Complaints Amendment (Other Functions) Principles 2018

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Aged Care

Aged Care Act 1997

Complaints Amendment (Other Functions) Principles 2018

Authority

The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services.

Section 96-1 of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.

Among the Principles made under section 96-1 are the Complaints Principles 2015 (the Complaints Principles) which provide a scheme for the management and resolution of complaints and other concerns about aged care services under the Act, through which aged care is provided by approved providers.

Purpose

The purpose of this instrument is to amend the Complaints Principles to enable the Aged Care Complaints Commissioner (Complaints Commissioner) to handle complaints that relate to the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP) and the Commonwealth Home Support Programme (CHSP), which operate outside of the Act under funding agreements.

Background

The current version of the Complaints Principles was established as part of a 2015-16 Budget measure, Aged Care – Independent Complaints Arrangements. Responsibility for aged care complaints handling was transferred from the Secretary of the Department of Health (the Secretary) to the Complaints Commissioner. To give effect to this measure, the Act was amended by the Aged Care Amendment (Independent Complaints Arrangements) Act 2015 (the Complaints Arrangements Act).

The NATSIFACP funds organisations to provide culturally appropriate aged care to older Aboriginal and Torres Strait Islander people close to their home and community, particularly in rural and remote locations. NATSIFACP service providers may deliver services to people in residential facilities, a respite centre or day respite centre, or in their homes in accordance with the needs of their local community. The CHSP provides entry-level home support to older people who need assistance to keep living independently at home and in their community.

The proposed amendments to the Complaints Principles will make clear the Complaints Commissioner’s authority to manage aged care complaints about NATSIFACP and CHSP services delivered under funding agreements and, if necessary, issue directions to service providers to meet their responsibilities under those funding agreements. Currently those complaints are managed by staff of the Complaints Commissioner under authority delegated by the Secretary of the Department of Health. This amendment to the Principles will ensure the management of complaints about NATSIFACP and CHSP service providers is consistent with the management of complaints about approved providers under the Act.

Consultation

In preparing this instrument, the Department consulted with the Complaints Commissioner. As the processes for handling complaints in the Complaints Amendment (Other Functions) Principles 2018 aligns with the intent of the Complaints Principles, broader consultation with the aged care sector was not required.

This Instrument commences the day after registration on the Federal Register of Legislation.

This Instrument is a legislative instrument for the purposes of the
Legislation Act 2003.

ATTACHMENT

Explanation of the provisions

Part 1 – Preliminary

Section 1 – Name of Principles

This section provides how the proposed instrument is to be cited, that is, as the Complaints Amendment (Other Functions) Principles 2018.

Section 2 – Commencement

This section states that this instrument commences the day after it is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the authority for making this instrument is section 96-1 of the Aged Care Act 1997 (the Act).

This instrument amends the Complaints Principles 2015 (Complaints Principles).  Under subsection 33(3) of the Acts Interpretation Act 1901 (Acts Interpretation Act), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Accordingly, the power in section 96-1 of the Act to make Principles is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to amend the Complaints Principles.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Item 1: Section 4

This section inserts new defined terms into section 4 of the Complaints Principles. The new definitions are necessary for the amendments made by other items in this instrument. Detail regarding the new definitions is given below.

• CHSP has been defined to mean the program administered by the Commonwealth and known as the Commonwealth Home Support Programme.
• NATSIFACP has been defined to mean the program administered by the Commonwealth and known as the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.
• service provider has been defined to mean an entity that provides services through the CHSP or NATSIFACP programmes under a funding agreement with the Commonwealth. The Note underneath the definition explains to the reader that an entity may be both an approved provider under the Act as well as a service provider. For example, an organisation may be an approved provider of home care as well as a service provider of CHSP services. In such a case, a complaint may be made about the home care funded under the Act, or about the provision of CHSP services (depending on whether the person is receiving home care or CHSP). The Note explains that the appropriate approach adopted by the Complaints Commissioner will depend on whether the complaint is about the care and services provided under the Act, or provided pursuant to a funding agreement. The Complaints Commissioner may investigate a complaint about the services provided under the Act, or under a funding agreement, or both.

• funding agreement means a CHSP or NATSIFACP funding agreement between the Commonwealth and a service provider. Service providers have certain responsibilities under such funding agreements.

Item 2: Section 5

Section 5 of the Complaints Principles describes the purpose of the Complaints Principles. This item repeals and re-makes section 5 so that in addition to the matters already dealt with in the Complaints Principles prior to these amendments, the purposes described in that section cover the amendments made by this instrument.

Subsection (2) confers other functions on the Complaints Commissioner for the purpose of paragraph 95A-1(2)(c) of the Act. Namely, it confers functions related to the management and resolution of complaints and other concerns about CHSP or NATSIFACP services, and the function to educate people about, and develop resources relating to, best practice in the handling of CHSP or NATSIFACP complaints. This function is consistent with the function conferred on the Complaints Commissioner in relation to approved providers in paragraph 95A-1(2)(b) of the Act.

Item 3: Subsection 6(1)

Section 6 currently describes how a person may make a complaint to the Complaints Commissioner raising an issue or issues about an approved provider’s responsibilities under the Act or the Principles made under section 96-1 of the Act. Item 3 repeals and re-makes subsection 6(1) so that it provides that a person may make a complaint raising an issue or issues about a service provider’s responsibilities under a funding agreement. This is consistent with the current approach for complaints about aged care services operated by approved providers under the Act.

Item 4: Paragraph 7(b)

Section 7 describes the actions the Complaints Commissioner can take when a complaint is received. Item 4 amends paragraph 7(b) so that it refers to a service provider as well as an approved provider. This means that the Complaints Commissioner may deal with a complaint about a service provider in the same way that he or she may deal with a complaint about an approved provider.

Item 5: Section 7 (note 2)

Note 2 to section 7 currently sets out examples in which the Complaints Commissioner may quickly resolve an issue raised in a complaint. Item 5 repeals and re-makes note 2 so that it now includes references to service providers and the service provider’s responsibilities under a funding agreement with the Commonwealth and responsibilities relating to compliance with the Home Care Standards.

Item 6: Paragraph 8(c)

Section 8 describes the circumstances in which the Complaints Commissioner may decide to take no further action in relation to a complaint. Item 6 repeals and re-makes paragraph 8(c) so that it now includes a reference to the scheme for resolution of complaints about CHSP and NATSIFACP service providers that existed immediately before the commencement of this instrument. Prior to the commencement of this instrument, complaints about CHSP and NATSIFACP services were handled by APS officers seconded to the Complaints Commissioner under authorisation from the Secretary of the Department of Health pursuant to the relevant funding agreement.

The existing reference to the Complaints Principles 2014 is also removed, as an issue that was dealt with under those principles would relate to an event that occurred more than one year ago, and therefore the Complaints Commissioner may choose to take no further action in regard to such issues under existing paragraph 8(e).

Item 7: Section 11

Section 11 currently provides that the Complaints Commissioner may undertake a resolution process about an issue that relates to the responsibilities of one or more approved providers, whether the issue is raised in a complaint or otherwise. This means that the Complaints Commissioner may undertake a resolution process in relation to an issue on his or her own initiative. Section 11 allows the Complaints Commissioner to undertake a resolution process in relation to systemic issues which affect more than one care recipient or more than one service, or more than one approved provider. This item repeals and re-makes section 11 so that it now also provides that the Complaints Commissioner may undertake a resolution process regarding issues relating to CHSP and NATSIFACP services provided by service providers.

Item 8: Subsection 12(1)
Section 12 currently sets out the options available to the Complaints Commissioner for dealing with an issue identified in relation to approved providers as part of a resolution process. Item 8 amends subsection 12(1) to insert references to service providers. This means that the Complaints Commissioner may adopt the same approaches to resolving issues relating to services provided by service providers under a funding agreement as the existing approaches in relation to approved providers.

Item 9: After paragraph 12(2)(b)

Item 9 inserts a new paragraph (ba) into subsection 12(2), which mirrors the current paragraph 12(2)(b) in relation to approved providers. The new paragraph provides that the Complaints Commissioner, in resolving an issue, may visit the offices of the service provider, or the location at which the CHSP or NATSIFACP services are provided by the service provider. Access to the location at which the CHSP or NATSIFACP services are provided would only occur with the consent of the care recipient or their representative.

Item 10: Paragraph 12(2)(c)

Item 10 inserts references to service providers into paragraph 12(2)(c), so that paragraph 12(2)(c) will provide that the Complaints Commissioner may discuss an issue with a service provider. This amendment ensures that regardless of whether the issue relates to an approved provider or a service provider, the Complaints Commissioner may deal with the issue in a consistent way.

Item 11: Section 13 (heading)

Item 11 makes a minor consequential change to section 13 by repealing and re-inserting the heading, so that it refers to a service provider as well as an approved provider. This change is consequential to amendments made by items 12 and 13 below.

Item 12: Subsection 13(1)

Section 13 deals with the notification of approved providers about resolution processes undertaken by the Complaints Commissioner. Item 12 amends subsection 13(1) so that it refers to a service provider as well as an approved provider. This means that the Complaints Commissioner must notify a service provider about an issue in the same way as he or she must notify an approved provider in undertaking a resolution process about an approved provider.

Item 13: Subsection 13(2)

Subsection 13(2) currently provides that the Complaints Commissioner may visit the location of aged care services provided by an approved provider or the offices of an approved provider without notifying the approved provider beforehand. Item 13 repeals and re-makes this provision to include references to CHSP and NATSIFACP service providers.

Item 14: Section 14

Section 14 sets out the circumstances in which the Complaints Commissioner may decide to end a resolution process. This item amends section 14 so that all references to approved providers in this provision now include references to service providers as well.

Item 15: Paragraph 14(d)

Paragraph 14(d) provides that the Complaints Commissioner may decide to end a resolution process if notified that the Secretary has initiated action under Part 4.4 of the Act. Item 15 amends this provision to clarify that paragraph 14(d) is in relation to an issue relating to an approved provider only. This clarification is required due to the insertion of a new paragraph 14(da) by item 16 below.

Item 16: After paragraph 14(d)

Item 16 inserts a new paragraph 14(da) into section 14 that mirrors the wording of paragraph 14(d), so that the Complaints Commissioner may end a resolution process if notified that the Commonwealth has initiated action under a funding agreement which relates to the issue. A funding agreement may set out actions that the Commonwealth may take in relation to a service provider not complying with the agreement. If the Complaints Commissioner is notified that such action has been initiated by the Commonwealth, the Complaints Commissioner may choose to end the resolution process. The Complaints Commissioner’s power to end a resolution process on this basis is consistent with the Complaints Commissioner’s existing ability to end a resolution process in relation to approved providers under paragraph 14(d).

Item 17: After subparagraph 14(g)(vi)

Paragraph 14(g) of the Complaints Principles sets out certain circumstances in which the Complaints Commissioner may decide to end a resolution process because continuation of the resolution process is not warranted. Item 17 inserts a new subparagraph (vii), which provides that the Complaints Commissioner may end a resolution process if the Complaints Commissioner is satisfied that the issue has already been dealt with under the scheme for resolution of complaints about CHSP and NATSIFACP service providers that existed immediately before the commencement of this instrument. This is consistent with the current paragraph 14(g)(iv), which refers to issues having already been dealt with under the
Complaints Principles or the Complaints Principles 2014.

Item 18: Section 15 (heading)

Item 18 repeals the heading to section 15 and substitutes a new heading which refers to a service provider. This is consequential to changes made by item 19 below, and ensures that the heading to the provision accurately describes the contents of the provision as a result of these amendments.

Item 19: Subsection 15(1)

Item 19 repeals the current subsection 15(1) and re-makes it so that it now refers to service providers as well as approved providers. This means that the Complaints Commissioner is able to give directions to a service provider if, as part of a resolution process, the Complaints Commissioner is satisfied that the relevant service provider is not meeting its responsibilities under a funding agreement with the Commonwealth.

Item 20: Subsection 15(2)

Item 20 inserts a reference to an approved provider at the start of subsection 15(2), so that it is clear to the reader that the provision relates only to issues relating to approved providers. This is a consequential change due to a new subsection 15(2A), which is inserted by item 21 below.

Item 21: At the end of subsection 15(2)

This item inserts a new subsection 15(2A) which is similar to the current subsection 15(2). The new subsection 15(2A) provides that the directions to a service provider must require the service provider to take stated actions in order to meet the service provider’s responsibilities under a funding agreement.

Item 22: Subsection 15(3)

Item 22 amends subsection 15(3) to insert references to service providers. These amendments mean that prior to giving directions to a service provider, the Complaints Commissioner must give a written notice of intention to issue directions to the service provider, consistent with the approach for approved providers.

Item 23: Subparagraph 15(4)(a)(ii)

Item 23 inserts a reference to an approved provider at the start of subparagraph 15(4)(a)(ii), so that it is clear to the reader that the provision relates only to issues relating to approved providers. This is a consequential change due to a new subparagraph 15(4)(a)(iii), which is inserted by item 24 below.

Item 24: After subparagraph 15(4)(a)(ii)

This item inserts a new subparagraph 15(4)(a)(iii) into subsection 15(4), which provides that the notice of intention to issue directions must, for an issue relating to a service provider, state the Complaints Commissioner’s concerns about the apparent failure of the service provider to meet its responsibilities.

Items 25, 26, 27 and 28: Paragraphs 15(4)(b) and 15(4)(c), and subsections 15(5) and 15(6)

Items 25 through to 28 insert references to service providers into the relevant provisions, which currently refer only to approved providers. This means that the required contents for notices of intention to issue directions, and the ability of service providers to respond to such notices, are consistent with the approach for notices relating to approved providers.

Item 29: Subsection 15(7)

Item 29 repeals and re-makes subsection 15(7) so that it now refers to service providers as well as approved providers. This ensures that the Complaints Commissioner has the power to give written directions to a service provider to take stated actions in order to meet its responsibilities under a funding agreement with the Commonwealth.

Items 30, 31 and 32: Subsections 15(8) and 15(9) and paragraph 15(10)(a)

Items 30 to 32 insert references to service providers into the relevant provisions, which currently refer only to approved providers. These changes mean that a service provider must comply with the directions from the Complaints Commissioner, and that if the service provider fails to comply with a direction, the Complaints Commissioner must notify the service provider of the failure and notify the Secretary.

Item 33: Subsection 15(10) (note)

Item 33 repeals the note to subsection 15(10) and inserts two new notes. Note 1 is identical to the already existing note, but is now numbered due to the addition of a second note. Note 2 indicates to the reader that the Commonwealth may initiate action under the funding agreement for a service provider who fails to comply with a direction. 

Item 34: Section 17

Section 17 provides that following a resolution process, the complainant and the approved provider must be given feedback. Feedback may be provided orally or in writing. Item 34 amends section 17 so that it now includes references to service providers as well as approved providers.

Item 35: Section 20

Section 20 provides that information obtained during the administration of the Complaints Principles may be used for any other purpose related to the administration of the Act or Principles made under section 96-1 of the Act.

Item 35 amends this section to insert a reference to funding agreements relevant to CHSP and NATSIFACP service providers.

Item 36: After section 21

This item inserts a new section 21A, which provides that nothing in the Complaints Principles prevents the Commonwealth from taking action under a funding agreement in relation to an issue raised in a complaint or an issue raised in information received by the Complaints Commissioner. This is consistent with section 21, which relates to approved providers.

Item 37: Paragraph 22(3)(b)

Item 37 amends paragraph 22(3)(b) to now include a reference to a service provider as well as an approved provider, so that a service provider will be able to apply to the Complaints Commissioner for reconsideration of a decision to end a resolution process under section 14 of the Complaints Principles. This amendment means that a service provider will have the same review rights as an approved provider.

Item 38: Paragraph 22(4)(b)

This item inserts a reference to the new paragraph 14(da), which is inserted by item 16 above. This means that an application cannot be made for reconsideration of a decision by the Complaints Commissioner to end a new resolution process if the Complaints Commissioner had decided to end the new resolution process because the Complaints Commissioner had been notified that the Commonwealth has initiated action under a funding agreement in relation to the issue.

Items 39 and 40: Paragraph 23(3)(a) and subsection 23(4)

Items 39 and 40 insert references to a service provider into paragraph 23(3)(a) and subsection 23(4). These changes mean that if the Complaints Commissioner decides to undertake a new resolution process, the Complaints Commissioner must notify the service provider in writing, and may extend the timeframe for the new resolution process by notifying the relevant service provider. This is consistent with the approach for a new resolution process undertaken in relation to an issue relating to an approved provider’s responsibilities.

Item 41: Section 24

Section 24 defines certain terms used in Part 8 of the Complaints Principles. Item 41 inserts a definition for “old arrangements”. This is defined to mean the administrative scheme for management and resolution of complaints about service providers, as it existed immediately before the commencement of this amending instrument. Prior to the commencement of this instrument, complaints about NATSIFACP and CHSP

services were handled by APS officers seconded to the Complaints Commissioner under authorisation from the Secretary of the Department pursuant to the relevant funding agreement. This amendment is consequential to the addition of new sections 32 and 33, which are inserted by item 42 below.

Item 42: After section 31

Item 42 inserts new provisions which set out the transitional arrangements that will apply to any complaint relating to a service provider that was being handled under the old arrangements before the commencement of this amending instrument, if each issue raised in the complaint was not dealt with.

Section 32 is inserted to provide that in cases where a complaint about a service provider was formerly being handled under the old arrangements, it will now be dealt with by the Complaints Commissioner as if it were a complaint made to the Complaints Commissioner under section 6 of the Complaints Principles. This means that the Complaints Commissioner may undertake a resolution process in relation to the issue, and complainants and service providers will have the same review rights as if the complaint were made under section 6.

Section 33 is inserted to provide that in cases where a request was made under the old arrangements for review of a decision regarding a complaint about a service provider, it will now be dealt with by the Complaints Commissioner as if it were a request for reconsideration under section 22 of the Complaints Principles. New paragraph 33(2)(b) provides that Parts 1 to 7 of the Complaints Principles apply as if the Complaints Commissioner received an application for reconsideration on the date of commencement of this amending instrument. This means that the timeframes that are set out in section 23 of the Complaints Principles for the Complaints Commissioner to handle reconsideration applications will apply to such requests, with the timeframes commencing from the date of commencement of this amending instrument.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Complaints Amendment (Other Functions) Principles 2018

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Complaints Principles 2015 describe a scheme for the management and resolution of complaints and other concerns about aged care services provided by approved providers. This instrument amends the Complaints Principles to ensure that the Aged Care Complaints Commissioner (Complaints Commissioner) may deal with complaints about service providers of the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP) and Commonwealth Home Support Programme (CHSP) consistently with the approach for complaints about approved providers.

Human Rights Implications

The legislative instrument engages the following human rights:

• the right to an adequate standard of living;
• the right to the enjoyment of the highest attainable standard of physical and mental health;
• the right to choice for persons with disabilities;
• the right to protection from exploitation, violence and abuse; and
• the right to culture.

This legislative instrument promotes the right to an adequate standard of living and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health as set out in Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights and article 28 and article 25 of the Convention on the Rights of Persons with Disabilities (CRPD). It also promotes the right to protection from exploitation, violence and abuse as contained in article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), article 19(1) of the Convention on the Rights of the Child and article 16(1) of the CRPD.

The instrument sets up a scheme for the Complaints Commissioner to be able to resolve complaints about the care and services provided to persons by aged care service providers. Providing the Complaints Commissioner with powers to handle complaints about NATSIFACP and CHSP service providers will enhance consumer and service provider confidence in the complaints handling system and will ensure recipients of NATSIFACP and CHSP services receive the most appropriate care, including services of a high standard. Recipients of such services will be further protected from exploitation, violence and abuse as the Complaints Commissioner will be able to issue directions to service providers directing them to take stated actions in order to meet their responsibilities.

This legislative instrument is compatible with the right to culture as contained in article 15 of the International Covenant on Economic, Social and Cultural Rights and article 27 of the International Covenant on Civil and Political Rights. The amendments made by this instrument ensure that persons who are receiving NATSIFACP services are receiving culturally appropriate care of a high standard.

Conclusion

This legislative instrument is compatible with human rights as it promotes the human rights to an adequate standard of living, the highest attainable standard of physical and mental health, the right to choice for persons with disabilities, the right to protection from exploitation violence and abuse, and the right to culture.

The Hon Ken Wyatt MP

Minister for Aged Care