Burns v Campbelltown City Council [2006] NSWADT 82

CITATION: Burns v Campbelltown City Council [2006] NSWADT 82

DIVISION: Community Services Division

APPLICANT PARTIES: Jeffra Burns RESPONDENT Campbelltown City Council

FILE NUMBER: 054038

HEARING DATES: 21/12/05

SUBMISSIONS CLOSED: 12/28/2005

DATE OF DECISION: 03/22/2006

BEFORE: Britton A - Judicial Member; Norman C - Non Judicial Member; Dobell D - Non Judicial Member

CATCHWORDS: Child care provider registration - cancellation

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004 Family Day Care and Home Based Child Care Services Regulation 1996

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321Commonwealth v Esber (1991) 101 ALR 35 Esber v. The Commonwealth of Australia and another (1992) 174 CLR 430 CASES CITED: Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50 McDonald v Guardianship Administration Board [1993] 1 VR 521 YG & GG v Minister for Community Services [2002] NSWCA 247

APPLICANT In person REPRESENTATION: RESPONDENT S Kelly

ORDERS: The decision to remove Jeffra Burns' name from the Register is revoked.

REASONS FOR DECISION 1 Jeffra Burns applies to the Administrative Decisions Tribunal for review of the decision made by the Campbelltown City Council to terminate her registration as a family day care carer. The respondent Council is a licensee of a family day care children's service and is required to maintain a Register of family day care carers. The trigger for Council's decision was the discovery that Ms Burns had fraudulently claimed that two children were in her care when they were not and as a consequence received Commonwealth Child Care benefits to which she was not entitled. Jurisdiction 2 The decision to remove Ms Burns' name is reviewable by this Tribunal: s 38(1) of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") and cl. 123A of the 2004 Regulation. (see Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50). Reason for Council's decision 3 Ms Burns was registered as a childcare provider with the Council in 1999 and worked continuously as a carer until her deregistration in mid 2005. By letter dated 27 June 2005 Paul Tosi, the Council's General Manager, notified Ms Burns of the decision to remove her name from the Register of Carers with the Campbelltown Family Day Care Scheme. He wrote: I refer to the abovementioned investigation and your admission that you fraudulently received Commonwealth child care benefits during the period December 2004 and January 2005. Your failure to follow the policies and procedures established for carers working in Council's Family Day Care Scheme and your deception in obtaining benefits that you were not entitled to has damaged the reputation of Council's Family Day Care Scheme and all those people associated with the scheme. Therefore in accordance with the Family Day Care Carer Agreement that you signed in March 2004 and due to the seriousness of your actions I have no option but to remove you from the Register of Carers with the Campbelltown Family Day Care Scheme. Arrangements will be made to place those children who you currently care for in alternate care as soon as possible. Arrangements are to be made immediately with Campbelltown City council to ensure that the amount of $720.90 fraudulently obtained is cleared to avoid any further action. 4 Ms Burns applied for an internal review for that decision under s 53 of the Administrative Decisions Tribunal Act 1997 but no review was conducted. 5 Ms Burns has repaid the sum demanded by Council and has not been prosecuted for her misconduct. 6 It is useful at this point to briefly set out how payments to family day care carers are made. Council sets carers' fees. Fees are paid directly by parents except where they are eligible for Commonwealth Child Care benefits in which case the carer is paid in whole or part by Council, acting as agent for Centrelink, the Commonwealth government agency that administers the Commonwealth's Child Care benefits payments scheme. 7 Carers are required to maintain a weekly attendance register, setting out the name of each child in their care, and the dates and times of their attendance. Parents are required to enter into the register the times at which their children arrived and departed the carer's home. The carer is required to certify that she/he has provided care for that period and remit completed attendance registers to Council. The information is in turn used by Council to calculate the amount of child care benefits payable, if any, to individual carers. 8 The only significant factual matters in dispute are when the children left Ms Burns' care and the reasons for her misconduct. 9 It is Council's case that Ms Burns wrongfully claimed payments from 18 November 2004 (possibly earlier). Ms Burns contends that it was early December. It is common ground that no fraudulent claim was made after 21 January 2005. 10 Council learnt of Ms Burns' misconduct when the mother of the subject children complained that the 'Parent Statement of Child Care Usage' incorrectly stated that her children had been in care for the period 30 October 2004 to 21 January 2005 when in fact they had left Ms Burns's care in early October 2004. When later interviewed by Council, the mother said she had probably been mistaken and that the children were taken out some time after 18 November 2004. 11 The mother told Council that the reason she removed the children was because they had started to bed wet following the days they were in care. Ms Burns denied that the mother told her that the children were not going to return. Ms Burns claims that the mother told her that the family were intending to visit a relative who lived interstate. It was her understanding that the children would be returning in the New Year and it was only when they did not and she was unable to contact the mother that she realised they would not be returning. 12 Ms Burns claims she acted as she did in order to 'hold' the children's place at her service. Had she not done so, she contends the children would have lost their place or their parents would have been obliged to pay her for the days they were absent, which on her understanding they could ill afford. (Apparently Commonwealth's Child Care benefits are payable for a prescribed number of 'allowable absences' each year. Benefits are not payable for further absences once that number is reached.) Ms Burns claims that she did not stand to gain financially from her actions as she could have filled any vacancy almost immediately given the shortage of family day care places and her popularity as a carer. 13 Shortly after Ms Burns was notified of the complaint, she visited the mother at her home. The mother claimed that Ms Burns had asked her not to "say anything". Ms Burns denies using these words and claimed that the reason for the visit was to apologise for what she had done. 14 Ms Burns acknowledged in these proceedings that "she had done the wrong thing" and claimed that her "heart ruled over my brain". She claimed that this was the only occasion that she had "broken the rules" or made a fraudulent claim. Council confirmed in these proceedings that this was the first complaint it had received about Ms Burns. 15 Ms Amanda Bryant, a parent whose two children had been in Ms Burns' care for over five years, gave evidence in these proceedings. In her opinion Ms Burns' conduct was "entirely out of character". She claims that Ms Burns had at all times been scrupulously honest in her dealings and in fact had regularly refused payment to which she was entitled - for example additional fees when the children were dropped off early or picked up late. In her opinion Ms Burns appeared to be extremely remorseful and this "experience will guarantee Jeffra will not even entertain the thought of a repeat offence". 16 Ms Burns tendered in these proceedings testimonials from eight parents whose children had been in her care. All testified to her good character. 17 Standard of care It is not in issue that since being registered as a carer in 1999 the quality of care provided by Ms Burns has been of a high standard. Council confirmed that the only complaint it has received about Ms Burns is that which led to the decision now under review. In addition it confirmed that Ms Burns was highly regarded by those Council staff charged with the task of supervising and monitoring its family day care service. 18 All parents who provided references in these proceedings commented on the excellent standard of care and the safe, happy and nurturing environment provided by Ms Burns. 19 Ms Kylie Purvis, whose two children had been in Ms Burns' care for an extended period, claimed that Ms Burns was like a "second mother" to her children. In her opinion, her eldest child's transition to school had been seamless largely because of the quality of Ms Burns' care. 20 Ms Kellie Hudson, a teacher, stated that Ms Burns had provided a nurturing and loving environment to her children. She claimed that after reading the program offered by Ms Burns and witnessing its implementation first hand she "knew immediately" that Ms Burns was a model carer and went to the trouble of splitting care arrangements with another carer until Ms Burns could accommodate her child on a full-time basis. 21 Ms Burns gave detailed evidence in these proceedings of the tailored program she provided each child in her care. Ms Burns, who had worked in child care centres before working in family day care, said that she was particularly interested in the educational side of care and went to great lengths to stimulate her charges to achieve age appropriate development milestones and to this end had developed a "school readiness program" for the older children. 22 Changed procedures Mr Kelly for the Council told the Tribunal that Ms Burns' misconduct had highlighted a number of shortcomings in Council's procedures and that, as a consequence, Council had conducted a review to minimise the risk of further incidents of fraudulent claims. That review had recommended eight changes to procedures. It was Mr Kelly's understanding that these recommendations would be introduced in or about February 2006. Relevant legislative provisions 23 From 30 September 2004, the licensing of family day care services has been governed by the Children and Young Persons (Care and Protection) Act 1998 ("1998 Act") and the Children's Services Regulation 2004 ("2004 Regulation"). The Council was initially licensed as a family day care children service provider under the Children (Care and Protection) Act 1987 ("1987 Act") and Ms Burns was initially registered as a childcare provider with Council pursuant to cl. 30 of the Family and Day Care and Home Based Child Care Services Regulation 1996 ("1996 Regulation"). Pursuant to the savings and provisional transitional provisions of the 2004 Regulation from 30 September 2004 the Council is taken to be the holder of a licence under the 1998 Act and Ms Burns is taken to be a family day care carer under Council's transferred licence. (Schedule 2, cl. 2(1) and cl. 2(10)). 24 From 1 January 2006, the power to deregister a family day care carer is to be found in cl. 101 of the 2004 Regulation not, cl. 30(1) of the 1996 Regulation which was the law in force when Council made the original decision now under review. As our decision does not involve a consideration of accrued rights or liabilities in exercising our power under s 63(1) of the Tribunal Act, it is the law in force at the time our review is conducted that applies and not that in force when the Council made its original decision. (See Commonwealth v Esber (1991) 101 ALR 35 and the decision of Brennan J in Esber v. The Commonwealth of Australia and another (1992) 174 CLR 430) 25 In certain circumstances the Director –General may direct a licensee to remove a carer's name from the Register. None apply in this case. They include where the carer was convicted of a notifiable offence (cl. 101(1)(a)); where any part of the carer's home used in connection with the service fails to comply with requirements set out in Part 3 of the Regulation relating to facilities and equipment requirements (cl. 101(1)(b)); where a person normally resident in the home of the carer has been convicted of an offence about which the carer is required to notify the Director-General, or, where the carer has injured a child provided with a service at the home or, in the opinion of the Director-General, has taken any verbal or physical action against a child provided with a service at the home that has seriously humiliated, frightened or threatened the child (cl. 101(1)(c)). 26 In addition the 2004 Regulation gives the licensee, in this case the Council, broad discretion to remove the name of a carer from the Register. Clause 101(3) provides: Nothing in this clause prevents the licensee of a family day care children's service from removing the name of a family day care carer from the family day care register for the service at any time and for any reason [emphasis added]. 27 Neither the 1998 Act nor the 2004 Regulation provide express guidance on the factors to be taken into account in the exercise of that discretion. In the absence of such guidance it is instructive in our view to examine the factors a licensee must have regard to in deciding whether to enter the name of a person on the Register. Clause 100(2) of the 2004 Regulation provides: (2) The licensee of a family day care children's service is not to enter the name of a person as a family day care carer on the register for the service unless the person is an adult who, in the opinion of the authorised supervisor: (a) has an appropriate understanding of young children's needs and development, including: (i) the individual differences between children, and (ii) activities that stimulate a child's growth and development, and (iii) nutrition, health, hygiene and safety, and (iv) behaviour management, and (b) is responsive to children, and (c) is physically and emotionally able to care for young children, and (d) is the holder of a current first aid certificate or is otherwise appropriately qualified to provide first aid in a medical or other emergency, and (e) is able to communicate effectively with adults, and (f) is aware of and sensitive to the needs of young children and their families, including children from a range of cultures and religions and children with disabilities, and (g) is a fit and proper person to be concerned in the provision of the service, and (h) has a general understanding of the relevant requirements of this Regulation. 28 Chapter 12 of the 1998 Act came into force on 30 September 2004 deals with children's services which is defined to include family day care. The objects of the Chapter are set out at s 201 and are: (a) to ensure the safety, welfare and well-being of children in children's services, and (b) to promote certain standards for those services, and (c) to ensure, as far as possible, that all persons working in children's services are suitable for such work. 29 Section 202 provides that the provision of children's services should be based on the following principles: (a) the paramount consideration in the provision of children's services is the best interests of children, (b) children should receive services that meet their individual needs (including the needs of children with a disability) and enhance their physical, emotional, cognitive, social and cultural development, (c) parents have both a right and a responsibility to be involved in the making of decisions by a children's service in so far as those decisions affect their children. Findings and Conclusions 30 In conducting this review, we 'stand in the shoes' of the Council, and make the "correct and preferable" decision having regard to all relevant material (Tribunal Act, s 63). We are obliged to conduct our review of Council's decision "without any presumption as to the correctness of the decision": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). 31 Ms Burns' claim that she is a diligent, sensitive and resourceful carer was supported by the many parents whose testimonials were tendered in these proceedings, was not challenged by Council and is accepted by us. 32 It seems to us that Ms Burns more than adequately meets all criteria set out in cl. 10(1)(2) of the 2004 Regulation except possibly that set out in paragraph (g) and that the real issue in this case is whether she can be considered a "fit and proper person" to be a family day care carer given her misconduct. It is to be noted that there is no direct evidence or any evidence from which we could reasonably draw an inference that Ms Burns had made a fraudulent claim on Council before the misconduct which led to her deregistration. 33 Justices Toohey and Gaudron in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at p. 380 stated that when assessing whether a person is 'fit and proper' regard is to be had to 'the nature of the activities': The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 34 Their Honours went on to comment at p. 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 35 We have before us a hearsay account of what the mother claims to have told Ms Burns about the circumstances surrounding the removal of her children out of care. It contradicts Ms Burns' more innocent and apparently plausible explanation for having made a false claim. We have not been able to test the mother's claim. There were no independent witnesses to the discussions between the mother and Ms Burns. There is no discernible basis to make an accurate finding about which account is true or to be preferred. 36 Even if Ms Burns' more altruistic account were to be accepted it is not disputed that for a period of at least eight weeks, she knowingly and deliberately engaged in deceptive conduct and received a benefit as a result. Her conduct is especially reprehensible given that it involved an abuse of public money and had the potential to implicate the mother. Ms Burns is in clear breach of her obligations to Council and the parents of the children. 37 An abuse of a position of trust will ordinarily disqualify the offender from holding such a position again until proof positive of his or her rehabilitation has been demonstrated. This is apparently the position adopted by Council. Previous good character and reputation carries less weight when an offence or some sort of misconduct involving a breach of trust is involved because, almost by definition, only persons with a good reputation are usually given positions of trust. They are given such positions on the presumption that they will honour the trust rather than abuse it. This enables the employer or beneficiary of the trust to allow the person to handle money or sensitive information or their affairs generally without having anxiously to supervise the trusted person. 38 Nevertheless, we think that one demonstrated lapse of judgment, out of character for the person involved, does not necessarily tip the balance decisively against that person when assessing his or her overall fitness to hold a position of trust. A number of factors must be taken into account in making the assessment. 39 The first and most obvious is that Ms Burns has an excellent reputation as a child carer. That is not decisive of the issue but is an important consideration. It is common knowledge that childcare is in high demand and that the quality of available childcare is uneven. Although it is not appropriate to apply strictly utilitarian criteria to questions of fitness and propriety, it is clear that there are competing public interests involved where the question is whether or not to revoke the licence of a highly capable child carer whose lapse has not been in relation to the quality of the care provided to the children but is one of apparent dishonesty in relation to public funds. 40 In terms of personal deterrence, it seems unlikely that, having been caught out once, Ms Burns would be likely to make a further fraudulent claim. While we are not in a position to comment on the effectiveness of the risk management strategies Council intends to introduce, these will no doubt act as a deterrence. 41 Notwithstanding that, however, Council may well consider, and would certainly be entitled to, that unless acts of dishonesty by childcare providers in relation to funding arrangements are punished by, at the very least, a loss of licence, there is no real general deterrent available to it. If the only sanction that ultimately applied was that a dishonest child carer who had 'cooked the books' had to repay the money dishonestly obtained, there would be precious little general deterrence available to Council. 42 In this case, Ms Burns has not been prosecuted by the Commonwealth, presumably because the sums of money were small. While the misconduct is inherently serious, Ms Burns' misconduct fell at the low end of the scale. That is something that may be taken into account among other considerations. 43 While we have remarked on the lightness of the general deterrent effect of having to repay the money, that is a consideration also. The Commonwealth has ultimately recovered its loss from Ms Burns. She has not been unjustly enriched by her misconduct. 44 Much more significant to our minds is the fact that Ms Burns has effectively been suspended for a period of over eight months. This has not only reduced her income-earning capacity but, naturally, has entailed considerable humiliation for her. She has been obliged to give up caring for children and has had to reveal to the parents of the children why she has. That she has done so is demonstrated by the references tendered on her behalf. Her shame and remorse appear to us to be sincere. 45 In this case, therefore, the need for general deterrence has largely been satisfied by the effective suspension of Ms Burns from the Register of family day carers. 46 The Regulation does not make specific provision for licensees to suspend carers from the Register. Clauses 100 and 101 deal with registration and deregistration. These provisions appear to sit uncomfortably with cl. 123A which provides that a carer has the right to seek review of a decision to suspend their name from the register. We think that the legislation could, with advantage, be amended to enable licensees to suspend carers rather than taking the drastic step of deregistering them. 47 Given the paucity of sanctions available to it, the Council's decision to remove Ms Burns's name from the Register was the correct decision. The issue for us to determine is whether that is now the correct and preferable decision having regard to all the information now before us including, that which postdates the original decision (See YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). As noted, Ms Burns has now been effectively suspended for a period of about nine months; she has repaid the money owed to the Commonwealth; the Council has introduced a number of safeguards to minimise the risk of any reoffending; and, in our view there is no material risk of further reoffending. 48 Having regard to all the evidence, we are of the opinion that Ms Burns' one act of misconduct does not render her an unfit and improper person to operate as a family day care carer. In our view, given that there is no material risk of reoffending it seems that the best interests of children will be served if a carer of her excellent reputation and proven commitment is allowed to continue. 49 For these reasons we believe the correct and preferable decision now is to revoke Council's original decision and reinstate Ms Burns' name on the Register. Orders The decision to remove Jeffra Burns' name from the Register is revoked.