Support Services for Aged Care Pty Ltd and Aged Care Quality and Safety Commissioner

[2023] AATA 1205

Support Services for Aged Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 1205 (15 May 2023)

Division:                  GENERAL DIVISION

File Number:          2021/9145

Re:Support Services for Aged Care Pty Ltd

APPLICANT

AndAged Care Quality and Safety Commissioner

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:15 May 2023

Place:Sydney

The reviewable decision is affirmed.

................................[sgd].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

AGED CARE – refusal of application for approval as a provider of aged care – whether the Applicant has experience in providing aged care or other relevant forms of care – whether the Applicant demonstrated understanding of its responsibilities as a provider of the type of aged care for which approval is sought (home care) – whether the Applicant has systems, or proposes to have systems, in place to meet its responsibilities as a provider of the type of aged care for which approval is sought – whether the Applicant has sound financial management – reviewable decision affirmed

LEGISLATION

Accountability Principles 2014 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Aged Care Act 1997 (Cth)

Aged Care Quality and Safety Commission Act 2018 (Cth)

Quality of Care Principles 2014 (Cth)

Records Principles 2014 (Cth)

User Rights Principles 2014 (Cth)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

15 May 2023

The reviewable decision

1. Support Services for Aged Care Pty Ltd (the Applicant) seeks review of the decision dated 28 June 2022 made by the delegate of the Aged Care Quality and Safety Commissioner (the Commissioner) (the reviewable decision). Pursuant to section 74L(2) of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Commission Act), the delegate confirmed a decision made by a different delegate on 7 August 2020, not to approve the Applicant as a provider of home care, pursuant to section 63D(2) of the Commission Act.

2. The reviewable decision was made after the Tribunal remitted the decision to the Respondent for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

3. The application to become an approved provider of home care was made on 10 May 2020.

4. Home care is one of the types of aged care that a person must be approved to provide in order to receive Commonwealth subsidies for the provision of such care. 

   The Commission Act

5. The provisions of the Commission Act that are central to this proceeding are sections:

   ·63D(2)(b) that provides that the Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that the person is suitable to provide aged care;

   ·63D(3) which sets out the matters that must be considered in deciding whether the person is suitable to provide aged care;

   ·63D(4) which provides that in considering the matters prescribed by section 63D(3), the Commissioner may also consider the matter in relation to any or all of the key personnel of the person, and

   ·63D(6) provides that subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care.

   The issues in the proceeding

6. The following matters specified in subsection 63D(3) of the Commission Act were the issues in this proceeding:

   (a)the person's experience in providing, at any time, aged care or other relevant forms of care;

   (b)the person's demonstrated understanding of the person's responsibilities as a provider of the type of aged care for which approval is sought;

   (c)the systems that the person has, or proposes to have, in place to meet the person's responsibilities as a provider of the type of aged care for which approval is sought;

   (d)the person's record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management.

7. The other matters specified in subsection 63D(3) of the Commission Act are:

   (e)if, at any time, the person has been a provider of aged care or other relevant forms of care--the person's conduct as such a provider and the person's compliance with:

   (i)the person's responsibilities as a provider of that care; and

   (ii)the person's obligations arising from the receipt of any payments from the Commonwealth for providing that care;

   (f)any other matters specified in the rules. 

8. Neither provision is relevant in this case. The Applicant has not been a provider of aged care or other relevant forms of care and no other matters have been specified in the rules. The Applicant has relied on subsection 63D(4) of the Commission Act in relation to its key personnel.

   The Aged Care Act

9. Chapter 4 of the Aged Care Act 1997 (Cth) (the Aged Care Act) outlines the responsibilities of an approved provider of aged care. They are:

   Part 4.1 – Quality of care (sections 54-1, 54-8)

   Part 4.2 – User rights (sections 56-2, 61-1, 62-1)

   Part 4.3 – Accountability (sections 63-1, 63-1A, 63-1B, 63-1C)

10. Those provisions incorporate within the regulatory scheme the following principles with which providers of aged care must comply:  

    ·the Quality of Care Principles 2014 (the Quality of Care Principles) made under section 96-1 of the Aged Care Act, relevant to the type of aged care, which set out eight Aged Care Quality Standards (the Aged Care Quality Standards);

    ·Part 3 Home Care Services of the User Rights Principles 2014 (the User rights Principles) made under section 96-1 of the Aged Care Act; as well as the Charter of Aged Care Rights (Schedule 1 of those Principles);

    ·the Accountability Principles 2014 (the Accountability Principles) made under section 96-1 Aged Care Act;

    ·Records Principles 2014 (the Records Principles) made under section 96-1 of the Aged Care Act.

11. Mr Mohammed, who represented the Applicant, noted that the legislative scheme had been amended a number of times since the application was made. Mr Eskerie, who appeared for the Respondent, submitted that the changes to the Commission Act relating to approval as an Aged Care provider did not apply and I could proceed on the basis of the legislation that had been provided in the documents provided pursuant to section 37 of the AAT Act (the T documents).  I proceed on that basis.

12. Mr Eskerie said that amendments had been made to the Aged Care Act in respect of suitability of key personnel in section 63-1A of that Act but I can proceed on the basis that the responsibilities of aged care providers are greater than, not less than those set out in the legislation provided in the T documents.

13. The parties’ arguments did not turn on amendments to either the Commission Act or the Aged Care Act.

    The evidence

14. The Applicant’s documentary evidence particularly directed to the criteria in issue is found in its application and supporting documents, its request for reconsideration of the delegate’s decision made on 7 August 2020 and its response to that decision, its response to the Respondent’s request for further information dated 14 December 2020, and documents filed in the Tribunal. 

15. On 11 August 2022, the Applicant filed material and on 27 October 2022, it filed a Statement of Facts Issues and Contentions (SoFIC) and supporting documents, including Version 4 Jan 2022 of its Policy & Procedures (P&P), and Mr Amoor’s affidavit.  

16. On 16 December 2022, the Respondent filed its SoFIC of the same date. 

17. Therefore, the Respondent’s SoFIC did not refer to the Applicant’s Revised SoFIC, its Updated Version 4 Jan 2022 P&P or the Forms and System Registers Template filed on 18 January 2023. 

18. The Respondent contended that I should place no weight on the most recent revision of the P&P, given that it was up to its fourth iteration. It is 11 pages longer than the previous version.  Neither party highlighted the revisions that had been made. As the Applicant is not legally represented, I will address any relevant amendments I identified in the most recent P&P. 

19. The Applicant acknowledged that it had made ‘improvements’ based on the reviewable decision and the Respondent’s concerns expressed during the directions hearing. The Respondent did not address in any detail the contentions the Applicant set out in its Revised SOFIC or the additional material filed on 18 January 2023.

20. The only witness was Mr Amoor, who is the sole director and shareholder of the Applicant.

    Relevant entities and agreements

21. The Applicant was registered on 20 February 2020. It has provided no aged care or other relevant services. In his affidavit dated 27 October 2022, Mr Amoor described himself as ‘GM Operations’ of the Applicant. The documentation provided by the Applicant also refers to Mr Amoor as the ‘GM Operations’. During his evidence-in-chief, he said that he was now the CEO of the Applicant. 

22. The Applicant relies on Mr Amoor’s experience and knowledge. He is one of three directors of Maysan Holdings Pty Ltd (Maysan) which currently trades as Support Services for NDIS (SSNDIS). Maysan has been an approved NDIS provider since 9 September 2019 when it was trading as Best Choice Care Services. Mr Amoor has a Certificate IV in Disability, HLTAID001 Provide Cardiopulmonary Resuscitation and HLTAID004 Provide an Emergency First Aid response in an Education and Care Setting.

23. On 24 February 2020, the Applicant and Hoxton Park Physiotherapy (the Allied Health Practitioner or AHP), agreed that the Applicant would refer its consumers to AHP for provision of care services ‘as specified in the Referral Note’. The care was to be provided under the Aged Care Act. Mr Amoor signed as ‘director’.

24. An agreement was made between the Applicant and SSNDIS on 9 March 2020 for the Applicant to refer its consumers to ‘the AHP’ (which I understand referred to SSNDIS) ‘for the provision of care services as specified in the Referral Note’. The care was to be provided under the Aged Care Act ‘which has specified Responsibilities, Accountabilities and Standards on how care’ … consistent with the Act, User Rights Principles and Aged Care Charter of Rights. Mr Amoor signed as director on behalf of both entities.

25. The Applicant lodged its application with the Commission on 10 May 2020.

26. A 15-page letter dated 17 March 2021 from ‘Your Side’ confirms that Maysan is an independent contractor of Northside Community Forum Limited, trading as Your Side (Your Side) and sets out the agreement, commencing on 17 March 2021.  Mr Amoor signed the letter as ‘Director’ of Maysan. The Contractor’s obligations are set out in clause 7. Clause 7(d) requires the Contractor to comply with the Home Care/Aged Care Standards, the Aged Care Quality Standards, standards set by the Australian Aged Care Quality Agency, NDIS Practice Standards, the National Principles for Child Safe Organisations, and relevant Codes of Conduct but is not limited to them. The services to be provided ‘will include’, personal care, domestic assistance, cleaning, gardening, community access and allied health. A table setting out the fee calculations, relevantly includes headings of ‘NDIS’, ’CHSP’ and ‘HCP’.

27. Clause 7(e) requires the Contractor to have certain documents, policies, and procedures in place. The only aged care specific matter is a register of training that includes mandatory reporting of suspected child abuse or neglect and elder abuse.

28. A 23-page letter from Your Side to Maysan dated 22 June 2022 includes a contract in different terms. Mr Amoor signed as ‘Director’. The agreement specified three levels of care worker (CWL1 to CWL3) plus a care worker non-contact. CWL1 provide community access, domestic assistance, and home maintenance. CWL2 provide those services plus self-care and personal care, which includes assisting with daily personal activities such as personal hygiene, toileting, monitoring of medication ‘(Webster Pack only)’. CWL 3 included all the previous services plus residential respite, personal care – higher needs; Assistance in Nursing or Nursing Support Workers.

29. Skills and qualifications of care workers are prescribed and include first aid, Aged Care Quality Standards - ‘if providing Aged Care support services’, and NDIS Standards ‘if providing Disability Support Services’. CWL2 and CWL3 workers must have a minimum of Cert III in aged care or personal care or comparable experience/training, and Cert IV ‘minimum to issue medications for CWL3’. A table for ‘Rates’ (fees) was included with the same three headings as in the 2021 contract.

30. A 31-page agreement dated 20 July 2022, between Glow Healthcare Agency (Glow), a registered NDIS and Homecare provider, and SSNDIS as a provider of Homecare Services was signed on behalf of SSNDIS by Mr Amoor and Raid Sharmookh as Directors. 

31. Glow was to appoint case managers whose role was to assess the needs of clients and care givers, develop, implement, monitor, and review care plans in association with clients and care givers, issue requests for services and ensure care plans were being delivered in accordance with Policies and Procedures, by monitoring the service provider’s delivery of services to clients and providing overall direction in relation to a client’s care needs to SSNDIS. Case managers were to be primarily responsible for communicating with the client, except for limited circumstances.

32. An undated letter filed on 11 August 2022 on SSNDIS letterhead signed by Mr Amoor, ‘Director’, states:

    In the past 3 years we have exponentially grown due to our reputation as an excellent NDIS provider and even during lockdown and covid we still grew faster than I could ever imagine. This just goes to show that whatever I put my mind to, I will make sure it not only succeeds but also put in the time and effort to make sure that everything goes according to plan. We have a management spreadsheet which tracks all our progress and any problems that occur so that we know how to handle and reduce such problems.

    We have over 60 participants and we have experience in how to handle people with all sorts of medical conditions.

33. The letter lists 17 medical conditions, which are ‘only a fraction of what we deal with’ and states that SSNDIS provides all types of support, such as community access, domestic assistance, house cleaning, yard maintenance and ‘other various supports’. It states that training has been provided for medication, hoists, software system, ‘and many other trainings’, to support workers. Monthly meetings are held to update support workers on new rules and regulations.

34. Another undated letter on SSNDIS letterhead filed on 11 August 2022, signed by Mr Amoor, ‘Director’, stated that it is subcontracting with an aged care provider called Northside Community Forum to provide over 80 consumers with services such as community access, domestic assistance, self-care, house cleaning and yard maintenance. There were over ten Level 1 aged care clients, over 33 Level 2, over 38 Level 3, and three Level 4. Training is offered to support workers in fields such as medication, CPR/First aid, and hoists training. The letter lists 13 diagnoses ‘we have experience in’ for aged care consumers, which ‘are only a fraction of what we must deal with, we always get the required training’ with any new diagnoses. An incident and complaint register is kept. ‘We currently have 55 support workers and 8 admin staff’.

    Mr Amoor

35. The Applicant is relying on the experience and knowledge of Mr Amoor in his role as CEO of SSNIDS, as one of the Applicant’s key personnel pursuant to section 63D(4) of the Commission Act. The application stated that Mr Amoor was employed by Edu & Care Services NDIS Co as General Manager Operations, with relevant experience in NDIS from January 2018 to September 2019. Mr Amoor told the Tribunal that he will continue in his role with SSNDIS if this application is approved. He will run both companies and ‘get people on board’. He said that he did everything for SSNDIS.

36. In his affidavit, Mr Amoor stated the following. He has been the ‘CEO’ of SSNDIS for two years and managed to grow the company with the support of other key personnel. SSNDIS was delivering services to 57 NDIS participants and 102 approved aged care consumers, of whom 33 are Level 3 and 4. SSNDIS has contracts to provide services with two approved aged care service providers. He is responsible for delivery of safe and quality care and services to aged care consumers by meeting all the responsibilities specified in Part 4.1, 4.2 and 4.3 of Aged Care Act, and ‘its affiliated principles and Quality Standards’.

37. He provided a list of aged care consumers to whom SSNDIS provides support services, and feedback forms from 10 of them. The majority included aged care reference numbers for the person.

38. Mr Amoor said that Glow and SSNDIS work together to do assessments. All the aged care consumers are Arabic speakers. There is one person from SSNDIS and one person from Glow who attend the home of the consumer.

39. He claimed that there were 66 NDIS participants and a total of 170 to 180 NDIS participants and aged care clients, which shows how good SSNDIS is because that has been achieved in three years.

40. SSNDIS has 81 or 82 staff. About 44 to 45 are allied health contractors. There are two full-time employees who are support workers, six or seven part-time employees, and the rest are casual employees.

41. SSNDIS has two other key personnel: Raid Sharmookh, and another, called Essam. The three are directors of SSNDIS. Mr Amoor said that they work ‘24/7’. He thought that Mr Sharmookh’s employment contract says he is the managing director, but he would have to check.

    Other key personnel

42. Until the hearing, the Applicant was also relying on the experience and knowledge of two other key personnel:

    ·Nahed Yassine as CEO, and

    ·Kym Hoolihan, Registered Nurse, as Nurse Incharge.

43. The Organisation Chart ‘as on April 2020’ submitted in the application identified the ‘CEO, Nurse Incharge and GM ops, more in future’, as the members of the Managing Committee. The Organisation Chart identified each of the holders of those positions and that the Managing Committee was at the top of the chart. The CEO reported to the Managing Committee, and both the Registered Nurse and the GM Operations reported to the CEO.

44. At the hearing, Mr Amoor said that he was CEO of the Applicant. When asked if he had forgotten what his role was, he said that he had not and that he was a bit nervous. He explained that Ms Yassine had left the company and he was doing most of the ‘things’ at the moment.  Mr Amoor said that she left a few months ago because of the three-year delay in this matter being decided. 

45. The Applicant had relied on Ms Yassine’s experience and qualifications. Her expertise is finance. She holds a Master of Commerce (Professional Accounting) degree conferred in 2010.  She has been self-employed as a financial adviser from 2011-2016, a tax agent from 2017-2020, and the ‘Finance Incharge’ of SSNDIS from March 2020. It was claimed that this experience was ‘in relevant form of care in an approved NDIS service provider’. 

46. When asked who would run the Applicant if approval was granted, Mr Amoor said that he will look for the right person to join different roles, manager, key person ‘to help us’.  He will get people like the two other directors of SSNDIS to work together.

47. When asked to describe the management of the Applicant, Mr Amoor said director, MD, manager, RN, accountant, a full team.  He said that the director would manage the company and will refer ‘certain things’ to the MD. That is not consistent with the Organisation Structure and roles and responsibilities set out in various versions of the P&P and the document entitled ‘Allocation of Responsibilities and Position Descriptions’.

48. Mr Amoor said that he had the same registered nurse helping him with the Applicant as worked for SSNDIS. Her name was Jezebel or Jez. The other registered nurse, whose name is in the application, he has never met, that is, Kym Hoolihan. He thought her first name was ‘Hoolivan’. He could not remember her last name and would have to look it up. It was a long time ago when they did the contract. She has contacted him a few times. He said that he last spoke to her last year. He has over 95 employees/care workers. She is still with the Applicant and will work with the Applicant if it is approved. They have never worked together. She has experience in aged care which is why he employed her. He can get Jez to work for the Applicant as well. 

1. Now they have Level 3 and 4 consumers, the role of the nurse in charge is to do clinical reports, prepare care plans, assess needs, and pass that on to him. At the moment they are contracted to a company and the nurse goes on a regular basis.

2. The application stated that Ms Hoolihan has been a registered nurse since 2009 NSW and has worked in different hospital settings providing ‘nursing care in unsupervised contact’ from 2010-2016, for Mediserve nursing agency from 2017-2020, providing clinical care in home care ‘for other approved service providers’, and for SSNDIS from March 2020, providing care in ‘relevant form of care for persons with disability’. Her curriculum vitae accompanied the application.  It stated that in 2020 she worked with the Applicant as ‘Nurse Incharge’, as well as for SSNDIS. Mr Amoor’s evidence did not corroborate that she had actually worked for SSNDIS.

3. When asked how many key personnel the Applicant has at the moment, Mr Amoor said two, plus the help of an accountant.

   Consideration

   Experience

4. The Applicant has no experience providing aged care or other relevant forms of care. It therefore relies on the experience of its key personnel.

5. Mr Mohammed said during his submission, that it was not certain that Ms Yassine will not come back. I disagree. Mr Amoor’s evidence was that she has left. There is no contract with the Applicant or evidence from her that she will fulfil the role in any event. As she is no longer available, her qualifications and experience are not relevant. Her specified role as CEO went far beyond a financial role. It is unnecessary to consider whether she was qualified to fulfil that aspect of her role. 

6. I give no weight to the suggestion that a highly qualified replacement can be found and installed subject to the Respondent’s approval within 14 days. I do not accept Mr Mohammed’s suggestion that I make a decision conditional upon another person being found and approved. Such a course is highly speculative and inconsistent with the comprehensive and robust regulatory system provided by the Commission and Aged Care Acts. In this case, the Commission Act requires that I must not approve the Applicant as a provider of Aged Care unless I am satisfied that the Applicant is suitable to do so.

7. I accept that Ms Hoolihan has some relevant experience, however there is no evidence from her that she is aware of, or will agree to fulfil, the role nominated for her. Her contract with the Applicant is not in evidence. Given the significance of her proposed role within the Applicant as ‘Nurse Incharge’, one of three members of the Management Committee with Ms Yassine and Mr Amoor, and her claimed existing role with SSNDIS, and Mr Amoor’s role in that organisation, his lack of interaction with her is confounding. His response that he has over 95 employees is not an explanation. He said that Ms Hoolihan works for the Applicant and the RN working for SSNDIS is Jezebel. There is no suggestion that Ms Hoolihan was involved in preparing the P&P. I do not accept the evidence that indicates that Ms Hoolihan worked for SSNDIS. I give her experience no weight.

8. I give no weight to the suggestion that Jezebel can be transferred to the Applicant. There is no corroborative evidence of her qualifications or experience or that she would be prepared to act in the role of Nurse Incharge, set out in the Applicant’s P&Ps and other documentation.

9. Turning to Mr Amoor’s experience, there is no detailed evidence of his duties and responsibilities when he was employed by an NDIS provider as General Manager Operations from January 2018 to September 2019. 

10. The Applicant emphasises Mr Amoor’s experience as the CEO of SSNDIS since it was approved as an NDIS provider on 9 September 2019 and particularly, his experience since SSNDIS has been providing aged care pursuant to three contracts with two approved aged care providers, summarised above. Those contracts were dated 17 March 2021, 22 June 2022, and 20 July 2022.

11. Despite Mr Amoor emphasising that the aged care providers “fully contracted” to SSNDIS and that SSNDIS was responsible for complying with the responsibilities of a provider, SSNDIS was not the approved provider. I do not accept that it was fulfilling an analogous role. For example, he claimed that SSNDIS carried out care needs assessments. The contracts with the providers do not reflect such an arrangement. The evidence suggested that the SSNDIS contribution was a care worker was present during the assessments interpreting into Arabic the components of the assessments.

12. The description ‘CEO’ does not specify the duties and responsibilities Mr Amoor has with SSNDIS. His affidavit evidence about his role encompasses responsibility for delivery of services that meet all the responsibilities under the Commission and Aged Care Acts. Such a generalised statement is not helpful. He does not identify the key personnel who supported him in his role. Both Ms Yassine and Ms Hoolihan were said to be working for SSNDIS. Mr Amoor does not have qualifications or experience in finance or nursing. 

13. His role in relation to the provision of services to NDIS participants was not specified. An assertion was made in the Applicant’s response to the Respondent’s SoFIC, that ‘Mr Wasfa’ looks after rostering himself. It is an assertion, which I infer was made by Mr Mohammed who frequently referred to Mr Amoor as “Mr Wasfa’. I give the assertion little weight. 

14. The roles Mr Amoor and each of the other two directors of Maysan, who work ‘24/7’ for SSNDIS, have not been particularised. In its response to the Respondent’s SoFIC, the Applicant claimed that he was also a member of the managing committee of SSNDIS. No other members of the managing committee were identified, which further highlights the lack of information about the roles various individuals play in running SSNDIS.

15. The Applicant claimed that the fact that there have been no complaints in relation to the aged care services provided, ten individuals completed feedback forms demonstrating that they were very satisfied with the care provided by SSNDIS, and that a mandatory mid-term audit by the NDIS Commission had been carried out and no complaint was made, is proof of Mr Amoor’s transferrable skills. I do not agree. Mr Amoor’s duties in his role with SSNDIS have not been identified and there is a lack of detail of any skills acquired in that role. 

16. When Mr Amoor swore his affidavit on 27 October 2022, he claimed that SSNDIS was providing aged care to 102 consumers and had 57 approved NDIS participants. In the Applicant’s Revised bundle of documents were five pages listing the names and other information about people. The listings were in three different forms of tables. One table of three pages was headed ‘Aged Care Contract Details’ and included 43 individuals with aged care numbers. Another one-page document had 18 names listed and included numbers from 1 to 4 against the names which may refer to the level of aged care being provided. Another page had only names and telephone numbers and included Raid Sharmookh, a director of SSNDIS. 

17. There is not reliable information before the Tribunal about the number of individuals receiving aged care services from SSNDIS before 27 October 2022. I am uncertain for how long and to how many people SSNDIS has been providing aged care services as a subcontractor from 17 March 2021 to 27 October 2022, noting that two of the contracts were entered into in June and July 2022.

    66.The number of approved NDIS participants to whom SSNDIS was providing services before 27 October 2022 and the length of time the services were being provided to the participant, are not apparent beyond there being four at the time of application on 10 May 2020 and seven when the reconsideration request was made on 24 August 2020. I am also uncertain whether SSNDIS is providing the services to 57 approved NDIS participants as an NDIS provider or as a subcontractor, given the terms of the contracts with the two providers of aged care and NDIS supports.

    67.Therefore, the extent of the business of SSNDIS in terms of length of time and the number of NDIS participants or aged care consumers it has served over time, is not apparent. 

    68.The lack of evidence about Mr Amoor’s duties and skills acquired as CEO of SSNDIS, and the extent of the business experience of SSNIDS, lead me to give negligible weight to Mr Amoor’s experience.   

    Demonstrated understanding of the Applicant’s responsibilities

18. Mr Amoor said that he has sought the assistance of consultants since NDIS registration in 2019. A consultant advised about the present application. They ‘always work together’. He has had the assistance of ‘many’ consultants.

19. When Mr Amoor was asked during cross-examination, who prepared the P&P, Mr Amoor said that he ‘had to use’ Mr Mohammed, an external aged care consultant, to prepare it.

20. Mr Mohammed, who represented the Applicant, objected to the question because he thought the question was ‘How did Mr Mohammed prepare the P&P?’  Mr Mohammed said that only he knows how he prepared it and Mr Amoor could not answer the question. I accept that is so.

21. Mr Amoor could not remember how many pages that document was but said that Mr Mohammed said it was about 267 pages. They sat down together and he gave Mr Mohammed ‘a lot of information’. They prepared it ‘together’.

22. The P&P document is actually approximately 166 pages in length, 100 pages fewer than Mr Amoor said.

23. Mr Mohammed did not prepare the application. He was first nominated as the Applicant’s representative in the Application for Review of Decision to the Tribunal form which was dated 26 November 2021. 

24. At the end of the first day of hearing, when I was explaining that re-examination was confined to clarifying the witness’s evidence, Mr Mohammed asked to give evidence. I refused his request. I said that if I decided the evidence was his and not Mr Amoor’s, that would not assist. I adjourned the hearing overnight to give Mr Mohammed time to consider whether he wished to re-examine Mr Amoor. He decided not to.

25. To demonstrate the Applicant’s understanding of its responsibilities, Mr Mohammed referred to the extensive documentation the Applicant had provided, including the Revised SOFICS, the table entitled ‘Document 3: Specifying each Responsibility and Detailing the Systems on meeting these’ (Document 3), the P&P (Updated Version 4 Jan 2022), the Forms, the System Registers, and the application form. He demonstrated detailed knowledge of those documents and of the requirements of the Commission and Aged Care Acts during the hearing.  I infer that that was because he has been responsible for preparing documentation since he was retained as a consultant which required him to understand all documentation provided before he was retained.  

26. Mr Amoor’s evidence about his contribution to the preparation of documentation, including the application and P&P, was vague. 

27. He did not demonstrate an understanding of the responsibilities of a provider of aged care or a detailed knowledge of the documentation provided, in his written or oral evidence. He is the only person who gave evidence, who will play a role in the Applicant.

28. With respect to Mr Amoor, to assert that he understands the responsibilities of a provider of aged care because he has been providing aged care services, demonstrates that he does not have that understanding. A company of which he is a director has been providing personnel to provide services to aged care consumers as a subcontractor to providers, not as a provider.  SSNDIS has not been bearing the responsibilities of a provider of aged care, and his responsibilities and duties within that organisation are not clear for the reasons given above.

29. When asked what the purpose of the P&P document was, Mr Amoor said he did not know.  He reported the number of pages in the P&P based on what Mr Mohammed had told him. He said 267 pages. Both of the recent versions of the P&P have about 100 pages less than that.  He does not have an intimate knowledge of the content of the P&P which, prima facie, is intended to set out the policies and procedures that are fundamental to the Applicant’s day to day activities.  

30. Mr Amoor was asked about a statement under the heading “Procedure’ at page 184 of the P&P which related to ‘2.3 Ongoing assessment and Reviews’:

    An effective monitoring and ongoing assessment system shall be put in place to (i) review and evaluate the outcomes and effectiveness of chosen care and service and (ii) to have process in place to timely recognise changing needs and increase in complexities of consumers as consumers’ needs and situation is likely to change over time.

31. Mr Amoor said that there would be regular, ongoing assessment. It explains itself. There will be effective carer plans for consumers which explain their needs.  For example, there will be changes of circumstances and ongoing assessments.

32. Mr Amoor did not point to any existing plans for regular and ongoing assessment provided in documentation.

33. I am not satisfied that the documentation provided reflects the Applicant’s understanding of its responsibilities. Rather, it reflects the understanding of its consultants, including Mr Mohammed.

34. It is therefore not relevant to consider the understanding of responsibilities demonstrated by the documentation that has been provided.

35. I am not satisfied that the Applicant has demonstrated understanding of its responsibilities as a provider of home care to aged care consumers.

    The systems proposed to meet the Applicant’s responsibilities

36. Section 63D(3)(c) of the Commission Act requires consideration of the systems that the Applicant has or proposes to have in place to meet its responsibilities as a provider of home care.

37. Mr Amoor’s evidence at the hearing makes it unnecessary to consider in detail the documentation setting out the Applicant’s systems.

38. For the reasons set out above, I am not satisfied that either Ms Yassine or Ms Hoolihan will be fulfilling the roles and responsibilities contemplated in the application, the P&P or other documentation provided. The systems set out in the documentation rely on those two individuals fulfilling their respective roles as CEO and Nurse Incharge (also referred to in the P&P and other documentation as the DON). They are proposed to be two of the three members of the governing body, the Managing Committee (MC), with Mr Amoor.

39. The Governance Policies are set out in section 8 of the P&P. In section 8.1 the Organisation Chart shows that the CEO reports to the MC and that each of the ‘Registered Nurse Hoolihan’ and GM Operations ‘Wasfa’ (Mr Amoor) report to the CEO.

40. The responsibilities of each of the MC, CEO, Nurse Incharge, and GM Operations are listed.  The number of responsibilities listed for each of the CEO, the Nurse Incharge and GM Operations are 30, 37 and 13 respectively. Three of the roles of the GM Operations are to assist the CEO and one is to assist the ‘Nurse Incharge’.

41. The CEO’s responsibilities are elaborated upon in various parts of the documentation, including 8.6 of the P&P.  They include ensuring financial management and compliance, reporting to funding agencies and the Respondent, ensuring appropriate and effective governance and management systems are in place, meeting legal requirements, ensuring that subsidy claim lodged is accurate, and developing budget and financial statements, internal audit and review. 

42. The responsibilities of the Nurse Incharge include personal, clinical and nursing care, various systems including comprehensive assessment, developing, implementing and monitoring the Clinical Governance Framework, effective management for all aspects of delivery of care from referral to outcome including risk, coordinating care with medical and health practitioners, supervising and reviewing the performance of nursing and care staff, and meeting all Quality Standards and professional standards.

43. Mr Amoor is therefore a one-man management team. He has no financial or nursing qualifications. For the reasons given earlier in this decision, I am not satisfied that he has the qualifications or experience to be the CEO of the Applicant, given the responsibilities of that role.

44. When asked about the team he would have, Mr Amoor said director, managing director, manager and accountant. His evidence about the roles of each was convoluted. Each was a manager. He did not mention an RN or Nurse Incharge. He has not demonstrated that he understands the systems needed to ensure compliance with aged care responsibilities. 

45. I am not satisfied that the Applicant has, or proposes to have, in place systems to meet its responsibilities as a provider of home care.

    Financial management

46. The Applicant acknowledged that it would need a CFO (Chief Financial Officer) now Ms Yassine has left. It gave scant attention to this criterion in the Revised SOFIC. It submitted that it had provided bank statements, a business plan and projections and financial templates as required by the Commission and that Mr Amoor as GM Operations is qualified and now has vast experience in successfully managing SSNDIS which has expanded to have over 100 aged care consumers and 10 staff and 60 support workers. It contended that Mr Amoor’s experience qualified him to be the CEO. 

47. During cross-examination, Mr Amoor said that the rules have changed, and the Applicant will have to look at what has to be done when approved. When challenged about the figures provided, he said that everything will have to increase ‘100%’ and he can send an update.  He thinks that around $80,000 will be needed. Once they do a Business Plan, they will work out what the increase has been. He did not know the balance of the account that was $20,000 when the information was provided with the application. He said that he can transfer $80,000 which is permissible under the NDIS and Aged Care rules.

48. The Applicant acknowledged that the information provided with the application is outdated. Mr Amoor’s current vision is to have at least 40 consumers within months based on the success of SSNDIS and expressions of interest. 

49. The Applicant claimed in its previous SoFIC that:

    Now we have over 100 approved aged care consumers on contract basis with GM operations who have set up a very large office in which we will get a portion to rent.  We are beyond the stage of start-up and already set up now.

50. The conflation of the operations of SSNDIS and the Applicant is concerning. It seems that the Applicant assumes that aged care consumers to whom SSNDIS currently provides care will transfer to it. There is no reliable corroborative evidence supporting that assumption. 

51. The Applicant has no record of financial management and nor does Mr Amoor, its only ‘key personnel’. There is no current business plan, or projections. There is no reliable basis for making projections because there is no reliable evidence of current aged care consumers who would transfer to the Applicant if approved. There is no CFO. The Financial Management Policy 8.6 does not set out how key financial duties such as daily bookkeeping, financial statements and taxation obligations will be managed, other than they will be and software will be used and mentions of a bookkeeper and accountant. The CEO’s role is crucial to the financial and general management of the business and compliance with the law. I am not satisfied that Mr Amoor has the experience or qualifications to undertake that role. 

52. I am not satisfied that the methods that the Applicant proposes to use will ensure sound financial management. 

    Delay 

53. The Applicant is understandably aggrieved by an 11-month delay in this matter which arose as follows. The application was lodged on 10 May 2020 and was refused by a delegate on 7 August 2020. The Applicant requested reconsideration on 24 August 2020. As no review was carried out, under section 74L(4) the Commission Act, a deemed decision was made on 25 November 2020 affirming the original decision, which permitted the Applicant to seek review in the Tribunal pursuant to section 74N of the Commission Act. However, the Respondent purported to reconsider the original decision on its own initiative pursuant to section 74M of the Commission Act but realised at the beginning of October 2021 that it did not have that power to do so. After further correspondence, the Applicant sought review of the deemed refusal decision in this Tribunal. Thereafter, the decision was remitted for reconsideration, as set out earlier in this decision.

1. Consequently, the Applicant made serious allegations about the conduct and competence of some members of the Commission’s staff arising from the delay, which are irrelevant to the issues in this case. I did not engage with the allegations. The question of the Commission’s power under the Act was a matter of statutory interpretation about which minds may differ, as I informed the Applicant’s representative during a hearing in respect of a summons before the substantive hearing.

   Conclusion

2. For the above reasons, I am not satisfied that the Applicant is suitable to provide home care pursuant to section 63D(2)(b) of the Commission Act.

   DECISION

3. The reviewable decision is affirmed.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................

Associate

Dated: 15 May 2023

Dates of hearing:	13-14 March 2023
Advocate for the Applicant:	Mr A Mohammed, Sazem
Counsel for the Respondent:	Mr K Eskerie, Sparke Helmore
Solicitors for the Respondent:	Mr A Taverniti, Sparke Helmore