Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner
[2020] AATA 90
•23 January 2020
Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 90 (23 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8195
Re:Transcon Holding Pty Ltd
APPLICANT
AndAged Care Quality and Safety Commissioner
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 January 2020
Date of written reasons: 30 January 2020
Place:Sydney
For the reasons given orally on 23 January 2020, the application for an order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Aged Care Quality and Safety Commissioner – decision to revoke approved aged care provider status – prospects of success – consequences for Applicant – public interest – consequences for Respondent – whether review would be rendered nugatory – interests of third parties – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 41, 43
Aged Care Act 1997 (Cth) ss 8.3A, 10A-1, 10A-2, 63.1A
Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth)
Quality of Care Principles 2014 (Cth) sch 4
CASES
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
LED Technologies Pty Ltd v Elecspess Pty Ltd (No 2) [2009] FCA 141
O’Sullivan and Australian Securities and Investments Commission [2015] AATA 265
Panganiban and Australian Securities & Investments Commission [2016] AATA 703
Scott and Australian Securities and Investments Commission [2009] AATA 798
WRITTEN REASONS FOR ORAL DECISION
Chris Puplick AM, Senior Member
30 January 2020
The following is an oral determination delivered by the Tribunal at the conclusion of a hearing on 23 January 2020 made under the provisions of sections 43(2) and 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Either party may, within 28 days, apply for a written copy of the Tribunal’s decision.
The application before the Tribunal is made by Transcon Holding Pty Ltd (Applicant) for a stay of the decision made originally on 8 August 2019, by the Department of Health to revoke its status as an approved aged care provider.
Following passage of the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (Cth) responsibility in this matter now rests with the Aged Care Quality and Safety Commissioner as Respondent.
In determining this matter, the section 37 Tribunal documents lodged by the Respondent were not taken into evidence as they had not been provided to the Applicant prior to the hearing. Both parties consented to this course of action and hence the Tribunal relied upon the submission with attachments lodged by the Respondent on 20 December 2019 (Respondent’s Submission), the submission with attachments lodged by the Applicant on 20 January 2020 (Applicant’s Submission), three witness statements and the oral evidence at the hearing.
FRAMEWORK
Stay applications are made to the Tribunal under the provisions of section 41(2) of the AAT Act which provides that such stays may be granted if the Tribunal considers it:
desirable to do so after taking into account the interests of any persons who may be affected by the review
[and where it is] appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
There is considerable judicial guidance as to what factors should be taken into account when making such a determination. These were set out by the former President of the Tribunal, Downes J, in Scott and Australian Securities and Investments Commission [2009] AATA 798 (Scott), building on former authorities. Those factors include:
·the prospects of success.
·the consequence for the applicant of the refusal of a stay.
·the public interest.
·the consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
·whether the application for review would be rendered nugatory if a stay were not granted.
·other matters that are relevant, amongst which may be included the length of time that any ban has already been in place and the gap between today and the hearing of the application.
Stay hearings are not to be used as a forum to explore the substantive merits or details of any case which is properly the role of the Tribunal at the eventual merits hearing of the review application.
Nevertheless, it is appropriate to consider the extent to which the available material is either apparently (i) unlikely to lead to a favourable variation of the reviewable decision, or (ii) sufficient to provide grounds for real confidence that such a variation may be appropriate (Panganiban and Australian Securities & Investments Commission [2016] AATA 703, [8]).
Rather, the Tribunal should confine itself to establishing whether or not the factors outlined in cases such as Scott and the AAT Act itself have been established and whether a stay is necessary to secure the effectiveness of the eventual merits hearing.
CHRONOLOGY
The Applicant became an approved provider of aged care under the Aged Care Act 1997 (Cth) (Act) on 30 August 2013 and held that approval until it lapsed on 30 August 2015. This approval was reinstated as of 27 September 2016 and the Applicant commenced delivering aged care packages in January 2018.
On 13 June 2019 the Respondent sent the Applicant a notice to the effect that it was considering the revocation of its approval as a provider and seeking a response from the Applicant. That response was provided (albeit late and outside the prescribed time limit) and considered by the Respondent.
By notice of 8 August 2019 the Respondent notified the Applicant that it intended to revoke its approval as an aged care provider under the Act (Notification of Revocation Decision).
Pursuant to another notice of the same date the Respondent advised that the Applicant’s right to provide supported aged care to clients was limited to those in care as at 15 August 2019 and that from 16 August 2019 any client to whom care services are provided would not be eligible for funded home care from the Applicant.
On 4 October 2019 the Applicant sought a formal reconsideration of the revocation decision but this revocation decision was affirmed on 29 November 2019 (Reconsideration Decision).
By notice on 6 December 2019 the Respondent notified the Applicant that its approval as a provider was revoked effective from 20 December 2019.
On 10 December 2019 the Applicant appealed to this Tribunal for a review of that decision and on 11 December 2019 applied for a stay order from the Tribunal. The Respondent formally opposed the granting of such a stay. The stay application was heard on 23 January 2020.
CONSIDERATIONS
Prospects of success
In considering the prospects of success of this application the Tribunal is confronted with evidence from the Respondent which asserts that, for a prolonged period of its operations, the Applicant has been non-compliant with a variety of requirements. These include requirements under the Act itself and under the Home Care Standards set out in the Quality of Care Principles 2014 (Cth).
There are non-compliance reports or notifications as far back as August 2018 (Notification of Revocation Decision at [14]) up until at least May 2019 (Notification of Revocation Decision at [30]) which outline serious instances of and concerns about non-compliance issued by the Respondent. There is nothing in any of the submissions from the Applicant which demonstrates that it has taken any positive steps to rectify the deficiencies or respond in a positive fashion to rectify identified non-compliances. Indeed, there is evidence that responses from the Applicant to the Respondent’s notifications of concern have even failed to acknowledge the gravamen of those concerns (Notification of Revocation Decision at [18]-[20]).
While there are references to the engagement of consultants (namely Leading Age Services Australia (LASA) and Critical Success Solutions (CSS)), acknowledged by the Respondent in its Reconsideration Decision at 6(c), there is no indication of their brief or any timetable for their work (Applicant’s Submission at 11(b)). In evidence, all that was said was the LASA provided “universal” standards which the Applicant adopted or followed and that CSS provided guidance on compliance and management issues, with no specific relationship to addressing identified non-compliance issues.
References by the Applicant to the problems as being “historical” (Applicant’s Submission at [90]) are unhelpful, as are allegations of prejudice or racism against the Department (statement of Zhen Zhang dated 17 January 2020 at [18]-[19]), or allegations of bad faith and false claims by it (statement of Bing Wu dated 14 January 2020 at [14]-[15]), or suggestions of unprofessional conduct by its officers (statement of Yan Wu dated 18 January 2020 at Exhibit 5). There is no evidence whatsoever to support the Applicant’s oral allegations that the Department or its officers were attempting either to “sabotage” the Applicant or to try to drive small aged care providers out of the market.
In the view of the Tribunal, the prospects of success on the part of the Applicant at a full merits hearing are limited.
Consequence for the Applicant
In terms of the consequences for the Applicant of the refusal to grant a stay, the Tribunal notes that:
(a)the Applicant’s approval to provide supported services has been non-operative since 20 December 2019,
(b)any alleged damage to its reputation has already been sustained since the cancellation decision [O’Sullivan and Australian Securities and Investments Commission [2015] AATA 265 at [19]),
(c)the Applicant states that its cash flow and substantial assets allow it to claim that “[t]he company is healthy” (Applicant’s Submission at [55] and [121]-[125]), and
(d)it has only a very limited number of persons in supported care at the moment.
The Tribunal takes note of the fact that the Applicant itself has stated that, while it would prefer a full stay, its position is such that it is open to decision on the part of the Tribunal to impose terms and conditions on any stay it might be considering (Applicant’s Submission at [128]-[131]).
The Tribunal is aware that the Applicant remains registered as a provider by the National Disability Insurance Agency (NDIA) and was told that it currently provides around 10 clients with approved NDIS packages.
Although the Applicant expressed concerns about the next year’s financial position of the Company, it reaffirmed its written submission that its overall position was otherwise healthy and claimed that it currently had some 5 to 10 clients for whom it is currently providing care – presumably without government subsidisation.
The Applicant also told the Tribunal at hearing that it was continuing to be short-listed as a recommended provider through various agencies and had, as recently as 21 January 2020, received a new referral from My Aged Care.
Hence, this is not a case where the absence of a stay would result in the Applicant “having to cease carrying on an existing business pending the hearing of an application for review” (Civil Aviation Safety Authority v Hotop [2005] FCA 1023 at [46]) as the Applicant is continuing to operate within changed financial arrangements for its clients as from 20 December last year.
The Applicant has failed to demonstrate that it faces substantial adverse consequences, other than those already sustained, were a stay not to be granted.
Public interest
There is a substantial public interest in ensuring that no person in an aged care facility is exposed to the risk of being in the care of non-compliant providers. As the Tribunal said in Metro College of Technology and Australian Skills Quality Authority (AAT no. 2015/6137) “[t]he regulatory system was devised to protect consumers…”. This need for protection has been highlighted by the establishment and work to date of the Royal Commission into Aged Care Quality and Safety established on 8 October 2018. To the extent that the Applicant continues, in any material respect, to be non-compliant with legislative or regulatory requirements, there is a strong public interest in it being prevented from so continuing.
Although the Respondent has provided only minimal evidence of questionable health care delivered to any particular individual(s), there is evidence to suggest that among the identified non-compliance issues is “the ongoing care needs of your care recipients” and that the Applicant does not have “adequate numbers of appropriately skilled staff and trained staff/volunteers available for the safe and continuous delivery of care and services” (Notification of Revocation Decision at [49]).
Moreover, the finding that the Applicant failed to meet six of eight expected outcomes in the former Home Care Standards identified by the Respondent in its review of 25-26 February 2019 and 14 of the 18 expected outcomes in its April 2019 review cannot be ignored (Notification of Revocation Decision at [26] and [43]).
That said, the Tribunal is conscious of the claim made by the Applicant that there are limited opportunities for aged persons in some of the specified ethnic or multicultural communities to access quality aged care, and similar comments can be made in relation to aged persons in remote communities. It also appreciates that people in such communities may develop a special attachment and loyalty to providers with whom they identify because of such characteristics.
However such people share, with the rest of the Australian community, an absolute right that such care is provided by compliant providers in absolute accordance with the legislative and regulatory standards established. This applies equally to small as well as large care providers.
Consequences for the Respondent
The consequences for the Respondent in this instance are limited. In due course its reviewable decision will be subject to consideration by the Tribunal and, in the event that that decision is set aside or modified by the Tribunal, it will be in no more difficult a position to respond whether or not a stay has been granted. The Tribunal accepts that were a stay to be granted and were the Respondent to be required to make payments to the Applicant then, if the final decision of the Tribunal were to uphold the revocation decision, an issue might arise about the recovery of public moneys in a way which prejudices the interests of the Respondent.
Application for review being rendered nugatory
It is now well established that the grant of a stay does not require special or exceptional circumstances and this Tribunal or a court will ordinarily grant a stay where the appeal would otherwise be rendered nugatory (Alexander v Cambridge Credit Corporation Ltd(1985) 2 NSWLR 685 at 693 and 695).
However, it is up to the Applicant to identify any reason why, in the absence of a stay, the appeal would be rendered nugatory (LED Technologies Pty Ltd v Elecspess Pty Ltd (No 2) [2009] FCA 141, [30]).
The Tribunal does not accept that, on the basis of the material submitted by the Applicant, a refusal of a stay would render nugatory the continuing processes of the Tribunal and the Applicant’s appeal. Although the Tribunal is not aware that any substantive review date has yet been set, it understands that this matter is before a Conference Registrar on 5 March 2020. The effective ban has been in place for only a short time and there appear to be no active plans for recruitment of new clients who would be affected by the refusal of a stay.
The Respondent agrees that a refusal of a stay would have an impact upon the Applicant, but there is no evidence to suggest that the Applicant would be unable to sustain itself and its limited operations until a hearing is set. Although, the Tribunal appreciates that its operational environment might be or become difficult.
Equally, the grant of a stay would not restore the Applicant to anything like the positon it was prior to the revocation decision coming into effect. The clients which it had at that time are no longer its clients (with one possible exception) and for them to be restored as such would involve complex matters touching upon the payment (and/or repayment) of exit bonds and the transfer back to the care of the Applicant from the providers in whose care they are now being accommodated.
In the event of the Applicant not being successful at the merits hearing, and a stay having been granted, their position would be compromised yet again, something which would under no circumstances be in their interests.
Other matters
The AAT Act requires consideration of “the interests of any persons who may be affected by the review” and this clearly encompasses those people who are the clients of a service provider. Evidence before the Tribunal is to the effect that at the time of the revocation decision the Applicant was providing such services to 11 people and that since that time the number has been reduced to either one or two. The other previous clients have either been accommodated elsewhere in terms of their care provision or else have continued to be cared for by the Applicant in the absence of subsidised arrangements (Respondent’s Submission at Attachment F [10], [20]-[27]).
Similarly there is the position of the ten or so employees of the Applicant, all of whom appear to be part-time. The Applicant stated that they had been particularly trained by it to be effective providers of services to members of the multicultural community. If that is the case, the Tribunal presumes that, given the clear needs of this community, they would have reasonable prospects of alternative employment in the event of the Applicant ceasing to operate.
There is some inconsistency in the claims made by the Applicant as to the number of persons for whom it is providing care currently and the records held by the Respondent. That is not a matter for this Tribunal to consider in a stay application but belongs in the realm of any future merits based hearing.
Similarly the attack made upon the Applicant by the Respondent in terms of the ongoing role of Ms Yan Wu (with reference to the Act sections 8.3A, 10A-1, 10A-2 and 63.1A) are also matters for that forum.
DECISION
Having considered all the criteria established in Scott and under the AAT Act for consideration in stay applications and found that none of them carries sufficient weight in favour of the Applicant so as to cause the Tribunal to stay the decision of the Respondent which is under review, the application for a stay is refused.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 30 January 2020
Date(s) of hearing: 23 January 2020 Advocate for the Applicant: Ms Y Wu Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
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