Specific Care Pty Ltd and Aged Care Quality and Safety Commissioner

[2023] AATA 3538

Specific Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 3538 (1 November 2023)

Division:GENERAL DIVISION

File Number(s):      2022/9125

Re:Specific Care Pty Ltd

APPLICANT

AndAged Care Quality and Safety Commissioner

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:1 November 2023

Place:Sydney

Pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act, the Tribunal dismisses the application for review of the decision of the Respondent dated 23 September 2022.

..............................[SGD]....................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – Aged Care Quality and Safety Commission Act – decision to grant or refuse an application for approval to provide home care – whether the Tribunal has jurisdiction to hear the matter when party no longer seeks to rely on original application – most current application considered – jurisdiction not found – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)

Aged Care Quality and Safety Commission Act 2018 (Cth) – s 74L, s 74N

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

1 November 2023

BACKGROUND

1. I note the Respondent’s written submissions contain a helpful factual summary of the background of this matter, much of which is replicated below.

2. On 12 November 2021, the Applicant submitted an application to the Aged Care Quality and Safety Commission (the Commission), for approval to provide home care.

3. In this application, the Applicant identified and provided background information in relation to the following personnel:

   (a)Anthony Hrdalo (chief executive officer)

   (b)Corazon Jasa (general manager)

   (c)Ruth Ann Sagmayao (chief financial officer)

   (d)Natassja Dismaya (care manager/registered nurse); and

   (e)Kirk Paulin Campos (Care Manager/Registered Nurse).

4. The 2021 application included, among other things, the following supporting documents:

   (a)Business Plan dated 5 October 2021;

   (b)Organisational Chart dated 18 November 2020;

   (c)A Policy & Procedural Manual dated June 2021

   (d)A National Disability Insurance Scheme Commission audit report dated 7 June 2021; and

   (e)Bank and home care statements.

5. On 1 June 2022, a delegate of the Respondent decided not to approve the 2021 application pursuant to s63D of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the ACQSC Act). The delegate was not satisfied the Applicant was suitable to provide home care for the purpose of the Act, having regard to the relevant considerations.

6. On 30 June 2022, the Applicant requested reconsideration of the original decision, providing written submissions and further evidence in support of its application.

7. On 23 September 2022, a delegate of the Respondent decided under s 74L of the ACQSC Act to affirm the original decision. The delegate agreed with the original decision that the Applicant was not suitable to provide home care for the purpose of section 63D(2)(b).

8. On 7 November 2022, the Applicant applied for review of the 23 September 2022 decision to the Administrative Appeals Tribunal. On 15 and 17 July 2023, the Applicant provided the Tribunal and Respondent with the 2023 application and supporting documents. In the 2023 application, the Applicant identified, and provided relevant background information in relation to, the following key personnel:

   (a)Anthony Hrdalo (Chief executive office);

   (b)Corazon Jasa (operations and human resource manager);

   (c)Frank Beretin (chief financial officer);

   (d)America Linga (care manager); and

   (e)Kristina Biniahan (administration manager).

9. The 2023 application included a number of support documents, such as a new policy and procedural documents to inform the Applicant’s operations dated 1 July 2023, financial information for the financial year ending 30 July 2023, information regarding the experience and skill of new key personnel, and the Applicant’s latest organisational structure.

10. On 4 September 2023, the Respondent requested an interlocutory hearing to determine whether the Administrative Appeals Tribunal had jurisdiction to hear the matter on the basis of the recently provided information of the Applicant.

    ISSUE

11. The issue for the Tribunal to determine in this matter is whether the Tribunal has jurisdiction to hear the substantive matter on the basis of the Applicant’s most current information.

    LAW

12. Section 74N of the Aged Care Quality and Safety Commission Act 2018 (Cth) states as follows:

    Applications may be made to the Administrative Appeals Tribunal for review of a reconsideration decision of an internal decision reviewer.

13. Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) section 43(1) states as follows:

    (1) for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

    (a) affirming the decision under review;

    (b) varying the decision under review;

    (c) setting aside the decision under review and;

    (i) making a decision in substitution for the decision so set aside; or

    (ii) remitting the matter for reconsideration in accordinace with any directions or recommendations of the Tribunal.

    DECISION

14. At the hearing the Applicant argued that that the Tribunal had jurisdiction to deal with its application of July 2023, and that it was not a new application, but properly characterised as an enhancement of the original application.

15. The Applicant pointed to changes in relation to the Aged Care Commission and the fact that it would be necessary to pay another fee if the July 2023 application were to be treated as a new application.

16. The Applicant referred to its written submissions in relation to the matter, which were also before the Tribunal.

17. For its part, the Respondent claimed that the Tribunal did not have jurisdiction to consider the July 2023 application and supporting documents because the Tribunal’s jurisdiction is only enlivened after the 2-step review process in Part 8b, Division 2 of the ACQSC Act had been completed and a decision made by the commission.

18. In other words, the Tribunal does not have powers that can be exercised broadly or at its discretion, but rather can only be used to affirm, vary, or set aside a decision that has been made and placed before the Tribunal for review.

19. The Respondent points to the fact that the July 2023 application deals with a number of matters which are significantly different to the 2021 application including:

    (a)Changes in personnel;

    (b)Changes in structure;

    (c)Major changes in policy; and

    (d)Significant expansion in operations and revenues.

    (e)Significant change in the manner in which the 2023 application was dealt with.

20. The Respondent said that all its previous findings related to the 2021 application and that the proper course was for the Applicant to lodge a new application with the commission. In the alternative, the Respondent said that if the Tribunal did have jurisdiction, the application for review should be dismissed under section 42B(1)(c) as an abuse of process. The Tribunal is not a first-tier decision maker, and the Respondent should have the power to assess the July 2023 application in accordance with established procedures.

21. On reviewing the material, it is clear that the July 2023 application contains a very significant volume of material, much of which is new and not part of the November 2021 application. It is not unusual for additional material to be placed before the Tribunal, but it must relate to a decision which has been made and which is under review.

22. I find that the July 2023 application is so substantially different to the 2021 application that it must be treated as a new application, rather than an amplification of the 2021 decision. A very significant part of the material in the 2023 application was not before the decision maker at the time of the 2021 application.

23. Contrary to the Applicant’s argument, the changes are too significant to be regarded as merely an enhancement of the 2021 application. I note that, even if the Tribunal was to consider that the July 2023 application was an enhancement of the application of 2021, the Tribunal does not have the resources or the skill to consider this material ab initio, and that is not it’s role. It clearly needs to be properly assessed under the established processes in the ACQSC Act. Once a decision is made, the Tribunal has the power to review it.

24. On review of Section 74N of ACQSC Act and s43(1) of the AAT Act, it is clear that to seize jurisdiction in this matter would be an overreach and futile.

25. Accordingly, I find that the Tribunal does not have jurisdiction to consider the July 2023 application, and the proper course for the Applicant is to lodge a new application which includes all of the new material which can then be properly considered by the Respondent in accordance with the established framework which takes into account all of the requirements of the Act.

26. The matter is dismissed pursuant to section 42B(1)(a).

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD].......................................

Associate

Dated: 1 November 2023

Date(s) of hearing:	23 October 2023
Applicant:	In person
Solicitors for the Joined Party:	Ms Claire Campbell