Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner
[2022] AATA 94
•28 January 2022
Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2022] AATA 94 (28 January 2022)
Division:GENERAL DIVISION
File Number(s): 2019/8195
Re:Transcon Holding Pty Ltd
APPLICANT
AndAged Care Quality and Safety Commissioner
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:28 January 2022
Place:Sydney
The Tribunal finds that the Applicant has failed to satisfy the requirements under section 8 – 3(1)(a)-(e) and has ceased to be a person suitable for approval as an aged care provider. Section 10 – 3 of the Aged Care Act provides that a service provider’s approval must be revoked if the decision maker is satisfied that the person has ceased to be suitable for approval. Accordingly, the decision under review is affirmed.
................................[SGD]........................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
HEALTH AND AGED CARE – revocation of approval as an approved 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 home care – whether the Applicant has systems in place to meet its responsibilities as a provider of home care – whether a disqualified person has acted as key personnel – whether the Applicant has sound financial management – decision under review affirmed
LEGISLATION
Aged Care Act 1997 (Cth)
Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)
CASES
Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963
Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 8248
SECONDARY MATERIALS
Quality of Care Principles 2014 (Cth)
User Rights Principles 2014 (Cth)
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
28 January 2022
By application dated 10 December 2019, the Applicant seeks a review of a decision dated 8 August 2019 which revoked the Applicant’s approval as a provider of aged care pursuant to section 10–3(1) of the Aged Care Act 1997 (Cth) (the Aged Care Act) (the reviewable decision). The applicant requested a reconsideration of the reviewable decision. The reconsideration was made under section 85 –5 of the Aged Care Act on 29 November 2019 and it confirmed the reviewable decision.
BACKGROUND
The Applicant became an approved provider of home care under the Aged Care Act on 30 August 2013. This approval lapsed on 30 August 2015 because the Applicant had not received any allocation of aged care places under the Act. On 27 September 2016, the Applicant was again approved as a provider of home care and commenced delivering home care packages in June 2017 until cancellation on 8 August 2019.
The Applicant was represented at the Tribunal by Ms Yan (Jan) Wu. Ms Wu had been the Applicant’s sole director in the past, and at other times had also managed the day-to-day affairs of the Applicant as “General Manager”. Ms Wu remains engaged by the Applicant. The exact level of responsibility that Ms Wu held for the Applicant and the precise nature of her involvement with the Applicant while she was an undischarged bankrupt was a matter of contention before the Tribunal and is considered in depth below. However, it is noted that Ms Wu had intimate knowledge of the Applicant’s operating procedures and that she represented the Applicant at hearing.
At the time of the reviewable decision, the Applicant had been delivering home care packages as an approved provider for approximately 2 years. The Respondent contends that, for much of that time, the applicant was non-compliant with the Home Care Standards under section 54-4 of the Aged Care Act, as specified in Schedule 4 of the Quality of Care Principles 2014 (Quality of Care Principles) as in force until 1 July 2019.
In particular, the Applicant’s record of identified non-compliance can be
summarised as follows.
(i)In an assessment contact report prepared on 3 August 2018, the Applicant was found to have not met outcome 1.2 - Regulatory compliance. This expected outcome requires that “the service provider has systems in place to identify and ensure compliance with funded program guidelines, relevant legislation, regulatory requirements and professional standards”.
(ii)On 22 January 2019, the Applicant was issued a notice of non-compliance on the basis that the Applicant failed to comply with the obligation to submit an Aged Care Financial Report (ACFR) by 31 October 2018 pursuant to its responsibility under paragraph 63-1(10)(m) of the Aged Care Act and section 37 of the Accountability Principles.
(iii)On 25 and 26 February 2019, the Respondent conducted a Quality Review. Following this review, on 4 April 2019 the Respondent found the Applicant had not met 14 of the 18 expected outcomes based on the Quality Review, as set out in the Respondent’s report dated 4 April 2019.
(iv)On 26 March 2019, the Respondent considered that the applicant was unable to provide reliable care and services for a client, Mr H. The Applicant did not respond to the Respondent’s request for documentation regarding the care and services provided to Mr H.
(v)On 11 April 2019, the Applicant was issued a notice of non-compliance. On the basis of information contained in the Quality Review Report dated 4 April 2020, the Department was satisfied there was non-compliance with Standard 1 - effective management; Standard 2 - appropriate access and service delivery; and standard 3 - service user rights responsibilities.
(vi)On 2 May 2019, an assessment contact report found the Applicant was still failing to meet expected outcomes and on 27 May 2019, it was found that the Applicant was placing care recipients at serious risk.
In the context of this history of non-compliance, on 13 June 2019 the Department of Health (Department) sent the applicant a notice under section 10-3(3) of the Act advising that the Department was considering revocation of the applicant’s approval as a provider of aged care and setting out the reasons for considering revocation. Pursuant to section 10-3(3)(b), the Applicant was granted 28 days to make any submissions in response to the proposed revocation. No formal response was provided within the relevant period but subsequent emails from representatives of the applicant dated 15 July 2019 and 30 July 2019 were considered by the Department.
By notice dated 8 August 2019, the Department notified the Applicant of the decision to revoke the Applicant’s approval as a provider of aged care. On 8 August 2019, the Department further notified the applicant of the limitation of its approval under s 10-3(7) of the Act.
On 4 October 2019, the Applicant sought reconsideration of the decision dated 8 August 2019 to revoke its status as an approved provider. By letter dated 12 November 2019, the Respondent wrote to the Applicant reminding it of the effect of the section 10-3(7) notice of 8 August 2019 and that the Applicant was ineligible to receive subsidy in respect of new care recipients after 15 August 2019.
On 29 November 2019, the Department confirmed the revocation decision of 8 August 2019.
On 6 December 2019, the Department issued a notice of revocation of approval pursuant to section 10-3(7) of the Act which specified that revocation took effect from 20 December 2019.
THE REGULATORY SCHEME
From 1 January 2020, the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) (the Amendment Act) transferred the functions of the Secretary of the Department of Health regarding approval of providers of aged care to the Aged Care Quality and Safety Commissioner (the Commissioner). The Aged Care and Quality Safety Commissioner was substituted as the Respondent to the present review application pursuant to Item 35 of Schedule 4 to that Act.
By clause 32 of Schedule 4 to the Amendment Act, because the revocation decision was in effect before the transition time (being the commencement of Schedule 4 on 1 January 2020), and because at the time the Applicant had already made an Application for Review of the decision to this Tribunal, the revocation decision does not fall within the transitional provisions in the Amendment Act.
The Tribunal considers that by virtue of section 7 of the Acts Interpretation Act 1901 (Cth), the legislative provisions applicable are those which were in force under the act prior to 1 January 2020.
Objects
The objects of the Aged Care Act are stated in Division 2 thereof. Relevantly, subsection 2-1(1) provides:
2‑1 The objects of this Act
(1) The objects of this Act are as follows:
(a) to provide for funding of *aged care that takes account of:
(i) the quality of the care; and
(ii) the type of care and level of care provided; and
(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv) appropriate outcomes for recipients of the care; and
(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of *aged care services that meets the needs of individuals;
Overview
Division 3 – Overview of the Aged Care Act relevantly provides:
3‑1 General
(1) This Act provides for the Commonwealth to give financial support:
(a) through payment of *subsidies for the provision of *aged care; and
(b) through payment of grants for other matters connected with the provision of aged care.
Subsidies are paid under Chapter 3 (but Chapters 2 and 4 are also relevant to subsidies), and grants are paid under Chapter 5.
(2) *Subsidies are also paid under Chapter 3 of the Aged Care (Transitional Provisions) Act 1997.
Subsidy prerequisites
Division 3-2 requires certain approvals before the Commonwealth can pay a subsidy to an approved provider of aged care, as follows:
3‑2 Preliminary matters relating to subsidies (Chapter 2)
Before the Commonwealth can pay *subsidy to an approved provider of *aged care, a number of approvals and similar decisions may need to have been made under Chapter 2. These may relate to:
(b) the *aged care service in question (for example, for residential care services and flexible care services the requirement that *places have been allocated in respect of the service); or
(c) the recipient of aged care (for example, the requirement that the recipient has been approved as a recipient of the type of aged care that is provided).
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
Division 3-3 provides for subsidies to be paid only in certain circumstances as follows:
3‑3 Subsidies
A number of different kinds of *subsidy can be paid. They are paid for *aged care that has been provided. Eligibility for a subsidy depends on:
(a) particular approvals and similar decisions having been made under Chapter 2; and
(b) the circumstances in which the care is provided (for example, whether the care is provided in a residential care service that meets its *accreditation requirement).
Part 2.1 of the Aged Care Act makes provision for approved providers. Such a term is defined in Schedule 1 – Dictionary as having the same meaning as in the Commission Act. Division 6, contained in Part 2.1, states in section 6–1 entitled “What this Part is about”:
A precondition to a provider of *aged care receiving a *subsidy under this Act for the provision of care is that the provider is an approved provider.
For the obligations that arise from being an approved provider, see Division 9 of this Part.
Division 10A of this Part sets out offences relating to disqualified individuals and when remedial orders may be obtained.
Division 7 states the significance of approval as a provider of aged care and states in section 7-1:
Payments of subsidy cannot be made to a person for providing aged care unless:
(a) the person is an approved provider; and
(aa) the approval of the person is in effect; and
(b) the approval of the person is in respect of the type of aged care provided, at the time it is provided; and
(c) the approval of the person is in respect of the *aged care service through which the aged care is provided, at the time it is provided.
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
Division 8 contains the prerequisites to be satisfied before a person can obtain approval as an approved provider. By Schedule 1 of the Amendment Act, this Division was repealed. Virtually equivalent provisions are now contained in section 63D of the Commission Act. Subsection 63D(2) provides:
Approval 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) none of the key personnel of the person is a disqualified individual.
The Commissioner must be satisfied that an applicant for approval as an aged care provider meets certain criteria. The specific requirements are contained in subsection 63D(3) as follows:
Suitability to provide 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;
(f) any other matters specified in the rules.
Subsection 63D(4) provides an extension of the consideration by the Commissioner to “key personnel”, as follows:
(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.
The term “key personnel” is defined in section 8B of the Commission Act and in summary is a member of the group of persons who is responsible for the executive decisions of the entity or who has authority or responsibility over planning, directing or controlling the activities of the entity. Paragraphs 8B(1)(c) and (d) provide:
8B Meaning of key personnel of a person or body
(1) Each of the following is one of the key personnel of a person or body (the entity) at a particular time: …
(c) if, at that time, the entity conducts an aged care service:
(i) any person who is responsible for the nursing services provided by the service and who holds a recognised qualification in nursing; and
(ii) any person who is responsible for the day‑to‑day operations of the service;
whether or not the person is employed by the entity;
(d) if, at that time, the entity proposes to conduct an aged care service:
(i) any person who is likely to be responsible for the nursing services to be provided by the service and who holds a recognised qualification in nursing; and
(ii) any person who is likely to be responsible for the day‑to‑day operations of the service;
whether or not the person is employed by the entity.
THE ISSUE BEFORE THE TRIBUNAL
Section 10-3 of the Aged Care Act provides that the Secretary must revoke an approval of a person as a provider of aged care under section 8 – 1 if the Secretary is satisfied that “the person has ceased to be suitable for approval…”. The issue for the Tribunal to consider is whether the Applicant is suitable for approval. That consideration requires an assessment of the Applicant against the criteria contained in Section 8-3(1).
STATUTORY CONSIDERATIONS
Pursuant to Division 10, the Secretary must revoke approval of a person as a provider of aged care if the Secretary is satisfied, inter alia, that the person “has ceased to be suitable for approval”: see section 10 – 3. The procedure to give effect to the revocation of approval is contained in section 10 – 3 (3) to section 10 – 3 (8).
Section 10 A – 2 of the Aged Care Act provides that a corporation commits an offence if the corporation is an approved provider and a disqualified individual is one of the corporation’s key personnel, and the corporation is reckless as to that fact: see section 10 A – 2 (1).
SECTION 8-3(1)(A) – THE APPLICANT’S EXPERIENCE IN PROVIDING AGED CARE OR OTHER RELEVANT FORMS OF CARE
Corporate structure
Ms Yan Wu has provided a statement on behalf of the Applicant dated 15 October 2020 (the Company Statement). Ms Wu has also provided a statement of the same date in her personal capacity (the Personal Statement).
The Applicant was registered as a corporation on 22 June 2009. The sole director and secretary is Ms Yan Wu who holds the total shareholding at a value of $10. On 10 September 2019, the Australian Securities and Investment Commission issued a proposed Notice of Deregistration. A default was recorded against the company namely to Employsure Pty Ltd which recorded an amount of $2337 that remained unpaid as at 18 December 2015. There is no evidence of any further regulatory action against the Applicant.
The Applicant claims it has a long history of providing aged care. The Company Statement asserts that the Applicant is a well-known business in the industry; it caters for a “niche market”; it has skilled care professionals and business adviser support; and that it has “wide clientele by word-of-mouth”. Ms Wu states that the business was doing well between 2018 and 2019. Ms Wu states that clients have been clients of the Applicant for many years; which is a demonstration of the quality services provided by the Applicant and is a strong recognition of the care provided.
Letters of support have been provided but the letters are mainly historic and do not refer to the Applicant’s current capacity. One such reference dates back to 2006. The authorship of other letters is questionable, as they appear to have been prepared by persons other than the signatory. Numerous certificates have been provided of persons apparently engaged by the Applicant and interspersed are police checks of some contracted workers. However, there is no comprehendible list of persons engaged by the Applicant showing their qualifications and whether or not they satisfied police checks. The certificates provided by the Applicant do not confirm the particular services that such persons are providing.
NDIS Scheme
The Applicant contends it has been a provider under the National Disability Insurance Scheme (NDIS). The evidence shows that the applicant obtained approvals required by the NDIS. However, such documents do not describe the quality of care provided and are not relevant to the purpose of aged care for the purpose of section 8–3(1)(a) of the Aged Care Act.
Applicant’s experience in providing aged care
The Applicant has provided two Supplier Reference Reports for the Contingent Workforce Pre-Qualification Scheme in 2015. However, these are not relevant to the present issues.
Ms Wu stated that the overall business “operated sound and well full. The business is in good shape.” She stated that in home care, there are four levels of care and that she can “handle them all”. She stated that she trained her staff well, and that she has ensured that her skill and knowledge over the past 26 years has resulted in no physical, medical, or clinical incidents at all and that the Applicant has maintained “a sound track record”; that it has continuously developed operating systems to be more efficient to cope with day-to-day operation; that she has integrated compliance with day-to-day operations; and that she is working with stakeholders and advisers for the company’s statutory obligations. She stated the business does not use contractors.
The business has been working on national disability services and brokering aged care services and Ms Wu asserts that it has continuously provided quality services to recipients. Ms Wu disputes that the Applicant has employed workers who had no national police check.
Finding
The lack of reliable evidence in regard to this consideration leaves the Tribunal unable to make a conclusive finding. In the absence of compelling evidence, the Tribunal cannot be satisfied as to what level of experience the Applicant holds in providing aged care or other relevant services.
SECTION 8-3(1)(B) – APPLICANT’S UNDERSTANDING OF ITS RESPONSIBILITIES
Allegations regarding the Quality of Care Principles
The Final Quality Review Report (“the Quality Review”), on which the Respondent relies, asserted that the Applicant failed to demonstrate an understanding of its responsibilities as a provider of home care services because it was non-compliant with several standards and policies in Schedule 4 of the Quality of Care Principles. The relevant criteria for each of the standards are described as matter indicators.
1 Standards Relating to Effective Management
Principle: the service provider demonstrates effective management processes based on a continuous improvement approach to service management, planning and delivery
Matter Indicator 1.1 – Corporate governance
Expected Outcome: the service provider has implemented corporate governance processes that are accountable to stakeholders.
The Quality Review establishes that the Applicant was unable to demonstrate an organisational structure, a system for strategic or business planning, nor a transparent and accountable system to manage Home Care Package (HCP) budgets.[1] A representative of the Respondent requested the Applicant provide, on the day prior to the assessment conducted on 27 September 2018, a self-assessment of the Applicant’s performance against the regulatory criteria. No self-assessment was provided.
[1] Tribunal Documents T19, 141.
Ms Wu advised the Department that the Applicant was registered in her sister’s name (Ms Bing Wu) although it appears that Ms Bing Wu had no role in the management or governance of the company.[2] Ms Wu informed the assessors on 27 September 2018 that she was responsible for all the company’s corporate and business activities. However, no governance structure existed which would have provided oversight of the operational management of the company and to ensure that the services provided were accountable to stakeholders.
[2] Tribunal Documents T19, 140.
The Quality Review states that Ms Wu informed the assessors that she only has a conceptual “vision” in planning for the future of the company.
Ms Wu could not state what governance structures existed for the Applicant but claimed that her computer contained all the required information. However, during an interview Ms Wu experienced difficulty in finding and producing some of the documentation on her computer at the assessment. For example, Ms Wu could not locate any record relating to two persons whose police checks had expired had subsequently been renewed.
The Quality Review evidences feedback from care recipients or from their representatives which state that they did not feel that the services provided by the Applicant were well managed. One care recipient’s representative alleged that there was no care plan, no budget, and no regular statement of the package income and expenses. One package care recipient claimed that they had not received any services from December 2018 until February 2019 as their regular carer was terminated by the Applicant; and that after a one-week resumption of services the services were again suspended. Ms Wu had sent messages to the care recipient informing them not to contact the carer.
Finding
The evidence establishes that the Applicant is unable to demonstrate that it possesses corporate governance processes, that they are effectively implemented, nor that they are sufficiently accountable to stakeholders. The Applicant, through Ms Wu, was unable to point to any specific processes it possessed and was unable to produce documentation relating to the Applicant’s governance procedures when prompted on multiple occasions. As a result, the Applicant fails to satisfy this matter indicator.
Matter Indicator 1.2 – Regulatory compliance
Expected Outcome: The service provider has systems in place to identify and ensure compliance with funded program guidelines, relevant legislation, regulatory requirements and professional standards
The Quality Review establishes that Ms Wu was able to produce current police check certificates for six care workers. There was no current police check certificate in respect of Ms Wu. There was no system to ensure replacement workers were checked for current police check certificates.
In respect of budgets, an excel spreadsheet system existed but it was dependent entirely upon information inserted by Ms Wu.
A complaint had been made that care recipients were not receiving monthly statements. In respect of two care recipients who had transferred to other service providers, no information had been provided as to any credit or debit standing in the care account and it appeared, in respect of another care recipient, that the information with respect to the financial position of the packaged funds was incomplete.
Finding
The evidence establishes that the Applicant did provide monthly accounts to its clients but that such accounts were not in a comprehensible form and did not provide accessible information. Clause 7 of the Charter of Care Recipients’ Rights and Responsibilities – Home Care provides that each recipient has the right; “(b) to receive invoices that are clear and in a format understandable”. In respect of unspent funds, the Applicant has provided an “Unspent Funds Transfer Form” for use where a transfer of providers occurs. However there is no evidence that such forms have been utilised.
Matter Indicator 1.3 – Information management systems
Expected Outcome: The service provider has effective information management systems in place
The Respondent claims that the information management systems cannot be easily understood, external information on the My Aged Care portal was inaccurate, and that the accounting system for managing care recipients’ budgets was not transparent nor verifiable.
Finding
The evidence established that only Ms Wu could operate the computer system to locate files and records; that electronic files were named unclearly; and that there was no evidence of secure storage and back up of data.
Ms Wu could not produce certain key documents to the assessors upon request on 27 September 2018 such as the certificate of currency of the Applicant’s professional indemnity and public liability insurance.
With respect to the My Aged Care portal, Ms Wu could not find the Applicant’s provider details. The information on the My Aged Care portal for the Applicant is inaccurate and potentially misleading and the information on the portal was not maintained.
There was no evidence of a transparent accounting system; of registers being maintained to monitor currency of staff certifications or a system for care staff to record ongoing care and progress notes.
The Respondent claimed there was no continuous improvement plan, but the Applicant produced a document which purported to satisfy this requirement. The Applicant also referred the Tribunal to documents which she claimed constituted an information management system. The Tribunal finds that the Applicant did have a system of recording information management details of each care recipient.
The Respondent relied on a number of complaints from care recipients and their representatives which the Tribunal finds are unrelated to information management and are of no relevance.
Matter Indicator 1.4 – Community understanding
Expected Outcome: The service provider understands and engages with the community in which it operates and reflects this in service planning and development
The Respondent acknowledges that this requirement was satisfied by the Applicant.
Matter Indicator 1.5 – Continuous improvement
Expected Outcome: The service provider actively pursues and demonstrates continuous improvement in all aspects of service management and delivery
The Respondent claims that the Applicant did not have any specific policy and procedure to support a strategic approach to continuous improvement and did not have a system for systematic evaluation of stakeholder feedback for trends and recurring issues.
Finding
As previously referred to, the Applicant produced documents which were said to constitute a continuous improvement plan. These documents clearly did not comprise a specific policy. Nor was there any evidence of any system for care recipient complaint recording and action.
Matter Indicator 1.6 – Risk management
Expected Outcome: The service provider is actively working to identify and address potential risk, to ensure the safety of service users, staff and the organisation.
The Respondent claims that the Applicant has not provided evidence of a framework for risk management nor governance oversight or accountability to manage risks in all aspects of service delivery.
Finding
The Applicant relied upon a document entitled “Governance – Risk Management”. It was noted as being current on 31 March 2020 and was stated to be last edited on 19 August 2019. This document bears a similar format and similar dates to numerous other policies provided by the Applicant. It is not apparent that such policies existed at the time of the preparation of the Quality Review Report. This document would appear to satisfy this requirement, by providing a framework for risk to be encountered by the Applicant in the delivery of its services. However, there is no governance body nominated to oversee such a system although the policy makes provision for management to be reporting to such a body. There is no evidence that such a policy has been used or referred to.
Matter Indicator 1.7 – Human resource management
Expected Outcome: The service provider manages human resources to ensure that adequate numbers of appropriately skilled and trained staff/volunteers are available for the safe delivery of care and services to service users
The Respondent alleges that there was no system for the safe delivery of care and services to care recipients.
The Respondent claims that no registers were maintained to ensure that staff were appropriately certified including certifications such as drivers’ licences, motor vehicle insurance and police checks. Nor was there any evidence of minimum qualification requirements for workers or “pool staff”. The workers were said to be recruited for their language proficiencies or cultural backgrounds. There was no provision for any support staff to cover the Managing Director’s position if she were absent.
Finding
The Applicant has produced a Home OHS&R assessment and check list for use in assessing the needs of particular care recipients. The form also records the type of services required and the medical history. A customer consent form nominates the general practitioner who the care recipient wishes to use.
The specific requirements referred to in the Quality Review have been met by the Applicant.
Matter Indicator 1.8 – Physical resources
Expected Outcome: The service provider manages physical resources to ensure the safe delivery of care and services to service users and organisation personnel.
The Respondent acknowledges that this requirement was satisfied by the Applicant.
Allegations regarding the Accountability Principles
Failure to provide financial reports
The Respondent asserts that the Applicant failed to comply with clause 35 and 37 of the Accountability Principles 2014 (Cth) (Accountability Principles) because the Applicant failed to provide the Secretary with its aged care financial report within four months of the end of the financial year. Although no sanction action was taken in relation to this breach, the Respondent states that the Tribunal may consider it for the purposes of determining whether the Applicant is a person suitable to provide aged care.
Finding
The Applicant acknowledges that it failed to provide accounts within the requisite period despite receiving reminders because it operated a cash accounting system and it was waiting for a statement from the Department of Human Services before it was able to provide the accounts. The Respondent acknowledges that the Applicant’s failure in this regard only related to one financial period (2018-2019). In these circumstances, the Tribunal does not regard this breach as having any serious consequences by itself, although it does form part of the overall pattern of the Applicant’s non-compliance with its obligations.
Failure to obtain a current police certificate
The Respondent asserts that the Applicant knowingly failed to ensure that employees had obtained and maintained a current ‘police certificate’ as required by clause 48 and cl 50 of the Accountability Principles (in circumstances where the exceptions in clause 49 were not satisfied).
Ms Wu sent an email to a staff member on 26 September 2018, reminding her that she had not provided a first aid certificate and a national police check, of which Ms Wu said “by law, you must not work without [these] certificates”. Yet the staff member had already been working for a month at the date of the email. Three months later, Ms Wu sent another email to the staff member reminding her that the first aid certificate and national police check were required “for the audit”. These documents were not provided for another month and, despite this, the staff member was still allowed to work.
Finding
There was a clear breach by the Applicant of the requirement to ensure that an employee had obtained a current police check before commencing work.
Allegations regarding the User Rights Principles
Pricing information
The Respondent asserts that the Applicant did not comply with clause 19A-19C of the User Rights Principles, as it did not provide the Department of Health with pricing information for its services by 30 November 2018 and 1 July 2019.
Finding
The Applicant provided some information to the Respondent. By letter dated 13 March 2009, the applicant stated:
However, our understanding is that from 1st April 2019, the department will have a set pricing for all the providers. So we have already informed all our clients that our pricing will be changed in accordance with the department pricing as of 1st April 2019.
However, the information provided was pro-forma pricing, in some cases published by the NDIS. It did not reflect the prices necessarily to be charged for the services to be provided by the Applicant and was accordingly deficient, and the Principles were not complied with in this respect.
Monthly statements
The Respondent asserts that the Applicant did not comply with clause 19AE and 21 of the User Rights Principles because it:
(a)did not provide all care recipients with monthly statements of available funds and expenditure;
(b)in cases where monthly statements were provided, the monthly statements failed to include required details including the funds available in the budget or whether there was a surplus or deficit;
(c)in cases where monthly statements were provided, the monthly statements were not clear and understandable.
Finding
The Applicant did provide monthly statements to its clients. However, the statements were virtually incomprehensible and it is not possible to discern whether a surplus or deficit remains in a care recipient’s account. Such statements are unclear. Ms Wu claims that if the statements were not clear and understandable, pursuant to clause 11.6 of her Service Agreement, it was the responsibility of the client to seek clarification. Such provision imposed an obligation on the client to seek clarification in the event of an uncertainty in the services to be provided by the Applicant.
It is not appropriate to impose an obligation upon the Applicant’s clients to seek further clarification if the format of the statements, required to be provided, are not readily comprehensible. That is the responsibility of the Applicant. The Principles were not observed in this respect.
Key personnel
Under section 8 – 3A of the Aged Care Act, key personnel will include a person “who is responsible for the executive decisions of the entity at that time” and “any other person who has authority or responsibility for (or significant influence over) planning, directing for controlling the activities of the entity at that time”.
Acting as key personnel while bankrupt
The evidence clearly establishes that Ms Wu is the person who has had the day-to-day conduct of the Applicant’s business.
Ms Wu was declared bankrupt on 1 May 2018. In the Company Statement she describes bankruptcy as a “self-claimed bankruptcy”. Ms Wu stated that the bankruptcy resulted from her own debtor’s petition. Ms Wu was discharged from bankruptcy on 26 March 2020.
Ms Wu was, for a substantial portion of time, a disqualified person, because she was an undischarged bankrupt until 26 March 2020. On 18 March 2019, the Applicant was issued a notice to give information under section 9-2 of the Aged Care Act concerning the status of Ms Wu. In response, the Applicant advised that she was not a current director and had been disqualified for an extensive period until the Applicant’s status as an approved provider was revoked. Christian Fox, Audit and Assurance, provided a letter to the Respondent dated 4 October 2019. In this letter, the following appears:
“17. The applicant regretfully acknowledges that Ms Jan Wu has from time to time (and most recently on 23 September 2019) purported to communicate on behalf of the applicant company, and has asserted clinical responsibility, being the indicia of key personnel. This conduct is not acceptable and robust action has been taken to prevent further instances.”
In the same letter the following appears:
“Ms Jan Wu has acknowledged in writing that it is a fundamental term [emphasis in original] of her continuing contract of employment with the applicant that she must not decide executive matters or communicate externally on behalf of the applicant company or managed clinical decision-making, or provide nursing services for the applicant or purport to do any of these things. This fundamental term [emphasis in original] may be varied only by prior agreement in writing by the applicant following consultation with the Department of Health, upon Ms Jan Wu ceasing to be an undischarged bankrupt. Any breach by Ms Jan Wu of this fundamental term will constitute grave misconduct on her part resulting in immediate termination of her employment by the applicant”.
The evidence shows that Ms Wu continued to act despite such assurances. It should be noted that Ms Wu claims that the statements concerning her participation in the Applicant’s affairs were written without her knowledge or authority, and that she did not agree with them.
Ms Wu has provided a resume of herself. The resume details the duties she performed both before, during and after her period of bankruptcy. Whilst the resume says that during the period of bankruptcy she did not act as director, but as “GM” (thereby meaning “General Manager”), the duties listed under both the positions as director and under “GM” are identical.
A transfer of shares was made by Ms Wu upon becoming bankrupt to Ms Bing Wu, thereby suggesting that Ms Wu was divesting any control over the Applicant in favour of her sister. However, on 1 August 2018 an assessment was made by the Respondent. The assessment was carried out with Ms Wu providing instructions. Ms Bing Wu did not attend the assessment interview.
In a series of emails to the Respondent, during the period of bankruptcy, Ms Wu has signed them as “manager”. Ms Wu did not inform the Respondent that Ms Bing Wu was the manager during this period. Ms Wu claimed that she did not wish to make her bankruptcy public and for this reason did not want to have it “broadcast". Further, she states she forgot to change the name on the signature block of emails to Ms Bing Wu. Ms Wu claimed that the use of the term “manager” was a technical mistake. In the records provided, one document has been produced in the period of bankruptcy indicating of Ms Wu as manager. That document has not been signed in handwriting, but rather bears the stamp “Bing Wu”.
An assessment was carried out by the respondent on 25 February 2019. Ms Bing Wu was not present, but Ms Wu provided answers to questions asked by the Respondent’s officers.
In an email to “Cindy”, a contractor to the Applicant, Ms Wu signed the email as Ms Bing Wu.
In an email dated 23 April 2019, in response to a notice issued under section 9-2 of the Aged Care Act, Ms Wu stated that there were no key personnel who were disqualified. That email was written at a time when Ms Wu was bankrupt and purporting to act as key personnel.
A telephone record made by the Respondent on 14 June 2019 between Ms Wu and the Respondent’s representative states, inter alia:
“JW stated she was doing her best, but she was doing it all by herself with no other support and that a health was suffering as a consequence as she was so tired. JW stated that she wanted to grow the business but could not as all the demands of the Commission and the Department took too much of her time.”
Ms Wu denied making such a statement. The Tribunal however finds the written record as being the most accurate statement of the events.
Ms Wu states that during her period of bankruptcy she chose to participate with the Applicant, worked voluntarily and claimed no income for her aged care work. She states she removed herself as a director of the applicant and refers to a statement of a firm of accountants, Christian Fox. Ms Wu states that she was previously bankrupt arising out of her refusal to pay a body corporate levy. Ms Wu claimed that during her period of bankruptcy, her sister Ms Bing Wu acted as managing director and that she had no involvement other than in a voluntary capacity.
However, it emerged that Ms Bing Wu at all times had part-time employment as a teacher and there is no explanation how her absence fulfilling her teaching duties would have impacted upon the operation of the company.
Finding
The evidence establishes that Ms Wu conducted herself as a principal of the Applicant whilst she was bankrupt. By doing so, Ms Wu contravened section 10A-2 of the Aged Care Act which prohibits a person from fulfilling such a role whilst bankrupt.
Acting as key personnel without a nursing qualification
The Respondent asserts that in contravention of s 8-3A(3) of the Act, Ms Yan Wu was acting as one of the ‘key personnel’ of the Applicant responsible for nursing services provided by the Applicant at a time where she did not hold a current qualification in nursing (although she did hold an expired qualification).
Finding
If Ms Wu was not the person responsible for nursing services to be provided by the Applicant, it was not necessary for her to have nursing qualifications. Ms Wu claimed that she was not responsible for nursing services but instead Chan Nguyen was the Director of Nursing. The Tribunal notes that in a letter written by Christian Fox Audit & Assurance, consultant to the Applicant, dated 4 October 2019 it is stated that Ms Chan Nguyen was engaged on 18 April 2019. Accordingly, it is apparent that the Applicant had no Director of Nursing other than Ms Wu until at least this date.
Ms Wu claimed that the letter of Christian Fox was mistaken, and that Ms Nguyen commenced in 2015. To support this claim, Ms Wu produced an “Employment Record Form” dated 20 May 2015. The form appears to be an application form, and it records that Ms Nguyen holds a Bachelor of Nursing and has a work history at Bankstown Hospital. No other employment records have been produced to verify that Ms Nguyen has acted as the Director of Nursing services for the Applicant since 2015. A payment record shows that for a 12-month period Ms Nguyen was paid only $4,125. Ms Wu claimed that Ms Nguyen was paid for each assignment and was not full-time.
Although section 8-3A(3) of the Aged Care Act requires that any person responsible for nursing services hold a qualification in nursing, it does not state that the person must be a full-time registered nurse.
There is no evidence that Chan Nguyen was a registered nurse while acting as the person responsible for nursing services. In the absence of that evidence, and further, during periods when Ms Nguyen was not engaged by the Applicant, the only person who could have fulfilled the role of person responsible for nursing services was Ms Wu. However, section 8-3A, which defines key personnel, does not specify that the person having the day-to-day operation of the business must have recognised nursing qualifications.
The evidence is inconclusive. Accordingly, the Tribunal is not able to find that Ms Wu was acting as the Director of Nursing of the Applicant prior to Ms Nguyen being engaged.
General Matters Contended by the Respondent
The Respondent contends that the Applicant’s response to complaints by care recipients or requests by the Respondent for further information in respect of its alleged non-compliance demonstrates it does not understand its responsibilities. In particular:
(a)In response to a complaint, Ms Wu wrote to Minister Colbeck to complain about the Commission’s conduct, contending in particular that “They keep moving goal post as they wish.”
(b)Despite numerous requests, the applicant failed to provide the Respondent with a continuous improvement plan until May 2019.
(c)The Applicant’s representative, Ms Wu, failed to attend a scheduled assessment appointment.
(d)The Applicant’s representatives twice cut short assessment appointments.
(e)The Applicant repeatedly delayed or failed to provide information.
(f)The Applicant, through Ms Wu, deleted information regarding police checks of employees.
(g)The Applicant has accused the Respondent of fabricating evidence.
Finding on general matters
(a)Ms Wu wrote to Minister Colbeck as claimed. In failing to address the Respondent’s concerns, the Applicant instead decided to raise a complaint at the highest level. Such letter demonstrates that Ms Wu, in her capacity as key personnel for the Applicant, demonstrated a disregard for the regulatory requirements as a provider by raising such complaint when the applicant should have been addressing its identified non-compliance issues.
(b)Ms Wu produced a pro-forma document containing no detail which Ms Wu alleged had been provided to the Respondent at a meeting on 25 February 2019. That document, in the absence of information being provided in the document, was inadequate. A further document entitled plan for continuous improvement was sent by the Applicant to the Respondent on 20 May 2019.
(c)The evidence does not establish that Ms Wu did not attend a scheduled assessment appointment. However, during an appointment attended by a representative of the Respondent, Mr Hanssens, on 27 September 2018, the interview was terminated. Mr Hanssens stated that Ms Wu became agitated and did not appear to understand his questions. As a consequence, Mr Hanssens suggested they should leave and Ms Wu agreed. The evidence establishes that Ms Wu became hostile in such meeting after repeated questions were asked of her which she could not answer.
(d)As above in point (c).
(e)A further interview was scheduled for 29 October 2020, but because of a domestic issue, Ms Wu could not be present, and the interview was not held.
(f)Ms Wu acknowledges that she deleted information concerning a former employee. She states that she deleted the personnel file because it was obsolete.
(g)The Applicant claims that a patient’s son had fabricated evidence. Ms Wu accused the patient’s son of making false accusations against her The respondent claims that Ms Wu made derogatory racist remarks about the son. Although Ms Wu denies they were racist, the content of an email she wrote clearly carries such a connotation. Such conduct by a service provider is inappropriate.
SECTION 8-3(1)(C) – THE SYSTEMS THAT THE APPLICANT HAS OR PROPOSES TO HAVE IN PLACE TO MEET ITS RESPONSIBILITY AS A PROVIDER
The Respondent, relying upon the particulars in relation to section 8-3(1)(b) set out above, alleges that the Applicant has demonstrated a long history of non-compliance which shows that it does not have adequate systems in place to meet those responsibilities.
Finding
The Applicant acknowledged that it had deficiencies in “ongoing clinical and administrative management” as evidenced by the letter from Christian Fox dated 4 October 2019. The Tribunal refers to its findings in respect of those particulars relating to section 8-3(1)(b) above.
Systems relating to staff training
The Respondent contends that the Applicant’s systems relating to staff training are inadequate and that the managing director was unable to provide evidence of staff training in the last 12 months, including training on manual handling, Worker Health and Safety, infection control, fire safety, first aid or CPR.
The Respondent’s Home Care – Assessment Contact Report dated 1 August 2018 (assessment contact) states:
The MD was unable to provide evidence of staff training in the last 12 months, including training on manual handling, WHS, infection control, first safety, first aid or CPR. There is no evidence available of any orientation or induction process for new staff.[3]
[3] Tribunal Documents T7, 88.
Finding
Ms Wu referred the Tribunal to a three-page schedule which listed many aspects of aged care management and some topics were ticked. There is no coherent training manual. The document relied upon could not constitute a manual: it merely comprises an extensive list of various types of training. Further, there is nothing in these lists to indicate that any staff member has undergone any such training, nor had a thorough, or any, understanding of the content of such manual.
Failure to maintain plans and registers
The Respondent asserts that the Applicant failed to maintain a continuous improvement plan, risk management plan, incident register or complaints and feedback register and failed to maintain a register to monitor currency of staff certifications, including police checks.
Finding
An adequate continuous improvement plan has already been referred to. There is no evidence that the new plan has been utilised.
A document entitled “Governance – consumer care risks” exists which identifies all potential risks to the operations of the Applicant.
There is no evidence before the Tribunal of any incident register or complaints and feedback register nor is there a register to monitor currency of staff certifications including police checks.
Back-dated documents
The Respondent alleges that the Applicant’s poor management process and record keeping led her to request an employee to sign a backdated time sheet and a care recipient to sign back-dated “service agreements” for Level 2 and Level 3 Home Care Packages.
There is evidence of two incidents in which the Applicant had sought to backdate documents. In the first incident, an employee’s timesheets were mislaid, and a request was made that the employee retrospectively sign the timesheet.
In the second incident, the son of a client (“Mr K”) complained by email dated 19 February 2020 that the Applicant had sought to have his mother, the client, sign a service agreement following the cancellation of the Applicant’s status as an approved provider. It was alleged that false dates had been inserted into the service agreement.
Finding
As to the first incident, Ms Wu offers no explanation.
As to the second incident, Ms Wu stated that the client was already receiving the Applicant’s services and the backdating of the documents was merely to verify the existing details in the Applicant’s computer system.
Although there was no financial advantage to the Applicant, the Tribunal finds that the backdating of documents is inappropriate. Compounding such conduct is the fact that at the time the request was made, the Applicant’s status as an approved provider had been revoked, and this fact was not disclosed to Mr K by the applicant.
Inadequate care to a client
The applicant provided inadequate care to Mr HN. By reason of the following matters:
(a)Inadequate wound care in relation to wound on wrist;
(b)Inadequate documentation of treatment;
(c)Inadequate care for pressure sore on buttocks.
Finding
A letter, purporting to be signed by the client, has been provided to the Tribunal. The letter purports to state that the Applicant “did a good job” and that the pressure sore predated the provision of the Applicant’s services.
The Respondent challenges the veracity of said letter. The Tribunal is not satisfied that the letter is genuine in the absence of the author providing evidence. Irrespective, there is evidence of inadequate wound care in relation to a wound on the wrist of the client and there is no adequate documentation available to establish the nature and extent of the client’s care.
Investigation of complaints
The Respondent asserts that at time of the revocation decision, there were four complaints which were being investigated by the Respondent, and that the resolution of these complaints were significantly impeded by the Applicant’s failure to engage with the Respondent.
The Tribunal was not provided particulars of the Applicant’s failure to engage with the Respondent and is accordingly unable to make a finding.
Inadequate responses to the issues identified by the Department
The Respondent alleges that the Applicant’s response to the issues identified by the Department and the Respondent has been a mix of denial, assertions of full-compliance, minimisation of the seriousness of the issues, allegations of racism and victimisation by the Department and the Respondent, and a general refusal to accept responsibility for the issues.
Finding
The evidence establishes that there has been a clear breakdown of relations between the Applicant and the Respondent. The Applicant has demonstrated that she regards the Respondent as being “out to get her”; yet the Respondent’s conduct, as demonstrated by the evidence of Mr Hanssens, shows that Ms Wu has been at times obstructive and defiant when asked questions about the operations of the Applicant, or when asked to produce records. The evidence clearly demonstrates a lack of cooperation between the applicant and the respondent.
The conduct of the Applicant has been misleading in many instances, even in relation to care recipients. For example, when one care recipient’s daughter requested information to confirm that Ms Wu was a registered nurse as the enquirer could not find any record of Ms Wu’s registration, Ms Wu replied by email dated 31 December 2018 stating:
Stephanie is asking me if I am a registered nurse or not. I am a registered nurse, and because it is [sic] private matter, and I do not need to show my certificate to my client.
Ms Wu’s registration as a nurse had, according to AHPRA Nursing and Midwifery registration details, been current to 31 May 2014. At the date of the above email Ms Wu was not a registered nurse. Accordingly the statement was clearly misleading and erroneous.
Staff training has been inadequate: the Applicant was unable to provide evidence of staff training in the last 12 months with respect to matters such as manual handling, worker health and safety, infection control, fire safety, first-aid or CPR. There is no evidence provided of any induction processes beyond the provision of privacy and confidentiality policy.
A quality review conducted on 25 and 26 February 2019 demonstrated that effective management processes did not exist. There was no evidence that the Applicant maintains a risk management plan, incident register or complaints and feedback register to facilitate governance oversight. There are no registers to monitor currency of staff certifications including police checks. The applicant had required a staff member to backdate a timesheet when original timesheets were lost. Poor record-keeping also extended to management of care recipients. For example, as referred to above, the Applicant requested a care recipient to sign a backdated “service agreement for Level 2 and Level 3 Home Care Packages”.
The Applicant does not have adequate systems to properly oversee the care of clients nor the management of their packaged funds in accordance with the Applicant’s responsibilities under Parts 4.1 and 4.2 of the Aged Care Act. The Applicant has failed to provide care plans for all care recipients. Several examples have been reported relating to the care of four patients. Complaints have been received concerning the conduct of Ms Wu when complaints were raised with her. Her justification, alleging that the client or their relatives were “purposely lying” and denigrating their race, demonstrates that the conduct of the Applicant is inconsistent with its responsibilities as a care provider.
The Applicant has failed to take any positive action to address the instances of non-compliance. The Applicant claims to have engaged Leading Aged Services Australia, (LASA) as a consultant. No approaches to LASA were made until 15 July 2019, more than a year after the Respondent reported deficiencies in the Applicant’s processes. No assessment has been provided by LASA.
The letter of Christian Fox (accountants) dated 15 October 2020 states that the Applicant engaged the accountants on 5 September 2019 which is a date after revocation of the Applicant’s provider status. At that stage there were 11 clients: there is no evidence that any recommendations by the accountant were implemented. The repeated assurances given to the Department and the Respondent by the Applicant demonstrates a lack of capacity to comply with the Applicant’s obligations.
PARAGRAPH 8-3(1)(D) – THE APPLICANT’S RECORD OF FINANCIAL MANAGEMENT, AND THE METHODS THAT THAT THE APPLICANT USES TO ENSURE SOUND FINANCIAL MANAGEMENT
The Respondent, relying upon the particulars demonstrating non-compliance with the Accountability Principles and the User Rights Principles set out above, alleges that the Applicant is non-compliant with respect to this argument.
Finding
The Tribunal relies on what it has previously stated on these issues in the context of its discussion of section 8-3(1)(b) but provides the following examples particular to this section 8-3(1)(d).
Misuse of package funds of Ms L
The Respondent asserts that the Applicant has misused the package funds of a client, Ms L, by charging for responding to a complaint made by the care recipient’s daughter to the Respondent, including legal fees, and has failed to repay these funds by passing them on to the new provider. The Respondent contends that such conduct was contrary to the Charter of Aged Care Rights.
The evidence shows that the Applicant, upon learning that the client wished to dispense with the Applicant’s service, debited the client’s account for the amount of $1000. Such debit was made by Ms Wu to indemnify the Applicant in anticipation of having to engage lawyers to defend a legal claim. The entry in the statement of the Applicant records the following entries reflecting debits against the client’s funds:
Day Date Entry Fees 19/2/19 responding to commission, spoke to commission $150 followed up with the commission as well - $1000 $1000 19/02/19 spoke to Jodie kevin and email to Jodie, report the matter to
commission
$150 20/2/19 corresponding with the family and commission $100 21/2/19 corresponding with the commission $100 23/2/19 corresponding with the commission and again, requested
new provider to start the services, called for missing statements again$250 xx/3/19 spoke to commission $50 xx/3/19 request commission to change case worker $100 xx/4/19 spoke to commission with new case worker not less than 2 times $100 Total $2500
Ms Wu claimed that she was entitled to make such debits for the work which she had done. She claimed the $1000 was justified as she needed to consult a lawyer. No legal action by the client has been foreshadowed. She produced what purported to be an invoice from a lawyer’s firm. The invoice contained no details relating to this matter.
The Tribunal considers that there is no basis for Ms Wu’s assertions. Nor is it evident that any legal advice was ever required. No claim had been made by the Applicant to justify the charges made to the client for purported legal action. It appears that the Applicant withdrew the funds in anticipation of answering questions from the client. This dispute was the subject of consultation with the client and a successful outcome. Irrespective, such charge and the other charges were unauthorised and were not for a proper purpose.
Misuse of package funds of Mr RL
The Respondent alleges that the applicant has misused package funds of a Mr RL by spending funds on the payment for of a cruise holiday. The Respondent contends that such use of funds would be a contravention of Part 2 of Schedule 3, item 4, Table item 1(g) of the Quality of Care Principles 2014. The Respondent contends that alternatively, if no such funds were spent, the Applicant proposed to spend the funds for this purpose.
The Applicant used packaged funds for the client totalling $16,550.69 to embark on a cruise holiday for the client, the client’s daughter and Ms Wu. Ms Wu told the Tribunal on 29 March 2021 that payment was made for a worker to proceed on a holiday cruise with a client; that often clients wish to take their helpers with them, and that the helper would sleep on the floor of the cabin if no bunk was available. She then claimed that the client did not go on the cruise, and that the cost of the ticket was returned.
On 30 March 2021, Ms Wu informed the Tribunal in cross-examination that in fact she was the worker; that whilst the care recipient did not proceed on the cruise, she nevertheless went on entire the cruise with the client’s daughter. It is apparent from the records that the cruise cost of $5619.46 was debited against the account of the client and that the Applicant intended to suspend services to the client in the ensuing months to recoup the amounts so expended. Ms Wu saw no problem with such actions.
Ms Wu maintained that the cruise trip was “assisted travel, which governed [sic] by security of tenure of aged care act”. She stated that an aged care provider can only refuse a service or an assisted travel if the circumstances met one of the section 17 (2) (a) to (e) requirements. Section 17 of Part 3 (Home care services) of Division 2 (Responsibilities of approved providers of home care – general) of the act relevantly states:
(1) For paragraph 56 – 2 – (f) of the Act, this section specifies the security of tenure that an approved provider of a home care service must provide to a care recipient.
(2) The approved provider may cease to provide home care to the care recipient only if:
(here follows five circumstances in which the provider may withdraw services).
Ms Wu claimed that she could not interfere with the “security of tenure” of the care recipient by refusing to travel on the cruise.
The Tribunal finds that the expenditure of the care recipient’s package funds is contrary to the purpose for which such funds were provided and clearly does not demonstrate sound financial management. Ms Wu had proposed that having debited the cost of the cruise to the care recipient, services could be suspended for a period of two months to “pay off from the funding” the costs of the cruise. The costs of the cruise included accommodation and travel for Ms Wu and the care recipient’s daughter. No assisted travel was involved. Even if the care recipient had travelled on the cruise, this would not be regarded as “assisted travel”. Such a term is used where the care recipient, for example, needs assistance in travelling to a doctor’s appointment or for medical treatment. A holiday overseas does not qualify within that definition. The claim by Ms Wu that she could not refuse to travel because of “security of tenure” is rejected.
Misuse of package funds of Ms F
The Respondent alleges that the Applicant has misused package funds of Ms F, by delaying payment for staff performing care services and contractors.
Finding
Ms Wu took the Tribunal to the invoices in question, which were alleged to be unpaid, and then to payment records which showed that the invoices had been paid within a reasonable time. Accordingly, the Tribunal does not uphold this allegation.
Misuse of package funds of Mrs D. V.
A provider is only entitled to charge a care recipient fees “for, or in connection with, home care provided to the care recipient through a home care service” (s 52D-1 (1) of the Aged Care Act). The Respondent alleges that the Applicant has misused packaged funds of Mrs D. V. by:
·charging excessive fees for administrative matters including communication with care recipients and the preparation of ‘statements’;
·charging fees at an incorrect hourly rate;
·preparing a report at the request of the care recipient’s daughter (who held an Enduring General Power of Attorney dated 10 March 2011 for the care recipient).
Finding
The records show that excessive and unjustified charges were debited to the account of the care recipient. For example, it was suggested that five hours had been spent in October 2019 for discussions with a “worker re situation” for which a charge of $250 was made. The same charges were made in November and December 2018. Further charges were made in January 2019, for “discussions with family and worker” of ($150); “sending an email to the family after discussion with the worker” ($100); “talking to family concerning a quality review” ($50); and for “talk to family re holiday relief by SMS + emails” in March 2019 ($100).
Ms Wu considered that such charges were justified. The Tribunal finds that the amounts claimed were excessive.
The Respondent submits that preparation of the report for the care recipient’s daughter was not an activity “for” home care, nor was it “in connection with” home care. Ms Wu in response states that the request for the report was made by the Tribunal and that the administrative cost was approved by the care recipient’s daughter. The Tribunal is not aware that it could ever have requested such a report. Further, even if the report could be said to be an activity “in connection with” home care, the charge of 40 hours for the preparation of the report, which is brief, is clearly excessive and the evidence indicates that the care recipient’s daughters were unaware that a report would be required and that the care recipient would be debited the cost of such a report.
Engagement of experts
The Respondent asserts that little weight can be given to the Applicant’s assertion that it is seeking the advice of outside experts (e.g. PricewaterhouseCoopers (PwC), Leading Age Care Australia or Christian Fox Audit and Assurance) in circumstances where the assistance of such outside parties was only sought belatedly after intervention from the Respondent and there is, according to the Respondent, no evidence that any advice or recommendations have been received (in the case of PwC and Leading Age Care Australia) or have been implemented (in the case of Christian Fox).
Finding
The Applicant had stated in correspondence to the Respondent that it was proposing to seek professional advice from experts to assist in overcoming its deficiencies.
There is no evidence of any advice or reports from PricewaterhouseCoopers nor from Leading Age Care Australia. Christian Fox have provided two letters which the Tribunal finds of little assistance, because there is no evidence that any of the recommendations made by Christian Fox have been implemented.
The Applicant did not submit an Aged Care Financial Report (ACFR) within four months at the conclusion of the 2017/18 financial year. Accordingly, it was non-compliant with its responsibility under section 63 – 1 (l) of the Aged Care Act and section 37 of the Accountability Principles. The ACFR was not provided until 8 April 2019. It was provided only after multiple reminders were provided and three months after the applicant was issued a non-compliance notice. The Applicant’s claim that the delay was due to a misunderstanding cannot be accepted.
Monthly statements
The Respondent claims that the Applicant has failed to provide clients with monthly statements. The Applicant has provided monthly statements to its care recipients. However, those statements are not understandable for recipients. Accordingly, there is a breach of section 19AE of the User Rights Principles.
The Applicant failed to comply with the obligation to provide the Secretary a copy of its pricing information by 30 November 2018 and failed to publish pricing as required by 1 July 2019. The My Aged Care website on 7 August 2019 demonstrated that the services will be charged “per the government benchmark”. No such benchmark exists.
The Applicant has refused to accept responsibility for any shortcomings. It indicated that “PWC would be assisting to ensure compliance” with its financial management obligations. There is no evidence of any such association. Further, there is no evidence that PwC was engaged shortly after the Applicant received notice of the delegate’s decision to confirm the revocation decision. There is no evidence that any recommendations of PwC have been implemented.
The Tribunal finds that there has been a failure to meet the Applicant’s financial reporting obligations and to manage funds appropriately.
The Applicant relies upon a statement of Zhang Zhen dated 17 January 2020. Mr Zhang states that he worked as an accounts clerk following his graduation from a Master of Commerce in 2006 from the University of Sydney between 2007 and 2009. He states that he now has resumed engagement with the applicant as office manager (part-time). Mr Zhang stated that he also holds a Bachelor of Commerce from the University of Sydney (2004) and undertook a Certified Practising Accountants program between 2004 and 2007. Mr Zang has provided statements concerning support of the company and has provided an example of a client’s monthly balance statement and the balance each month. He has also provided a statement of the affairs of the company showing that it has funds available of $51,417. He has stated that there is no evidence of the company operating while insolvent nor of it satisfying the statutory requirements. Mr Zhang was not called to give evidence.
The Tribunal does not have a clear understanding of any procedures nor accounting practices adopted by the Applicant. Nor is it aware of the extent or Mr Zhang’s engagement by the Applicant nor of his duties and responsibilities.
PARAGRAPH 8-3(1)(E) – THE COMPLIANCE BY THE APPLICANT WITH ITS RESPONSIBILITIES AS A PROVIDER
The Respondent, relying upon the particulars demonstrating non-compliance with the matters contended in relation to section 8-3(1)(b)-(d) above, alleges that the Applicant is non-compliant under this paragraph.
Finding
The Tribunal relies on what it has previously stated on these issues. The Tribunal will deal with the specific contentions raised by the Respondent in relation to this paragraph.
Adequate qualifications of staff
The Respondent asserts that the Applicant knowingly failed to meet its responsibilities to ensure that employees had national police checks.
The Tribunal has established previously that there was a breach, in relation to the Accountability Principles, of a requirement for the Applicant to ensure that an employee had obtained a current police check before commencing work.
Ms Wu states that where an “old employee”, meaning an employee who had previously worked for the applicant, was re-engaged, as was the case with the worker known as “Cindy”, it was appropriate for her to provide a police certificate after she commenced her re-engagement. Cindy was at one time re-engaged and there was no current police certificate provided in respect of that re-engagement.
Finding
The evidence establishes that at least one employee, known as Cindy, was allowed to work for the Applicant without a current police check.
Entry into home care agreements following revocation of approval
The Respondent asserts that the Applicant continued to enter into home care agreements with care recipients following the revocation of its approval as an approved provider by the primary decision-maker.
Finding
There is evidence, discussed above, that the Applicant requested a care recipient to sign backdated documents after its status as an approved care provider had been revoked. There is evidence to suggest that Ms Wu threatened an elderly care recipient with court proceedings if she refused to do so. In another case, a client was requested to sign an agreement after revocation of approval as a provider. In this respect, the Applicant’s conduct was inappropriate.
Threatening behaviour towards clients
The Respondent asserts that the Applicant used misleading, intimidating, and threatening behaviour to prevent care recipients from leaving its service, including threatening to sue care recipients, charging fees, and providing incorrect information about whether they could leave.
In respect of another care recipient, the applicant wrote a threatening letter when the client wished to terminate the agreement, suggesting that the Applicant would take legal proceedings unless a cancellation fee was paid for not providing 30 days’ notice of cancellation. This is another example of inappropriate conduct for a service provider.
CONCLUSION
Ms Wu claims to have had 27 years’ experience in providing aged care and has repeatedly stated her proficiency in providing aged care to clients. The Tribunal acknowledges that Ms Wu appears to have had a long history in such administration, and that she has a broad knowledge of such operations. However, Ms Wu has demonstrated her inability to accept the requirements which are necessary for a provider under the Aged Care Act. Ms Wu has not satisfied the various criteria and the Tribunal is satisfied that until the applicant, by its executive, Ms Wu, acknowledges the necessity to observe to comply rigidly with the requirements, and does so, the applicant is not fit to be a provider.
In Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 8248, the Tribunal considered the non-fulfilment of an aged care facility of the requirements contained in the manual known as the Standards and Guidelines for Residential Aged Care and observed that a failure to meet a criterion resulted in the conclusion that the provider failed to comply with the requisite standards.
In Pearl Aged Care Services Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 963, the applicant sought approval to be a provider of home care under the Aged Care Act. The Tribunal found the applicant had no experience in providing homecare and had seriously misled the respondent in the application form and that other essential criteria were inadequate. At [108] the Tribunal said:
As noted above, the various responsibilities of an approved provider of aged care form an integral matrix, such that if a provider fails to comply with one of the criteria to meet one of its responsibilities, it is taken to have failed to comply with its responsibilities under the Act.
The Tribunal considers that the Applicant has failed to meet its responsibilities in respect of more than one regulatory criterion, for the reasons considered in this decision. In particular, the applicant has failed to demonstrate an understanding of its responsibilities as a provider of the aged care for which approval is sought as required in paragraphs 8 – 3(1)(a)-(e). This is demonstrated by the Applicant’s extensive pattern of non-compliance, contributed to in large part by the Applicant’s failure to engage staff without evidence of their holding appropriate qualifications or approvals; its application of monies for unauthorised purposes such as a cruise; by charging clients excessive costs for administrative tasks; and the fact that Ms Wu acted as key personnel of the Applicant while being a disqualified person in contravention of section 10 A – 2 of the Aged Care Act.
DECISION
The Tribunal finds that the Applicant has failed to satisfy the requirements under section 8 – 3(1)(a)-(e) and has ceased to be a person suitable for approval as an aged care provider. Section 10 – 3 of the Aged Care Act provides that a service provider’s approval must be revoked if the decision maker is satisfied that the person has ceased to be suitable for approval. Accordingly, the decision under review is affirmed.
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
...............................[SGD].........................................
Associate
Dated: 28 January 2022
Date(s) of hearing: 29 & 30 March, 16, 27, 28 & 28 April, and 11 June 2021. Advocate for the Applicant: Ms Y Wu Counsel for the Respondent: Mr P Knowles Solicitors for the Respondent: Sparke Helmore
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