EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Investigation Amendment Principles 2008 (No. 1)
The Aged Care Act 1997 (the Act) provides for the funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
Subsection 96-1(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.
One set of Principles made under the Act is the Investigation Principles 2007 (the Investigation Principles).
The purpose of the Investigation Amendment Principles 2008 (No. 1) (the Amending Principles) is detailed below. The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Investigation Amendment Principles 2008 (No. 1)
The purpose of these Amending Principles is to make minor changes to existing provisions regarding the processes of the Aged Care Commissioner. Experience with the administration of these provisions has highlighted some areas where the system can be improved. These Amending Principles make the necessary changes to the Investigation Principles to ensure that the Aged Care Commissioner can continue to properly perform her important role and that the complaints process is as effective as possible in addressing the concerns of individuals making complaints to the Aged Care Commissioner.
Consultation
Consultation on the proposed changes was undertaken with the Ageing Consultative Committee which is comprised of aged care providers, consumers, professional bodies and Government representatives. Consultation on the proposed changes to the Investigation Principles was also undertaken with the Aged Care Commissioner.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required.
Details of the amendments to the Investigation Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Clause 1 states that the name of the Amending Principles is the Investigation Amendment Principles 2008 (No. 1).
Clause 2 states that the Amending Principles commence on the commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008.
Clause 3 states that Schedule 1 amends the Investigation Principles.
Schedule 1 Amendments
Item 1
Currently under section 16A.21, a care recipient or their representative can apply to the Aged Care Commissioner (the Commissioner) for examination of a decision by the Secretary:
- to end an investigation;
- to determine that the relevant provider has not breached its responsibilities under the Act or Principles;
- not to issue a notice of required action; or
- setting, adding or varying conditions of a notice of required action that directly relates to the aggrieved person.
Currently a care recipient or their representative cannot apply to the Secretary to examine the decision of the Secretary not to investigate a matter at all.
The purpose of the amendment described in item 1 is to also enable the Commissioner to review a decision by the Secretary not to investigate a matter.
Item 2
Section 16A.23(1) currently provides that an application for examination must be in writing, must state the reasons why examination is sought and be received by the Commissioner within 14 days after the day when the applicant was told about, or given feedback on, the decision.
This item amends this subsection so that a complaint may be made to the Commissioner either orally or in writing. This recognises that there may be circumstances where an aged care recipient is unable to apply for examination by the Commissioner in writing because of, for example, a disability.
Item 3
Consistent with the change made by item 2, this item inserts two new subsections within section 16A.23 which allow, in circumstances where an application is made orally, for the Commissioner to record the application in writing or require the applicant to record the application in writing. If the Commissioner requires the applicant to record the application in writing, the Commissioner may decline to examine the decision until the applicant does so.
These provisions are based on a similar provision of the Ombudsman Act 1973 (subsection 7(2)) which requires that where a complaint is made orally to the Ombudsman, the Ombudsman may reduce the complaint to writing or at any time require the complainant to reduce the complaint to writing and, where the Ombudsman makes such a requirement, the Ombudsman may decline to investigate the complaint until the complainant reduces the complaint to writing.
Item 4
This item makes a minor, technical wording change to paragraph 16A.24(1)(a) to change the word ‘filed’ to ‘made’. This amendment is required because an oral application for examination is not 'filed', but rather 'made'.
Item 5
Section 16A.25 currently provides that after the Secretary receives a recommendation from the Commissioner, the Secretary must, taking into consideration the recommendation, reconsider the decision and within 14 days confirm or vary the decision (and substitute a new one). The Secretary must notify the decision in writing to the aggrieved person, the relevant provider and the Commissioner.
Concerns have been expressed that there may be a circular effect whereby a decision made by the Secretary on re-consideration may then become an examinable decision by the Commissioner.
This item includes a new subsection (subsection 16A.24(1A)) which clarifies the position.
A reconsideration mentioned in 16A.25(1) is only examinable by the Commissioner:
- if the examinable decision is a decision mentioned in paragraph 16A.21(a) or (b); and
- if the decision on reconsideration is a decision mentioned in 16A.22(b); and
- to the extent that it relates to a decision to issue a notice of required action.
This proposed amendment clarifies that a decision to issue a notice of required action is an examinable decision if the original examinable decision was either:
- a decision to end an investigation; or
- a determination that the relevant approved provider has not breached its responsibilities under the Act or Principles
and the Secretary’s decision on reconsideration of the examinable decision leads to a decision by the Secretary to issue a notice of required action when no such notice was originally issued because there was no finding of non-compliance.
Any other part of a decision of the Secretary on reconsideration, including a determination that the relevant approved provider has breached its responsibilities in respect of the matter that is the subject of a new notice of required action, is not examinable by the Commissioner.
Item 6
This item amends subsection16A.25(2) to provide that the Secretary must, within 21 days (as opposed to the existing 14 days) after receiving a recommendation, confirm, vary or set aside the examinable decision and substitute a new decision.
This proposed amendment will provide the Secretary with adequate time to obtain expert advice and to take this into consideration, along with the Commissioner’s recommendations, when reconsidering the original decision. Recent experience has been that 14 days was not sufficient time to finalise a reconsideration decision.
Item 7
This item inserts a note after subsection 16A.25(2) to draw readers attention to the fact that a decision by the Secretary on reconsideration of an examinable decision is not itself an examinable decision (reflecting the effect of new subsection 16A.24(1A)).
Item 8
Currently under paragraphs 16A.27(2)(b) and (c) the Commissioner must refuse to examine a complaint if the Commissioner is satisfied that:
- the complaint is about the conduct of an accreditation body or person carrying out an audit or making a support contact and the complainant has not complained to the accreditation body or brought the matter to its attention; or
- the complaint is about the Secretary’s processes and the complainant has not made a complaint to the Secretary or brought the matter to the attention of the Secretary.
This item removes these requirements so that failure to first bring the matter to the attention of the accreditation body or the Secretary does not preclude the Commissioner from examining the complaint.
The only remaining matter that precludes the Commissioner from examining a complaint is if he or she is satisfied that the complaint does not relate to a function of the Commissioner.
Item 9
Section 16A.28 currently provides that as soon as possible after the Commissioner decides to examine a complaint, he or she must tell the person or body, against whom the complaint is made, about the complaint.
This item amends the section so that the Commissioner must also tell the person or body against whom the complaint is made about the nature and substance of the complaint. This must be done in writing.