Baker v Director General, Department of Community Services [2000] NSWADT 10 (21 January 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: Baker -v- Director General, Department of Community Services [2000] NSWADT 10

PARTIES: APPLICANT

Hassiba Baker

RESPONDENT

Director General, Department of Community Services

FILE NUMBERS: 994017

HEARING DATES: 17/12/1999

SUBMISSIONS CLOSED: 17/12/1999

DECISION DATE: 21/01/2000

BEFORE: Hennessy N (Deputy President)Norman C - MemberMartin M - Member

LEGISLATION CITED: Community Services (Complaints, Appeals and Monitoring) Regulation 1996

CASES CITED:

APPLICATION: Review of decision made by service provider not to take action recommended by the Community Services Commission

MATTER FOR DECISION: Preliminary matter; whether Tribunal has jurisdiction to review a certain decision

APPLICANT REPRESENTATIVE: APPLICANT

C Carney, solicitor, Women's Legal Resources Centre

RESPONDENT REPRESENTATIVE: RESPONDENT

J Korathota, solicitor, Department of Community Services

ORDERS: 1. Application dismissed.

Reasons for Decision:

Background

1 On 16 September 1999, Ms Baker lodged an application with the Tribunal requesting review of a decision "that Hassiba Baker continue to reside at the Lachlan Centre." The Department submitted that this was not a decision which was reviewable by the Tribunal.

2 This is a preliminary decision as to whether the Tribunal has the power to hear Ms Baker's application. Under s 76 of the Administrative Decisions Tribunal Act 1997, a hearing was dispensed with because the Tribunal took the view that the issues for determination could be adequately determined in the absence of the parties. Each party lodged a written submission.

Findings of fact

3 Ms Baker is a 25 year old woman with a severe intellectual disability. She requires full time care and supervision. She has been residing at the Lachlan Centre since 30 September 1991.

4 In November 1994 a Citizen Advocate, on behalf of Ms Baker lodged a complaint with the Community Services Commission. In February 1996 the Commission produced a "Review Report: Final report on the situation of Miss Hassiba Baker." That report stated, in part, that:

Miss Baker's situation was brought to the attention of the commission in November 1994, as a complaint by Lititia Rowbotham, Miss Baker's advocate . . .

In March 1995, with the agreement of Ms Rowbotham, the commission initiated a review of Miss Baker's circumstances rather than pursuing the original complaint.

5 The review was conducted under s 11 of the Community Services (Complaints, Appeals and Monitoring) Act 1993. One of the recommendations in that Review was as follows:

Community placement should be pursued as quickly as possible so that Hassiba can be moved out of the institutional environment.

Legislation

6 The applicant's representatives submit that the decision not to move her from the Lachlan Centre is reviewable under Cl 6(1)(a) of the Regulation and/or under s 20(a) of the Disability Services Act 1993.

7 Under s 38 of the ADT Act, the Tribunal has power to review a decision if an enactment provides that applications may be made to the Tribunal for a review of decisions made by an administrator. The relevant enactment in this case is the Community Services (Complaints, Reviews and Monitoring) Act 1993. Section 40(1) of that Act states, in part, that

(1) A person may apply to the Tribunal for a review of any of the following decisions:

(a) a decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this paragraph, and

(d) a decision that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section, and

8 Cl 6(1)(a) of the Regulation states that:

Decisions of the following kind are prescribed classes of decisions for the purposes of section 40 (1) (d) of the Act: (a) a decision made by a service provider not to take action recommended by the Commission under section 38 (1) of the Act, or to take part only of the action so recommended

9 Section 38 of the Community Services (Complaints Reviews and Monitoring) Act 1993 relates to the investigation of complaints.

10 The Tribunal has jurisdiction to hear reviews of decisions approving the provision of financial assistance pursuant to s 20(a) of the Disability Services Act 1993. That section states that:

For the purposes of section 40(1)(a)of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions is reviewable by the Administrative Decisions Tribunal:

(a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1

11 Section 10(1) of the DSA states that:

The Minister may approve the provision of financial assistance:

(a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or

(b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services.

(2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1.

Application of law and decision

12 The applicant submits that even though the Commission's recommendation relates to a review under s 11 and not to a complaint under s 38, the review flowed from a complaint to the Commission. They maintained that "If the failure to implement the recommendation is not reviewable because the complaint was treated by the Commission as a review, it would be a denial of natural justice and against the principles of administrative fairness."

13 The Tribunal has no power to review decisions which are not provided for in a relevant enactment. In this case the Commission's recommendation arose from a review of situation of a person in care under s 11 of the Community Services (Complaints Reviews and Monitoring) Act (1993) and not from a complaint under s 38. Consequently, the Tribunal has no power to review the decision under Cl 6(1)(a) of the Regulation.

14 There is no evidence on the file as to whether the Community Services Commission advised Ms Baker's advocate of the implications of proceeding by way of a review instead of a complaint. If it is not already part of the Commission's practice, we recommend that where there is a choice between a matter being treated as a complaint or a review, that applicants are advised of the fact that a decision by a service provider not to take action recommended by the Commission after a review cannot be heard by the Tribunal.

15 In its recent report entitled "Review of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW)" the New South Wales Law Reform Commission came to the conclusion that:

"it is inappropriate to allow the ADT to review decisions of service providers not to implement recommendations made by the CSC arising from its review or inquiry functions. However, recommendations arising out of the CSC's complaint function can be distinguished because they relate to a complaint in which the unreasonable behaviour of a specific service provider is being challenged by an identified service user or by a complainant on behalf of that person." (at p 228)

16 However, the Law Reform Commission did make another recommendation in relation to the Commission's review functions. They recommended that:

Section 38(2)(a) should be amended to require service providers to provide information on the implementation of Community Services Commission recommendations made pursuant to all its functions. (at p 127)

17 The applicant's alternative submission was that the Tribunal has power to review a decision of the Minister to approve the provision of financial assistance because that approval should not have been given under s 10(2). The applicant states that:

"We submit that the provision of financial assistance did not comply with the objects of the Act. Since the Review Report in 1996 there have been decisions made by the Minister for Hassiba to receive community placement, as a priority, but the provision of funds has not been in accordance with the objects of the Act or the principles set out in Schedule 1."

18 I am not sure, on the basis of this submission, whether the applicant is saying that the Minister has made a decision to approve the provision of financial assistance under s 10(1)(a) or s 10(1)(b) of the DSA. I am also unsure as to whether the applicant is submitting that a decision approving the provision of financial assistance has been made or has not been made.

19 Given that this decision is being made on the papers we do not think we have sufficient information to make a decision on this point. If the applicant wishes to make further submissions on this issue, then she should do so by 21 February 2000. If no submissions are made the application on this ground will be dismissed. If further submissions are made, the respondent has until 21 March 2000 to file any submissions in reply. The issue will then be determined on the papers.