as for ventilators and other equipment.

58. Support Workers performed a range of services for Participants, generally in the homes or residences of the Participants. The services included clinical care services, such as tracheostomy management, maintaining mechanical ventilation and wound management, personal care assistance, such as help with showering and domestic assistance, such as household cleaning. Ultimately, Support Workers performed whatever tasks had been determined by the Funder and the medical team as being necessary to ensure continuity of care for the particular Participant.

Arrangements between Southern Cross and the Funders

59. It is necessary to explain in some detail the activities of the Funders, the relationship between Southern Cross and the Funders and the basis on which Southern Cross received payments from the Funders. The following Funders have been identified for the Relevant Tax Years:

• the Lifetime Care and Support Authority of New South Wales (Lifetime Care), which provided approximately 27% of Southern Cross’s revenue;

• New South Wales Health through the “Enable” programme (NSW Health), which provided approximately 20% of Southern Cross’s revenue;

• the New South Wales Department of Family and Community Services (FACS), which includes ADHC, which together provided approximately 23% of Southern Cross’s revenue;

• the New South Wales Department of Education and Communities (DoE), which provided approximately 1% of Southern Cross’s revenue;

• the New South Wales Trustee and Guardian (the NSW Trustee), which provided approximately 5% of Southern Cross’s revenue;

• the Commonwealth Department of Social Services (DSS), which provided approximately 15% of Southern Cross’s revenue;

• the Victorian Transport Accident Commission (TAC), which provided approximately 2% of Southern Cross’s revenue;

• commercial insurers, including AAMI, Allianz and GIO, which provided approximately 5% of Southern Cross’s revenue; and

• other non-commercial entities, including the National Disability Insurance Agency (NDIA), individual hospitals and charities (such as Vision Australia or Life Without Barriers), which together provided approximately 1% of Southern Cross’s revenue.

60. It is necessary say something about each of those Funders. It appears to be common ground that the arrangement as between Southern Cross, on the one hand, and each of the Funders, on the other, was relevantly the same throughout each of the Relevant Tax Years.

Lifetime Care

61. Lifetime Care is a statutory corporation established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (Lifetime Care Act), which is responsible for administering the Lifetime Care and Support Scheme (the Lifetime Scheme), a compensation scheme for the lifetime care and support of persons injured in motor vehicle accidents in NSW. The Lifetime Scheme looks after long-term care needs for people with the most severe road or workplace injuries and supports people returning to work, with the aim of enhancing injured people’s quality of life. While a person is a participant in the Lifetime Scheme, Lifetime Care pays for all of the reasonable expenses incurred by or on behalf of the person in relation to the assessed treatment and care needs of the person, including attendant care services.

62. Lifetime Care’s annual reports during the Relevant Tax Years recorded the following about the activities of Lifetime Care:

• the “main goal” of Lifetime Care was to “ensure Scheme participants are treated with respect and dignity and given the best opportunities and choices in achieving quality of life”;

• Lifetime Care “seeks to be an international leader in the delivery and development of disability services”;

• once “eligibility has been confirmed”, Lifetime Care “provides treatment and support as it is needed throughout the person’s life. The injured person is supported by a coordinator who assists them to plan their rehabilitation and care”; and

• Lifetime Care “support(s) injured people to achieve an optimal quality of life by providing lifelong treatment, rehabilitation and care for people”.

63. The functions of Lifetime Care did not extend to the provision of attendant care services or any medical or allied health treatment. Thus, under the Lifetime Care Act, Lifetime Care’s functions in relation to the provision of care and other services were expressed to be “to monitor those services”, “to provide support and funding for programs that will improve delivery of those services” and “for research and education”. ^[9] The assessed treatment and care needs were to be provided only by a provider approved by the Authority. ^[10] Southern Cross was one such approved provider.

    9. See s 43(3) of the Lifetime Care Act (emphasis added).

    10. See ss 11C(1) and 11C(2) of the Lifetime Care Act.

64. During the Relevant Tax Years, there were approximately 600 to 1,100 Participants in the Lifetime Scheme, with the majority receiving attendant care. Throughout the Relevant Tax Years, Lifetime Care spent approximately $5 million to $8 million annually on staff salaries, and approximately $55 million to $110 million annually on Participants’ care and support (of which approximately 40% was for attendant care services). Other expenses included modifications to a Participant’s home, equipment required by participants, vehicle modifications, and educational support.

65. For most of the Relevant Tax Years, the relationship between Southern Cross and Lifetime Care was governed by an agreement entitled “Attendant Care Service Provider Agreement” dated January 2011, which commenced on 6 February 2011 (the 2011 Attendant Care Agreement). From 6 February 2015, an updated “Attendant Care Service Provider Agreement” applied. Each agreement attached “Agreement Details” and a number of Schedules that formed part of the relevant agreement. Each agreement incorporated the Attendant Care Industry Management System Standard (certified by the Attendant Care Industry Association NSW Inc.) and the NSW Disability Services Standards (and, once they had been implemented, the National Disability Services Standards). It also incorporated the “Policies and Guidelines” of Lifetime Care as they existed from time to time.

66. Under those arrangements, Southern Cross was obliged to comply with those standards, policies and guidelines, in accordance with any reasonable directions given by Lifetime Care from time to time. Southern Cross was to “liaise, cooperate, consult and confer with [Lifetime Care] in order for [Lifetime Care] to inspect, discuss or assess the provision” of services. Lifetime Care was entitled to change the nature, quantity or location of the services to be provided.

67. Many of the details of the arrangements were contained in schedules that set out service information and demonstrated how Lifetime Care was involved in the care of Participants. The schedules were prescriptive and provided, for example, that all services must be approved in writing by Lifetime Care prior to their commencement. The schedules contained the Disability Service Standards, which emphasised the Participant-focused nature of the care to be provided.

68. The agreements between Lifetime Care and Southern Cross relevantly provided as follows:

“2.10   Subject to the terms of the Agreement, [Lifetime Care] will pay [Southern Cross] for provision of the Services to Participants…

2.13   [Southern Cross] is not an agent, partner or employee of [Lifetime Care] for any purpose and must not hold itself out as such.

2.14   [Southern Cross] must ensure its agents or subcontractors do not hold themselves to be agent, partner or employee of [Lifetime Care].”

69. Under the agreements Southern Cross was responsible for paying for all materials and consumables, unless otherwise provided. Lifetime Care required Southern Cross to ensure that a Southern Cross staff member be responsible for the day-to-day management of certain programs and matters, including managing worker performance, reviewing care plans and making adjustments if necessary, managing consumables and equipment, and providing training and supervision to workers. Southern Cross acted in accordance with that responsibility.

69. Lifetime Care was not necessarily the entity that made referrals to Southern Cross during the Relevant Tax Years even though Lifetime Care paid for the services. Before the establishment of Insurance and Care NSW (iCare) under the State Insurance and Care Governance Act 2015 (NSW), Southern Cross received referrals from compulsory third-party insurers for services funded by Lifetime Care. The initial Attendant Care Request Form indicated that it was the Participant who selected Southern Cross from Lifetime Care’s panel of approved providers. Any direct interaction by Lifetime Care was with either Southern Cross or the Participant, not with the Support Worker.

70. The arrangements contemplated that Lifetime Care, the clinical reviewing team and the Support Worker would all work together in order to achieve the best outcome for the Participant, and to ensure that the relevant Participant received continuity of care. Thus, continuity of care was a “key goal” of Lifetime Care’s “integrated care strategy” during the Relevant Tax Years.

71. Lifetime Care was actively involved in determining the care required by Participants. Thus, Lifetime Care made an assessment of a Participant’s care needs by a “Care Needs Assessment”. In particular, Lifetime Care made an assessment of the services that were “reasonable and necessary” and consistent with its guidelines. The Care Needs Assessment would be made by an independent health professional, or a member of a multidisciplinary team appointed by Lifetime Care.

72. In relation to Participants in Lifetime Care’s programmes, Support Workers worked with “LTCS Coordinators” and “Case Managers”, and Participants were regularly reassessed by Lifetime Care. LTCS Coordinators were the front-line staff of Lifetime Care, and were directly employed by Lifetime Care. The LTCS Coordinator role encompassed all aspects of Lifetime Care’s services being delivered to Participants. The LTCS Coordinators would support and assist the Participants to plan their rehabilitation and care needs and were also responsible for regular review of the attendant care services being provided to Participants. Case Managers were appointed by Lifetime Care and were independent from Southern Cross. The Case Managers would work with the Participant and his or her service providers and were the key point of liaison between a Participant, Southern Cross, and Lifetime Care. Thus, day-to-day care provision was passed over to Southern Cross, which provided the funded services not only through Support Workers but through the Southern Cross Service Delivery team, which included Community Support Co-ordinators as described below.

73. Lifetime Care also operated a training program for organisations such as Southern Cross and for Support Workers. Thus, Lifetime Care organised outside presenters with specialist knowledge to run the training, with the aim of ensuring that high quality services were delivered to Participants.

NSW Health

75. The term “NSW Health” described various bodies that were under the control of the Minister for Health or Secretary of Health. It is not a legal entity or person. Agencies and statutory corporations within “NSW Health” were distinct and interacted through formal arrangements. Some, such as HealthShare NSW, acted through “Service Compacts”, instruments of engagement that detailed service responsibilities and accountabilities. The NSW Health service delivery model could be characterised as a “purchaser-provider split”.

76. NSW Health encompassed both the NSW Ministry of Health and a number of state-wide or specialist health services, including the Health Administration Corporation, created under s 9 of the Health Administration Act 1982 (NSW). The name “Enable” was the branding for a set of services provided by HealthShare NSW, which was part of the Health Administration Corporation. Those services related to the provision of equipment and services to ventilator-dependent people in NSW with chronic health conditions or disabilities to assist them with mobility, communication and self-care. NSW Health had over-arching responsibility for public hospitals in NSW, through the Local Health Districts.

77. NSW Health was the largest health care system in Australia and one of the largest in the world. During the Relevant Tax Years, NSW Health had more than $10 billion in annual employee costs, more than 75% of which related to costs of employees of the NSW health system. During the Relevant Tax Years, NSW Health:

1. employed more than 100,000 staff performing work from “acute hospital care to policy development, health promotion and community health initiatives”;

2. employed more than 13,000 “hospital support workers” and more than 8,000 staff providing “hotel services”;

3. paid fees to Visiting Medical Officers providing clinical services across Local Health Districts and hospitals;

4. performed functions including “promoting, protecting, developing, maintaining and improving the health and wellbeing of the people of NSW”;

5. by 2015, cared for more than 21,000 people through the “Hospital in the Home” programme; and

6. by 2015, served more than 65,000 meals to patients in public hospitals each day.

78. The “mission” of HealthShare NSW was to “support the delivery of patient care through the provision of State-wide services, and to be responsive to the needs of hospitals, clinicians and health managers”. HealthShare NSW worked “closely with Local Health Districts and Health Agencies to build a framework for meaningful customer involvement in all states of service planning and delivery”.

79. Through the Enable programme, NSW Health was responsible for two home ventilation programs:

1. the Children's Home Ventilation Program, which provided assistance to children and adolescents up to sixteen years of age, who required respiratory support, equipment and tracheostomy, whose condition was stable, and who could be safely cared for at home by trained attendant carers; and

2. the Adult Home Ventilation Program, which provided assistance to adults who needed life-support respiratory equipment more than 16 hours per day through a tracheostomy, whose condition was stable and not deteriorating, and who could be safely cared for at home by trained attendant carers.

80. Through the Enable programme, NSW Health was also responsible for:

1. providing mechanical ventilators and other respiratory equipment to Participants on the program;

2. repairing and maintaining that equipment;

3. organising a community care coordinator, nominated by a Participant’s Local Health District, to liaise with Participants on the program; and

4. organising attendant care services, which it did by appointing and contracting with Southern Cross and other entities to procure Support Workers for Participants on the program.

81. The relationship between Southern Cross and NSW Health was also governed by the 2011 Attendant Care Agreement. Accordingly, the observations in relation to that agreement as between Lifetime Care and Southern Cross apply equally to the relationship between Southern Cross and NSW Health through the Enable programme. In particular, the agreement between Southern Cross and NSW Health was of a type that contemplated that NSW Health, the clinical reviewing team, and the Support Workers all worked together in order to achieve the best outcome for Participants.

82. NSW Health, through the Enable programme, worked with a Participant’s hospital specialist team to confirm the hours of care a Participant required, and his or her specific care needs. The care that was then provided by a Support Worker was mapped to the requirements of the Enable programme. Southern Cross and NSW Health, through the Enable programme, effectively worked on an ongoing basis to case manage the care of Participants jointly.

83. As with the Lifetime Care Scheme, the Enable programme included the involvement of Co-ordinators and case managers who worked with both Southern Cross and Participants. Each year, a Participant’s Local Health District’s community care coordinator, who was independent of Southern Cross, would arrange “a review of [the Participant’s] services, including a review of [the Participant’s] care plan and ventilation requirements to make sure that [the Participant] can continue to be safely cared for at home”. If a Participant had any concerns about his or her care, he or she was directed to contact his or her community care coordinator. Once a Participant’s care needs had been assessed and approved by NSW Health, through the Enable programme, Southern Cross would follow the process described below to create “Care and Service Plans” and “Duties Plans” for the Support Workers, undertake hazards assessments, and conduct periodic evaluations of its own.

84. HealthShare NSW should not be confused or conflated with Local Health Districts. The Commissioner contends that, having regard to the above arrangements, the evidence establishes a much narrower focus and specific area of “NSW Health” to which Southern Cross provides services and in respect of which its payroll tax liability is to be determined, rather than the entire NSW health system as suggested by Southern Cross. The Commissioner asserts that the evidence points to HealthShare NSW being Southern Cross’s true “client”, if indeed Funders are “clients” at all. Thus:

1. The status of Enable is unclear. However, it has been described as a “service area” and “branding for a set of services” within HealthShare NSW.

2. Southern Cross identifies the relevant Funder as “Enable” in its system.

3. The Enable Participants referred to in evidence all relate to the Home Ventilation Program and there is no suggestion that there are other types of programmes pursuant to which “Enable” funds attendant care services.

85. During the Relevant Tax Years, HealthShare NSW provided corporate services and information technology services to public hospital organisations across NSW under the auspices of a Board appointed by the Director-General of the Department of Health. It has not been suggested that such services include providing attendant care services to health organisations of the kind that the Support Workers provide, or at all.

86. HealthShare NSW made ventilators and other equipment available to Participants in homes, that is to say, outside the operation of health organisations. In particular, the Home Ventilation Program provided “funding assistance for adults and children who are dependent on mechanical ventilation and have significant care needs to leave hospital and be safely cared for at home”. The in-hospital training of Support Workers in ventilation care was undertaken by hospital staff, who were distinct from and not synonymous with HealthShare NSW. Part of that funding assistance involved appointing and paying for accredited care providers, being entities who were accredited to provide care for a person with complex care needs. Southern Cross was such an accredited care provider. Apart from the appointment or contracting of Southern Cross as the service provider and provision of the ventilation equipment, HealthShare NSW was not involved in the management of the programme.

87. Control, instruction and direction was managed by Southern Cross, rather than HealthShare NSW. Southern Cross’s Clinical Nurse Consultant Ventilator Advisor and Southern Cross’s other clinical nurses who had ventilation skills performed training, shadow shifts, refresher training and skills sign-off with Support Workers for Participants with ventilators in the Participant’s homes, that is to say, after hospital discharge. Support Workers were supervised and had their performance monitored by Southern Cross Community Support Co-ordinators, not NSW Health or any entity under that description.

88. Neither HealthShare NSW nor NSW Health, if that term identified a “client”, had the capacity to provide the in-home attendant care services that Southern Cross and the Support Workers provided. Thus, the mainstream institutionally configured health organisations in NSW were not “geared up” to provide directly the community-based, home-centred care required by Participants. Rather, the State, through its public health system, was largely focused on hospital-based care, public and environmental healthcare.

89. There was no communication or interaction between Enable or HealthShare NSW, on the one hand, and Support Workers, on the other, including during any in-hospital training prior to discharge. After discharge, the Support Worker interacted with the Participant and Southern Cross only. The Southern Cross Community Support Co-ordinator was the contact and liaison for Enable and the Local Health District, not the Support Worker.

FACS (including ADHC)

90. Prior to the Relevant Tax Years, ADHC was a New South Wales Government department existing under the Public Sector Employment and Management Act 2002 (NSW). Between 2009 and April 2011, ADHC was an agency within the NSW Department of Human Services. From April 2011, just before the start of the first of the Relevant Tax Years, until after the end of the last of the Relevant Tax Years, ADHC was an agency within FACS. FACS was a New South Wales Government department existing first under the Public Sector Employment and Management Act 2002 (NSW) and then under the Government Sector Employment Act 2013 (NSW). Other divisions or agencies within FACS included Housing NSW, Community Services and Corporate Services. From 2014, FACS was responsible for administering the Disability Inclusion Act 2014 (NSW).

91. ADHC described its primary goal as being to “create, promote and sustain opportunities and services which allow people with disabilities, older people and their carers to participate fully in community life”. That goal was expressly stated in the contract between ADHC and Southern Cross. According to Annual Reports published by FACS during the Relevant Tax Years, FACS:

• worked to “support people with disability to realise their potential” and “support seniors to participate fully in community life”;

• employed more than 20,000 people, most of whom worked directly with people receiving services from FACS. Frontline roles included thousands of nurses, allied health workers, care workers, community care workers and disability support workers; and

• spent approximately $5 billion annually delivering services across NSW, with the largest category of expenditure being the delivery of FACS’s major services and programmes including the disability services, Commonwealth Home and Community Care, Community Care Supports, many of those programs being delivered by non-government organisations on behalf of FACS.

92. ADHC/FACS directly operated the Home Care Service of New South Wales (Home Care Service), a statutory corporation constituted under s 4(1) of the Home Care Service Act 1988 (NSW), which was the largest provider of home and community care services in NSW with a staff of more than 4,300 people. A large part of its funding was from the Home and Community Care Program (HACC), from which Southern Cross also received funding. The Home Care Service provided domestic assistance and support in the home for activities of daily living, such as showering and toileting, to those who required it, provided mostly by nonprofessional staff. Many of those services were identical to the care services provided by Support Workers. Southern Cross contends that part of the role and function of ADHC/FACS was providing health and care services, including health and care services of a kind that Support Workers provided to Participants.

93. ADHC co-funded, with the Commonwealth, and administered the HACC programme until 1 July 2012. After 1 July 2012, ADHC/FACS funded and administered Community Care Support Programs (CCSPs) to people aged under 65 years (and Aboriginal people under 50 years of age). ADHC/FACS funded programmes to support people requiring intensive support to stay at home and not inappropriately move to residential aged care.

94. Until February 2016, FACS also managed the Home Care Service. Funding for the services provided by the Home Care Service came mainly from the NSW and Commonwealth HACC programmes, as well service fees charged to clients based on their ability to pay. The workforce of the Home Care Service comprised most, if not all, of FACS’s “disability support workers”.

95. CCSPs provided services to support people who had permanent functional disability, lived in the community and required support to remain living at home. In the year ended 30 June 2013, under CCSPs, FACS funded over 400 providers, both governmental and non-governmental organisations (NGOs), to deliver services including domestic assistance, personal care, respite, social support, meals and home maintenance. Southern Cross was one of those NGOs. The number of people receiving personal assistance from FACS funded CCSPs was 33,000 in the financial year ended 30 June 2014, 35,000 in the financial years ended 30 June 2014 and 2015, and 32,000 in the financial year ended 30 June 2016. In 2013, about 1,325 people were assisted through the NSW Attendant Care Program (ACP) and Home Care Packages (HCP) programme funding. There was a total of 8,001 places for community and family support under programs funded by FACS.

96. The arrangements between Southern Cross, on the one hand, and ADHC/FACS, on the other, spanned a number of different home care programmes. ADHC/FACS were involved in the HACC programme, which provided services to the frail aged and the disabled throughout the Relevant Tax Years. HACC aimed to “provide a comprehensive coordinated and integrated range of Basic Maintenance, Support and Care services”. Participants covered by the HACC programme received what that programme termed “personal care”, such as assistance with activities of daily living, or “domestic assistance”, or both.

97. FACS was also involved in the ACP, the NSW High Needs Pool Program (HNP), and the CCSPs, each of which provided for the care of disabled people under 65 years of age. At a high level, the CCSPs progressively replaced the ACP and HNP during the Relevant Tax Years. Towards the end of the Relevant Tax Years, that was combined with the gradual introduction of the National Disability Insurance Scheme (NDIS) for certain Participants. Southern Cross classified Participants on the CCSPs as falling within one or other of its “SCI”, “ABI” or “Miscellaneous” categories as appropriate. Each of FACS’s programmes was dependent on funding from both the New South Wales Government and the Commonwealth Government.

98. In 2009, Southern Cross contracted with ADHC while it was still a NSW department in its own right. Under that contract, personal care services were to be arranged for Participants in a manner that was flexible in an endeavour to match service provision with the Participant’s lifestyle requirements, including the provision of service outside standard business hours and over the weekend. From 1 July 2012, Southern Cross operated pursuant to a new funding agreement with ADHC, then contracting as part of FACS. By that agreement, ADHC was “committed to ensuring the ongoing delivery of quality services that are person centred and are well placed to provide individualised funding arrangements into the future”. A further funding agreement between Southern Cross and ADHC, contracting as part of FACS, applied from 1 July 2015. That agreement formalised further record keeping requirements, reporting requirements, and performance requirements focused on compliance with the Disability Principles ^[11] and the Disability Service Standards. ^[12] Under those agreements, FACS had the ability to amend the funding that was available and the services that were to be provided and during the term of the various agreements, FACS exercised that ability.

    11. Within the meaning of s 4 of the Disability Inclusion Act 2014 (NSW).

    12. As set out in the Disability Inclusion Regulation 2014 (NSW), Sch 1.

446. It follows that Southern Cross is liable to pay an amount of payroll tax. I do not consider that any basis has been established for remitting the market rate component of interest charged under the Administration Act on the amount of unpaid tax. However, I consider that the premium component of interest should be remitted to the extent of 4% per annum.

447. I propose to make the following orders:

1. Direct the plaintiff, no later than 14 days after the publication of these reasons, to bring in short minutes to reflect the conclusions reached in these reasons;

2. Order that the plaintiff pay the defendant’s costs of the proceedings; and

3. Reserve leave to the parties to apply, no later than 28 days after the publication of these reasons, for further directions if there is a dispute as to the calculation of payroll tax or interest or as to the costs of the proceedings.

**********

Appendix 1

Clause 8 of Sch 2 of the Payroll Tax Act requires that: (the Requirements)

1. In respect of any Funder or category, the Support Workers satisfy the first “in connection with” test.

2. In respect of any Funder or category, that the work done by Support Workers satisfies the second “in connection with” test.

3. In respect of any funder or category, that the work done by Support Workers satisfies the exclusivity test in cl.8(b) of Sch 2.

Category	Position of the Parties
Amounts paid to Support Workers providing care to Participants with an SCI or ABI, where that care was funded by Lifetime Care.	If the Court finds that both Participant 2 and Participant 88 satisfy the Requirements, then it is agreed that the Court can find the Requirements are satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants with an SCI or ABI where that care was funded by NSW Health.	If the Court finds that each of Participants 9, 21 and 58 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants with an SCI or ABI under the ACP/HNP/CSP disability programmes where that care was funded by FACS/ADHC.	If the Court finds that each of Participants 68, 71, 74, 77 and 187 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants in the Miscellaneous category under the ACP/HNP/CSP disability programmes where that care was funded by FACS/ADHC.	The Chief Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants.
Amounts paid to Support Workers providing care to Participants under the HACC programme, where that care was funded by FACS/ADHC.	If the Court finds that each of Participants 116, 118, 191, 195, 201, 217, 229, 252, 296, 306 and 343 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants under the HACC programme, where that care was funded by DSS.	If the Court finds that each of Participants 116, 118, 191, 195, 201, 217, 229, 252, 296, 306 and 343 satisfy the Requirements (and that Cth DSS/Ageing is “the Crown”), then it is agreed the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants under the HCP programme, where that care was funded by DSS.	If the Court finds that each of Participants 13, 332, 335, 345 and 346 satisfy the Requirements (and that DSS is “the Crown”), then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants with an SCI, where that care was funded by DoE.	If the Court finds that each of Participants 9, 10 and 11 satisfy the Requirements, then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants with an ABI where that care was funded by NSW Trustee.	The Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants.
Amounts paid to Support Workers providing care to Participants with an SCI, where that care was funded by TAC.	If the Court finds that both Participants 7 and 1235 satisfy the Requirements (and that TAC is “the Crown”), then it is agreed that the Court can find the Requirements to be satisfied for all Participants in this category.
Amounts paid to Support Workers providing care to Participants with an SCI or ABI or in the Misc category, where that care was funded by NDIA or another government client in the “Other” category.	The Commissioner does not agree that this category can be determined by reference to one or more representative or sample Participants.

Appendix 2

Participant condition, weekly hours of care, kinds of care provided and programme funding

Participant	Conditions	Hours of care/week	What kinds of care were provided by the [Support Workers]/[Southern Cross] to the Participant?	Funding Agency
2	Spinal Cord Injury, tetraplegic, neurogenic bowel, neurogenic bladder, sustained in a motor vehicle accident in March 2008	20 hrs day 48 hrs night Invoice period end 29/01/15	a) 24 hours per day [Support Worker]; b) Additional four hours per day of second [Support Worker]; c) Additional five hours per month for second [Support Worker] for assistance with attendance to medical appointments; d) Two hours per month registered nursing, plus an additional three hours twice per year for attendance at the spinal cord injury clinic; and e) Two hours of [Support Worker] training for 10 [Support Workers]. (Attendant care service request 30 April 2014)	[Lifetime Care]
88	a) Spinal Cord Injury T10-12; b) Paraplegia; and c) Pressure areas.	4 hrs Nov 2015 Participant Attendant Care Agreement	a) Domestic assistance: (four hours per week): lawn mowing, handyman services, cleaning, spring cleaning, shopping, housekeeping, annual window and gutter clean, changing bed linen, empty bins, wash dishes, clean mirrors; and b) Personal Care: Wound dressings by a RN for pressure wounds.	[Lifetime Care]
93	a) Incomplete quadriplegia C4-5 as a result of a motor vehicle accident in 2008.	93 hrs 7 inactive sleepovers 1-hr RN 2 hrs Garden Notice of Assessment and Certificate 12/04/14	a) Personal care: Showering, dressing, grooming, skin care, oral hygiene, shave, supervise mobility, change of suprapubic catheter (by RN 2 hrs per fortnight), bowel management, assist feeding, attend exercise program; b) Domestic assistance: Lawn mowing (2 hours per week); and c) Inactive sleepovers.	[Lifetime Care]
96	a) Head Injury - impaired cognition, caused by a motor vehicle accident in April 2014; b) Upper limb pain; c) Insulin dependent diabetic; d) Prostate disease; and e) Urge incontinence	112 hrs 7 inactive sleepovers Notice of Assessment and Certificate 10/09/15	a) Personal Care: Mobility and transfer supervision, assist shower and dressing, continence support, medication supervision, assist exercise program, grooming, foot care; and b) Domestic assistance: transport assistance, food preparation, cleaning, laundry, wash dishes, change bed linen, empty rubbish bins, sweep.	[Lifetime Care]
99	a) Spinal Cord Injury C7, and b) Neurogenic bladder and bowel.	41.6 hrs 6 hrs RN Notice of Assessment and Certificate 6/11/14	a) Personal Care: Suprapubic catheter care, chair to car transfers, wound care, skin integrity support, shower supervision, assist grooming, assist dressing, dress child, bowel management; b) Domestic assistance: Food preparation, shopping, attend appointments, laundry, change bed linen, wash floors, wash dishes; and c) Community Support: assistance with attending social outings.	[Lifetime Care]
107	a) Spinal cord injury: L5- S1; b) Brain Injury; c) Right Below Knee Amputation, in respect of which he uses a prosthesis; and d) Right Elbow Injury and nerve damage to the right hand.	4 hrs 0.5 hrs garden Notice of Assessment and Certificate 08/04/15	a) Domestic assistance: (four hours per week): Shopping, food preparation, cleaning assist, lawn mowing, assistance with exercise and hobbies, laundry, make the bed, empty bins, clean windows and blinds, pick up kids’ toys.	[Lifetime Care]
119	a) Traumatic Brain Injury; b) Left-Hand Weakness; c) Right leg weakness; d) Left below-knee amputation, as a result of which he uses a prosthesis; and e) Diabetes type 2.	1 hr Notice of Assessment and Certificate 13/08/13	a) Personal Care: Wound dressings (September 2011), mobility supervision, assist with transport to appointments, transfer to car supervision, assist dressing, supervision with gym program, inactive overnight supervision (personal care no longer required by July 2013 assessment); and b) Domestic assistance: Vacuum, dust, clean bathroom, wash the floor, make the bed, change bed linen, and shopping.	[Lifetime Care]
135	a) Burns to 60% of Total Body Surface Area.	59 hrs [Support Worker] 21 hrs RN Notice of Assessment and Certificate 25/5/11 - 16/08/11	a) Personal Care: Wound management, wounds monitoring once per week by Registered Nurse, shower, dressing, grooming, skin integrity check, eye care, oral hygiene, supervise mobility attend medications, monitor pain, attend exercise program, provide appointment transport; b) Domestic assistance: clean bathroom, make the bed, change linen, washing, ironing, shopping, pay bills; and c) Social care: attend outings.	[Lifetime Care]
140	a) Spinal Cord Injury in 2013.	2 HRS Notice of Assessment and Certificate 28/07/14	a) In August – September 2014: Domestic assistance: Washing, ironing, folding clothes, bed making (Attendant Care Service Request and Southern Cross Care Plan); and b) In June 2015 and again in November 2015: Domestic assistance: assistance with relocation, packing, delivery of and unpacking belongings (Service Approval/Purchase Orders).	[Lifetime Care]
153	a) Cerebrovascular accident; and b) Traumatic Brain injury.	94.5 Hrs 7 night inactive sleepover, Notice of Assessment and Certificate 09/05/2016	a) Personal care: Assist mobility, toileting assist, dressing assist, grooming assist, assist therapy programs, inactive sleepovers, assist bed and chair transfers; b) Domestic assistance: meal preparation assist, clean bathroom, attend medical appointments, assist in looking after grandchildren, house cleaning, vacuum, mopping, washing up, assist laundry, shopping; and c) Social Care: Outings assistance, assist transport to appointments.	[Lifetime Care]
182	a) Acquired brain injury, which affects cognitive function / mental abilities b) Vision impairment; c) Unsteady gait; d) Rheumatoid arthritis (non- injury related); e) Diabetes; f) Hypothyroidism; g) Hypogonadism; and h) Depression	47.5 Hrs Notice of Assessment and Certificate 11/11/11	a) Personal Care: take for a walk for a therapy program, shower, assist dressing, skincare, foot care, oral hygiene, shave, hand hygiene prompting, assist eye drops, supervise medications, support attendance to therapy appointments and work program; b) Domestic assistance: Prepare meals, safety supervision, assist bed making, clean bathroom, wash dishes, change bed linen, attend shopping, and c) Social care: organise social activities in the community.	[Lifetime Care]
366	a) As a result of a stroke in 2006, left side weakness, reduced mobility and vision and speaking difficulties	35 Hrs FaCS Funding Agreement 1/7/15	a) Personal care: mobility and transfers, showering, grooming, dressing; b) Domestic assistance: cleaning, preparing food, washing clothing, shopping, gardening; and c) Social support: attending outings to maintain community connections.	[FACS/ADHC]
21	a) Brain Injury from a spontaneous intracerebral bleed into the brain stem from an arteriovenous malformation; b) Quadriplegia, requiring full- time ventilation; and c) “Locked in syndrome”, where the patient is cognitively alert and orientated, however control over the person’s physical functions has been severely impaired.	49 hours FaCS Funding Agreement 1/07/15	a) Personal Care: Ventilator and humidification set-up and management, Tracheostomy care, tube changes, suctioning, neck care and tape changes, Gastrostomy feeds, site care and reporting on nutritional status, assist with medications, mouth care, bowel care, suprapubic catheter, application of splints/passive range of movements, physiotherapist regime, bathing/showering and dressing, positioning and transfers – managing the client in a powered/manual wheelchair, eye care, suprapubic catheter care, pressure- relieving mattress management, monitor for autonomic dysreflexia; b) Social Assistance: normal adult activity interaction with the client, e.g. through a variety of communication methods; c) A Nurse Educator (A Registered Nurse with a post-registration certificate, experience or other appropriate qualification) to conduct an education program, skills-based and assessment of competency, for [Support Workers]. This will include client-specific mechanical ventilation management and tracheostomy care; d) 24-hour on-call service by a person to troubleshoot any problems with ventilation equipment, including identification of the specific issue and appropriate referral; e) Be available to family/carers and care staff for consultation and education in all aspects of home mechanical ventilation as needed; f) Liaise with the Area Health Service Contact and EnableNSW to ensure ventilators and all equipment required for home ventilation is maintained and serviced; g) Liaise closely with the Area Health Service EnableNSW to ensure ongoing effective use and maintenance of equipment; and h) Domestic assistance: vacuum, dust, clean bathroom, wash floors, change bed linen, wash dishes	[FACS/ADHC]
68	a) Spinal Cord Injury level C4, sustained in a bicycle fall in May 2012. While able to walk short distances, requires wheelchair for longer distances; and b) Sleep apnoea.	26 hours FaCS Funding Agreement 1/07/15	a) Personal Care (24 hrs per week): Continuous positive airway pressure (CPAP) at night, Showering and personal hygiene, catheter care, grooming, dressing, mobility assistance, medications, outings; b) Domestic assistance (2 hours per week): vacuum, cleaning, washing, ironing, change bed linen, shopping, food preparation.	[FACS/ADHC]
71	a) Spinal Cord Injury - C6 complete quadriplegia, sustained in an injury in February 2011. The person has very limited movement in his arms and hands. b) Neurogenic bladder and bowel.	28 hours FaCS Funding Agreement 1/07/15	a) Personal Care: Showering and Hygiene, transfers, skincare, Suprapubic catheter care, shaving; and b) Domestic assistance: Washing.	[FACS/ADHC]
74	a) Quadriplegia.	28 hours FaCS Funding Agreement 1/07/15	a) Personal care: showering, oral hygiene, toileting assistance, grooming, dressing, skincare, transfers; and b) Domestic assistance: prepare food, dust, clean bathroom wash floors, wash dishes, sweep the floor, clean kitchen.	[FACS/ADHC]
77	a) Spinal Cord Injury secondary to tumours in cervical and thoracic as an infant at six months old.	46 hours FaCS Funding Agreement 1/07/15	a) Personal care: Medication assistance, positioning, transfers, shower and hygiene, bowel management, suprapubic catheter management, skincare, grooming, exercises; and b) Domestic assistance: Meal preparation, washing, ironing, sweeping.	[FACS/ADHC]
187	a) Acquired Brain Injury, from b) Ruptured carotid aneurysm; and c) Subarachnoid haemorrhage.	35 hrs FaCS Funding Agreement 1/07/15	a) Personal care: assist physiotherapy program, assist shower, assist dressing, skincare, oral care, continence management; b) Domestic assistance: prepare meals, take for a walk, tidy bed, and bathroom, change bed linen, clean bathroom, vacuum, dust, wash floors, put laundry away, tidy bedroom; and c) Social care; in respite care plans, to encourage leisure activities, encourage communication board use.	[FACS/ADHC]
355	a) Progressive Dematopolymyositis, an inflammatory disease affecting the participant’s skin and muscles; b) Calcinosis, the formation of calcium deposits in any soft tissue; and c) Sepsis, an immune response to bacterial infection that gets into the blood	27 hrs SCCH Assessment 31/07/13	a) Personal Care: assist shower, assist dressing, skin care, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, monitor pain, wound care, administer medications, continence management, assist with chair and bed transfers; b) Domestic assistance: Prepare meals, vacuum, dust, wash the floor, clothes washing, make the bed, attend shopping, wash bandages, Ironing, clean bathroom, collect mail; and c) Social care: shopping and lunch outings.	[FACS/ADHC]
367	a) Cerebral Palsy; and b) Epilepsy.	35.1 hrs FaCS Funding Agreement 1/07/15	a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, assist toileting; and b) Domestic assistance: Prepare meals, vacuum, dust, wash the floor, clothes washing, make the bed, change bed linen, attend shopping, clean bathroom, wash dishes, wash clothes.	[FACS/ADHC]
380	a) Spinal Cord Injury (C4 Incomplete Quadriplegia), sustained in an injury in March 2012	26 hrs High Level Personal Care Needs Assessment 25/06/12	a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, monitor and supervise mobility, suprapubic catheter care and change, bowel management, monitor for dysreflexia	[FACS/ADHC]
58	a) Spinal Muscular Atrophy; b) Respiratory Distress Syndrome; and c) Seizures.	98 hrs SCCH New programs management May 2010	a) Tracheostomy care, including suction; b) Catheter care; c) Parenteral Gastrostomy care and management; d) Oxygen saturation monitoring; and e) Care on weekend outings.	[NSW Health]
9	a) Goldenhar Syndrome; b) Thoracic Cage Syndrome; and c) Tracheal Malacia.	100 Hours SCCH Assessment 6/1/14	a) Tracheostomy care; b) Percutaneous Endoscopic Gastroscopic (PEG) management; and c) Ventilator management.	[DoE]
66	a) Acquired Brain Injury; b) Quadriplegia; and c) History of Seizures.	168 Hrs SCCH Service user assessment summary 26/3/14	a) Personal care: showering, hygiene, grooming, dressing, eye care, foot care, oral hygiene, Bladder and Bowel management, Exercise program, Monitor skin integrity, application of creams, administer medications as ordered; b) Social support: outings; and c) Domestic support: cleaning, washing clothes, ironing, making the bed, emptying bins, shopping.	[NSW Trustee]
7	a) Spinal Cord Injury, T6 Paraplegia; and b) Brachial plexus injury left arm.	184 Hrs TAC Service claim 93/00091 23/12/11	a) Personal care: Showering, grooming, medications, catheter care, meal support, suprapubic catheter care, bowel care, repositioning, transfers; tilt table exercises daily b) Active Overnight Care: see TAC approval May and Dec 2011; c) Domestic assistance: tidy care work environment; d) Social care: supported leisure options, gym support workers, camps.	[TAC]
1235	a) C5 Incomplete quadriplegia, sustained in a motor vehicle accident in 2002.	35 Hours TAC Support Needs Approval 26/10/12	a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, assist grooming, oral hygiene, bowel management, exercise regimen; b) Domestic assistance: Prepare meals, attend shopping, domestic; and c) Social care: community integration	[TAC]
12	a) Spasticity, dystonia, dysarthria resulting from a resection of right frontal ependymoma (type of brain tumour) when the person was 11 years old; b) Metastatic, colorectal carcinoma; c) Epilepsy; d) Depression; e) Left clavicular fracture; and f) Osteoporosis	52 hrs SCCH Individual plan – Service User 25/11/15	a) Personal care: Assistance with activities of daily living, preparing meals, feeding assistance, medication assistance; b) Domestic support: cleaning, meal preparation, vacuuming, dusting, washing changing bed linen; c) Transport for daily activities; d) Assistive technology; e) Social: assistance to access local community, assistance to manage money; f) Home modifications; and g) Improved life choices.	[NDIA]
195	No clinical information	2 Hrs SCCH Care / service plan domestic 21/11/13 Unclear hrs of personal care , SCCH service plan 21/11/13	a) Maintain personal hygiene b) Promote independence c) Assist service user to remain at home d) Avoid high levels of carer strain e) Maintain Skin integrity f) Improve cleanliness of user’s home.	[DSS]
414	No clinical information	8 Hrs SCCH Service plan personal 7/2/12	a) Maintain personal hygiene; b) Promote independence; c) Assist service user to remain at home; d) Avoid high levels of carer strain; and e) Maintain skin integrity.	[DSS]
415	No clinical information	2 Hrs SCCH Service plan domestic 16/7/12	a) Maintain a clean and safe home environment; b) Identify and record safety risks; c) Assist service user to remain at home; d) Avoid high risks of carer strain	[DSS]
418	No clinical information	12 hours SCCH Service plan domestic 6/1/14 SCCH service plan community support 6/1/14	a) Reduce the social effects of isolation; b) Improve and maintain the cleanliness and safety of the person’s home environment; c) Assist service user to remain living in their own home; d) Promote independence; and e) Reduce the effects of carer strain.	[DSS]
827	No clinical information	Unclear hours over 5 days SCCH Service Plan personal	a) Maintain personal hygiene; b) Promote independence; c) Assist service user to remain at home; d) Avoid high levels of carer strain; and e) Maintain skin integrity.	[DSS]
114	a) Osteoarthritis; b) Osteoporosis; c) Hypertension; d) Depression and anxiety; e) Gastric ulcer; f) Constipation; g) Irritable bowel syndrome; h) Kyphosis; and i) Thyroidectomy.	70 hrs Online RSD Transactions Robyn Shaw - 01994	a) Personal care (three days per week): shower, dressing, skincare, foot care, supervise mobility.	[DSS]
118	a) Three strokes; b) Pacemaker; c) Osteoarthritis; and d) Sleep Apnoea.	3 hrs SCCH Assessment 3/11/11 Domestic service hrs unclear Service plan domestic 26/5/14	a) Personal care: Showering; and b) Domestic assistance: Transport, house work, minor home maintenance.	[DSS]
191	a) Right Hip and Knee replacements, causing decreased mobility; b) Myocardial Infarction (heart attack) in January 2013; c) Anxiety; d) Hypertension; e) Gout; and f) Respiratory tract infections.	Unclear Hrs over 5 days SCCH service plan Sept 2013	a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting; and b) Domestic assistance: tidy bedroom, change bed linen, clean commode, dust furniture, prepare meals.	[DSS]
201	a) Chronic obstructive pulmonary disease; and b) Confusion and memory loss.	29.5 Hrs 05275 RCTI fn ended 11 Feb 2016	a) Personal care: assist shower, assist dressing, skincare, oral hygiene, tidy bathroom, tidy bed linen, assist with toileting.	[DSS]
229	a) Ischaemic heart disease; b) Hypertension; c) Cerebral Vascular Accident; d) Type 2 diabetes; e) Chronic renal impairment; f) Asthma; g) Hypomagnesaemia; h) Falls; and Hearing loss.	Unclear Hrs over 5 days SCCH service plan 2/5/14	a) Personal care: assist shower, assist dressing, skincare, oral hygiene, tidy bathroom, tidy bed linen, assist with toileting, monitor & supervise mobility, encourage and promote independence, wound care.	[DSS]
252	a) Ischemic Bowel, b) Cardiomyopathy; c) Atrial fibrillation; d) Congestive Cardiac Failure; e) Chronic Renal failure; f) Hypertension; g) Traumatic Brain Injury; h) Gastroesophageal reflux disease; and Hypercholesterolaemia	9 Hrs SCCH Assessment 23/12/13	a) Personal Care: assist shower, assist dressing, skincare, foot care, assist with toileting, oral hygiene, tidy bathroom, supervise and monitor mobility; and b) Domestic assistance: offer tea or coffee, vacuum, dust, clean bathroom, washing, ironing, change bed linen, was dishes.	[DSS]
296	a) Dementia; and b) Intellectual impairment	7.5 Hrs SCCH Service plan 12/08/14	a) Personal Care: assist shower, assist dressing, skin care, foot care, assist with toileting, shave, tidy bed, monitor and supervise mobility, assist grooming.	[DSS]

Endnotes

Decision last updated: 15 October 2021