Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Foundations Care Ltd v Children's Guardian [2020] NSWCATAD 224 Hearing dates: 17-21 and 24 February 2020; final submissions provided 1 May 2020 Date of orders: 09 September 2020 Decision date: 09 September 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) The respondent's decision to suspend the accreditation of the applicant is set aside. (2) In substitution for the respondent's decision, the applicant's accreditation is cancelled. (3) The cancellation of the applicant's accreditation is to take effect on 9 December 2020. (4) The stay of the suspension decision is continued until the cancellation decision takes effect. (5) The parties have liberty to apply should any issues arise in respect of the implementation of Order 3. Catchwords: ADMINISTRATIVE REVIEW – Child Protection – Where respondent made decision to suspend accreditation of applicant as a designated agency – Whether applicant compliant with child safe standards – Correct and preferable decision – Whether accreditation should be suspended or cancelled Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Children's Guardian Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Ombudsman Act 1974 (NSW) Cases Cited: Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Shi v Migration Agents' Registration Authority (2008) 235 CLR 286 Texts Cited: None cited Category: Principal judgment Parties: Foundations Care Ltd (Applicant) Children's Guardian (Respondent) Representation: Counsel: R Reitano (Applicant) M Gaven (Respondent) Solicitors: Hall Payne Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00271182 Publication restriction: Section 65 of the Civil and Administrative Tribunal Act 2013 applies to these proceedings. Section 65(2) to (4) provide: (2) 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 in the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings in the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty— (a) in the case of a corporation—100 penalty units, or (b) in any other case—50 penalty units or imprisonment for 12 months, or both. (3) 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. (4) 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. Note that the Tribunal has made a decision about non-publication of certain material in these proceedings: see Foundations Care Ltd v Children's Guardian (No 2) [2020] NSWCATAD 258. REASONS FOR DECISION 1. The applicant ("Foundations Care") is a designated agency which has oversight of children in foster care and of their carers. 2. Between January 2018 and May 2019, the Children's Guardian conducted six onsite assessments of Foundations Care and various assessments of its policies and procedures, providing it with feedback after the assessments. The Children's Guardian considered on each occasion that Foundations Care was non-compliant with a significant number of the NSW Child Safe Standards for Permanent Care (November 2015) ("the Standards"). 3. Foundations Care made a number of changes to its polices, procedures and practices with a view to achieving compliance with the Standards. 4. The Children's Guardian suspended the accreditation of Foundations Care in August 2019. Foundations Care applied to the Tribunal, shortly afterwards, for a review of that decision. On Foundations Care's application, the Tribunal ordered a stay of the suspension decision. 5. In November 2019, the Children's Guardian conducted another onsite assessment of Foundations Care. The Children's Guardian remained of the view that, although Foundations Care had made some improvements to its practices and procedures, it was still non-compliant with the Standards. In particular, the Children's Guardian was of the view that Foundations Care had not demonstrated that it maintained adequate systems to ensure that it delivered consistent care to vulnerable children with complex needs. 6. In submissions filed on 2 December 2019, the Children's Guardian submitted that, while her decision had been to suspend Foundations Care's accreditation, "cancellation would be equally open to the Tribunal." 7. At the hearing in February 2020, it was submitted for the Children's Guardian that the Tribunal should cancel the accreditation of Foundations Care. It was said in closing submissions that this outcome was warranted having regard to the overwhelming evidence of Foundations Care's consistent and sustained failure to demonstrate compliance with the Standards. 8. Foundations Care conceded that it was non-compliant with the Standards in mid-2018 but submitted that, at the time of the hearing, it was compliant. It submitted that the correct and preferable decision was to set aside the decision of the Children's Guardian to suspend its accreditation. 9. I have found that Foundations Care was significantly non-compliant with the Standards for about eighteen months preceding the onsite assessment in May 2019. The evidence indicates that Foundations Care has been making various improvements to its practices and policies since at least mid-2018. However, I am not satisfied that the improvements it has made to date have made it compliant with the Standards or that it has implemented systems which will ensure its compliance in the future. 10. I do not consider that a suspension of the accreditation of Foundations Care would promote the safety, welfare or well-being of the children in the care of Foundations Care. Given that Foundations Care had about two years prior to the hearing to achieve compliance with the Standards, following the first onsite assessment in January 2018, I am not confident that it would be able to achieve compliance during a period of suspension, or that the suspension would achieve any other useful purpose. I consider that it has put the safety, welfare and well-being of children in its care at risk, through its non-compliance with the Standards, and that cancellation is the correct and preferable decision. 11. For these reasons, I have set aside the suspension decision made by the Children's Guardian and, in substitution for that decision, have decided to cancel Foundations Care's accreditation. Background 1. Foundations Care was founded in 2005. It was accredited as a designated agency in 2012. 2. Foundations Care arranges, facilitates and manages foster and kinship care arrangements for children and young people. It also offers therapeutic residential out-of-home care options for children and young people with multiple and complex needs. As at 10 September 2019, it was responsible for over 150 children in care in New South Wales and employed 54 people in this State. 3. On 30 May 2014, Foundations Care entered into a Funding Deed with the Minister for Family and Community Services. 4. In January 2016, Foundations Care's application for the renewal of its accreditation as a designated agency was granted, with accreditation to continue until September 2018. 5. In August 2017, the Office of the Children's Guardian contacted Foundations Care to commence the accreditation renewal process. 6. In December 2017, Foundations Care submitted written policies and procedures to the Office of the Children's Guardian for review. 7. In January 2018, onsite assessments were conducted at two of Foundations Care's offices. 8. In March 2018, the Office of the Children's Guardian provided feedback to Foundations Care on its policies and procedures, identifying areas of non-compliance. The Office requested Foundations Care to revise and resubmit those policies and procedures. Foundations Care did so in early May 2018. 9. In May 2018, the Office of the Children's Guardian conducted another onsite assessment of Foundations Care. 10. On 30 May 2018, the Office of the Children's Guardian provided feedback to Foundations Care on its revised policies and procedures, again identifying areas of non-compliance. 11. On 6 July 2018, the Children's Guardian deferred the determination of Foundations Care's application for renewal of its accreditation. 12. On the same day, the Office of the Children's Guardian provided feedback to Foundations Care following the onsite assessments in January and May 2018, identifying areas of non-compliance. Foundations Care was required to prepare an action plan outlining how it intended to meet the Standards. 13. On 21 August 2018, the Ombudsman wrote to Mr Anthony O'Hare, the Chairman of the Board of Foundations Care, providing Mr O'Hare with information about an upcoming audit or review the Ombudsman proposed to conduct. The letter indicated that the Ombudsman considered that the concerns the Ombudsman's Office had raised with Foundations Care about its systems and practices with respect to its identification of, and response to, reportable conduct, had not been addressed. 14. On 23 August 2018, Mr O'Hare wrote to the Children's Guardian in response to the feedback given on 6 August 2018. He expressed the Board's view that the current failures were "largely evidentiary and procedural," but acknowledged that they were "unacceptable." Mr O'Hare identified a number of factors contributing to the failures, referred to a restructure of the business which he considered would work more effectively and informed the Children's Guardian that new systems had been successfully operating since late May 2018. Mr O'Hare also referred to various reforms to ensure the safety and welfare of the children for whom Foundations Care was responsible. 15. On 14 September 2018, the Assistant Ombudsman wrote to Mr O'Hare referring to a meeting held between staff of Foundations Care and staff of the Ombudsman's Office on 6 September 2018. This meeting was part of the Ombudsman's audit of Foundations Care's systems for preventing, detecting and responding to reportable conduct and the review of its complaint handling systems. The letter identified failings of Foundations Care to notify the Ombudsman's Office of reportable allegations as soon as practicable or within 30 days and expressed the view that there had been "a clear breakdown in the Ombudsman notification process." The letter also identified issues of concern with Foundations Care's reportable conduct investigative practice. The Assistant Ombudsman noted various actions Foundations Care was taking to address her concerns. 16. On 25 and 26 September 2018, staff members from the Office of the Children's Guardian carried out a third onsite assessment of Foundations Care. The following day, Foundations Care re-submitted its policies and procedures to the Children's Guardian. 17. On 2 October 2018, Ms Lorenti, of the Office of the Children's Guardian, provided verbal feedback to Foundations Care about the onsite assessment and also emailed Foundations Care. In the email, Ms Lorenti noted that "[o]verall, we saw some progress in nearly all of the areas reviewed." 18. On 6 October 2018, a Principal Investigator at the Office of the Ombudsman wrote to Ms Veivers, the Acting Chief Executive Officer of Foundations Care. The letter dealt with reportable conduct investigations and matters notified by Foundations Care to the Ombudsman. 19. On 7 November 2018, Ms Lorenti emailed Ms Veivers the feedback report for the third "indirect evidence submission" of Foundations Care. The term "indirect evidence" is used to refer to an agency's policies and procedures. Ms Lorenti requested that the policies and procedures be resubmitted by 17 January 2019. 20. On 7 December 2018, a Principal Investigator at the Office of the Ombudsman wrote to Ms Veivers concerning the audit the Office was conducting of Foundations Care's handling of reportable conduct allegations. The Principal Investigator requested Ms Veivers to review findings in specified matters. 21. In December 2018, staff of the Office of the Children's Guardian undertook a fourth onsite assessment of Foundations Care. 22. On 24 January 2019, the Children's Guardian wrote to Ms Veivers, informing her that it had been decided to defer the decision regarding the accreditation of Foundations Care with a view to conducting a further assessment in May 2019. The Children's Guardian indicated that Foundations Care had demonstrated a level of improvement across some areas of practice, but that further improvements were still required. A feedback report was provided. 23. On 30 January 2019, Foundations Care and the Minister for Family and Community Services entered into a Program Level Agreement for the delivery of Permanency Support Program services. 24. On 20 February 2019, Ms Lorenti emailed Ms Veivers the feedback report for Foundations Care's fourth indirect evidence submission. She requested a resubmission of policies and procedures by 8 May 2019. 25. On 5 and 6 March 2019, staff of the Office of the Children's Guardian conducted a fifth onsite assessment. 26. On 6 March 2019, the Acting Deputy Ombudsman wrote to Ms Veivers providing final feedback on the Ombudsman's audit. The Ombudsman reviewed twenty-five finalised reportable conduct investigations, relating to incidents between January 2017 and October 2018. The Ombudsman's Office found that Foundations Care's initial response was satisfactory in about a quarter of matters, that its information gathering was satisfactory in about one third of matters, that affording fairness to subjects of allegations had only been dealt with satisfactorily in two matters and that Foundations Care's documentation was satisfactory in about a third of the matters assessed. Final risk management was assessed as satisfactory in about 60% of the matters. 27. The Acting Deputy Ombudsman also considered ten reportable notifications made by Foundations Care to the Ombudsman's Office between 5 October 2018 and 5 February 2019. Only one of these was made within 30 days of the head of agency becoming aware of the allegations. The letter noted other deficiencies in the handling of these matters. The letter also commented upon deficiencies in Foundations Care's complaint handling system. 28. On 22 March 2019, Ms Lorenti emailed Ms Veivers, Ms Middelbosch (the then general manager of Foundations Care) and Mr O'Hare, confirming verbal feedback provided at a teleconference on 11 March 2019. Ms Lorenti said that there had been some progress in some of the areas reviewed but identified other areas where there had not been any progress. 29. On 25 March 2019, the Department of Communities and Justice entered into a performance improvement plan with Foundations Care. The Program Level Agreement between Foundations Care and the Department provides that the Department may direct a service provider to prepare and comply with a performance improvement plan if the service provider fails to perform any of its obligations under the Agreement to the satisfaction of the Department. 30. On 3 April 2019, the Children's Guardian wrote to Ms Veivers, informing her that she intended to issue a Notice of Intention to Suspend Accreditation if Foundations Care did not demonstrate compliance at the May 2019 assessment. The Children's Guardian also imposed additional conditions upon the accreditation of Foundations Care, requiring that it arrange further training for staff in child protection by 31 May 2019, engage an external consultant to provide advice regarding reportable allegations and contact the NSW Ombudsman within five working days of becoming aware of allegations involving reportable child protection matters. 31. On 15 May 2019, the Department of Family and Community Services emailed Ms Middelbosch and Ms Veivers expressing concern that Foundations Care had not provided the Department with information demonstrating progress towards achieving the requirements of the Ombudsman or the Office of the Children's Guardian. 32. In May 2019, the Ombudsman provided to the Office of the Children's Guardian information about complaints made to the Ombudsman's Office concerning Foundations Care. 33. Between 20 and 29 May 2019, staff of the Office of the Children's Guardian conducted a sixth onsite assessment. On 24 May 2019, Foundations Care provided the fifth version of its written policies and procedures to the Children's Guardian. 34. In July 2019, the Office of the Children's Guardian provided Foundations Care with a feedback report arising from the May 2019 onsite assessment. The report stated that, while some improvements had been identified, a number of gaps and inconsistencies in practice across many standards remained. 35. On 4 July 2019, the Children's Guardian wrote to Ms Veivers, informing her of the intention of the Children's Guardian to suspend the accreditation of Foundations Care and inviting a response. 36. On 11 July 2019, the Department of Family and Community Services wrote to Ms Veivers concerning occasions where Foundations Care had apparently moved children and young persons without notifying the Department as it was required to do. 37. On 17 July 2019, Ms Veivers provided a detailed response to the Children's Guardian's letter of 4 July 2019. She submitted that Foundations Care "wholly or substantially" satisfied the accreditation criteria. She also contended that matters raised by the Children's Guardian were misconceived, demonstrably incorrect and/or did not provide probative evidence of deficient practice. She addressed matters raised by the Children's Guardian in her letter. 38. On 22 July 2019, the Department of Communities and Justice wrote to the Children's Guardian to make her aware of recent complaints made about Foundations Care. 39. On 2 August 2019, the Children's Guardian wrote to Ms Veivers providing her with notice of her decision to suspend the accreditation of Foundations Care for six months with effect from 1 November 2019, for failure to meet accreditation criteria. Her statement of reasons identified persistent non-compliance with the Standards particularly in respect of Foundations Care's child protection obligations. She said that she remained concerned that Foundations Care does not have adequate systems to identify and manage risks to children and young people in a timely manner. She considered that Foundations Care was responding to issues as they were raised but that it continued to fail to meet the underpinning child protection obligations in the Standards. 40. On 5 August 2019, Foundations Care alleged a denial of natural justice in the making of the suspension decision. On 23 August 2019, the Children's Guardian provided Foundations Care with a further 14 days to make submissions and indicated that she would withdraw the notice of suspension if persuaded that the accreditation of Foundations Care should not be suspended. 41. On 29 August 2019, the solicitors for Foundations Care wrote to the Children's Guardian, providing a significant amount of material responding to the concerns expressed by the Children's Guardian and inviting the Children's Guardian to withdraw the suspension notice. 42. On 30 August 2019, Foundations Care applied to the Tribunal for review of the suspension decision. 43. On 20 September 2019, a Deputy Secretary of the Department of Communities and Justice wrote to the Children's Guardian about Foundations Care, stating that "FC have been on a Performance Improvement Plan (PIP), with no demonstrated improvement."1 44. On 26 September 2019, the Tribunal granted Foundations Care's application for a stay of the suspension decision. 45. On 22 October 2019, the Children's Guardian provided Foundations Care with a notice, varying its conditions of accreditation by imposing additional conditions on it. This included a condition requiring Foundations Care to work with an independent person selected by the Children's Guardian to monitor and report on the care and protection of children and young people. 46. Between 3 and 6 November 2019, Brett Faggotter, a senior accreditation officer at the Office of the Children's Guardian, and Gemma Phillips, acting manager in accreditation and monitoring at the Office of the Children's Guardian, attended Foundations Care's premises at Lismore for an onsite assessment. They identified various deficiencies in Foundations Care's practices, which were apparent to them on that occasion, in their evidence, which was later filed in the Tribunal proceedings. 47. On 7 November 2019, the Children's Guardian varied the accreditation conditions again, such as to require Foundations Care to work with the Office of the Children's Guardian which would monitor and report on the care and protection of children and young people in accordance with a monitoring plan. The variation occurred because agreement could not be reached as to an independent person to do the monitoring. 48. On 13 November 2019, a Principal Investigator for the Ombudsman responded to a request, made by the Children's Guardian, for information concerning complaints about the safety of children placed with Foundations Care and feedback provided to Foundations Care, since 31 July 2019. The Principal Investigator identified that there had been two complaints, and provided information about them. The Principal Investigator also provided details of concerns it had raised with Foundations Care about its handling of issues concerning particular children. 49. On 15 November 2019, a Principal Investigator for the Ombudsman wrote to Ms Veivers, raising concerns relating to the handling of reportable conduct matters and asking for a response to specific questions. 50. On 13 December 2019, the Children's Guardian wrote to Ms Veivers to provide feedback regarding the onsite assessment in November 2019. 51. In about January 2020, Ms Veivers, the principal officer of Foundations Care, was suspended. Ms Middelbosch was appointed to act as principal officer and also continued as general manager. Foundations Care did not appoint an acting chief executive officer when it suspended Ms Veivers, but Mr O'Hare indicated that the Board oversaw the position. 52. On 14 January 2020, Foundations Care advised the Children's Guardian that Ms Veivers was no longer the principal officer and that this position was now held by Ms Middelbosch. [1] 53. On 6 February 2020, the Department sent Foundations Care a draft of a further performance improvement plan, for signature. Relevant law 1. The applicant is a "designated agency" with the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") and the Children's Guardian Act 2019 (NSW). 2. The Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount (Care Act, s 9(1)). 3. The Children's Guardian Act commenced on 1 March 2020. At the time of the hearing, and of the events relevant to these proceedings, it was not in force. It made a number of amendments to the Care Act, including defining certain terms such as "designated agency" and "principal officer" to have the same meaning as in the Children's Guardian Act; repealing s 140 ("supervisory responsibility of designated agency") and inserting an equivalent provision in the Children's Guardian Act; and omitting Chapter 10 ("Children's Guardian"). It also amended the Ombudsman Act 1974 (NSW) by repealing Part 3A ("Child Protection") and inserting equivalent provisions into the Children's Guardian Act. 4. Neither party has submitted that the changes are material in terms of their impact on this review. 5. Arrangements for the provision of statutory or supported out-of-home care may be made only by a designated agency or the Children's Guardian (Care Act, s 138(1)). 6. An organisation may apply to the Children's Guardian for accreditation as a designated agency or for the renewal of accreditation as a designated agency (Children and Young Persons (Care and Protection) Regulation 2012 (NSW) ("Care Regulation"), cl 45(1)). 7. The Minister is empowered to approve standards and other criteria for use in determining whether to grant an application for accreditation as a designated agency and what accreditation period will be granted (Care Regulation, cl 48(1)). The Minister has approved the Standards. 8. The Children's Guardian may grant accreditation as a designated agency to an applicant if, in the opinion of the Children's Guardian, the applicant wholly or substantially satisfies the accreditation criteria referred to in cl 48 of the Care Regulation (that is, the Standards) (Care Regulation, cl 49(1)). A designated agency granted accreditation that did not wholly satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation must wholly satisfy the accreditation criteria within 12 months of its accreditation, if it has been granted full accreditation (Care Regulation, cl 45(1)(a)). 9. An accreditation is subject to the conditions set out in Schedule 3 to the Care Act, and the Children's Guardian may impose other reasonable conditions on an accreditation (Care Regulation, cl 65(1) and (2)). 10. If a designated agency has applied for the renewal of an accreditation, the Children's Guardian may, by notice in writing to the agency, defer determining the application (Care Regulation, cl 47(1)). The accreditation period is extended until an accreditation notice, given to the applicant by the Children's Guardian, takes effect (Care Regulation, cl 62). 11. The Children's Guardian may suspend or cancel the accreditation of a designated agency if satisfied of any of a number of specified matters (Care Regulation, cl 66(1), (2)). These include that the agency failed, at any time after the agency had been accredited for at least 12 months, to satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation (Care Regulation, cl 66(2)(g)). 12. Section 137(2)(b) and (b1) of the Care Act provide that the regulations may make provision for the authorisation of persons, by designated agencies, as authorised carers or as authorised carers on a provisional basis. 13. The Care Regulation makes provision in cl 30 for a person to apply to a designated agency to be authorised as an authorised carer and for the designated agency to determine the application. Designated agencies may cancel or suspend the authorisation of an authorised carer in certain circumstances (Care Regulation, cl 42). 14. A person affected by a decision of the Children's Guardian to suspend the accreditation of a designated agency may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision (Care Regulation, cl 7(c)). 15. In determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act, s 63(1)). Evidence and submissions 1. The Tribunal had before it at the hearing a significant amount of affidavit evidence from both parties. The Children's Guardian also filed materials under s 58 of the Administrative Decisions Review Act and the parties tendered some documentary evidence. 2. The applicant relied upon affidavits of Anthony O'Hare, the Chairman and Managing Director of the Community Services Group, a group of companies including Foundations Care; Michelle Middelbosch, the General Manager of Foundations Care; Danielle Abdullah, Quality and Compliance Manager of Foundations Care; Olivia Smith, National Service Support Manager of Foundations Care; Leah Lawrence, also National Service Support Manager of Foundations Care; Jan (Bart) Middelbosch, Investigations Support Officer for Foundations Care; Graham Landon, the CEO of Community Services Australia Ltd, which is part of the Community Services Group; Kerri Busch, the People and Performance Leader for Foundations Care; Georgia Klipic, the Personal Assistant to the Company Secretary of Foundations Care; and Michelle Rissmann, the Director and Company Secretary of Foundations Care. Kim Nixon, Director of Kim Nixon Consulting Pty Ltd, provided a summary of evidence. 3. The Children's Guardian relied upon affidavits made by staff of the Office of the Children's Guardian, namely Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation; Julie Power, Senior Accreditation Officer in the Accreditation and Monitoring team; Gemma Phillips, Acting Manager in the same team; and Brett Faggotter, Senior Accreditation Officer. It also relied upon an affidavit of Philippa Welman, Director, Statewide Contracts at the Department of Communities and Justice. 4. Most of these witnesses were cross examined at the hearing. 5. The parties provided written submissions, both before and after the hearing, including submissions in reply, as well as Statements of Facts, Matters and Contentions. 6. Due to the very large amount of material before me, I have taken the unusual step of providing endnotes referencing the affidavit evidence by use of the witness's surname followed by a number indicating whether it is the witness's first second or third affidavit. I have done this principally so that the parties may easily identify the sources I relied upon to make my factual findings. Consideration 1. The Tribunal, standing in the shoes of the Children's Guardian, has power to suspend or cancel the accreditation of Foundations Care if satisfied that it failed, at any time after it had been accredited for 12 months, to satisfy the Standards (Care Regulation, cl 66(2)(g)). 2. Mr O'Hare, in oral evidence, acknowledged that Foundations Care was not compliant with the Standards in August 2018. He frankly accepted that there were "serious problems" at that time. Counsel for Foundations Care, Mr Reitano, accepted that the circumstance referred to in cl 66(2)(g) of the Care Regulation is engaged and that the Tribunal has power to suspend or cancel the accreditation of Foundations Care on the basis that it did not comply with the Standards in August 2018. However, he submitted that the Tribunal should exercise its discretion not to do so, given the changes made to its practices since that time. 3. Foundations Care stated, in its Statement of Facts, Matters and Contentions, filed on 12 February 2020, that it was "wholly and substantially compliant with the requirements of the Standards as at 29 August 2019." It is likely that it meant "wholly or substantially" compliant. Mr O'Hare expressed the opinion, in oral evidence, that Foundations Care was "substantially compliant" with the Standards by January 2019. Ms Middelbosch also expressed the view in oral evidence that Foundations Care was now compliant and that all issues raised by the Children's Guardian had been addressed. She then qualified her evidence and said that she could not speak to compliance with all the Standards, such as governance. 4. The discretion as to whether to suspend or cancel a designated agency's accreditation, or to take no action, is, in its terms, unconfined. The factors which may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Care Act or Care Regulation some implied limitation on the factors to which the Children's Guardian may legitimately have regard (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40). The power must of course be exercised for the purpose for which it was conferred (Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, Latham CJ at 68, Dixon J at 82). 5. The Children's Guardian submitted that, "in accordance with accepted legal principle," her evidence about the meaning and operation of the Standards should be accepted, citing Kirby J's judgment in Shi v Migration Agents' Registration Authority (2008) 235 CLR 286 at [37]. This is not an accurate summary of the effect of that passage. Kirby J accepted, as a correct statement of law, the proposition that regard might be had to the decision of the primary decision-maker as part of the material before a tribunal, but also stated that ultimately it was for a tribunal to reach its own decision upon the relevant material. 6. I consider that it is for the Tribunal to determine the meaning of the Standards. Whilst it is appropriate to consider the Children's Guardian's interpretation of them, it should not simply defer to that interpretation. Foundations Care's submissions about relevant matters 1. Foundations Care raised a large number of matters as being relevant to the Tribunal's assessment of its compliance with the Standards. Mr O'Hare gave evidence that Foundations Care had a "rogue" chief executive officer who "removed all practice documentation from the organisation, embarked on a management approach that provided no support to staff, was obstructive and uncooperative with external agencies and stakeholders and created overly complicated procedural approaches to practice that had not in any way been embedded." [2] The employment of that chief executive officer with Foundations Care ceased on 24 September 2018. 2. Mr O'Hare's evidence was that the Board of Foundations Care resolved, around this time, to rebuild its entire out of home care program "from the ground up." He said the entire rebuild took 9 months and that the decision to rebuild was made 9 months before the May 2019 assessment. 3. Whilst bearing in mind that the former chief executive officer has not had an opportunity, in these proceedings, to respond to the allegations made against her, I have taken into account that Foundations Care "rebuilt" its out of home care program in the nine months preceding the May 2019 assessment. 4. Foundations Care was critical of the processes employed by the Office of the Children's Guardian when making assessments of it. For example, Mr O'Hare considered that the Children's Guardian did not give Foundations Care detailed feedback following onsite assessments or a proper opportunity to present its evidence during the on-site assessment in May 2019. [3] Mr O'Hare also considered that verbal feedback provided was inadequate. [4] Foundations Care's submission is that the evidence against it "is based on mistaken or wrong assumptions about facts or other matters." [5] 5. I have taken into account Foundations Care's concerns about the process and the evidence from the witnesses called for the Children's Guardian to the effect that those concerns are unwarranted. Ultimately, I have formed my own view on the evidence provided. It is not necessary for me to make findings about the fairness or otherwise of the processes employed by the Children's Guardian. This issue is principally relevant in that an unfair process might adversely affect an opinion given by a witness about Foundations Care's level of compliance or suitability to continue as a designated agency. In my view, the opinions of the respondent's witnesses were properly based upon the material provided to them by Foundations Care and Foundations Care's witnesses had an opportunity to reply to that evidence (which they did). 6. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it (Administrative Decisions Review Act, s 63(1)). Its role is not to review the conduct of the respondent, in the way it conducts onsite assessments or in any other way. I did not understand Mr Reitano, for Foundations Care, to suggest otherwise. 7. The Tribunal has carefully analysed the evidence before it and the basis on which particular witnesses have expressed opinions. Ultimately, the Tribunal has come to its own view as to the extent of Foundations Care's compliance with the Standards. 8. Mr Reitano also submitted that the Tribunal should have regard to certain aspects of the evidence. One of these was the Children's Guardian's failure to call six of the eight assessors who attended onsite assessments at Foundations Care's offices and, in particular, the lead assessor, Ms Lorenti. [6] This is not, in my opinion, a matter of significance. Foundations Care could have summonsed Ms Lorenti to appear but, as far as I am aware, did not. The Children's Guardian is entitled to choose which witnesses she wishes to call. The hearing took six days and each party put forward a significant number of witnesses. In my view, there was no need for the respondent to call all of its eight assessors (or Ms Lorenti in particular) to give evidence and the calling of more witnesses would not have facilitated the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), (3)). 9. Mr Reitano also submitted that the Tribunal should treat the evidence of Ms Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation, with great caution. [7] This is because she had a "defensive demeanour" when giving evidence and because her evidence was generally based on an acceptance of what she read or was told by others. [8] Further, her evidence was "based on incomplete material or information." [9] 10. I have borne in mind that Ms Johnson formed many of her opinions on the basis of material created by others (such as the assessors). However, I have also had regard to her experience as the person responsible for the Office of the Children's Guardian's assessment and monitoring programs for statutory out-of-home care and responsible for supervision of the accreditation team. She has been employed at the Office of the Children's Guardian since 2006, initially as a senior accreditation officer and then as Manager, Accreditation and Monitoring (since 2008). Since January 2019, she has been Acting Director of Out-of-Home Care Systems and Regulation. I have borne in mind her experience and expertise when determining how much weight to give her opinions. 11. I do not consider that Ms Johnson's evidence should be given less weight because of her "defensive demeanour." I found her evidence to be balanced and fair. She accepted that the material in her affidavit, other than direct conversations with people, was taken from what other people had told her or documents prepared by other people. Whilst she was initially reluctant to accept that she did not know certain things when her knowledge of them was second-hand, I would not describe her as defensive. She did not always agree with the questions put to her, but she provided reasonable explanations when she disagreed. 12. Mr Reitano also submitted that, to the extent that Ms Johnson refers to complaints made to other bodies such as the Ombudsman, the Tribunal would not accept evidence of complaints as evidence of the trust of the facts complained about. [10] The Tribunal has not done so. Parties' submissions about compliance with the Standards 1. The position of the Children's Guardian is that Foundations Care has been non-compliant with the Standards since January 2018. 2. The Children's Guardian identified, in July 2018, that further evidence of compliance was required in relation to all 23 Standards, with the exception of Standard 7 (Confidentiality and Privacy), Standard 10 (Education), Standard 16 (Post-adoption support), Standard 18 (Recruitment), Standard 22 (Governance) and Standard 23 (Strategic Planning). The Children's Guardian found, in January 2019, that further evidence of compliance was required in relation to the standards identified earlier other than Standard 8 (Emotional and social development), but that further evidence was also required in relation to Standard 18 (Recruitment). A feedback report in July 2019 identified concerns about compliance with Standards 1-6, 9, 11-15 and 17-23. The report stated, in relation to Standard 3 (Child Protection and Safety) that "the agency's practice in this area requires significant improvement to meet the requirements of the Standard." It found, however, that the evidence reviewed indicated that Foundations Care met the requirements for Standards 7, 8 and 10; and that Standard 16 was not applicable. 3. The Children's Guardian nominated, in the post-hearing submissions, a number of the Standards with which Foundations Care was said to remain non-compliant (such as Standards 3 and 17). The Children's Guardian's position was that each of the Standards interrelate and non-compliance with one Standard affects an agency's ability to meet the Standards as a whole. 4. The Children's Guardian contended that Foundations Care has failed over a long period of time to demonstrate proper systems and processes and that it has been unable to demonstrate sufficient improvement in its practice, despite the extensive interaction and feedback from the Office of the Children's Guardian and the NSW Ombudsman. 5. The Children's Guardian submitted that the evidence establishes that: 1. "The Applicant failed to create, maintain or make available contemporaneous records in relation to a substantial number of the children in its care. 2. It is unable to demonstrate it maintains proper systems, such as training and support to staff, as it does not bring forward complete documents to enable the Respondent, or the Tribunal to make a proper assessment and analysis of the adequacy of its systems. For example, with respect to staff: a complete set of training material, training records, recent staff records and staff turnover for the immediate past period. 3. When properly analysed, in broad terms, the challenge devolves to an assertion by the Applicant that it may satisfy indicators of compliance by bringing forward isolated examples and without context." 1. The position of the Children's Guardian at the conclusion of the hearing was that Foundations Care's history of non-compliance with the Standards since January 2018 "and the continued failure to meet the accreditation criteria is relevant to the exercise of the discretion." 2. It was submitted for Foundations Care that: "Much of the [Respondent's Closing Submissions] focus upon matters of history rather than the position as at the date of the hearing or without regard to the evidence at the date of the hearing. There are two important aspects to this: first NCAT is required to determine the matter based upon the correct or preferable decision having regard to the material before it at the date of its decision (not the date of OCG's decision and less relevantly not the date of an audit carried out a year ago or even two years ago) and second much of the history demonstrates that the position at the date of NCAT's decision is in fact much different to that which historically applied and certainly much different to what applied in August 2018." 1. I accept Foundations Care's submission that, to the extent that there is evidence available as to the position as at the date of the hearing, the Tribunal is required to have regard to it. Its compliance history is also relevant. This is, partly, because the power to suspend or cancel the accreditation of a designated agency depends upon the Children's Guardian (or the Tribunal standing in her shoes) being satisfied that the agency failed "at any time" after the first 12 months of accreditation "to satisfy" the Standards (Care Regulation, cl 66(2)(g)). It is also because Foundations Care's compliance history is a factor which bears upon (but is not determinative of) its capacity to comply with the Standards in the future. 2. As indicated earlier in these reasons, the position of Foundations Care is that it is now compliant or substantially compliant with all of the Standards. Improvements made by Foundations Care 1. In circumstances where Foundations Care conceded that it was non-compliant with the Standards in August 2018, but said that it has since become compliant, it is necessary to consider the extent of its compliance with the Standards at the time of the hearing. 2. One of my concerns in conducting this review has been that, despite demonstrated non-compliances in 2019 and earlier, the evidence as to Foundations Care's activities since late last year is very limited. Most of Foundations Care's affidavit evidence dates from November 2019 or earlier. The evidence provided by Foundations Care in February this year is filed as reply evidence (although the Children's Guardian claimed, with some justification, that it was not properly characterised in this way). 3. There is evidence that Foundations Care has been taking steps to address the Children's Guardian's concerns throughout 2019 and also that it has continued to do so up to the hearing. However, there is very little evidence evaluating the effectiveness of the steps Foundations Care has taken since about mid-2019. There is some relevant evidence from the Children's Guardian's witnesses following an onsite assessment in Lismore in November 2019. 4. Foundations Care provided evidence that it had implemented positive changes to address issues raised by staff members of the Office of the Children's Guardian over the last two years or so. The steps it took included (noting some of these may overlap): 1. engaging Kim Nixon Consulting, which provided child protection training to staff in May 2019 and continued to assist it after that; [11] 2. acquiring new software and updating it and training staff in its use, to ensure that documentation is saved and managed appropriately; [12] 3. developing new risk assessments, which are designed to prompt staff to ensure that the relevant information is collected and considered; [13] 4. improving its Practice Guides in the first half of 2019; [14] 5. establishing a separate work group within the National Service Support Team with responsibility for monitoring progress of all case plans, including ensuring home visits are conducted within 28 days; [15] 6. in March 2019, implementing an electronic system to ensure that behaviour support plans are monitored and reviewed; [16] 7. implementing an electronic system of alerts for oversight about number of matters, which notifies staff when the annual carer review, including the annual safety review, are becoming due so preplanning can commence; and which notifies staff of when home visits are due; [17] 8. engaging a National Training Manager to facilitate training for carers; [18] 9. completing all children's case plans in February 2020; [19] 10. appointing Ms Middelbosch as principal officer and general manager in about January 2020; [20] 11. establishing the Investigations Support team, led by Mr Middelbosch; [21] 12. establishing electronic systems to manage risk and putting a process in place where every incident whether minor or trivial is assessed and there are clear reporting obligations; [22] 13. reviewing its policies and procedures concerning reportable conduct matters and updating the policies, procedures and supporting documents in relation to risk assessments; [23] 14. running weekly internal audits that monitor Foundations Care's performance against a number of key criteria. [24] 1. A table annexed to Ms Middelbosch's affidavit of 27 November 2019 is said, by Ms Middelbosch, to detail Foundations Care's actions in respect of each of the indicators of compliance in respect of each standard. When asked about the document in cross examination, she described it as a "work in progress" as at 27 November 2019 and agreed that it represented an "ideal state of compliance." She said that the document was the work of five people (including herself). 2. The language used in the document is variable in tense. Sometimes it indicates something has not yet happened ("New website currently in development, to be finalised in next 6 weeks. Will include a portal for carers…"), sometimes it appears to indicate that something has been done ("All CYP have been given their Child Rights Documentation") and in others it suggests that the action is in the nature of a goal ("The development of an online home visit template that contains a section under the Safety, that prompts the caseworker to document…"). There is very little evidence before the Tribunal, other than the table itself, of whether the actions outlined in the table have been undertaken and, if so, of the effectiveness of those actions. Given that Ms Middelbosch conceded that the table represented an "ideal state," I have considered it primarily as a plan for ensuring compliance, to which Foundations Care has committed. 3. Mr O'Hare's evidence was that Foundations Care had implemented a significant number of changes as a response to the Ombudsman's feedback in September 2018 and further feedback from the Office of the Children's Guardian. [25] These included employing an investigator then an entire investigations team; clearing the backlog of unresolved cases; conducting an independent case review to determine any unreported matters; developing a tracking and reporting system, SIRAN, to track and manage incidents; providing relevant training to staff; and developing an online complaints system. [26] Mr O'Hare also pointed to significant changes made at Foundations Care in the nine months since about August or September 2018, when the Board conducted an investigation into the conduct of the former chief executive officer. These included the engagement of an entirely new management team, the development of a new digital case management system, the hiring of a compliance team and the engagement of industry consultants. [27] 4. Ms Middelbosch's evidence was that, when she commenced working with Foundations Care in May 2018, some staff members who resigned reported that this was partly due to the inadequate level of supervision and support provided by the senior leadership team. [28] However, she said that the feedback she received in this regard has markedly reduced. [29] 5. Ms Middelbosch gave oral evidence about two consultants engaged by Foundations Care, Kim Nixon and Penny Kay. She said that Penny Kay's role was to provide group supervision and training to staff and to assist with case reviews. She said that Kim Nixon's role was to assist in regard to reportable conduct. Ms Middelbosch also said that Kim Nixon has been engaged to provide independent carer reviews when there had been conflict. 6. Ms Olivia Smith, a National Service Support Manager at Foundations Care, gave evidence that she was offered very little supervision in her role as a case manager from June 2017 to August 2018. She said that, following the appointment of Ms Veivers as general manager in April 2018, and Ms Middelbosch as State manager around that time, her concerns about the support and guidance provided to staff had been addressed. It was her view that there had been "significant changes to systems, training and supervision" since she commenced her employment. 7. Ms Leah Lawrence, also a National Service Support Manager at Foundations Care, gave evidence that she commenced employment with Foundations Care in April 2014. She considered that, in contrast to the former chief executive officer, Ms Middelbosch was very supportive. She also considered that Ms Veivers was "very approachable." Her view was that the new electronic case management system was much more effective than the previous system and that the practice guides were easier to navigate than the previous practice manual. 8. Mr Bart Middelbosch's evidence is that, since he commenced employment with Foundations Care, he has observed systematic and practical improvement in terms of how it handles reportable conduct matters and investigations into incidents. Some of the systems improvements he identified were: 1. The establishment of the Investigations Support Team, led by him, to provide assistance and advice to caseworkers on questions relating to their reportable conduct obligations; 2. Establishing the National Support team, to ensure that particular tasks and actions are competed; 3. The running of weekly internal audits; 4. The upgrade of Foundations Care's software; 5. The review of Foundations Care's policies and procedures around reportable conduct matters and the update of the policies, procedures and supporting documents in relation to risk assessments. 1. Ms Michelle Rissman, the Director and Company Secretary for Foundations Care, gave evidence about some improvements made by Foundations Care. She stated that, among other things, Foundations Care was undertaking work to improve its training system and had appointed a training manager to ensure consistency in the training provided to staff; that Foundations Care had developed a new supervision template for managers that is designed to ensure managers are providing the appropriate levels of guidance and support to staff; and that Foundations Care established a HR department in January 2019, in order to provide staff with a further support and avenue to communicate feedback or concerns in relation to their roles. 2. The evidence of Foundations Care establishes that there have been some significant improvements to its practices, policies and procedures. However, having regard to the evidence as a whole, I am not satisfied that these changes have achieved the necessary level of compliance with the Standards. The reasons why I have not been able to reach that state of satisfaction are set out below in relation to particular standards. Foundations Care's record-keeping 1. In my assessment of Foundations Care's degree of compliance with the Standards, I have chosen to consider, first, the adequacy of Foundations Care's record-keeping. That is because a consistent theme of the Office of Children's Guardian is that the records of Foundations Care were not adequate to enable its staff members to assess its compliance with the Standards. The Children's Guardian submitted in her closing submissions: "The necessity for the Applicant to demonstrate compliance with documentation and record keeping (Standard 17) assumes particular significance in this case as it is a critical factor that consistently affected each of the assessment processes and the Applicant's ability to satisfy the Standards as a whole. Further, the significance of this Standard cannot be underestimated in the Applicant's approach to this proceeding. Nor is not possible for the Applicant to demonstrate continuous improvement (as the Standards require) if there is no documented baseline against which to measure any improvement. An inability to comply with this Standard necessarily affects all other Standards. For example: Relevant to Standard 3, is the importance of every step of an investigation (reportable or otherwise) being contemporaneously documented (Phillips1 at [28]). Accordingly, the Applicant's approach to its evidentiary task to demonstrate compliance with the indicators of compliance with the Standards taken throughout the assessment processes and this proceeding is sufficient by itself for the Tribunal to make an order for which the Respondent contends…" [30] 1. The Standard most relevant to record-keeping is Standard 17, "Documentation and record keeping." The Standard is: "Children and young people have a permanent record of their histories which contains all relevant documentation." The objective of this Standard is "Children and young people have access to records of their care arrangements." 2. Record-keeping is, however, also relevant to other standards. An indicator of compliance with "Standard 2: Providing a positive care environment" is "[c]ritical incidents occurring within the care environment are reported, recorded and managed within the agency's required timeframes and in accordance with mandated responsibilities." An indicator of compliance with "Standard 3: Child protection and child safety" is "[a]ll reportable allegations are reported, recorded and managed within the required timeframes." Similarly, an indicator of compliance with "Standard 8: Emotional and social development" is that "[c]hildren and young people's emotional and social development and behavioural needs are assessed, recorded and addressed." 3. Standard 17 gives expression to a designated agency's statutory obligations to keep written records. Section 160 of the Care Act provides that "[e]ach designated agency must ensure that written, photographic and other records relating to the development, history and identity of a child and young person for whom the Minister has parental responsibility and for whom it has supervisory responsibility are maintained and are accessible to the child or young person." A person leaving out of home care is entitled to these documents (Care Act, s 169). 4. Ms Michelle Middelbosch, who was, on 27 October 2019, then General Manager of Foundations Care, affirmed an affidavit on that date which responded to matters raised by the Office of the Children's Guardian about Foundations Care's record-keeping during the May 2019 onsite assessment. Queries and concerns about Foundations Care's records and about the availability of particular documents were identified in a spreadsheet during and following that assessment. This was done at a level of specificity, in relation to particular documents relating to particular children. In her affidavit, Ms Middelbosch addressed each concern or query. 5. In about 47 instances, Ms Middelbosch explained that the reason Foundations Care and the Office of the Children's Guardian could not locate a document at the time of the assessment was that the document was stored on a staff member's desktop and not uploaded to the electronic database available to all staff members. [31] Sometimes, a document could not be located because it was incorrectly named in the electronic system. Some documents were located in caseworkers' emails. This included a missing working with children check clearance, [32] a child's school report [33] and a home safety check in relation to a carer. [34] A handwritten hard copy of reports about home visits, including from December 2018, was later located on the caseworker's desk. [35] A birth mother's new phone number was stored on a caseworker's mobile telephone, but not entered into the system. [36] 6. Foundations Care's approach to keeping medical records was inconsistent and unsatisfactory. In one case, a child's "Headspace referral, health management check documents that were sent to the GP, health case notes, annual health review documents which were emailed to [the child's] carer, case plan with health management form, along with text messages between the caseworker and carer regarding [the child's] health" could not be located at the time of the assessment but were later found on the caseworker's emails and phone. [37] A paediatrician's report from February 2019 was located within a caseworker's emails. [38] A different child's paediatric report from February 2019 was only uploaded to the electronic system during the May assessment, and that child's specialist report from January 2019 was not uploaded until after the audit. [39] 7. Medical reports had, in some cases, not been obtained after appointments. There was no record of a hearing check which had occurred in December 2018 [40] or a urology appointment in March 2019. The urology report was obtained in July 2019. [41] A general practitioner's report about an appointment attended by a child was not held and was requested after the May 2019 assessment. [42] These reports were obtained, apparently in response to the comments of the Office of the Children's Guardian. The Children's Guardian's feedback that it was unable to locate recent health records or reports for the last twelve months in respect of a particular child prompted Foundations Care to arrange optical, dental and general practitioner appointments for the child. [43] 8. In some cases, missing documents were not obtained or created until after the May 2019 assessment. For example, a risk assessment addressing certain allegations in relation to a carer (it would appear) was not in existence, and was created the following month. [44] Documents in relation to a reportable conduct matter were missing and unable to be located, and the responsible staff member had left Foundations Care. [45] Foundations Care sent the carers a formal letter about the matter after the May 2019 assessment. In the case of at least two children, school reports were not held by Foundations Care at all and were only requested from the school around the time of, or following, the May 2019 assessment. [46] 9. A "verbal risk assessment" had occurred after a particular incident, but it was not documented. A subsequent risk assessment was conducted after the Office of the Children's Guardian raised this as an issue. [47] In another case where a risk assessment was missing, Ms Middelbosch confirmed that the responsible manager's employment had been terminated. [48] It was not stated that there was any connection between the termination and the missing risk assessment report. In response to the Office of the Children's Guardian identifying that it was unable to locate evidence of an incident report in respect of a child's hospital admission, Ms Middelbosch "confirm[ed] that supportive text messages were exchanged" with the child following the admission. [49] This did not satisfactorily explain the lack of records. 10. Lack of documentation evidenced, in some cases, a lack of appropriate action. Concerns about the home environment of a child were detailed in a case note of 12 March 2018. In October 2019, Ms Middelbosch confirmed that in May 2019 that the carer had been attempting, unsuccessfully, to get quotes for repairs and clean up. The caseworker followed up with the carer on 30 May 2019 (after the May 2019 assessment). In October 2019, Ms Middelbosch stated that the caseworker was continuing to follow up to ensure the work was completed. [50] Ms Middelbosch gave no indication, in her affidavit, that she considered that taking over 18 months to remedy identified problems in a child's home environment was unacceptable. 11. In some cases, the lack of documentation held by Foundations Care was not adequately explained and there is no evidence that it existed. For example, the Office of the Children's Guardian identified, in relation to one child, that it was unable to locate any evidence of monitoring or support of placement in 2019, prior to it breaking down. [51] Ms Middelbosch's evidence was that the case worker with responsibility for the child's file had retired and a new case worker had been assigned, and was attending to home visits with the child. The inference is available that the lack of evidence of monitoring or support, prior to this, reflects an actual lack of monitoring or support. For another child, the Office of the Children's Guardian "could not locate any evidence of optical, dental or hearing [appointments] in the last twelve months on the file." [52] Ms Middelbosch's evidence was that appointments were arranged from June 2019. This suggests that there were no appointments in the twelve months prior to the May 2019 audit. Ms Middelbosch had a similar response to the Office of the Children's Guardian identifying that it was unable to locate health records on a different child's file. [53] She stated that dental and general practitioner appointments had been scheduled for late May and August 2019 respectively and that, as of October 2019, Foundations Care was "awaiting" reports from these appointments. [54] 12. The Office of the Children's Guardian advised Foundations Care that it was unable to locate evidence of any further information since January 2019 in relation to family group conferencing as outlined in the November 2018 case plan for a child. Ms Middelbosch responded as follows: "I confirm that an email was sent in February 2019, to [XX], and then to Foundations Care advising of the family contact details. In the email, it was identified that FaCS were hoping that they would have been able to move forward, however, did not have the time in December 2018 or January 2019." [55] 1. This is an unsatisfactory explanation, in October 2019, for a failure to act in accordance with a case plan from November 2018. 2. Section 163 of the Care Act requires a designated agency to inform a child's parents as to the progress and development of the child. The Office of the Children's Guardian indicated that it could not locate records of this having been done for a number of children. Ms Middelbosch's response, in relation to two different children, was that an update to the birth family was provided following the May assessment. [56] Updates to the birth mother of another child in care were not documented, because they did not exist. [57] The relevant caseworker was "counselled" after the Office of the Children's Guardian brought this to the attention of Foundations Care. 3. I consider that Ms Middelbosch's evidence, as set out above, indicates that Foundations Care was non-compliant with Standard 17, "Documentation and record keeping," in May 2019. This is consistent with the evidence of Brett Faggotter in an affidavit of 18 November 2019, that the May assessment revealed "inconsistent record keeping." [58] It is also consistent with the opinion of Ms Larissa Johnson that the files reviewed during the May onsite assessments "continued to show serious shortcomings in a number of areas." [59] Ms Johnson commented, upon Ms Middelbosch's affidavit, that it: "largely addresses specific issues raised by the OCG following the review of files conducted by OCG staff during on-site assessments. Generally, the affidavit of Ms Middelbosch indicates that the assessment process has facilitated Foundations Care to locate documents that their staff had not saved correctly or triggered action where no such action had otherwise been taken." [60] 1. Ms Johnson's view was that the evidence did "little to allay the concerns regarding the systemic problems found with the agency's implementation of proper practice and procedures." [61] 2. The Ombudsman's view, in March 2019, was that the documentation of Foundations Care was satisfactory in about a third of matters assessed, with "consistent deficiencies" in identified areas. [62] 3. The deficiencies in Foundations Care's record-keeping were significant. It would have been impossible, in May 2019, for an outsider to gain quick and easy access to relevant records held by Foundations Care about particular children. It would also have been impossible for staff members of Foundations Care to be confident that they could access compete and reliable information about a child or carer on the agency's electronic databases, or in any other way. Much of the relevant information was stored upon the computer desktops of staff members, buried in a staff member's emails or even held on a staff member's mobile telephone. Sometimes, when relevant staff members had left the organisation, the records could not be found at all. It is evident that there was no effective system for, or widespread practice of, ensuring that all records were kept in a place which was easily accessible to other staff members. 4. These failures in record-keeping have significant consequences. As is apparent from some of the instances considered above, the deficiencies in record-keeping, appear to have contributed to, or been associated with, a failure to ensure that children's medical needs were properly attended to, when necessary appointments were not obtained or followed up. Further, the lack of readily available medical records could have adverse consequences for a child if they were not provided to a medical practitioner examining a child, because that practitioner may then have an inadequate medical history. The common practice of caseworkers storing documents on their desktop and on emails (particularly when coupled with a relatively high turnover of staff) makes it likely that Foundations Care would not have been providing children leaving out of home care with all of the documents to which they were entitled (Care Act, s 169). 5. The consequences of the inadequate records extend to almost all areas of care. Missing risk assessments are of particular concern. There were many instances where matters had not appropriately been followed up, such as the child's unsatisfactory physical home environment and planned family group conferencing. Similarly, birth parents were not being regularly informed of relevant information about their children. 6. The problems which stem from inadequate record-keeping were well captured by the Acting Deputy Ombudsman's observation, in March 2019, that it was difficult to assess the quality of Foundations Care's practice "and complainant satisfaction, due to the difficulty experienced in locating documentation relating to particular complaints at the time of our on-site audit." [63] The Acting Deputy Ombudsman also observed that "complaint documentation was generally limited and fragmented – for example, staff advised that certain records for some complaints were held in email inboxes and on various managers' computers rather than on a consolidated complaint file, and attributed their inability to locate records to the departure of various managers." [64] 7. A significant question for the Tribunal is whether these deficiencies have been addressed and remedied. 8. It is of concern that Mr O'Hare gave evidence that, in his view, Foundations Care was substantially compliant with the Standards in January 2019. I find, having regard to Ms Middelbosch's evidence, that Foundations Care was substantially non-compliant with Standard 17 in May 2019. This non-compliance affected Foundations Care's compliance with other Standards, for reasons given above. That Mr O'Hare could overlook or minimise the very significant deficiencies revealed by the Office of the Children's Guardian's spreadsheet and Ms Middelbosch's evidence detracts from the Tribunal's confidence that Foundations Care has taken adequate steps to address such deficiencies. 9. Ms Middelbosch reported certain documentary failures, as set out above, in her affidavit, without acknowledging their significance. I have already referred to her response to the absence of documentary records concerning a child's hospital admission [65] and the lack of records about family group conferencing being held in relation to another child. [66] This might suggest a lack of appreciation of the seriousness of the agency's shortcomings in this area. It is plain from Ms Middelbosch's affidavit of 710 paragraphs that Foundations Care took steps to address each of the concerns raised. However, this does not necessarily mean that Foundations Care has adequately changed its systems or practices such that its record-keeping is now adequate or that it now documents all relevant matters without being prompted to do so. 10. Ms Middelbosch's evidence of 28 October 2019 about her approach to the systemic issues revealed in the May 2019 assessment is that Foundations Care had made a number of systematic improvements. [67] Ms Middelbosch gave evidence that, in December 2018, Mr O'Hare convened a training session on Saving to One Drive which was provided to employees around the State and that managers have subsequently communicated to staff members the importance of ensuring that no documentation is to be saved to their desktops. [68] These measures were demonstrably ineffective in changing practices by May 2019. 11. Ms Middelbosch also stated that: "The issues that arise when material is not uploaded to Homebase is apparent from the findings of the Audit and has been addressed through the organisation-wide correspondence confirming expectations in relation to document management, and the counselling of individual staff members where appropriate. Individual staff members who were identified, through the Audit, as having relevant documents saved to their desktop or stored in their Outlook inbox, on multiple occasions, have been provided with individual counselling in respect of this requirement and are subject to increased supervision in order to ensure that they are complying with this requirement." [69] 1. There is no evidence of the effectiveness of the organisation-wide correspondence or of the counselling and supervision of individuals. Ms Middelbosch also referred to an update to the electronic system which resulted in emails being automatically uploaded to it. [70] 2. In her affidavit of 27 November 2019, Ms Middelbosch attested that "documentation standards [had] improved significantly." [71] Ms Middelbosch also recognised that, in order to effect change after the May 2019 assessment, system improvements, changes to practice guides, time to embed and staff training were all necessary. [72] Ms Middelbosch stated the following: "During the course of the onsite assessments, l have always acknowledged the concerns held by the OCG assessors, where those concerns are self-evident, In respect of matters where it was apparent to me that there was an issue, I confirm that I did not attempt to blindly defend the work of the agency, but instead acknowledged the issue, accepted the feedback that was given and took steps to rectify the issues - both in the immediate term, as it related to a particular child or young person, and in the mid to long term, as it related to systemic improvements that were made in order to prevent the issue from arising again." [73] 1. In cross examination, when asked whether all of the children's files had been inspected, Ms Middelbosch said that they had been. Ms Middelbosch was asked whether the case plans in May 2019 were deficient and she agreed that they were. She also gave oral evidence that those deficiencies had been addressed. Her oral evidence was that all children for whom Foundations Care provides care have a current case plan on file. Ms Gaven, for the Children's Guardian, did not put to Ms Middelbosch that this was not the case. 2. Ms Gaven did not ask Ms Middelbosch many questions about Foundations Care's record-keeping or challenge her evidence that Foundations Care's documentation standards had improved significantly. Ms Gaven asked Ms Middelbosch whether, each time a document was requested by Office of Children's Guardian staff members, she checked and ensured that it was provided. Ms Middelbosch agreed that this was the case, but said that she told those staff members that Foundations Care was unable to locate a document if that was the case. 3. The evidence of improvement in practices concerning documentation and record keeping is almost entirely self-reported. There is little evidence from persons outside the organisation to support the claim that significant changes have occurred. 4. The evidence of Foundations Care's level of compliance at the November 2019 onsite assessment is relevant. Mr Faggotter gave evidence, that during the onsite assessment in November 2019: "The casework and young person files I reviewed showed some improvements including some great examples of particular casework. However, I identified a number of gaps in the files where it was still necessary to request further documentation. Again, it appeared that some documents had never been generated, some documents had been created but had not been entered onto Homebase and some documents were created only after my request." [74] 1. Mr Faggotter was of the view that "[t]he files revealed a lack of consistent implementation of practices and procedures." Mr Faggotter also indicated that Ms Middelbosch's October 2019 affidavit did not alleviate his concerns "based upon the children and young people files that I reviewed that are referred to in that affidavit." This was because, even where Foundations Care had followed up on issues raised by the Office of the Children's Guardian, in many cases the substance of the follow up did not sufficiently meet the needs of the child or young person. [75] 2. I accept Mr Faggotter's evidence that Foundations Care's documentation and record-keeping had improved by November 2019, but that deficiencies in record-keeping remained. I also accept his evidence that some documents had not been created (which should have been created) and that some had not been uploaded to Homebase. 3. These deficiencies mean that Foundations Care remains non-compliant with Standard 17. I am not satisfied that children for whom Foundations Care is responsible will have a "permanent record of their histories which contains all relevant documentation." Some of that documentation will not be available because, although it has been created, it has not been stored correctly, in accordance with a system which ensures its easy retrieval. In other cases, the documentation about a child's history will not be available because it has not been created. 4. These failures impact upon the extent of Foundations Care's compliance with other standards. There may be room for reasonable minds to differ as to whether an absence of a record, where it would be expected that Foundations Care would have that record, is a failure of record-keeping or a different kind of failure. For example, if an agency does not have a record of counselling of a child in circumstances where counselling is needed, this could be a failure to record counselling which has occurred, or a failure to comply with Standard 8. An indicator of compliance with Standard 8 is that children and young person's emotional development and behavioural needs are assessed, recorded and addressed. Similarly, a failure to obtain information about circumstances of apparent risk to a child could be indicative of an agency's failure to assess and address that risk, and thus of non-compliance with Standard 3. This is apparent when individual children are considered. 5. Mr Faggotter commented on Foundations Care's documentation in respect of some of the children referred to in Ms Middelbosch's affidavit and concerns which arose as a result of deficiencies in that documentation. It is helpful to analyse the evidence relating to particular children as it illuminates the effect upon children of Foundations Care's conduct and practices in particular cases. Child A 1. Assessors from the Office of the Children's Guardian utilised a spreadsheet, during the May 2019 onsite assessment, to identify documentation which they could not locate. This system was instigated to allow Foundations Care time to find and provide the missing information. 2. The spreadsheet indicated that the assessors were unable to locate documentation regarding the cause of the death of Child A's mother or documentation regarding the support given to Child A following her mother's death on the file. Ms Middelbosch responded to this in affidavit evidence as follows: "I confirm that information regarding the cause of the death was requested on 22 May 2015 and received on 27 May 2019. This information has been uploaded to Homebase." [76] 1. Mr Faggotter commented (accurately) that the information about the mother's death was only requested by the agency after this was raised by the Office of the Children's Guardian. 2. In relation to documentation concerning the support given to Child A, Ms Middelbosch stated: "200. I confirm this information was located on CSpace (old case management system) at the time of the Audit. The information confirmed that Foundations Care was to provide ongoing support to [Child A]. A text message from a psychologist was attached to this information. 201. The OCH [sic] queried whether [Child A] had been informed how her mother had died and if not, what the plan was regarding this, as it was not available on the file. 202. I confirm that at the time of the audit, the cause of death was not known, and a plan was to be developed to explain [Child A]." [77] 1. Mr Faggotter responded as follows: "As to paragraph 200, whilst the information provided demonstrated the carers organised a counselling session, it is not clear if this went ahead, how it went and whether further counselling sessions were required. It also did not demonstrate what the agency did to support [Child A]. As to paragraph 202, there was no evidence on the file that the agency made attempts to find out the mother's cause of death." 1. It is not apparent, from the evidence before the Tribunal, when Child A's mother died. However, the circumstance that the information was located on the old case management system suggests that her death was not recent, as at May 2019. The death of a parent is plainly a very significant event in a child's life and one in relation to which counselling is very important. On the evidence available to me, Mr Faggotter's criticisms of Foundations Care's records, and apparent handling of the matter, are well founded. Child B 1. Mr Faggotter also commented on Foundations Care's handling of a child to whom I will refer as Child B. [78] Child B turned 18 on [NOT FOR PUBLICATION]. [79] Mr Faggotter noted, from Foundations Care's file, that Child B's mother had informed Foundations Care in December 2018 that the child's carer was belittling and berating him, that Child B was spending all his time in his room, and that Child B was minding [NOT FOR PUBLICATION] younger children in the placement while the carer visited her boyfriend interstate. The Department of Communities and Justice and a caseworker also raised concerns about the carer being punitive in her approach to Child B and had earlier (in mid-2018) raised other concerns regarding Child B's placement and home environment. 2. According to Mr Faggotter, Mr Middelbosch emailed a caseworker about the report made by Child B's mother and requested that further information be sought. This email was uploaded to Child B's file about a month after the incident but there was no evidence that any follow-up or further action had been taken. [80] Mr Faggotter stated that, although three separate parties had raised concerns, the concerns had not been addressed. As he indicated, "[t]he younger children and [Child B] remained in an environment of risk, which was left undetermined by the applicant." [81] 3. The Office of the Children's Guardian identified, on the spreadsheet, during its May 2019 onsite assessment, a number of documents which were not on Child B's file. Ms Middelbosch dealt with Child B in her affidavit as follows: [82] "Leaving Care Plan 206. The OCG identified that it was unable to locate a signed copy of leaving care plan by the agency and FACS on the file. 207. I confirm that this evidence was available and presented to the auditors at the date of the Audit. I understand this issue is no longer pressed. Signed Financial Plan 208. The OCG identified that it was unable to locate a signed copy of a signed financial plan on the file. 209. I confirm that this was located on Homebase, however, it was incorrectly titled. Following this issue being brought to Foundations Care's attention, the matter has been rectified. Financial Items 210. The OCG identified it was unable to locate evidence of what the agency has done about [Child B] accessing financial items in his leaving care plan on the file. 211. I confirm that evidence of driving lessons have now been uploaded to Homebase. This information was available at the date of the Audit, but it was located on the Case Worker's desktop computer. Review of records 212. The OCG identified a case note indicating that [Child B] would like to view his records, and requested that documentation be provided to show whether this has occurred. 213. I confirm a case note was created on 23 May 2019 to address the above. Concerns re: carers 214. The OCG identified that between June and August 2018, concerns were raised about the carer internally and externally. The OCG queried how these were addressed and this information was unable to be located on the file. 215. I confirm that at the date of the Audit, Foundations Care had been in contact with the Ombudsman and made several attempts to contact the carer. Evidence of action being taken in respect to these concerns was available at the date of the Audit, however, it was located on the Case Worker's desktop computer. This evidence was brought to the attention of the OCG and the relevant correspondence has since been uploaded to Homebase." 1. Mr Faggotter responded to Ms Middelbosch's evidence as follows: "As to paragraph 207, at the time of the assessment I was not able to locate a signed copy of the leaving care plan. I was provided a copy a week later which was signed by the agency but not by [X]. As to paragraph 209, this information was provided to me a week after the assessment. As to paragraph 213, the case note was created after I brought it to the attention of the agency. As to paragraph 215, the agency has provided one piece of evidence where the agency had trouble contacting the carer in May 2019 and other correspondence in which [the carer] and Bart [Middelbosch] arranged a meeting with the carers in November 2018. The Ombudsman letter raised '... Foundations Care's failings in its handling of the concerns raised about [the carer's] conduct. ..'. The agency have not provided sufficient information to demonstrate that they assessed and addressed the concerns, nor was [Child B] provided with alternative placement options prior to him turning 18, despite the ongoing concerns of the placement." [83] 1. Mr Middelbosch responded to Mr Faggotter's comments about the handling of Child B in an affidavit of 26 November 2019. He stated that, in response to Child B's mother raising concerns in December 2018, the site manager and caseworker attempted to obtain further information from the carer and Child B in relation to the concerns. [84] He further stated that, upon the therapeutic practice manager informing her of the caseworker's concerns about Child B's carer in January 2019, he considered whether the conduct was reportable conduct and decided that it was not. [85] His evidence was that he still considered that further investigations ought to be conducted into the carer's conduct. [86] 2. Despite Mr Middelbosch's evidence that Foundations Care took steps to address the concerns reported to it, [87] there is no evidence of what those steps were. There is no evidence that the "further investigations" into the carer's conduct, which he considered should have been conducted, were in fact conducted in early 2019 or before Child B left care. According to Mr Middelbosch, alternative accommodation options were not considered for Child B because he had, in October 2018, expressed a wish to remain with his carer. [88] 3. Ms Middelbosch addressed Foundations Care's handling of Child B again in her affidavit of 27 November 2019. Her response was as follows: On 3 October 2019, we were provided with verbal clearance from FACs to investigate the matter. On 29 October 2019, phoned [the carer] to organise interviews with her and [Child B]. [The carer] did not answer. A leaving care plan was completed and uploaded to Homebase on 21 August 2019. The plan was signed by the CW and Manager at the time. This plan includes quotes for a replacement drivers licence, passport, birth certificate, birth family contact, counselling sessions, [NOT FOR PUBLICATION], TILA and transport. During home visits from February 2019 to 28 June 2019, when [Child B] was 'exited from the system', [Child B] was consistently advising Foundations Care's caseworker that he is happy in the care of [the carer] and wished to remain there after turning 18 years of age. [Child B] was invited to the office on 23 May 2019, to view his file, following the request. However, [Child B] did not turn up on this day. 1. This response indicates that Ms Middelbosch was taking steps, after the May audit, to address the issues raised. However, there is no explanation for why a complaint made in December 2018 was not investigated until the end of October 2019, many months after Child B had left care. It appears from Ms Middelbosch's October affidavit and other material that the agency did have a leaving care plan for Child B, but that it was not signed by the Department. However, Ms Middelbosch's reference to the leaving care plan being completed and put on the electronic database in August 2019 indicates that, at the very least, it was not available to all staff until then. This was well after the child turned eighteen. 2. Mr Faggotter responded to Ms Middelbosch's affidavit of 27 November 2019 by making the following points: 1. At the time of his review there was nothing on the incident file to indicate that Foundations Care was waiting on FACS clearance before undertaking an investigation and no evidence of the agency following up with FACS if this was the case; 2. From his review of the documents, it appeared that clearance from FACS existed from at least 7 June 2019; 3. No file note of the verbal clearance allegedly to have occurred on 3 October 2019 has been produced, despite request; 4. The other document is a note of a phone call dated 29 October 2018 (not 29 October 2019 as claimed), indicating that Ms Middelbosch is mistaken when she refers to a phone call of 29 October 2019; 5. The two documents produced are inadequate to address the concerns raised from June 2018 to December 2018 regarding Child B; 6. in response to his concern about no alternative accommodation options being sought prior to Child B becoming 18, Ms Middelbosch referred to home visits which occurred after Child B's leaving care age; 7. the complaints and concerns regarding the placement arose in Child B's final year in care, and action should have taken during this time; 8. The concerns apparent from the file include a home visit note of 29 August 2018 that the caseworker "continues to be concerned about this placement and her concerns have been passed on to management"; a report of a home visit of 20 June 2018 referring to the need for a complex case discussion to identify strategies to support Child B and the need to complex case discussion to identify strategies to support Child B; and a home visit note dated 25 July 2018 stating that the caseworker remains concerned about the use of restrictive practice in the placement and the lack of practical support Child B receives from his carer. [89] 1. Mr Faggotter also disagreed with Mr Middelbosch that sufficient steps were taken to support Child B in his transition out of care and to consider alternative accommodation options. He referred to a document on Child B's file which outlined that Child B may require accommodation as he would be transitioning from care and that Child B said he wanted to continue to stay in the household as he had school, but that he could just go to his room. In Mr Foggotter's view, the comment about going to his room demonstrated that Child B felt the need to escape from something. Mr Faggotter considered that the material demonstrated that the agency was not having meaningful conversations with Child B around his placement options with enough time for there to be realistic alternative options. 2. Mr Faggotter also noted that a conversation with the FACS Helpline dated 25 January 2019 about Child B was not recorded on Child B's incident file at the time of Mr Faggotter's review in May 2019. [90] There was nothing to indicate that a risk assessment occurred. Mr Faggotter commented: "there was no evidence on the file to demonstrate (as Mr Middelbosch claims) that the concerns reported to Foundations Care in relation to [Child B] were further investigated or addressed. No evidence was provided to me despite request, nor does the affidavit itself provide such evidence." [91] 3. Ms Middelbosch responded to Mr Faggotter's affidavit as follows: 1. On 4 March 2019, an email was sent to a staff member requesting that he follow-up with the Department as to whether Foundations Care had clearance to commence an investigation. Ms Middelbosch considered that it was "likely" that the staff member did this, but this was not recorded in the electronic system and the staff member has left Foundations Care; 2. The acting therapeutic practice manager followed up with the Department on 7 June 2019 and was advised that the staff member had previously received verbal clearance to investigate. This email was uploaded to Foundations Care's electronic system on 3 October 2019; 3. an investigation has been delayed because the carer is refusing to engage with Foundations Care. 1. Ms Middelbosch disagreed with Mr Fagotter's conclusions about the implications to be drawn from Child B's comment that he could just go to his room and that Foundations Care was not having meaningful conversations with Child B about his placement options. [92] Ms Middelbosch referred to two documents from January 2019 in which the caseworker stated that Child B would "require supports" post-care. The remaining documents to which she referred post-dated his eighteenth birthday. 2. Mr Faggotter's conclusion appears to be correct, given an email from a Foundations Care project worker to Mr Middelbosch dated 14 January 2019 which stated that "[t]he Incident involves allegations/disclosures made by the CYP in the placement, [Child B], that his carer [name] 'berates" and 'belittles' him and he withdraws to his bedroom to avoid confrontation with [the carer]." [93] This was characterised by the project worker as "Behaviour that causes Psychological Harm." [94] 3. Standard 12: Living independently is "Young people have leaving care plans that support their transition from out of home care." Section 166(1) of the Care Act provides: "The designated agency having supervisory responsibility for a child or young person must prepare a plan, in consultation with the child or young person, before the child or young person leaves out-of-home care." Section 166(2) provides: "A plan is to include reasonable steps that will prepare the child or young person and, if necessary, his or her parents, the authorised carer and others who are significant to the child or young person for the child's or person's leaving out-of-home care." One of the indicators of compliance with Standard 14, Case planning and review, is that planning for leaving care begins when the child or young person reaches 15 years of age. One of the indicators of compliance with Standard 17: Documentation and record keeping is that, "Upon leaving care, young people are provided with their original identity documents and life story materials and copies of any other relevant documents." 4. In these circumstances, it is not sufficient to make an appointment for a child leaving care to come into Foundations Care's offices to view his file. Whilst Ms Middelbosch's affidavit demonstrates that she took steps to remedy some of the earlier issues, it does not demonstrate an appreciation of the significance of the failures of Foundations Care to comply with the Standards and the consequences of this for Child B and other children in the carer's care. 5. The deficiencies in Foundations Care's records concerning Child B – the lack of information indicating that it had responded to the concerns raised about Child B's carer, his placement and his home environment; the lack of relevant documents such as a signed copy of the leaving care plan at the time of the assessment; and the lack of any documented investigation on file – all point to more fundamental failures in Foundations Care's oversight of and care for Child B. The circumstance that Foundations Care staff continue to justify their conduct in respect of Child B indicates that they still do not fully appreciate what is required to comply with the Standards, including Standard 7. Conclusion on record-keeping 1. I am not satisfied that Foundations Care has remedied the serious lack of compliance with its record-keeping obligations, and with Standard 17 in particular, which was evident in May 2019. The evidence points to Foundations Care having made some limited improvements. However, neither the documents provided to the Tribunal by Foundations Care, nor the evidence of its witnesses, demonstrates that the conduct of Foundations Care in this respect has changed substantially. In my assessment, Ms Middelbosch made significant efforts to obtain particular documents once the lack of documentation had been drawn to her attention, but lacked insight into the circumstances in which Foundations Care needed to obtain, create and maintain documents in the interests of the children for whom it was responsible. 2. The analysis of the cases of the two children referred to above supports my conclusion that Foundations Care has not fully rectified the deficiencies in its documentation and record-keeping, including in the sense that Foundations Care often fails to create records when this is important to support a child. There were many more children's files which were the subject of evidence and of submissions. Whilst I have not dealt with each of these individually in these reasons, a review of those files is consistent with my conclusion. Child protection and child safety (Standard 3) 1. The Children's Guardian contended in her closing submissions that Foundations Care has been unable to demonstrate that it meets child protection and child safety Standard 3 through documents that show systems that keep children safe and protected from harm. 2. Standard 3 is "Children and young people's safety, welfare and wellbeing is actively safeguarded." The objective of Standard 3 is "Children and young people are safe and protected from harm." 3. Standard 3 is a particularly important standard as it concerns the protection of children's safety, welfare and wellbeing. Ms Julie Power, a senior accreditation officer at the Office of the Children's Guardian, stated: [95] "With respect to assessment of indirect evidence [that is, policies and procedures], an assessment of compliance with Standard 3 is of most significant importance as it is the standard directed to ensuring children and young people's safety, welfare and wellbeing is actively safeguarded. In my experience, if an agency is not compliant with this Standard they will not be granted accreditation." 1. This Standard is of particular importance given that, under s 9 of the Care Act, the safety, welfare and well-being of the child or young person are paramount in any action or decision concerning a particular child or young person. 2. Ms Power considered, having reviewed Foundations Care's policies and procedures, that Foundations Care was not compliant with Standard 3 as at 18 November 2019 and she remained of that view on 29 January 2020. [96] Ms Abdullah contested this opinion, explaining why she disagreed with it. [97] 3. The Children's Guardian relied, in relation to non-compliance with Standard 3, on the feedback reports provided to Foundations care in March 2018, June 2018, May 2018, July 2018, February 2019 and July/August 2019. The Children's Guardian also relied upon the evidence of Gemma Phillips, Acting Manager in the Accreditation and Monitoring Team at the Office of Children's Guardian; Mr Brett Faggotter, Senior Accreditation Officer at the Office of the Children's Guardian; Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation at the Office of the Children's Guardian; and Ms Julie Power, Senior Accreditation Officer in the Accreditation and Monitoring Team at the Office of the Children's Guardian. 4. One of the indicators of compliance with Standard 3, Child Protection and Child Safety, is that all reportable allegations are reported, recorded and managed within the required timeframe. 5. A "reportable allegation," in relation to an "employee" of a designated agency, means an allegation that the employee has engaged in conduct that may be reportable conduct (Children's Guardian Act 2019 (NSW), s 18(1)). An "employee" includes an individual employed by the designated agency, an individual engaged as a volunteer to provides services to children as a volunteer and an individual engaged as a contractor who is required to hold a working with children check clearance (Children's Guardian Act, s 16(1)). It would presumably include an authorised carer. "Reportable conduct" includes sexual misconduct, ill-treatment or neglect of a child and behaviour that causes significant emotional or psychological harm to a child (Children's Guardian Act, s 20; cf s 25A of Ombudsman Act, prior to 1 March 2020). 6. Until the Children's Guardian Act was amended on 1 March 2020, the relevant provisions were in the Ombudsman Act. However, the differences are not material for the purposes of these proceedings. Evidence in respect of reportable conduct 1. Mr Bart Middelbosch has been responsible for overseeing reportable conduct investigations for Foundations Care since early 2019. He worked part-time for the agency for most of 2019, working about 15 hours per week, but became full-time at the end of that year. The investigations team comprises Mr Middelbosch and two administration assistants. 2. Mr Middelbosch stated that, since he commenced employment with Foundations Care, he had observed systematic and practical improvement in respect of how the agency handled reportable conduct matters and investigations into incidents. [98] Those improvements included establishing and expanding the Complaints and Investigations Team; implementing SIRAN (an electronic incident reporting system) to track incidents and the follow-up actions required; and upgrading the SIRAN system to allow staff to track the progress of reportable matters and provide prompts and guidance regarding the agency to which the incident is reportable. [99] Further training to staff on reportable conduct allegations was also provided, including in February 2019. [100] 3. In Mr Middelbosch's opinion, systemic improvements had translated to a demonstrable improvement in how Foundations Care operated and in its compliances with its obligations. [101] This was evidenced by Foundations Care clearing its backlog of unresolved complaints and ensuring all reportable allegations are reported, recorded and within managed required timeframes. [102] 4. Ms Middelbosch gave evidence that Foundations Care had undertaken significant system improvements in respect of its handling of reportable conduct matters since late 2018. [103] This included entering all incidents into SIRAN such that "everything is captured and assessed." [104] Every entry into the SIRAN reporting system is required to be addressed by way of SIRAN Assessment Tool. [105] According to Ms Middelbosch: "This tool nominates which reporting bodies are required to be notified and the rationale for the decision. Each SIRAN entry then forms the basis of a conference between the caseworker and the relevant manager, before being actioned and uploaded to SIRAN." [106] 1. Ms Middelbosch also claimed that all reportable conduct matters have been notified to the relevant agency, within the legislative timeframes, since 15 April 2019. [107] 2. Other steps taken by Foundations Care to improve compliance with Standard 3 included providing staff with child protection training by Kim Nixon Consulting. [108] 3. Ms Danielle Abdullah, Foundations Care's Quality and Compliance Manager, commenced her employment with Foundations Care in December 2018. She revised the policies and procedures of Foundations Care in response to feedback provided by the Office of the Children's Guardian on a number of occasions, from that time onwards. She stated that an area in which she observed significant improvement – not only in terms of Foundations Care's documentation but in terms of its practices – was in relation to the handling of reportable conduct matters. [109] In particular, she stated that Foundations Care now tracked the progress of reportable conduct matters, including by monitoring compliance with the timeframes for notification, and reporting such matters to the required agencies within the stipulated timeframes. [110] 4. Gemma Phillips, Acting Manager in the Accreditation and Monitoring Team at the Office of Children's Guardian, had significant concerns regarding the process used by Foundations Care for reportable conduct investigations and its process for alternative care arrangements for children and young people in emergency care, following the May 2019 onsite assessment. [111] Ms Phillips observed that, in May 2019: 1. It was apparent from the files that Mr Middelbosch had little direct operational involvement in reportable conduct investigations; 2. The practice appeared to be that the caseworker allocated to the children was responsible for the interviews of the children and carers with very little supervision, sometimes leading to basic errors in the way investigations were conducted; 3. The process for reportable conduct was not comprehensive and had basic flaws, risking poor outcomes for children and young people, and unfair treatment of carers. [112] 1. The feedback report provided to Foundations Care with the notice of suspension of accreditation on about 2 August 2019 stated, in relation to Standard 3: "The agency's practice in this area requires significant improvement to meet the requirements of the Standard. The evidence available did not demonstrate there are adequate systems in place to ensure the safety of children and young people." [113] 1. The Office of the Children's Guardian identified a number of issues in relation to reportable conduct. These included that discussions with board members and staff members of Foundations Care gave rise to inconsistent information regarding the management of reportable conduct managers, including who is responsible for actions; there were gaps in practice relation to allegations and reportable conduct; there were delays in completing risk assessments within appropriate time frames; and there were a couple of examples of children making allegations which were not followed up. [114] 2. Foundations Care provided the Children's Guardian with a very detailed response, on 29 August 2019, to the suspension decision and the reasons for it. This included a response to the feedback report. Foundations Care stated, in relation to the Children's Guardian's findings about Standard 3, that staff members of the Office of the Children's Guardian had failed to locate all the evidence which was available; that the allegations against it were insufficiently particularised; and that Foundations Care's management in relation to reportable conduct was within all legislative and Office of the Children's Guardian conditional requirements. [115] 3. Foundations Care also provided the Children's Guardian with a document entitled "Response to Reportable Conduct Matters" which responded to matters arising from material supplied to the Children's Guardian by the NSW Ombudsman. It stated that continuous improvement had been seen in all relevant feedback from the Ombudsman and this had been integrated into agency practice. [116] Foundations Care referred to the implementation of the SIRAN (electronic) tracking system as evidence of the integration of feedback into practice. It also attached six risk assessments. [117] It refuted allegations of delay on the part of Foundations Care in dealing with reportable conduct matters. It claimed that figures it provided "objectively confirm that Foundations Care has consistently and appropriately managed reportable and non-reportable conduct matters following the implementation of the systems and processes that were targeted to achieve those performance increases." [118] 4. In about August or September 2019, Foundations Care put a new reportable conduct system in place. [119] This was associated with it engaging Kim Nixon Consulting to assist it with complex investigations and completing "Part B" notifications to the Ombudsman. [120] In October 2019, Kim West was employed as a member of the Investigations and Complaints team to assist with reportable conduct matters. The other members of the team were Mr Middelbosch and Ms King. [121] 5. In November 2019, following her assessment and discussions with Mr Middelbosch and Ms King, Ms Phillips expressed the view that Foundations Care was "lacking a solid and embedded casework practice around child protection." [122] Ms Phillips commented in her affidavit: "There was evidence of some child protection measures eventually being put in place where required, however not consistently in a timely manner, or always documented. Children and young people can be put at risk when well embedded systems around child protection practice are not in place, allowing for a delayed response to issues. There should be proactive measures in place to enable the disclosure of children and young people, if required. There should be continuous and mandatory training in child protection and all staff need to be competent in this area or know who to ask if required. There wasn't the urgency applied or follow up to certain identified child protection concerns that I would deem necessary to reduce risk of harm to children and young people." [123] 1. Ms Phillips also expressed the opinion, in November 2019, that Foundations Care staff members did not possess the skills or knowledge to enable them to comply with reporting obligations relating to child protection. She commented that any staff member investigating reportable conduct matters should be independent of the carer household and have undertaken specialised training in the field. This was not consistent with much of the practice Ms Phillips observed throughout the assessment of Foundations Care. [124] 2. The Ombudsman also held concerns about Foundations Care's handling of reportable conduct matters in November 2019. [125] 3. On 5 September 2019, Ms Veivers wrote to the Ombudsman's Principal Investigator, replying to a letter of 19 July 2019 which had requested Foundations Care to provide further information in relation to thirty matters. [126] Ms Veivers expressed the view that the complaints made to the Ombudsman about Foundations Care were vexatious in nature and that they had been made by disaffected ex-employees and other aggrieved persons. In particular, she stated that the former therapeutic practice manager had acted inappropriately by creating a raft of risk of serious harm reports which were unfounded. [127] She then provided responses to issues raised by the Ombudsman in relation to specific children and provided requested documents. 4. On 15 November 2019, the principal investigator responded to Ms Veivers' letter of 5 September 2019. [128] The principal investigator expressed concerns about the way in which Foundations Care handled reportable conduct allegations, with reference to its conduct in respect of particular children. Whilst the letter invited Foundations Care's response, the particular cases discussed in that letter suggested that Foundations Care's systems were not working effectively. The Principal Investigator also challenged Ms Veivers' view that the former therapeutic practice manager had acted inappropriately in reporting certain matters. 5. Philippa Welman, the Director, Statewide Contracts at the NSW Department of Communities and Justice, gave evidence that persons in her Department held concerns about Foundations Care's performance. The performance improvement plan, entered into in March 2019, required Foundations Care to provide evidence of improvement in specified areas by June 2019. [129] Those areas included compliance with the Standards with which the Children's Guardian had found it to be non-compliant (including with Standard 3). Ms Welman stated, in late January 2020, that Foundations Care had not provided any evidence to demonstrate progress against the areas in the performance improvement plan. [130] She also explained that the Department was revising the plan to update the tasks and timeframes for completion as they had all expired and the actions had not been completed to the satisfaction of the Department. [131] In February 2020, the Department of Communities and Justice provided Foundations Care with a final draft of the performance improvement plan for February to June 2020. Consideration 1. I accept that Foundations Care has put in place better systems for dealing with reportable conduct than it once had. I find that the SIRAN system has led to better tracking of the progress of reportable conduct matters and that staff have received some training in dealing with reportable conduct allegations. I also find that the establishment of a complaints and investigations team is a significant development in improving Foundations Care's capacity to deal with reportable conduct matters effectively. I accept the evidence of Mr Middelbosch that Foundations Care has now cleared its backlog of unresolved complaints and accept Mr Middelbosch's and Ms Abdullah's evidence that it now deals with reportable allegations more effectively than it did in late 2018 or early 2019. 2. There is no objective evidence to confirm Ms Middelbosch's claim that all reportable conduct matters have been notified to the relevant agency (presumably she means the Ombudsman), within the legislative timeframes, since 15 April 2019. There is some tension between this claim and the Ombudsman's ongoing expressions of concern in relation to Foundations Care's handling of reportable conduct matters. Further, I accept Mr Foggotter's evidence that he saw examples in which no action was taken on reportable conduct for months at a time. [132] I also accept Mr Foggotter's evidence that the agency had an inadequate system for identifying reportable conduct matters. [133] It may be that Foundations Care considered it was complying with its legislative reporting obligations, in circumstances where it had failed to identify that a matter was reportable. 3. The Children's Guardian provided, to the Tribunal, the Ombudsman's response to a request for information made by the Children's Guardian on 22 July 2019 under Chapter 16A of the Care Act. [134] The Ombudsman's response included the following comments: "Apart from the matters which were identified prior to, or during, our September 2018 audit of Foundations Care, it has not finalised any reportable conduct investigations since the establishment of its investigation support team in late 2018. … Our requests for information have allowed Foundations Care 30 days to respond, however, the agency has rarely met this timeframe. … Since 1 March 2019, Foundations Care has made a number of enquiries with our office as to whether certain incidents are notifiable. While it is positive that Foundations Care is seeking advice from our office, the nature of the inquiries (made by senior staff) indicate that they still have a limited understanding of what might constitute reportable conduct." 1. In relation to one notification made to the Ombudsman by Foundations Care, the Ombudsman stated that it had been notified of the allegations a week outside the five-day reporting condition imposed by the Office of the Children's Guardian. The Ombudsman noted that the assessment of risk in that matter did not reflect the detailed feedback given to Foundations Care by the Ombudsman about its risk assessments. 2. In relation to another notification, it was also notified outside the five-day reporting condition, Foundations Care's risk assessment was delayed and did not appear to reflect the complexity of the circumstances. In another case, the Ombudsman commented that, while Foundations Care met its obligations with respect to the notification timeframes, the information provided did not amount to a reportable allegation of ill-treatment. For a different notification, the Ombudsman's opinion was that Foundations Care did not meet the original legislated timeframe or the more recent Office of the Children's Guardian condition. 3. The Ombudsman's feedback indicates that, even if Foundations Care complied with its legislative reporting obligations in all cases (which it seems it did not), its manner of dealing with reportable conduct matters was unsatisfactory for other reasons. 4. I am not satisfied that, at the end of August 2019, Foundations Care had "consistently and appropriately managed reportable and non-reportable conduct matters following the implementation of the systems and processes that were targeted to achieve those performance increases" as it claimed. I accept the evidence of Ms Gemma Phillips that, at the May 2019 onsite assessment, the files indicated that Mr Middelbosch had little direct operational involvement in reportable conduct investigations and that caseworkers were generally responsible for interviewing children and carers with little supervision. The conclusion that the system was not effective in May 2019 is supported by Foundations Care's decision to put a new reportable conduct system in place in August or September 2019, after engaging Kim Nixon Consulting. It is also consistent with Ms Phillips' evidence, which I accept, that Ms King told her that before the new system was in place, "case workers were struggling with the case load of completing investigations." [135] 5. The nature and extent of the changes made in August or September 2019 is not entirely clear from the evidence. What is clear is that a new person was appointed (Kim West) as part of the Investigations and Complaints team and Mr Middelbosch became full-time some time later. The changes appeared to involve shifting at least some of the responsibility for reportable conduct investigations from caseworkers to the investigations and complaints team, headed by Mr Middelbosch. 6. I accept Ms Phillips' evidence from her assessment in November 2019 that her observations, and her discussions with Mr Middelbosch, indicated that Foundations Care staff members did not possess the skills or knowledge to enable them to comply with reporting obligations relating to child protection. [136] I accept this opinion having regard to her seniority and experience in child protection, and having reviewed the evidence about the way individual children were dealt with by Foundations Care. It is also consistent with Mr Foggotter's evidence. [137] Ms Phillips' review of and comments upon the files of two children supports the view that Foundations Care was not appropriately monitoring children at risk or ensuring that they received the psychological or medical support they needed. 7. I also accept Ms Phillips' opinion that, unless embedded systems around child protection are in place, children and young people can be put at risk. The lack of urgency Foundations Care has displayed in dealing with children at risk, or children potentially at risk, indicates that the systems put in place by Foundations Care have not been entirely effective in addressing its deficiencies in dealing with reportable conduct matters. More generally, those systems have not ensured that Foundations Care is compliant with Standard 3. 8. I have had regard to the exchanges between the Ombudsman and Ms Veivers, in September and November 2019. Ms Veivers' position that the complaints made by a former staff member to the Ombudsman about Foundations Care were vexatious appears, on the evidence, to be untenable. The Ombudsman's view was that the information Ms Veivers provided about the former staff member's conduct in making risk of harm reports was not supported by the evidence available in the Department of Communities and Justice's ChildStory system. [138] The Ombudsman reported that for each of these children there were multiple reports to the Helpline, by multiple unrelated parties. [139] The Ombudsman commented that it was "unclear why Foundations Care formed the view that [the former staff member] had acted inappropriately, or why it disregarded the concerns raised about the safety, welfare and wellbeing of the children on that basis." [140] 9. There are references in the Ombudsman's letter to named children. The Ombudsman sets out what appear to be very legitimate concerns about the safety and welfare of these children and records what appears to be inadequate action on behalf of Foundations Care to address the issues or to assess risk. The evidence indicates that these children were at risk, or potentially at risk, and that Foundations Care did not adequately address the risks or potential risks to the children. There appears to be some implicit acceptance of this in Ms Middelbosch's affidavit, where she refers to some of the named children and states that "the issues associated with these matters arose prior to the introduction of the systemic changes and improvements." [141] 10. Ms Veivers was in September 2019 Foundations Care's principal officer, although she was suspended in about January 2020. The approach Ms Veivers took of attributing wrongdoing to a third party and not adequately acknowledging Foundations Care's responsibility for deficiencies in its practices is consistent with Foundations Care's conduct on other occasions. The circumstance that Ms Veivers is no longer the principal officer does not relieve Foundations Care from responsibility for the way she dealt with reportable conduct issues in September 2019. She was acting on behalf of the agency. Further, Ms Middelbosch appeared to provide some support for Ms Veivers' approach when she stated in her affidavit that she accepted that the Ombudsman did not share Foundations Care's view that the former staff member had made a series of risk of serious harm notifications where the criteria were not met, but that the Ombudsman did not suggest that Foundations Care did not have proper regard for the concerns when made. [142] Evidence about particular children relevant to reportable conduct 1. Evidence about particular children illustrates the way in which Foundations Care has dealt with reportable conduct issues in individual cases and how it has determined whether a matter raises a reportable conduct issue. An examination of these cases demonstrates how Foundations Care's systems work and the effectiveness of otherwise of changes to those systems. It also shows the extent of Foundations Care's compliance with Standard 3, in particular cases. Child C 1. Mr Faggotter raised concerns about a child to whom I will refer as Child C, who was born in 2013. [143] Child C had a trauma history, having been the victim of historical sexual assault. [144] He also had reported behavioural issues, including sexualised behaviours. [145] There was an allegation in the file that Child C was the perpetrator of a sexual incident. [146] 2. On 2 February 2019, Child C's [NOT FOR PUBLICATION] carer informed a Foundations Care caseworker that Child C was thumping things and hitting a bean bag with a shovel. The carer asked him to stop but he kept doing it. Child C then proceeded to throw books around the room. The carer again requested him to stop but he did not. The carer grabbed Child C's hand to try to get him to stop. When the carer told Child C to go to his room, Child C refused. The carer reported that he replied, "I can do this worse." The [NOT FOR PUBLICATION] carer then dragged Child C across the room 10 metres by his wrist. Child C then went outside to cool down and then went to his bedroom. [147] 3. On 5 February 2019, Child C left the placement at the carer's request. [148] 4. Ms Middelbosch addressed the following issues arising from the May 2019 assessment of Child C's file in her October affidavit: "Unable to Locate Assessment or Support 226. The OCG queried what assessments or support has been set up or has occurred in regard to [Child C's] sexual assault history, as this information could not be located on the file. 227. I confirm that, at the date of the Audit, information in relation to [Child C's] sexual assault history was located on Homebase. This information was brought to the attention of the auditors. Case Plan 228. The OCG identified that it was unable to locate evidence of a new case plan/case conference since the placement move on the file. 229. I confirm that a case plan with [Child C's] new carers was completed on 24 May 2019, and this document has since been uploaded to Homebase." 1. Mr Faggotter stated, in response to Ms Middelbosch's evidence: [149] "As to paragraph 227, the information provided by the agency did not demonstrate sufficient follow up of [Child C's] need of having ongoing sexual assault counselling. According to the file, [Child C] attended one psychologist appointment in December 2018. December 2018's Behavioural Support Plan Review states; "Based on [Child C's] history of trauma, I recommend that [Child C] has access to regular and consistent psychology visits and receives on-going counselling from a specialist in child sexual abuse victim support." [Child C] was placed in a house with [NOT FOR PUBLICATION] children, one who is younger than him and the risk has not been assessed. As to paragraph 229, the case plan was completed after I asked the agency for evidence of it taking place following [Child C's] placement move." 1. Mr Faggotter raised some other issues in relation to Child C from his review of the file. These were as follows: [150] 1. Despite the recommendation in Child C's Behavioural Support Plan that Child C has access to regular and consistent psychology visits and receives on-going counselling from a specialist in child sexual abuse victim support, the file did not demonstrate sufficient follow up of Child C's need of having such counselling. [Child C] only attended one psychologist appointment in December 2018. 2. There was no indication that Foundations Care did any work to determine why Child C was so heightened prior to the incident. the applicant did not interview Child C to understand his perspective and there did not appear to be any emotional or practical support offered to him following the incident. 3. Mr Middelbosch informed Mr Faggotter that the incident was not reportable because the male carer "behaved reasonably in reducing the risk to the young person and [NOT FOR PUBLICATION]'. Mr Middelbosch was unable to recall whether or not [Child C's] Behavioural Support Plan permitted physical restraint. The Behavioural Support Plan did not authorise physical restraint, but recommended that "steps should be taken not to get too close to [Child C] when he is behaving aggressively". 4. After Child C left the placement on 5 February 2019, his new placement included [NOT FOR PUBLICATION]. Foundations Care did not undertake detailed placement matching considering how Child C's behaviours may affect the other children in his new placement, including the children there for respite, or vice versa. 5. The behaviour support plan given to Child C's new carer did not include any information about Child C's sexualised behaviours. 6. Child C's case plan was not amended to reflect that he had changed placements. Paragraph 229 of Ms Middelbosch's affidavit indicates that a new case plan was prepared on 24 May 2019 (after the issue was brought to their attention). 1. Mr Faggotter was concerned that there was no investigation into what happened on 2 February 2019, outside of the phone conversation with the carer; Foundations Care did not visit Child C or check on his wellbeing; Child C was not interviewed to share his perspective; and Foundations Care did not formally address the carer's unauthorised use of restrictive practices. He stated that Child C was left in an unsafe environment with so support and insufficient assessment by Foundations Care and the behaviours of the carer were not addressed. [151] He later clarified his concerns as being that nobody from Foundations Care provided support to Child C for what would have been a very upsetting incident; Child C remained with the carer for three days without the organisation completing a formal assessment of the incident or confirming whether Child C felt safe to remain with the carer; and there was no evidence of formal follow up with the carer to discuss the incident and discuss better ways to handle challenging situations in the future. [152] 2. Mr Middelbosch gave evidence in response to Mr Faggotter's concerns about Child C. [153] Mr Middelbosch stated that, on being notified, on 14 February 2019, of the incident which occurred on 2 February 2019, he considered that there was no risk of significant harm, no serious physical assault and that the carer's conduct did not constitute an assault. [154] He stated that he "considered that the carer's conduct in restraining [Child C] was taken in response to the extremely volatile conduct in which [Child C] was engaging and the serious and obvious risk to the carer and [Child C's] physical safety." [155] 3. Mr Middelbosch accepted that an investigation into the incident should have been conducted by Foundations Care. He said that, as he was assessing whether there was a need to investigate the incident after the placement had ended, he determined that an investigation was not necessary in circumstances where there would be no further interactions between Child C and the carer. He stated that, if an incident of a similar nature were to arise in the future, he would ensure that an investigation was conducted. [156] 4. Mr Middelbosch completed an incident assessment tool on 7 November 2019, in response to the concerns identified by the Office of the Children's Guardian. [157] He stated that, on 8 November 2019, he received an email from the Ombudsman confirming that the incident was not reportable. [158] This is not an entirely accurate representation of the email. A Principal Investigator at the Ombudsman's Office responded: "Based on the information you have provided (which is somewhat limited with respect to details about the degree of force used etc), in the absence of any information which alleges as excess use of force, I have assessed that the conduct amounts to a trivial or negligible use of force." [159] 5. Ms Middelbosch also responded to Mr Faggotter's comments in a further affidavit as follows: [160] "l have reviewed [Child C's] file and can confirm that [Child C] saw Psychologist, [NOT FOR PUBLICATION], on a semi-regular basis between 27 February 2017 and December 2018. [Child C] then refused to receive any further psychological support. Foundations Care's caseworkers continued to offer and discuss psychological support with [Child C], in case he decided to change his mind. A placement matching document is present on the file for his current placement." 1. Mr Faggotter acknowledged, in his response, that documents on the file showed that Child C was receiving therapeutic support between September 2018 to December 2018 but that the therapeutic support then fell away. The documents did not demonstrate that caseworkers continued to offer and discuss psychological support with Child C between January 2019 and November 2019, save for one file note dated 1 November 2019. During this period Child C had been assaulted, his placement had broken down and he moved in with a new family. For 2019, there was only one clear piece of evidence (dated 1 November 2019) which states that Child C was not interested in seeing a psychologist. The two case notes where Child C stated that he does not wish to attend his psychologist appointment were undated. Mr Faggotter did not consider this to be sufficient evidence of ongoing efforts to support Child C in this area, particularly given the history of trauma. 2. Ms Larissa Johnson, Acting Director of Out-of-Home Care Systems and Regulation at the Office of the Children's Guardian, referred to Foundations Care's handling of Child C as an example of Foundations Care's continuing failures to appropriately attend to the safety, welfare and wellbeing of individual children and young people. [161] She expressed the view that it was concerning that discussions with Child C and his carer about counselling occurred some months after the incident which prompted the need for counselling. [162] 3. Foundations Care's handling of Child C is indicative of a number of matters. In Child C's case, as in many other cases, Foundations Care's records were unsatisfactory, and Foundations Care only took action to remedy this after prompting from the Office of the Children's Guardian. The inadequacies included the absence of an up-to-date case plan in the case of a child with a trauma history. This illustrates the impact of record-keeping deficiencies upon the agency's ability to comply with Standard 3. Without a case plan, the capacity of Foundations Care to actively safeguard the safety, welfare and wellbeing of a child was adversely affected. 4. Foundations Care's response to the incident with Child C's carer was wholly inadequate. It failed to make inquiries about Child C's perspective (as Mr Faggotter commented) and failed to offer support to Child C. Foundations Care had insufficient familiarity with the child's behaviour support plan, which impaired its response. Foundations Care did not take any action in relation to the carer's unauthorised use of restrictive practices. I note that there was some learning from the incident, in that Mr Middelbosch recognised that an investigation should have been conducted. Had an investigation been conducted, Foundations Care may have had more information about the extent of force used, and the Ombudsman may have formed a different view about whether the incident was reportable. Conclusion 1. I find that Foundations Care was not compliant with Standard 3 at the time of the May 2019 onsite assessment and that it did not adequately remedy this state of non-compliance after this time. One of the indicators of compliance with the standard is that the need to protect children and young people from abuse and harm underpins all areas of the agency's work with children and young people. I am not satisfied that this need underpinned all areas of Foundations Care's work. In many cases, Foundations Care neglected to protect children and young people from abuse and harm. This occurred, for example, on the many occasions when it failed to follow up child protection concerns without prompting (as in the case of Child B) or failed to investigate them properly (as in the case of Child C); and when it placed the responsibility for completing investigations upon case workers with a heavy workload, with insufficient oversight. 2. Another indicator of compliance with Standard 3 is that staff are aware of their responsibilities and reporting obligations and are supported to fulfil these obligations. As indicated above, I accept Ms Phillips' evidence that, as at November 2019, Foundations Care staff members generally did not possess the skills or knowledge to enable them to comply with their reporting obligations. This finding is consistent with the ongoing concerns of the Ombudsman about Foundations Care's handling of reportable conduct matters. Although Foundations Care had made some improvements in its handling of reportable conduct matters by this time, I find that it remained non-compliant with Standard 3. 3. The records I have reviewed, taken with the evidence given at the hearing, do not satisfy me that Foundations Care's practices were such that children and young people were safe and protected from harm (the objective of Standard 3). I agree with Mr Foggotter's opinion that "reportable conduct matters could go for months without any documented follow up or oversight" and also accept his opinion that the "case files demonstrated examples where children and young people remained in potentially unsafe environments for periods of time." [163] The Standard requires that children and young person's safety, welfare and wellbeing be "actively safeguarded." The word "actively" indicates that the agency must take proactive steps to achieve this goal. 4. The evidence establishes that the agency has generally been reactive rather than proactive. Ms Middelbosch's oral evidence, at the hearing, that the agency had just got all the children's case plans up-to-date the previous weekend, is an example. Children's case plans should always have been up-to-date; however, if they were not, the agency had had since January 2018 to address this issue. One child, in Mr Foggotter's observation, "did not have a case plan the whole time she has been with the applicant." [164] Ms Phillips' evidence was that, in November 2019, "[t]here were no current case plan [sic] for two of the eight files reviewed by Brett Faggotter and I." [165] Ms Johnson observed that, of the 21 children and young people reviewed during the November 2019 onsite monitoring visit, 11 did not have current case plans. [166] The circumstance that all children did not have case plans or up-to-date case plans until almost the eve of the hearing is typical of Foundations Care's practice in other areas. That is, its practice has not generally been to "actively safeguard" children's safety, welfare and wellbeing, but rather retrospectively to attempt to address deficiencies in its previous handling of the children in its care, and not always to good effect. Extent of compliance with Standard 14 1. Standard 14: Case planning and review is that case planning supports stable placements that are responsive to the changing needs of children and young people. The objective of this standard is that children and young people have stable, secure placements that meet their changing needs. 2. I accept the evidence of Mr Foggotter, Ms Phillips and Ms Johnson, referred to above, concerning Foundations Care's failure to have current case plans in respect of particular children. 3. I also accept Ms Johnson's evidence about the importance of case plans, which is as follows: "Case plans are an important document as they set out the child or young person's needs and casework tasks that need to be completed in the coming year to ensure those needs are met. Case plans are also an important tool to ensure that all people involved in the care of the child or young person are aware of their roles and responsibilities. Case plans also help ensure that important actions or decisions are made in a timely manner and help an agency monitor the child or young person's progress during the year. Plans help to ensure that key tasks such as organising medical assessments, or providing educational supports are actually implemented. Case plans are the primary document that caseworkers should refer to in their work with children and young people. The development of case plans are also important as they provide an opportunity for the child or young person and all people who are important in the child's life to set out their views about the child or young persons' progress and development and identify goals for the coming year. It is the OCG's experience that where case plans are absent, there is often a lack of direction regarding the child or young person's care and important needs or issues may be overlooked or neglected." [167] 1. Foundations Care submitted, relying upon Ms Middelbosch's evidence, that there had been particular reasons in some cases for why case plan reviews were not completed (in one case, the death of carer and, in another, the intervention of the bushfires). It also submitted that "there was not one instance, not one, of the OCG being able to point out that a child was exposed to risk because a case plan had not been done within time." Further, Foundations Care submitted that the Tribunal would "place little store" on a case plan being completed after 13 months, rather than in 12, "given Ms Middelbosch's evidence that the system had changed and her assurances that deadlines would be met in the future." Foundations Care referred to the system of alerts for oversight about case plans which had been implemented. 2. The circumstance that over half the 21 children reviewed did not have current case plans is not adequately explained by Ms Middelbosch. Whilst Foundations Care referred to Ms Johnson's evidence to this effect as being "hearsay," Foundations Care could have (but did not) provide evidence that those children did, in fact, have current case plans, if this was the case. When asked about the circumstance that only 11 children had current case plans in cross examination, Ms Middelbosch stated only that the development of case plans was complex. The circumstance that Ms Middelbosch gave evidence at the hearing that the case plans had only just been brought up to date supports the conclusion (which Ms Middelbosch accepted) that they were previously out-of-date. Whilst an event such as the bushfires might impact upon the currency of case plans, Foundations Care's failure to maintain current case plans across the board is not an issue which only arose this year. 3. The assessors' notes from the May 2019 assessment indicate, in respect of each file reviewed, whether the child has a current case plan. Some children did have a current case plan. For others, the notes make comments such as "9/5/19 – draft – no consult/mins or sign off…"; "No – 15/5/19 case note – no plan as decisions being made about his future"; "No – last on file Feb 18 – no further info"; "Yes… doesn't look completed"; "Most recent case plan dated 16/3/18"; "Yes – dated 2/10/18 but not signed"; "No – last case plan is still 21/11/18 relates to previous carers"; "No – last plan dated 22/2/18 – c/n dated 14/5/19 reads that c/p meeting is scheduled for 27/5/19"; "28/2/19 – no signatures." This indicates that many case plans were not up-to-date or complete in May 2019. 4. Ms Middelbosch appears to accept that some case plans were not completed in or prior to 11 February 2020 when she states in her affidavit of that date, "I confirm that following the November 2019 onsite, the case plans for the following children/young people have been completed or are to be imminently completed" (with a list of seven children following). [168] Ms Middelbosch's affidavit also refers to many children with a draft case plan, or whose case plan was not completed in time for various reasons or who did not previously have an up-to-date case plan. 5. The evidence suggests that Foundations Care has not been compliant with Standard 14 since January 2018. Foundations Care was informed in February 2018, by Michelle Lorenti, that consideration should be given to "case plan reviews in line with legislative requirements." [169] Feedback provided by the Office of Children's Guardian to Foundations Care in June 2019 was that "[m]ost children had a case plan on file or one currently in draft, however where placement changes had occurred, it generally was not evidence that plans were being reviewed." [170] In October 2018, Michelle Lorenti identified one of the areas where there were inconsistencies requiring further development as being "case plan reviews in line with legislative requirements." [171] In January 2019, the feedback was that "[a] clear system for the case planning and review process was inconsistent" and that, "[w]hile most children and young people had a case plan on file, often these weren't dated which made it difficult to determine their currency." [172] In August 2019, the Children's Guardian indicated that further evidence was required to demonstrate the consolidation of systems to ensure case plans are reviewed annually at a minimum, although it was noted that most children and young people had a current case plan. [173] 6. I find that Foundations Care has been non-compliant with Standard 14 since January 2018. It may be expected that the system of alerts put in place by Foundations Care would have assisted it to achieve greater compliance with this standard. However, there is little evidence which could satisfy the Tribunal of the effectiveness of this system. I agree with Ms Johnson's comment that, "[w]hile the agency has provided underlying documents supporting its various assertions regarding new systems and approaches that have been implemented, the agency has not provided compelling evidence that these systems and processes have resulted in improved care for children and young people." [174] I am not prepared to accept Ms Middelbosch's assurances that case plans will be completed in a timely manner in future, as Foundations Care suggests I should, in the absence of any objective evidence that this is likely to occur. The hearing provided a strong incentive to Foundations Care to bring its case plans up-to-date and it did so only at the last minute. On the evidence before me, I could not be confident that, in the absence of such an incentive, Foundations Care would review children's case plans regularly in future. 7. In addition, the timely preparation of case plans, and the review of case plans, is not the only indicator of compliance with Standard 14. The feedback from the Children's Guardian refers to Foundations Care's case plan actions lacking specificity and measurability. [175] Whilst the Children's Guardian noted that there has been some improvement to the meaningfulness of plans as at August 2019, [176] it is not possible for the Tribunal to be satisfied as to the degree to which such improvement has occurred when all of the up-to-date plans have not been provided to the respondent and are not in evidence. Applicant is non-compliant with the Standards 1. I have found, for the reasons given above, that Foundations Care is non-compliant with Standards 3, 14 and 17 and has been for some time. In these circumstances, it is not necessary for me to consider whether Foundations Care is compliant with other standards with which the Children's Guardian says it is non-compliant, such as Standards 11, 19, 20 and 21. 2. I have also considered whether, despite its current non-compliance, I could be confident that Foundations Care is likely to be compliant with the Standards in the near future. 3. As indicated earlier, Mr O'Hare's position in August 2018 was that its failures were largely evidentiary and procedural and that Foundations Care's new systems had been successfully operating since late May 2018. The evidence before the Tribunal indicated that the failures of Foundations Care in August 2018 were substantial and that its systems were still not operating successfully in May 2019. 4. Mr O'Hare, in oral evidence, acknowledged that Foundations Care was not compliant with the Standards in August 2018. However, he also said in oral evidence that he considered that it was substantially compliant by January 2019. The evidence indicates that it was far from compliant at that time. 5. Ms Veivers indicated in a letter of 17 July 2019 that Foundations Care wholly or substantially satisfied the accreditation criteria at that time. Foundations Care pleaded in its Statement of Facts, Matters and Contentions, filed on 12 February 2020, that it was wholly or substantially compliant with the requirements of the Standards as at 29 August 2019. 6. I do not accept that this was so. 7. Mr O'Hare's evidence before the Tribunal was that Foundations Care was "exceeding expectations" in respect of the performance improvement plan, as far as the Department was concerned. He explained that the reason Foundations Care had to enter into another plan was that the previous contract manager had put it on wrong template. That understanding of the Department's position was not borne out by the evidence at the hearing. Whilst Mr O'Hare attributed his understanding to comments made by Departmental officers who were not called to give evidence, it is difficult to see how Mr O'Hare could have formed and maintained the view he did in light of all the evidence before the Tribunal, including that of Ms Welman. 8. Ms Middelbosch expressed the opinion in November 2019 that Foundations Care was compliant with all of the Standards for which she had some direct responsibility. [177] She maintained this view in oral evidence at the hearing. 9. The opinions of Mr O'Hare as to Foundations Care's compliance with the Standards and its performance in relation to the performance improvement plan are indicative of a lack of insight into the very serious deficiencies in Foundations Care's practices, policies and performance. Ms Middelbosch's view also shows a lack of insight. The lack of requisite understanding is also apparent from Ms Middelbosch's affidavits which seek to justify, or fail adequately to acknowledge, past failings in Foundations Care's conduct. I also accept the opinions expressed by the Ombudsman's Office, Ms Phillips and Mr Faggotter that Mr Middelbosch's understanding of reportable conduct is limited and that he does not fully understand Foundations Care's reportable conduct obligations or what is required of his role. [178] This is consistent with the evidence as a whole. The lack of appreciation within the organisation, over a significant period of time, of Foundations Care's failures in meeting the Standards, and its legislative obligations, has inhibited it in addressing those failures effectively. 10. In these circumstances, I could not be confident that the changes which Foundations Care has made to its systems will result in a satisfactory level of compliance with the Standards in the future. Suspension or cancellation 1. Clause 66(1) and (2) of the Care Regulation relevantly provide: "66 Accreditation—shortening, suspension and cancellation (1) The Children's Guardian may, by notice in writing given to a designated agency— (a) shorten the accreditation period of the agency to a date specified in the notice, or (b) suspend the accreditation of the agency for the period specified in the notice or until a specified matter has been completed, or (c) cancel the accreditation of the agency from the date specified in the notice. (2) The Children's Guardian may give a notice under subclause (1) to a designated agency if the Children's Guardian is satisfied of any of the following— … (f) that the agency failed, while the agency had been accredited less than 12 months, to substantially satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation, (g) that the agency failed, at any time after the agency had been accredited for at least 12 months, to satisfy the accreditation criteria that applied to the agency in respect of its application for accreditation." 1. It is to be noted that the discretion to shorten the accreditation period of an agency, or suspend or cancel its accreditation, is enlivened, in different circumstances, depending upon how long it has been accredited. Where an agency has been accredited for less than twelve months, the power is enlivened if the agency failed to substantially satisfy the Standards; whereas it may be exercised in other cases where the agency failed to satisfy the Standards after the first twelve months. That is, in the case of an agency such as Foundations Care, any failure to comply with the Standards (whether substantial or not) is sufficient to enliven the power. 2. It is not in dispute that the Tribunal has power to suspend or cancel the accreditation of Foundations Care. 3. The Children's Guardian's position at the hearing was that the Tribunal should cancel the accreditation of Foundations Care. It was submitted for the Children's Guardian that "this outcome is dictated by the paramount concern, being the safety, welfare and well-being of nearly 150 children in the Applicant's care." [179] 4. Foundations Care contended that the Children's Guardian "failed to bring any evidence that would inform the appropriateness of cancelling Foundation Care's accreditation." [180] Its submission was that, "[a]s there is no evidence as to the appropriateness of cancellation, NCAT is in no position to determine one way or the other the appropriateness of cancellation." [181] In the circumstances, it was submitted, the Tribunal would not cancel Foundations Care's accreditation. 5. Foundations Care conceded that there was "evidence that might support a decision to suspend Foundation [sic] Care's accreditation for 6 months," referring to a passage in Ms Johnson's affidavit attesting to her belief that Foundations Care's accreditation should be suspended. [182] However, Foundations Care submitted that the Tribunal would not suspend the accreditation because the evidentiary basis for such a decision is completely unsatisfactory. [183] Instead, it submitted, the Tribunal should set aside the suspension decision. [184] 6. The position of Foundations Care as to the need for evidence to support the choice of order appears to have been based upon the misapprehension that it is necessary or important to have evidence from one of the respondent's witnesses that the particular order (here, suspension or cancellation) is appropriate. That is not the case. The Tribunal's task is to exercise the discretion in cl 66(1) of the Regulation on the basis of the evidence before it. That evidence is the basis upon which the Tribunal determines whether it can form a state of satisfaction for the purposes of cl 66(2). Once it has formed that state of satisfaction, it is not necessary that there is evidence as to the appropriate order. The Tribunal will, of course, have regard to evidence which is relevant to the appropriate order (as I have done in this case). However, the Tribunal may properly decide to cancel an agency's accreditation in circumstances where no witness has expressed the opinion, in evidence, that cancellation is appropriate. 7. I accept Foundations Care's submission that, even if the Tribunal is satisfied of one of the matters in cl 66(2), it has a discretion as to whether to take any action under cl 66(1). [185] The existence of a discretion is conveyed by the use of the word "may" in cl 66(1). The Tribunal might, for example, consider that an agency had failed, in some minor way, to comply with the Standards, but might decide that it was not appropriate to make any orders. 8. That is not this case. 9. I note that Foundations Care has a contract with the Department of Communities and Justice to undertake work which relies upon its accreditation, and that it will be unable to perform its obligations under that contract, or receive funding under that contract, if its accreditation is suspended or cancelled. That is not a consideration which has weighed heavily in my assessment, given the objects of the Care Act. 10. Foundations Care made a submission about the legal effect of suspension and submitted that the Tribunal should make clear to the parties the practical and legal effect of any decision to set aside or affirm the decision to suspend Foundations Care's accreditation. In reliance on cl 67 of the Care Regulation, Foundations Care submitted that, whilst suspended, a designated agency can no longer make arrangements for the provision of care under s 138 of the Care Act, but that, for all other purposes, it remains a designated agency. [186] That is, in Foundations Care's submission, whilst suspended, the principal officer of a designated agency remains an authorised carer and may continue to provide care to children. It was submitted that, if suspended, Foundations Care could "get its house in order" during the suspension period, whilst maintaining existing care arrangements. [187] 11. The Children's Guardian submitted that Foundations Care's statutory construction argument should not be accepted. [188] 12. It is not necessary for me to determine whether Foundations Care's statutory construction argument is correct. That is because, irrespective of whether the effect of suspension would be that Foundations Care would continue to have responsibility for the children currently in its care, or whether it would not do so during the period of suspension, I consider that cancellation is the correct and preferable decision. That is for the reasons which follow. 13. As Foundations Care submitted, [189] the discretion in cl 66(1) of the Care Regulation is informed by the subject matter, scope and purpose of the Care Act and by its objects. The objects of the Care Act are set out in s 8 of that Act and are as follows: "8 What are the objects of this Act? The objects of this Act are to provide— (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment." 1. Further, the Care Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount (Care Act, s 9(1)). 2. Having regard to the object that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, and the principle that the safety, welfare and well-being of the child or young person are paramount, I consider that cancellation is the correct and preferable decision. I am not satisfied that setting aside the decision of the Children's Guardian, or affirming the suspension decision, would promote the object of ensuring that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being or be consistent with the paramount principle. That object is best achieved, in my view, by cancelling Foundations Care's accreditation, such that the children are placed under the care of another designated agency for the long term. 3. Mr Reitano, for Foundations Care, submitted that the Tribunal should have regard to the following issues when deciding what orders to make: 1. whether the care and protection of children and young people provided for by Foundations Care is such as provides for the safety, welfare and wellbeing of children and whether the environment provided to them is free of violence and exploitation and provides services that foster their health, developmental needs, spirituality, self-respect and dignity; 2. whether the children in Foundation Care's care are being provided with a high standard of care; 3. the capacity of an organization that is non-compliant with the Standards to bring itself relatively quickly into conformity with the Standards; 4. the availability of other means to secure an appropriate outcome: such as the imposition of conditions upon accreditation. 1. For reasons given above, I am not satisfied that the care and protection of children and young people provided for by Foundations Care is such as provides for the safety, welfare and wellbeing of children. In my opinion, their safety, welfare and wellbeing has frequently been compromised through Foundations Care's failure to comply with the Standards, in ways such as by failing to arrange medical appointments for children, failing to undertake risk assessments where these are needed, failing to investigate incidents, failing to ensure a child receives increased monitoring following an incident and failing to review care plans with the necessary frequency and regularity (the first issue). I also consider that the children in Foundations Care's care have not been provided with a high standard of care (the second issue). 2. As already indicated, there is relatively little evidence as to Foundations Care's degree of compliance at the time of the hearing in February 2020. There is a significant amount of evidence as to its state of compliance in May 2019 and some more focused evidence from about November 2019. I accept the Children's Guardian's submission that "[w]hat the Tribunal is left with is evidence from the respondent that indicates similar systemic problems remain and an absence of proper evidence from the applicant to establish compliance on the other." [190] Whilst Foundations Care, as applicant, does not have any onus in these proceedings, the preponderance of the evidence is to the effect that it remains non-compliant with the Standards. 3. As to the third issue identified by Foundations Care, I do not consider that Foundations Care has the capacity to bring itself relatively quickly into conformity with the Standards. Foundations Care had over eighteen months to do this between the January 2018 onsite assessment and the date is evidence in chief was due (in November 2019). It had over two years to do this before the hearing. It had the benefit of a significant amount of feedback from the Children's Guardian, the Ombudsman and the Department of Communities and Justice during this time, as well as the assistance of external consultants. It has not achieved the level of compliance which would reasonably be expected. Further, having regard to the written and oral evidence of people with leadership roles in the organisation, such as Mr O'Hare, Ms Middelbosch and Mr Middelbosch, I am not confident that any of them have the necessary skills and understanding to achieve compliance in the future. None of these witnesses displayed sufficient insight into Foundations Care's failures in the past to give me confidence that they would not repeat the same mistakes, or make similar mistakes, in the future. 4. I am not satisfied that the imposition of conditions upon accreditation would achieve an appropriate outcome. As the Children's Guardian submitted, Foundations Care has had conditions placed upon its accreditation since March 2019. [191] It is not a long term measure and is not feasible, as the Children's Guardian submits, for her to continue to dedicate a significant amount of resources to monitoring Foundations Care. [192] Foundations Care has also been subject to a performance improvement plan since early 2019 and the evidence is that this did not achieve the necessary improvement. For reasons given above, I am not confident that Foundations Care has the capacity to achieve compliance with the Standards and there is no reason to believe that this could be achieved through the imposition of conditions where that has not worked in the past. 5. Foundations Care submitted that, in the midst of the current health crisis, cancelling its accreditation would "have enormous ramifications for the children and young people under Foundations Care's care, the carers of those children, the staff of Foundations Care and many others in the community well beyond those that might accompany such a decision in ordinary circumstances." [193] 6. The applicant's consultant, Ms Kim Nixon, gave evidence at short notice towards the end of the hearing to address the likely effects of cancellation. Her evidence was limited to evidence concerning the effect of cancellation on children and young people. She did not give any evidence about the extent of Foundations Care's compliance with the Standards. 7. Ms Nixon's evidence was that cancellation of Foundations Care's accreditation would result in all of the 143 children and young people in its care needing to transfer to a different accredited agency or back to the Department of Communities and Justice. She said that the children would need to start again to build a relationship with a new caseworker and this would be stressful for them. Her opinion was that all of their history may potentially be lost as the records may not transfer with them. She also considered that it was unlikely that the Department in regional towns would have capacity to take on 143 children or that funded service providers would be able to do so. 8. Ms Wellman, the Department's Director of Statewide contracts, gave evidence that, if a suspension or cancellation decision were made by the Tribunal, it would be the responsibility of the Department to manage the transition of children and carers from Foundations Care's case management. Her opinion was that the carers would remain the same and the Department would ensure that the children's needs remained at the forefront. She agreed that children would need to develop relationships with new case workers and that this could be stressful for children. 9. In terms of availability of service providers, Ms Wellman gave evidence that there were seven funded service providers in the Northern New South Wales area and seven in the New England district. Most had current capacity within their contracts to take on additional children and young people. She said that it could take up to six months to transition, but that the Department could fast track transition if given 90 days to do so. 10. Ms Wellman disagreed with Ms Nixon's opinion that children's histories could be lost. She said that the process required a thorough handover of records from one agency to another and that s 170 of the Care Act required a designated agency to keep records for seven years after designated agency responsible for child or young person. 11. I find that, despite the disruption which the transfer to new caseworkers will entail, the cancellation of Foundations Care's accreditation is in the best interests of the children concerned. The carers will remain constant, providing that they are considered suitable to continue in that role. Foundations Care has a statutory obligation to keep their records under s 170(1) of the Care Act. I am satisfied, on Ms Welman's evidence, that there are sufficient service providers available to take on additional children and young people. The children will be placed with a new agency which has been accredited on the basis that it is compliant with the Standards. That is the outcome most likely to promote the safety, welfare and wellbeing of the children currently in the care of Foundations Care. 12. I will allow three months for the cancellation order to take effect, so that the transition may be managed appropriately. I will also grant liberty to the parties to apply, should issues arise in managing the transition process. Orders 1. I make the following orders: 1. The respondent's decision to suspend the accreditation of the applicant is set aside. 2. In substitution for the respondent's decision, the applicant's accreditation is cancelled. 3. The cancellation of the applicant's accreditation is to take effect on 9 December 2020. 4. The stay of the suspension decision is continued until the cancellation decision takes effect. 5. The parties have liberty to apply should any issues arise in respect of the implementation of Order 3. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Amendments 21 October 2020 - Amendment to [179], name changed to "Child B". 21 October 2020 - Amendment to [198], reference to the "Care Act" corrected to the "Children's Guardian Act". Endnotes 1. Johnson 2, LJ1-103. 2. Johnson 2 [95]. 3. O'Hare 2 [37] 4. O'Hare 2 [100]. 5. O'Hare 2 [111]. 6. Outline of Submissions on behalf of Foundations Care Ltd, 13 March 2020 at [4]. 7. Foundations Care's closing submissions [55]. 8. Foundations Care's closing submissions [56]. 9. Foundations Care's closing submissions [55]. 10. Foundations Care's closing submissions [55]. 11. Foundations Care's submissions at [57]. 12. Middelbosch 1 [14]. 13. Middelbosch 1 [6]-[11]. 14. Middelbosch 1 [15]. 15. Middelbosch 1 [16]. 16. Middelbosch 1 [21] 17. Middelbosch 1 [26] 18. Middelbosch 2, MM1. 19. Middelbosch 1 [32] 20. Ms Middelbosch gave evidence at the hearing that all case plans had just been completed. 21. Mr O'Hare and Ms Middelbosch both gave oral evidence to this effect at the hearing. 22. B Middelbosch [54]. 23. Mr Middelbosch gave oral evidence to this effect at the hearing. 24. B Middelbosch [54]. 25. B Middelbosch [54]; Abdullah 1 [63]. 26. O'Hare 2 [96]. 27. O'Hare 2 [96]. 28. O'Hare 2 [93]. 29. Middelbosch 2 [22]. 30. Middelbosch 2 [23]. 31. Respondent's Closing Submissions at [65]-[66]. 32. Middelbosch 1 [43], [47], [53], [69], [85], [119], [127], [150], [165], [168], [170], [177], [181], [189], [204], [211], [215], [218], [251], [253], [257], [273], [310], [335], [342], [379], [397], [416], [419], [428], [457], [473], [505], [539], [581], [584], [586], [589]. 33. Middelbosch 1 [248]. 34. Middelbosch 1 [381]. 35. Middelbosch 1 [442]. 36. Middelbosch 1 [689]. 37. Middelbosch 1 [641]. 38. Middelbosch 1 [385] 39. Middelbosch 1 [517]. 40. Middelbosch 1 [472]-[473]. 41. Middelbosch 1 [301]. 42. Middelbosch 1 [613]. 43. Middelbosch 1 [593]. 44. Middelbosch 1 [692]. 45. Middelbosch 1 [160]. 46. Middelbosch 1 [222]. 47. Middelbosch 1 [481], [597]. 48. Middelbosch 1 [338]. 49. Middelbosch 1 [356]. 50. Middelbosch 1 [362]-[363]. 51. Middelbosch 1 [709]. 52. Middelbosch 1 [545]. 53. Middelbosch 1 [662]. 54. Middelbosch 1 [674]. 55. Middelbosch 1 [675] 56. Middelbosch 1 [703]. 57. Middelbosch 1 [105], [686]. 58. Middelbosch 1 [602]. 59. Faggotter 1 [25]. 60. Johnson 1 [68]. 61. Johnson 1 [79]. 62. Johnson 1 [73]. 63. Section 58 materials, 2:346. 64. Section 58 materials, 2:356. 65. Section 58 materials, 2:356. 66. Middelbosch 1 [362]-[363]. 67. Middelbosch 1 [703]. 68. Middelbosch 1 [5]. 69. Middelbosch 1 [6]-[7]. 70. Middelbosch 1 [8]-[9]. 71. Middelbosch 1 [10]. 72. Middelbosch 2 [11]. 73. Middelbosch 2 [3]. 74. Middelbosch 2 [30]. 75. Foggotter 1 [41]. 76. Foggotter 1 [47]. 77. Middelbosch 1 [198]. 78. Middelbosch 1 [200]-[202]. 79. Faggotter 1 [49](d). 80. Faggotter 2 [10]. 81. Faggotter 1 [26](d). 82. Faggotter 1 [27]. 83. Middelbosch 1 [206]-[215]. 84. Faggotter 1 [49](d). 85. BMiddelbosch 1 [12]. 86. BMiddelbosch 1 [13]-[20]. 87. BMiddelbosch 1 [20]. 88. BMiddelbosch 1 [24]. 89. BMiddelbosch 1 [17], [25]. 90. Faggotter 2 [9]-[10]. 91. Faggotter 2 [21]. 92. Faggotter 2 [22]. 93. Middelbosch 3 [202]-[204]. 94. BMiddelbosch 1, Ex BM-2. 95. BMiddelbosch 1, Ex BM-2. 96. Power 2 [12]. 97. Power 1 [25] (in respect of Child Protection and child safety generally); Power 2 [23]. 98. Abdullah 2, Abdullah 3. 99. B Middelbosch 1 [6]. 100. B Middelbosch 1 [6]. 101. B Middelbosch 1 [7]. 102. B Middelbosch 1 [8]. 103. B Middelbosch 1 [8]. 104. Middelbosch 2 [35]. 105. Middelbosch 2 [36]. 106. Middelbosch 2 [39]. 107. Middelbosch 2 [40]. 108. Middelbosch 3 [14]. 109. Middelbosch 2 [60]. 110. Abdullah 1 [55]. 111. Abdullah 1 [63]. 112. Phillips 1 [18] 113. Phillips 1 [31]-[33]. 114. Feedback report, p 5. 115. Feedback report, p 4. 116. Response to Attachment E [44]-[51]. 117. Response to Reportable Conduct Matters [64]. 118. Response to Reportable Conduct Matters [66]-[68]. 119. Response to Reportable Conduct Matters [95]. 120. Phillips 1 [57]. 121. Phillips 1 [57]. 122. Phillips 1 [64]. 123. Phillips 1 [85]. 124. Phillips 1 [85]-[86]. 125. Phillips 1 [62]-[63]. 126. Phillips 2, Annex A; Johnson 2, LJ1-111. 127. Exhibit R12. 128. Johnson 2, LJ1-111; Exhibit R12. 129. Phillips 2, Annex A; Johnson 2, LJ1-111. 130. Welman [15]-[16]. 131. Welman [23]. 132. Welman [23]. 133. Foggotter 1 [32]. 134. Foggotter 1 [36]. 135. Further s 58 documents, p 316. 136. Phillips 1 [58]. 137. Phillips 1 [62]. 138. Foggotter 1 [22], [32]-[33]. 139. Phillips 2, Annex A; Johnson 2, LJ1-111. 140. Johnson 2, LJ1-112. 141. Johnson 2, LJ1-112. 142. Middelbosch 3 [164]. 143. Middelbosch 3 [116]. 144. Faggotter 1 [49](e). 145. Faggotter 1 [31]. 146. Faggotter 1 [29]. 147. Faggotter 1 [31]. 148. Faggotter 1 [29]; BMiddelbosch 1, Ex BM-3. 149. BMiddelbosch 1 [38]. 150. Faggotter 1 [49](e). 151. Faggotter 1 [29]. 152. Faggotter 1 [30]. 153. Faggotter 2 [23]. 154. BMiddelbosch 1 [26]. 155. BMiddelbosch 1 [28]-[29]. 156. BMiddelbosch 1 [31]. 157. BMiddelbosch 1 [42]. 158. BMiddelbosch 1 [32]. 159. BMiddelbosch 1 [34]. 160. BMiddelbosch 1, Ex BM4. 161. Middelbosch 2 [18]-[20]. 162. Johnson 2 [86]. 163. Johnson 2 [86]. 164. Foggotter 1 [36]. 165. Foggotter 1 [43]. See also Faoggter 2 [18](f). 166. Phillips 1 [56]. 167. Johnson 2 [107](e). 168. Johnson 2 [107](e). 169. Middelbosch 3 at [175]. 170. Section 58 documents, p 628. 171. Section 58 documents, p 653. 172. Section 58 documents, p 691. 173. Section 58 documents, p 712. 174. Section 58 documents, p 37. 175. Johnson 2 [108](c). 176. Section 58 documents, pp 628, 653, 691, 712. 177. Section 58 documents, p 37. 178. Middelbosch 2 [85]. 179. Further s 58 documents, p 317; Fagotter 1 [32]-[33]; Foggotter 2 [24]; Phillips 1 [62]. 180. Respondent's closing submissions [1]. 181. Foundations Care's closing submissions [2]. 182. Foundations Care's closing submissions [3]. 183. Foundations Care's closing submissions [4]; Johnson 1 [63]. 184. Foundations Care's closing submissions [4]. 185. Foundations Care's closing submissions [5]. 186. Foundations Care's closing submissions [17]. 187. Foundations Care's closing submissions [19]-[21]. 188. Foundations Care's closing submissions [22]. 189. Respondent's reply submissions [29]. 190. Foundations Care's closing submissions [28]. 191. Respondent's submissions in reply [54]. 192. Respondent's submissions in reply [32]. 193. Respondent's submissions in reply [32]. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 11 November 2020 - Identifying information redacted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2020