Tsiamis v Director General, Department of Community Services

[2007] NSWADT 182

CITATION:	Tsiamis v Director General, Department of Community Services [2007] NSWADT 182
DIVISION:	Community Services Division
PARTIES:	APPLICANT Shirley Tsiamis RESPONDENT Director General, Department of Community Services
FILE NUMBER:	064017
HEARING DATES:	22 January 2007
SUBMISSIONS CLOSED:	2 February 2007
DATE OF DECISION:	10 August 2007
BEFORE:	Smyth M - Judicial Member; Green J - Non Judicial Member; Norman C - Non Judicial Member
CATCHWORDS:	Child Care Service Licence - issue of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Centre Based and Mobile Child Care Service Regulation (No 2) 1996 (repealed) Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Burns v Campbelltown City Council [2006] NSWADT 82 Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257] YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPLICANT T McGill, barrister RESPONDENT E Hurford, solicitor
ORDERS:	The decision to refuse to grant a further licence to Ms Tsiamis to operate a children’s service is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 MsTsiamis applied to the Administrative Decisions Tribunal for the review of a decision made by a delegate of the Director-General, Department of Community Services, in October 2006, to refuse to grant her a further licence to operate a children’s service. Ms Tsiamis applied for an internal review of that decision under s 53 of the Administrative Decisions Tribunal Act 1997 [Tribunal Act]. On 9 November 2006 that internal review affirmed the decision to refuse to grant another licence.

2 The Applicant applied for a stay of the decision, that was not opposed and a stay was granted.

3 The Applicant was first granted a licence to operate a children’s service in the late 1980’s. Her most recent licence was for the period 3 November 2003 to 2 November 2006 inclusive. The Centre was licensed to operate from 8am to 6 pm Monday to Friday for a maximum of 8 children aged from 3 to 6 years. The Applicant applied for a further licence on 5 May 2006 and was advised by letter dated 11 July 2006 that the Department intended to refuse to grant a further licence. On 5 October 2006 a delegate of the Director-General of the Department of Community Services wrote to Ms Tsiamis informing her that her application for a licence to operate Coachwood Kids Long Day Care Kindergarten had been refused.

Reasons for the decision to refuse the licence application

4 The reasons for the decision are set out in a letter to the Applicant from the Department dated 5 October 2006 in evidence before the Tribunal. The licence was refused on the grounds of a series of breaches of the Children and Young Persons (Care and Protection) Act 1998 [Care and Protection Act], the Centre Based and Mobile Child Care Services Regulation No 2 1996 (now repealed) and the Children’s Services Regulation 2004 [the Regulation]. In summary these breaches were:

A failure to ensure a minimum of two staff was on the premises while children were in care on eleven occasions between 3 July 2000 and 5 May 2006. The Department submitted that failing to have two staff present while children were in care was a breach of s 210 of the Care and Protection Act and cl. 53(2) of the Regulation;

The maximum licensed number of children permitted at the centre (8 children) had been exceeded on 4 occasions between 4 July 2000 and 11 November 2004. The Department submitted that this was a breach of s. 210 of the Care and Protection Act and cl. 34(2) of the now repealed Centre Based and Mobile Child Care Services Regulation (no 2) 1996 [repealed Regulation];

Due to these breaches the Applicant could not demonstrate that she was a fit and proper person to be eligible for the roles of ‘authorised supervisor’ or ‘licensee’ as required under s. 210 of the Care and Protection Act and clauses 11 and 15(2)(d) of the Regulation. The Director-General could not be satisfied of further compliance with the licence conditions if a further licence was granted.

5 In her statement of 9 November 2006 Ms Manning, the Departmental Children’s Services Advisor, stated at paragraph 14 that
‘The Director-General refused to grant a further licence under clause 22(2)(b) of the Regulation, because the Applicant’s persistent past breaches of the Regulation meant that the Director-General could not be satisfied of future compliance with licence conditions. The breaches had the effect that there were often times more children at the service than permitted by the licence, and often times less staff at the service than required by the regulation. This negatively impacts on the supervision of children at the service. The failure to comply with the regulation and licence conditions in these circumstances puts children at risk of harm.’
Legislative Provisions

6 The Care and Protection Act and the Regulation set out the licensing provisions for child care centres. A licensee of a children’s service may apply for a further licence [cl.21(1) of the Regulation]. Section 207 of the Care and Protection Act deals with the grounds on which the Director-General can refuse to grant a licence. The Director-General may refuse to grant a licence if he or she is of the opinion that the operation of the proposed children’s service would constitute an unacceptable risk to the safety, welfare or well–being of children who would attend the service [s.207(1)]. Section 207(1) does not limit the grounds on which the Director-General may refuse to grant a licence [s.207(2)].

7 In this matter the reason given by the delegate of the Director-General for the refusal of the licence in the letter dated 5 October 2006 did not specify that the Director-General was of the opinion that the operation of the centre would constitute an unacceptable risk to the safety, welfare or well–being of children who would attend the service.

8 In summary, the licence was refused as the Applicant did not demonstrate that she was a fit and proper person in view of the breaches of the Care and Protection Act and regulations. The Director-General could not be satisfied of further compliance with the licence conditions if a further licence was granted.

9 The issue for this Tribunal is whether the decision to refuse the licence application is the correct or preferable decision. The Director-General submitted that the correct and preferable decision was to affirm the decision to refuse to grant a licence. The Applicant submitted that the decision should be set aside.

10 The Tribunal needs to take into account the objects of the Care and Protection Act and the Regulation. Chapter 12 of the Care and Protection Act deals with children’s services including centre based services and the objects of that Chapter are:

(a) to ensure the safety, welfare and well-being of children in children’s services, and

(b) to promote certain standards for those services, and

(c) to ensure, as far as possible, that all persons working in children’s services are suitable for such work.

11 The Care and Protection Act sets out principles that children’s services should be based on [s.202]. The paramount consideration is the best interests of children. Children should receive services that meet their individual needs and enhance their physical, emotional, cognitive, social and cultural development. There is also a principle relating to parents involvement in services’ decision making.

12 Licensees of children’s services must not contravene or fail to comply with any condition of the licence that applies to the person [s. 210(1) of the Care and Protection Act].

13 The Children’s Services Regulation 2004 [the Regulation] requires that licence applications are accompanied by information to demonstrate that the Applicant is a fit and proper person to be concerned in the provision of the children’s service [cl. 11(1)].

14 The Regulation requires that two members of the primary contact staff are present on the premises whenever children are being provided with care [cl. 53(2)]. The repealed regulation had a similar provision.

Jurisdiction

15 This Tribunal’s jurisdiction is not in dispute. The decision to refuse to grant the Applicant a licence is reviewable by this Tribunal: s. 38(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act), s. 245(1) Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act) and cl. 123 Children’s Services Regulation 2004 (the Regulation).

Applicant’s history of compliance with the licensing legislation

16 The Applicant acknowledged that she has been prosecuted and pleaded guilty to breaches of the repealed regulation.

17 In 2001 the Applicant pleaded guilty to failing to comply with conditions of a child care service licence. There were 7 matters relating to a failure to ensure a minimum of two staff on the premises whilst children were in care and exceeding the maximum licensed number of children permitted to be at the child care centre. The matters were heard and determined in the Local Court on 19 April 2001. The Applicant was placed on a bond for 12 months and no conviction was recorded.

18 In 2003 a risk assessment was carried out by a Departmental Officer, Ms Anderson. Her risk assessment report was in evidence before the Tribunal. In that report Ms Anderson stated that Ms Tsiamis’s service was the smallest centre based service in the area and was designed prior to the requirement for two staff to be on the licensed premises. Ms Anderson indicated that she had discussed the centre’s financial viability with Ms Tsiamis and that Ms Tsiamis was considering establishing a larger service.

19 Ms Anderson reported that some matters needed attention, these were attended to and Ms Tsiamis was granted a licence for a further three years on 3 November 2003. The Applicant contended that the Department of Community Services was aware of the 2001 breaches and, given the decision to grant the licence, must have been satisfied that the Applicant was carrying on her business in compliance with the licensing requirements under the Act and Regulations

20 On 30 August 2005 the Applicant pleaded guilty to a number of breaches of the repealed regulation in the period November 2004 to May 2005. These involved having more than the maximum number of children allowed under her licence, on one occasion having 10 children present and on another having 9 children present. There were three occasions where she had less than two staff present when children were in care. She was fined and required to pay costs. No action was taken regarding her licence at that time.

Allegations regarding the Applicant’s compliance with regulations since August 2005

21 On 12 September 2005 officers from the Department of Community Services visited the Applicant’s centre. Handwritten notes signed by the two officers of the Department were in evidence before the Tribunal. These notes were not signed by the Applicant and she disputed several aspects of their contents.

22 On Friday 7 October 2005 the Department wrote to Ms Tsiamis and informed her that as a result of the visit further concerns regarding the operation of her service were identified. That letter stated that the officers had sighted Ms Tsiamis inside the eastern side gate with eight children sitting on the ground wearing hats and shoes and with bags on their backs. Ms Tsiamis told the officers that they had just been for a walk down the corner. When the officer asked to see written authority to go on an excursion Ms Tsiamis said words to the effect “we don’t have an excursion form.”

23 Ms Tsiamis responded by letter on 18 October 2005. She denied any breach, said that the parents had been informed by newsletter that a nature walk would take place and that there was a permission form signed by the parents which informed them of that outing. She also complained that the attitude of one of the officers was unprofessional and that she was not given or asked to sign anything. She attached copies of the centre policy on excursions and copies of parent’s signed ‘routine excursions’ forms.

24 There was no prosecution regarding the alleged breach.

25 On 8 November 2005 the same departmental officers visited the centre, no issues were observed and the notes were signed by the Applicant and the officers.

26 On 11 November 2005 a meeting was held between Ms Tsiamis and Departmental officers. The visit by Departmental officers on 12 September 2005 was discussed among other matters. Notes of the meeting taken by Departmental staff were unsigned. No prosecution followed.

27 On 2 December 2005 there was a further monitoring visit and some discussion about changes that would be required to comply with regulations that were to come into effect at the commencement of 2006. The Department wrote to the Applicant on 19 December 2005 informing her that the Department had reason to believe that unless significant renovation was undertaken her service would be in breach of the Regulation from the start of operations in 2006. The letter set out specific renovations and changes that were required. The letter stated that

“Notice is hereby given that after 28 days following the service of this notice the Department of Community Services intends to take further action unless you can establish that such action should not be taken.”
28 The Applicant responded by letter of 12 January 2006 outlining steps she was taking to comply with the Regulation and the matters that had been raised. She indicated that the construction work would be completed by 30 January 2006 and that the centre would not reopen until that date to ensure that all works and renovations were safely completed. Ms Tsiamis also informed the Department of her intention to increase the indoor space so that she could have 15 children at the centre and that they and the local council would have the development applications by 30 January.

29 On 5 May 2006 Ms Manning, a departmental officer, visited the Applicant at 3 pm to investigate a complaint that there had been only one staff member at the site while children were in attendance and that yelling had been used as a form of behaviour management. That officer told the Tribunal that her office had received a written complaint that had come through the Department’s Helpline and she had gone to investigate it. When she arrived at the centre there were 7 children and Ms Tsiamis was the only adult present.

30 Although there is some dispute between the parties regarding the process followed in that interview Ms Tsiamis acknowledged before this Tribunal that on 5 May 2006 that she was alone in the Centre with 7 children from 2.30-3.30pm. She told the Tribunal that was because a staff member was unable to attend at short notice and she had to get someone in very quickly to cover for him. She told the Tribunal that she was able to get someone from 3.30 to 4.30 that day. That evidence was largely consistent with the written notes taken by a Departmental officer of a subsequent interview that took place between the Applicant and departmental officers on 8 May 2006. Notes of that interview were also in evidence before the Tribunal. Although Ms Tsiamis disputed that those notes were a completely accurate record of that meeting she signed those notes as correct on the interview date. Ms Tsiamis submitted that any breach was remedied on that day and asked the Tribunal to accept that she took such steps as were available to her at the time to obtain a second staff member. On the evidence before us we are comfortably satisfied that the Applicant was alone in the centre with 7 children on 5 May 2006 from 2.30 to 3.30 pm.

31 The complaint about yelling at a child was not substantiated.

32 On 10 May 2006 the Applicant was sent a letter from the Department saying they believed that she had breached the regulation. On 31 May 2006 the Applicant responded saying that there were circumstances beyond her control. No prosecution flowed from the incident.

Application for licence 2006

33 By letter dated 5 May 2006 the Applicant applied for a further children’s service licence. That application, in evidence before the Tribunal, was received by the Department of Community Services.

34 On 11 July 2006 the Applicant was notified of the intention to refuse to grant her a further licence. The Applicant wrote to the Department through her lawyers on 2 August 2006 to show cause as to why the proposed decision to refuse a licence should not be implemented. The Applicant submitted that she had held a licence since 1988, it was not until 2001 that proceedings were brought against her and that they were for minor breaches. The matters she was prosecuted for in 2005 were similar to the 2001 breaches. She had been fined and had a substantial costs order against her. The alleged breach on 5 May 2006 had not been subject to prosecution. She also submitted that the Department was well aware of the high regard she was held in by the parents of the children she cared for and that she had done everything she could to ensure no breaches of the Act and Regulations occurred and would continue to do so.

35 On 14 August 2006 the Department wrote back to her stating that the intention to refuse the application was based on consistent breaches of the licence conditions over the course of her licence. Based on the information received the Director-General could not be satisfied of further compliance with conditions if a licence was granted. The Applicant was provided with 7 days to provide further information in order for an informed decision to be made.

36 On 21 August 2006 the Applicant, through her lawyer, made further submissions to the Department. These included the following:

The Applicant had provided the Court with an explanation for the breaches in submissions on penalty that the Department heard. While the breaches were admitted they did not disqualify her from being regarded as a fit and proper person to operate such a business. The breaches were not serious and no child had been injured or harmed;

If she lost her licence that would result in possible hardship for parents and children in finding alternative accommodation;

If she lost her licence as she resided on the property where the centre was based it would not be feasible for a separate owner of the Centre to use the premises and live in them. The business would not provide enough income for any buyer who could not reside on the premises and she would lose her business and the good will she had built up. Details of the Applicant’s net profit before tax for the years ended 30 June 2004 and 2005 were provided and she predicted a lower profit for the year ended 2006;

Her son was “somewhat dependent upon the Centre for income” as he was a student and assisted with the staffing when other staff were unavailable. Her other two qualified staff would have to seek other employment;

She would have difficulty in finding other work in Child Care and if she did would not make sufficient income to repay her mortgage and would have to sell her home.

37 By letter dated 5 October 2006 the Applicant was advised of the refusal to grant her a further licence.

38 The Applicant wrote to the Department on 31 October 2006. She said that she considered herself a responsible person, she had held a licence since 1989 allowing her to operate her centre and that for the majority of that time she had not had any problems with the regulations. She acknowledged that on a few occasions over the past 6 years she had breached her licence conditions regarding staff ratios and exceeding the number of licenced child places, and sincerely apologised.

Parental support and accreditation

39 The Applicant stated that she had the support of many parents whose children had attended the centre. She tendered many references from parents or caregivers whose children or grandchildren had attended or attended her centre. There was a group of nineteen references, mostly dated in August 2005. All were very supportive of the Applicant and the service she provided. Parent evaluations of the service from 2006 and further more recent references were also in evidence. These were highly supportive of her and the service she provided.

40 The Centre was accredited by the National Childcare Accreditation Council in May 2005. The accreditation “Composite Quality Profile” placed the centre in the High Quality range for all categories. The next self report for the Centre was due in March of this year.

Potential expansion of the centre

41 The Applicant stated her centre was the smallest centre in Wollongong and that she intended to expand her centre subject to the licence being renewed and Council approval.

42 On the evidence before the Tribunal Ms Tsiamis had raised the economic viability of her centre with the Department several years ago. In a letter to the Department dated 3 July 2000 she informed the Acting Director of Child and Family services that it was difficult to maintain a sufficient income to support her family and centre by following the guideline requiring her to have two staff members on duty for 10 hours a day, 5 days a week. She requested that the maximum licensed number of children be increased by four per day to make the centre viable.

43 As stated previously she indicated to the Department in early 2006 that her intent was to increase indoor space so that she could have 15 children.

44 Ms Tsiamis had a development application conditionally approved by the Wollongong City Council on 18 December 2006 for alterations and additions to her child care centre and an increase in the number of children from 8 to 14. The Council’s Notice of Determination, in evidence before the Tribunal, made it clear at paragraph 6 that the consent did not authorise the use of the premises as a child care centre without a current valid licence from the Department of Community Services. A document advising Ms Tsiamis of an in principle loan approval for the purpose of carrying out extensions to her Kindergarten service was also in evidence before the Tribunal.

Our decision

45 In conducting this review, we ‘stand in the shoes’ of the decision maker, and make the “correct and preferable” decision having regard to all relevant material. The Tribunal may affirm, vary, set aside or remit the decision of the Respondent for reconsideration (s. 63 of the Tribunal Act).

46 The Tribunal is not limited to the material that was available to the Respondent at the time of the original decision and may have regard to any material that postdates that decision. (Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45] YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]).

47 In making its decision, the Tribunal is instructed to observe the principles set out in s. 9 of the Care and Protection Act. As stated earlier in this decision they include that the safety, welfare and well-being of the child or young person must be the paramount consideration. The paramount consideration in the provision of children’s services is the best interests of children [s.202(a) Care and Protection Act]. And the objects of the part of the Care and Protection Act dealing with children’s services include ensuring the safety, welfare and well being of children in the service and promoting certain standards for the service.

Fit and Proper person

48 One of the reasons for the refusal to grant a licence was that the Applicant could not demonstrate that she was a fit and proper person for the role of ‘authorised supervisor’ or ‘licensee’ as required under s. 210 of the Care and Protection Act and clauses 11 and 15(2)(d) of the Regulation.

49 The Applicant referred the Tribunal to the case of the Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 where Toohey & Gaudron JJ’s stated:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
50 That same passage was cited by this Tribunal in Burns v Campbelltown City Council [2006] NSWADT 82 at 33. At [34] that Tribunal went on to state:
Their Honours went on to comment at p. 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

51 The Applicant submitted that the following criteria be considered:
whether improper conduct has occurred;

whether it is likely to occur;

whether it can be assumed that it will not occur; or

whether the general community will have confidence that it will not occur.

52 We agree that these are relevant factors for this Tribunal to take into account.

Has improper conduct occurred?

53 The Applicant conceded that improper conduct had occurred being the matters that she was prosecuted for, for which she pleaded guilty. On the evidence before us the Applicant has been in breach of the licensing regulations and pleaded guilty to two sets of breaches. The first set were dealt with in the local court in 2001 and concerned exceeding the number of children she was licensed for and failing to ensure a minimum of two staff were on the premises while children were in care. She was granted another licence in 2003. Despite the granting of that licence, Ms Tsiamis continued to breach the regulations and pleaded guilty in 2005 to substantially the same kinds of breaches, exceeding the number of children she was licensed for and failing to ensure a minimum of two staff were on the premises while children were in care.

54 There is disputed evidence regarding further alleged breaches. Before the Tribunal the Applicant acknowledged that there were occasions with staff problems where the regulations were not adhered to. She acknowledged that these included some matters that she was not prosecuted for. She conceded that she was the only person present on 5 May 2006 caring for 7 children between 2.30 and 3.30 because of a staffing problem that day. We are satisfied that she was the only person at the centre at that time and had the care of 7 children. We do not consider that there is sufficient evidence before us to make a finding that the Applicant was in breach of the regulations regarding the excursion in September 2005.

Is it likely to occur? Can it be assumed that it will not occur? Will the general community have confidence that it will not occur?

55 The Applicant submitted that “there is a significant dispute that such conduct would be likely to occur in the future, particularly bearing in mind that the Applicant has lawful approval to develop the site to provide for care of more children”.

56 We are unable to accept the Applicant’s claim that the problems have been rectified through changes of policy and staffing. Despite the first prosecution and the changes the Applicant stated she had made, her failure to adhere to the regulations regarding minimum staffing and maximum numbers of children persisted during her most recent licence. This is not a case of one or two isolated incidences. The evidence indicates a persistent failure to comply with the Regulation.

57 We accept the Applicant’s evidence that the service is the smallest child care centre in her area and that she has raised the financial viability of her service with the Department and previously requested an increase in the maximum of children under her licence. In January 2006 she told the Department that she wanted to increase her space so that she could have 15 children at her centre. She now has conditional development approval from her local council to extend her centre for that purpose and an in principle approval for a loan for those extensions.

58 While we understand that the small number of children the centre is licensed for and the requirement to have two staff present when caring for children may raise issues of financial viability for the Applicant, licensees and authorised supervisors are required to comply with the Regulations. The fact that the Applicant has conditional approval to expand her centre does not satisfy us that an expansion of numbers of children at the centre would mean that the Applicant would comply with the Regulations and have appropriate numbers of staff employed to ensure compliance in the future.

59 On the evidence before us we are not satisfied that the general community will have the confidence that the kinds of breaches she has had in the past will not recur.

Other factors

60 We have considered the matters that favour the Applicant. In many respects the Applicant has been a dedicated carer for children and her centre caters for some special needs children. The references and evaluations regarding the Applicant show that she is held in high regard by many parents and others who know of her child care service. There is no evidence that any child has actually suffered injury or harm in her care. We accept the evidence that her centre has national child care accreditation and that she has a waiting list for her service. We accept the evidence that after discussions with the Department in December 2005 regarding changes necessary to comply with regulations that were to come into effect in January 2006, that the Applicant did take steps as set out in her letter to the Department of 12 January 2006.

61 Despite these matters the fact is that after being successfully prosecuted once for a series of breaches in 2001 she was again in breach of the regulations in 2005. In May 2006 again there was only one adult caring for seven children.

62 The Regulation is clear on the staffing requirements and has been in place for some time. Parliament has seen fit through the Care and Protection Act and the Regulation to set out the requirements for children’s services licences. In this case the best interests of the children are the paramount interests. On the totality of evidence before us we are not satisfied that the Applicant will comply with the licensing requirements regarding staffing in the future. We are not satisfied that the community would be satisfied of that either.

Order

The decision to refuse to grant a further licence to Ms Tsiamis to operate a children’s service is affirmed.