TFG Holding Pty Ltd and Aged Care Quality and Safety Commissioner - [2023] AATA 3809

TFG Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 3809 (22 November 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6064
Re:TFG Holdings Pty Ltd
APPLICANT

AndAged Care Quality and Safety Commissioner
RESPONDENT

DECISION
Tribunal:Deputy President R I Hanger
Date:22 November 2023
Place:Brisbane

The decision under review is set aside and substituted with a decision that the applicant is a “suitable person” to provide aged care for the purposes of section 63 of the Aged Care Quality and Safety Commission Act 2018 (Cth).
.................................[SGD].................................
Deputy President R I Hanger

CATCHWORDS
HEALTH AND AGED CARE – aged care provider – approval under section 63D of the Aged Care Quality and Safety Commission Act 2018 (Cth) – whether applicant is suitable to provide aged care – policies developed after approval – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)
REASONS FOR DECISION
Deputy President R I Hanger
22 November 2023

The prime issue in this matter relates to the extent to which an applicant for approval under the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Act) must provide detail under section 63D(3) to establish that it is suitable to provide aged care.
History
The applicant applied to the respondent on 29 October 2021 for approval to provide both residential and home care under the Act.[1] On 21 March 2022 the respondent advised that it was not presently satisfied that the applicant was suitable to provide aged care and that the application to provide residential and home care was not approved.[2]
[1] Documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T Documents), T4: Email from applicant to respondent dated 29 October 2021 attaching application for approval to provide aged care dated 25 October 2021.
[2] T9: Email from respondent to applicant dated 21 March 2022 attaching determination dated 18 March 2022.
On 4 April 2022 the applicant requested reconsideration of that decision.[3] The applicant attached substantial material to its request seeking to deal with the points that had resulted in the refusal in the initial decision.
[3] T12: Email from applicant to respondent dated 4 April 2022 attaching request for reconsideration.
On 27 June 2022 the original decision not to approve the application was affirmed.[4]
[4] T14: Email from respondent to applicant dated 27 June 2022 attaching reviewable decision.
On 25 July 2022 the applicant applied to this Tribunal for a review of that decision[5] pursuant to section 74N of the Act.
[5] T2: Email from applicant to Tribunal attaching application for review.
At all material times and to their great credit, the parties have attempted to narrow the issues that are in dispute. With the benefit of further information provided by the applicant to the respondent, a large number of matters that had prompted the refusal of the application were resolved.[6] Some remained. These were dealt with in affidavits and oral evidence.
[6] Respondent’s amended statement of position dated 3 April 2023, Attachment A.
The Act
The purpose of the Act is to protect and enhance the safety, health and well-being, and quality of life of aged care consumers. Section 16 (1)(b)(i) provides that the function of the respondent, among other things, is to promote the provision of quality care and services by approved providers of aged care services. Under section 19, the respondent has the task of accrediting aged care services in accordance with the rules, and conducting quality reviews of such services.
Section 63B provides that a person may apply to the respondent to be approved as a provider of aged care. The Commissioner must decide whether to approve a person as a provider of aged care under section 63D.
Section 63D provides as follows:
Commissioner must decide whether to approve person as provider of aged care
…
(2)The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:
(a)the person is a corporation; and
(b)the person is suitable to provide aged care; and
(c)each individual who is one of the key personnel of the person is suitable to be involved in the provision of aged care.
(3)In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:
(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;
(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;
(ea)whether the person has at any time been convicted of an indictable offence;
(eb)whether a civil penalty order against the person has been made at any time;
(f)any other matters specified in the rules
(4)In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the person.
(5)The rules may specify the matters to which the Commissioner must have regard in considering any of the matters set out in paragraphs (3)(a) to (f).
(6)Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care.
Several comments may be made at this stage. These were not controversial.
The first is that the Commissioner must not approve a person as a provider unless he is satisfied that the person is suitable to provide aged care. The person is a company.
The second point is that the Commissioner must be satisfied that the key personnel of the company are suitable to be involved in the provision of aged care.
The third point is that the obligation on the Commissioner in section 63D(3) is that he must consider certain matters but does not necessarily have to be satisfied about any particular matter. That is significant in this case because the company which is the applicant has no experience in providing aged care.
The fourth point is that the Commissioner is not limited in the matters that he may consider.
The fifth point is that the company is the applicant, and it can only act through its officers and therefore in a consideration of section 63D(3) one must look at the officeholders of the applicant. Subsection (4) is to the same effect.
The sixth point is that subsections (3)(c) and (d) uses the phrases “proposes to have” and “proposes to use”. It therefore acknowledged that the relevant systems or records may not as yet be in place.
Consideration
On behalf of the Commissioner, it was urged that in providing care for the aged, one is dealing with a vulnerable group and that in considering an application for approval the Commissioner must have regard to the vulnerability of the consumers involved. The concern is that the applicant could begin operations particularly in the home care sector as soon as an approval is granted. That being the case, the submission is that it is not good enough for the applicant, in essence, to say, “we’ll sort this out once you approve us”.[7]
[7] Hearing transcript, page 37, lines 5-6.
The applicant called 3 witnesses. Their qualifications and experience were not the subject of debate but given the nature of the issues in this matter it is important that I set out their qualifications at some length.
James Toohey
Mr Toohey is a director and operations advisor of the applicant. He has 22 years of experience in the aged care sector. For 8 years, he was the chief executive officer (CEO) of TriCare, and had ultimate responsibility for the care of 3,500 aged care recipients. He oversaw financial management, operational management, quality of care, regulatory compliance, human resources, industry representation, and key stakeholder engagement.
Between 2010 and 2015, he provided advice and assistance to numerous aged care organisations and was also part-time CEO for Trilogy Funds, which is the largest private mortgage fund in Australia that facilitates investment into the residential aged care sector.
Between 2015 and 2017, he was the operations manager of Village Retirement Group and was responsible for operations across retirement living, home care, and residential care. His role included establishing the home care business and the introduction of funded care services into retirement villages, including recruitment of key staff, regulatory compliance, and stakeholder engagement.
From 2014, he was the chair of Carers Queensland, which is the largest local area coordinator for the National Disability Insurance Scheme in Australia.
Between November 2017 and November 2019, he was Executive General Manager of Bolton Clarke, which is Australia’s largest independent not-for-profit aged care provider. His role included oversight of regulatory compliance, financial performance, quality of care and services, care recipient satisfaction, complaints management, mergers and acquisitions, facilities commissioning, and the aged care allocation around.
He is currently a director of Trilogy Care, and his responsibilities as a board member include monthly reviews of all business operations, ensuring regulatory compliance, and maintaining quality of service delivery.
Maureen Anne Kennedy
Ms Kennedy is employed by the applicant as a Director of the Applicant and Advisor – Clinical Care and Regulatory Compliance.
Her responsibilities will include ensuring clinical regulatory compliance; designing and delivering effective organisational systems; and implementation of tailored policies and procedures designed to produce the highest quality care consistent with the new aged care quality standards and relevant legislation. She will also monitor clinical outcomes to ensure high-quality care.
She qualified as a registered nurse more than 30 years ago. She has 22 years of experience working specifically within the aged care sector in Australia. She deposes in detail to the fact that she has extensive experience in the development and review of clinical policies and procedures. She has developed, reviewed, and implemented policies relating to clinical governance, diabetes management frameworks, death, and critical incident reviews and Retirement Communities Australia guidelines.
She has lengthy experience in corporate governance and has been a senior clinician responsible for clinical and personal care and support for over 1,500 care recipients in residential home care and retirement living. She worked for Blue Care as the senior residential care advisor with responsibility for clinical oversight of 26 residential care services.
During her tenure at Bolton Clarke, she was responsible for the introduction and maintenance of systems and procedures which ensured compliance with accreditation, other industry standards and best practice clinical governance systems.
While working at Blue Care she was personally responsible for the development and review of capital and operational budgets in conjunction with site managers including the achievement of key financial and operational indicators including occupancy, care hours per resident per day and EBITDA.
Ms Kennedy is currently the head of Quality Excellence and Governance at Infinite Aged Care. She has a portfolio which includes all matters of clinical governance as well as clinical excellence. She deals with policy and procedure, regulatory reform, standards compliance and clinical care standards in 17 residential aged care facilities.
The qualifications, integrity and expertise of both Mr Toohey and Ms Kennedy are unchallenged.
Thanh Vinh (Andrew) Thai
Mr Andrew Thai is a director of and the driving force behind the applicant. He was born in Saigon in 1975 and came to Australia. In 1997 he obtained the degree of Bachelor of Pharmacy from the University of Queensland and became an accredited pharmacist and remains so.
In 1998, he was employed as a pharmacist by Queensland Health in Cairns and gained some experience in various aspects of aged care. In 1999, he was employed by Queensland Health at Logan Hospital as a clinical pharmacist and was assigned to the surgical and medical ward where he specialised in managing the care of chronic disease patients, many of whom were elderly. Between January 2000 and March 2003, he worked on a casual basis at a number of pharmacies in south-east Queensland where he specialised in providing pharmaceutical assistance to elderly patients. Thereafter he acquired a number of pharmacies, and presently employs about 200 people in 15 pharmacies throughout Queensland.
His affidavit deposes to the fact that he has been a remarkably successful pharmacist. His group of pharmacies has an annual turnover of approximately $35 million and he manages the head office of the group. His affidavit establishes that he has extensive experience in corporate governance, regulatory compliance, human resource management, and financial management.
There is a difference between home care and residential care. The way in which the care is provided, the way in which it is funded, and the way in which certain reporting requirements arise in respect of the provision of care, is different.[8]
[8] Hearing transcript, page 34.
The respondent submits that if an approval is granted, theoretically the applicant could begin providing care to people in their homes on the following day. The Commissioner submits that it is therefore not good enough to say that policies and procedures will be implemented. He submits that if those policies and procedures don’t exist there should be no approval. He submits that the fact that the Commissioner has the power to revoke approved provider status is no justification for lowering the threshold to become an approved provider.
During cross-examination, Mr Toohey accepted that there is at present an absence of actual policies and procedures.
He produced a spreadsheet that showed a timetable for the development of home care if an approval were to be granted.[9] That document indicates that the policies and procedures would be developed before services were offered. Mr Toohey said that it was not economically viable to make an investment in purchasing systems, computer systems, and developing policies until the initial threshold of approved provider status was met.[10] He was recently involved in developing, implementing and reviewing policies for Trilogy Care. He said that in his experience, regulation changes occur frequently and that a suite of policies would have to be changed before services were offered. He expects there to be major changes in December 2023.
[9] Second statement of James Patrick Toohey dated 29 September 2023, Annexure 1.
[10] Hearing transcript, page 48, lines 20-24.
He described the costs involved in preparing the documents that the respondent contends should have been prepared as being tens of thousands of dollars.[11]
[11] Hearing transcript, page 54, line 3.
Mr Toohey also gave evidence that he has received positive confirmation from two experts known to the respondent who are willing to provide assistance with the development and implementation of policies and procedures as well as using the expertise of Ms Kennedy.[12] Furthermore, if approved, Mr Toohey proposes to use the services of Anchor Excellence, a consulting firm, which would report on the readiness of the applicant to begin delivery of in-home services.[13]
[12] Second statement of James Patrick Toohey dated 29 September 2023, [26], [28].
[13] Second statement of James Patrick Toohey dated 29 September 2023, Annexure 2: Anchor Excellence capability statement dated 22 September 2023.
Ms Kennedy was also cross-examined on the failure to provide policies and procedures in the application. In particular, her attention was taken to the spreadsheet prepared by Mr Toohey,[14] and she was asked about a clinical care policy. She conceded that such a policy could have been prepared and provided as part of the application. She said she had a suite of policies that she had developed and deployed and that they could be modified easily as appropriate.
[14] Second statement of James Patrick Toohey dated 29 September 2023, Annexure 1.
She pointed out that in the application it was indicated that policies would be developed. As she interpreted the guidelines provided to applicants for approval, they did not require the provision of policies. The respondent accepts that it was reasonable for the applicant to interpret the guidelines in that fashion.[15]
[15] Hearing transcript, page 122, lines 40-44.
She was asked about medication management policies and procedures. She agreed there was not such a policy in place as yet, but that she had a medication management framework that could be deployed within a day. She said she has the relevant policies that would require modification for a particular situation.
There are ten items under the heading of “Documentation, Policy and Procedure Finalisation” that have caused the respondent some concern. Ms Kennedy says in effect that she has a template for each of them other than what is described as a “client handbook”. While she has a template for that, it is specific to the operations of the particular matters of the business.[16]
[16] Hearing transcript, page 71, lines 14-16.
She conceded that the policies and procedures could have been provided if necessary but that as she interpreted the guidelines, such a step was not required. She had not provided them in respect of previous applications in 2020 and 2021.
During re-examination she said that she would not permit the applicant to provide aged care service unless she was satisfied that the relevant policies and procedures were in place, both in respect of home care and residential care.[17]
[17] Hearing transcript, page 76, lines 14-20.
I was extremely impressed by each of the three witnesses called for the applicant. They are people of integrity and have vast experience in the aged care sector. The respondent does not dispute that.
The provisions of s 63D(3) do not require every policy and procedure to be in place before a company is found to be suitable to provide aged care. I need to be satisfied about the systems the company proposes to have or use. The evidence which I accept is that, by and large, systems that Ms Kennedy has can be readily edited to suit the particular situation. I also accept the evidence of Mr Toohey that there are likely to be substantial changes in the near future which will require incorporation into policies and procedures. He has that in hand with his expressed intention of retaining the services of an expert consulting firm in relation thereto.
In any application, but particularly where the applicant is a new entry into the market, the most important matter for consideration is the experience and integrity of the key personnel of the applicant.
I am satisfied that the applicant has demonstrated an understanding through its officers of its responsibilities as a provider of the type of aged care for which approval is sought.
I am satisfied that the systems that the applicant has or proposes to have in place to meet its responsibilities as a provider of the types of aged care for which approval is sought.

I am satisfied that the method of financial management that the Applicant proposes to use to ensure sound financial management is satisfactory.
While it is correct that the applicant does not have various policies and procedures in place, I am satisfied that for an approval to be granted, the Act does not require that they be in place. It merely requires that I take into consideration what the applicant proposes to have in place.
Given the high calibre of the people involved and the evidence they have given about proposed policies and procedures, I am satisfied that at the appropriate time all proper policies and procedures will be in place in respect of residential care and home care.
I make the following orders:
(a)The decision under review is set aside; and
(b)The applicant is a “suitable person” to provide aged care for the purposes of section 63D of the Act.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger

................[SGD]................
Associate
Dated: 22 November 2023

Date(s) of hearing: 11-13 October 2023

Counsel for the Applicant: M Hickey

Solicitors for the Applicant: McCullough Robertson

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	11-13 October 2023
Counsel for the Applicant:	M Hickey
Solicitors for the Applicant:	McCullough Robertson
Solicitors for the Respondent:	Sparke Helmore