People with Disabilities (NSW) Inc v. Minister for Disability Services; re Warrah School Society [1999] NSWADT 133

Set aside by Appeal : Set aside by appeal on 12/9/2000 - Remitted back to Tribunal

CITATION: People with Disabilities (NSW) Inc v. Minister for Disability Services; re Warrah School Society [1999] NSWADT 133

DIVISION: Community Services

APPLICANT: People with Disabilities (NSW) Inc

RESPONDENT: Minister for Disability Services

FILE NUMBER: 994012

HEARING DATES:

SUBMISSIONS CLOSED: 09/10/1999

DATE OF DECISION: 15 December 1999

N Hennessy - Deputy President BEFORE: J Moss - Member J Green - Member

PRIMARY LEGISLATION: Disability Services Act 1993

APPLICATION: Review of decision to approve financial assistance -

MATTER FOR DECISION: Preliminary matter - Application re whether decision is within jurisdiction

Applicant: P French, advocate, People with Disabilities (NSW) Inc REPRESENTATION: Respondent: G Williams, solicitor, Ageing and Disability Department

ORDERS: 1. Application to review decision to adopt transition plan is accepted out of time. (File No: CSAT 212 -218) 2. The application to review a decision under s 20(a) of the Disability Services Act 1993 is dismissed as no reviewable decision has been identified. (File No: ADT 994012

Background 1 These reasons concern two preliminary issues which relate to applications lodged by People with Disabilities NSW Inc (PWD) against decisions made by the Minister for Disability Services. The decisions relate to several residential accommodation services run by the Warrah School Society (Warrah). The first decision is a decision by the Minister to adopt a transition plan in relation to Warrah. The second decision is a decision by the Minister to approve financial assistance to Warrah. 2 There are two preliminary issues to be decided in relation to these decisions. Firstly, in relation to the adoption of the Transition Plan for Warrah, should the applicant's application be accepted out of time? Secondly, in relation to the funding decision, is the decision identified by PWD a decision that is reviewable by the Tribunal? 3 Written submissions were provided by both parties and, under s 76 of the Administrative Decisions Act 1997 (ADT Act), I decided that the issues could be adequately determined in the absence of the parties. Transition Plan decision - out of time issue 4 The Minister for Disability Services adopted numerous transition plans including plans for residential services operated by the Warrah School Society on 3 April 1996. 5 On 20 August 1996 PWD advised the Community Services Appeals Tribunal (CSAT) that "PWD will be pursuing appeals" in relation to certain transition plans including the Warrah Schools Society's "cluster-housing proposals." The services concerned were certain residential services run by Warrah School Society, namely: Banksia, Glennys, Macs, Orana, Red Gum, Waratah and Wattle Tree residential services. 6 PWD lodged a formal application in relation to the transition plans for these services on 9 September 1996 together with an application to seek leave to appeal "out of time." In that letter PWD noted that they were unable to lodge the appeal prior to 30 August 1996 as anticipated, "due to delays experienced in obtaining access to the plans from the Ageing and Disability Department." 7 The Tribunal has jurisdiction to review such decisions under Clause 6(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Regulation 1996. That clause identifies as a reviewable decision "a decision made by the Minister to adopt or amend a transition plan, or to refuse to adopt or amend a transition plan, within the meaning of section 7 of the Disability Services Act 1993." 8 The Tribunal wrote to PWD on 13 September 1996 and advised that it proposed to take no immediate action in relation to these appeals. This was because there were a number of appeals involving preliminary issues which may affect other similar appeals. The Tribunal did not ask PWD to lodge a submission in support of its application to appeal these decisions out of time. 9 The history of this matter since that time is set out briefly in PWD's submission to the Tribunal dated 30 September 1999: Those issues were ultimately finalized in the Tribunals' decision in the matters of Dunrossil Challenge Foundation and Greystanes Children's Home handed down in early 1998. Following these decisions the Minster agreed to mediate "in globo" outstanding appeals and appointed a high level working group to develop proposals for settlement of these matters. The progress of all these appeals through the Tribunal was adjourned pending the outcome of these settlement negotiations. The working group produced settlement proposals for the outstanding appeals that were presented to the Minister on 4 September 1998. However, on 22 September 1998 the Minister advised that she had declined to approve these proposals. The Tribunal then initiated efforts to mediate each appeal individually by direct negotiation with individual agencies subject to appeal and the Ageing and Disability Department. 10 Efforts to resolve appeals by mediation were unsuccessful and by letter to the Tribunal dated 26 July 1999, PWD advised the Tribunal that it wished to proceed to hearing in relation to Warrah residential service matters. 11 On 1 January 1999, the Community Services Appeals Tribunal was abolished and its jurisdiction transferred to the Community Services Division of the Administrative Decisions Tribunal. Under Clause 14 of Schedule 5 to the Administrative Decisions Tribunal Act 1997, If proceedings were commenced but not heard by an abolished body before its abolition, the proceedings are taken to have been duly commenced in the ADT. 12 Under s 55(1)(d) of the Administrative Decisions Tribunal Act 1997, a person may apply for a review of a reviewable decision only if the application is made within such period as may be prescribed by the rules of the Tribunal. Clause 14(3) of Schedule 1 to the Administrative Decisions Tribunal (Transitional) Regulation 1998 prescribes the period in the following terms: Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application. 13 The Community Services (Complaints, Reviews and Monitoring) Act 1993, which is the enactment under which this application is made, does not make any provision in relation to time limits for the lodging of applications. However under s 41(3) of that Act, the Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application. That section applies despite any contrary provisions of the ADT Act. 14 PWD's application was made on 9 September 1996, approximately six months after the Minister decided to adopt the transition plan on 3 April 1996. This makes the application approximately 5 months out of time. The Minister did not present any evidence or submissions opposing the Tribunal accepting the application out of time. In particular, no evidence was presented alleging any prejudice to the respondent arising from the delay in lodging the appeals. The Tribunal accepts the reasons for the delay set out in paragraphs 16 to 18 of PWD's submission dated 30 September 1999 and leave is granted to apply out of time. Approval of the provision of financial assistance - jurisdictional issue 15 The Tribunal has jurisdiction to hear reviews of decisions approving the provision of financial assistance pursuant to s 20(a) of the Disability Services Act 1993. That section states that: For the purposes of section 40(1)(a)of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions is reviewable by the Administrative Decisions Tribunal: (a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1 16 On 26 July 1999, PWD lodged an application for review of "a decision to approve financial assistance to the Warrah School Society under s 10 of the Disability Services Act 1993 to operate the Banksia, Glenny, Macs, Orana, Red Gum, Waratah and Wattle Tree residences." The application states that the date of the decision is not known. 17 According to PWD, the reviewable decision is the annual approval of financial assistance to a service funded by the Ageing and Disability Department under the Disability Services Act 1993. Subsequently, the Tribunal directed the Minister to provide a copy of the agreement to which PWD was referring so that the date of that agreement and its contents could be relied on by the applicant. Following the provision of these documents PWD submitted that the relevant decision approving the provision of financial assistance, is contained in the Continuation of Funding Agreement (the Agreement) between Warrah and the Minister executed on 27 July 1999. 18 PWD sought an internal review of the decision on 26 July 1999. PWD has not received a response to this request. This is no doubt because the Minister does not consider that a reviewable decision has been made, However, section 55(1)(b) of the ADT states that: A person may apply to the Tribunal for a review of a reviewable decision only if: (b) an internal review is taken to have been finalised under section 53(9) 19 Section 53(9) provides that an internal review is taken to be finalised if the applicant is notified of the outcome of the review or the applicant is not notified of the outcome of the review within 14 days after the application is lodged, or such other period as the administrator and person agree on. 20 As PWD has not been notified of the outcome of the review, the internal review is taken to have been finalised and the application can proceed. 21 After receiving the relevant documentation from the Minister, PWD submitted that "It is plain on the face of the funding agreement provided by the Ageing and Disability Department that it constitutes an approval of financial assistance to Warrah School Society under an instrument of delegation executed by the Minister for Disability Services." 22 The Minister did not agree. A detailed submission was prepared setting out the arguments which support the Minister's contention that the annual Funding Agreement does not constitute an approval for the provision of financial assistance under section 10(1)(b) of the DSA. The Minister set out the background to the provision of financial assistance to Warrah in the following terms: Funding responsibility for Warrah School and its associated residential services was transferred from the Commonwealth to NSW by means of the Commonwealth/State Disability Agreement 1991. The agreement became operative with regard to the services cited in the agreement at the commencement on 8 April 1993 of the Disability Services Act. No separate decision regarding the provision of financial assistance to Warrah School services was made . . . Section 6 of the DSA provided that a transferred service that was determined not to conform with the requirements of the DSA could continue to receive financial assistance if a transition plan was prepared regarding the service and the plan was adopted by the Minister within three years of the transfer of the service. The transition plans in respect of Warrah School residences were adopted by then Minister Dyer on 4 April 1996, within the three year period. The adoption by the then Minister of the transition plans for the Warrah School residences constitutes the currently operative decision regarding the provision of financial assistance to the services. No transition plan funding has yet been made available in respect of the services. Viability funding to enable the continued operation of the services pending implementation of the transition plans was approved by Minister Dyer on 21 December 1996. 23 The crux of the Minister's submission is that the words "a decision approving the provision of financial assistance" in s 20(a) has a specific meaning in the DSA which does not encompass the annual Funding Agreements. 24 Section 10(1)(b) of the DSA states that: The Minister may approve the provision of financial assistance: (b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services (2) approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1 25 The Minister's first point is that there is no limit placed on the period for which an approval lasts. While I accept that this is right, if financial assistance is to be paid in instalments, s 14 provides that the instalments are to be paid within 5 years after the assistance is approved. The payment of future instalments of financial assistance may be terminated at any time by the Minister in accordance with s 16. 26 The Minister's second point relates to s 17. That section provides that: Financial assistance is not payable unless the person to whom it is to be paid enters into an agreement with the Minister on the same terms and conditions as those on which the provision of the assistance was approved. The Minister may, with the consent of the other parties, vary the terms and conditions of such an agreement and the agreement is taken to have been varied accordingly. 27 The Minister submits that s 17 ". . .separates the payment of financial assistance under an agreement from the original approval. The Act sets out a staged process whereby a foundation approval is given by the Minister, and then the grant is paid out under an agreement between the organisation and the Minister's representative." 28 I agree that the meaning of s 17 is that financial assistance is not payable unless the Minister and the service provider enter into an agreement on the same terms and conditions as those on which the provision of assistance was approved. The approval of financial assistance must deal with the amounts to be applied to achieve certain purposes. 29 There is a clear difference between an approval of the provision of financial assistance and an agreement such as the Continuation of Funding Agreement for Warrah. The approval is a decision made by the Minister standing alone. An agreement under section 17 is a not a decision at all. It is a deed between two parties which implements the decision to provide financial assistance. 30 For these reasons, there is no reviewable decision contained in the Continuation of Funding Agreement between Warrah and the Minister executed on 27 July 1999. 31 PWD did not apply for a review of any other decision made or purported to be made by the Minister in relation to Warrah. Consequently, the application for review of a decision approving the provision of financial assistance is dismissed.