People with Disabilities (NSW) Inc. -v- Minister for Disability Services [2000] NSWADT 85

Set aside by Appeal : Set aside in part by appeal on 19/3/2001

CITATION: People with Disabilities (NSW) Inc. -v- Minister for Disability Services [2000] NSWADT 85 DIVISION: Community Services Division APPLICANT People with Disabilities (NSW) Inc. PARTIES: RESPONDENT Minister for Disability Services FILE NUMBER: 004001 HEARING DATES: 02/05/2000 SUBMISSIONS CLOSED: 05/02/2000 DATE OF DECISION: 06/30/2000

BEFORE: Hennessy N (Deputy President); Green J - Member; Moss J - Member APPLICATION: Jurisdiction MATTER FOR DECISION: Preliminary decision LEGISLATION CITED : Disability Services Act 1993 CASES CITED: APPLICANT REPRESENTATION: G Kirk RESPONDENT G Williams ORDERS: No orders made.

Background 1 The history of these and related proceedings began in 1996 when People with Disabilities NSW Inc (PWD) lodged an application with the then Community Services Appeals Tribunal (now a Division of the Administrative Decisions Tribunal) seeking a review of a decision of the Minister for Disability Services (the Minister) to adopt the transition plan in relation to the Peat Island Centre. For reasons which need not be set out here, those proceedings are still on foot. 2 On 26 July 1999, PWD lodged a further application with the Tribunal against three decisions by the Minister in relation to the Peat Island Centre. The three decisions were as follows: A decision to approve financial assistance to the Department of Community Services under s 10 of the Disability Services Act 1993 to operate the Peat Island Centre. A decision to provide financial assistance to the Department of Community Services under the Disability Services Act 1993 to operate the Peat Island Centre in circumstances where the terms and conditions on which this financial assistance is provided do not conform to s 12 of the Disability Services Act 1993. A decision not to conduct a review of the Peat Island Centre under s 15 of the Disability Services Act 1993, or to conduct a review that is not in accordance with the requirements of that section. 3 Each of these decisions is potentially a "reviewable decision" by virtue of s 20(a), (b) and (d) of the Disability Services Act 1993 (DSA). These provisions state 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, (b) a decision to provide financial assistance to an eligible organisation in relation to the provision of designated services if the terms and conditions on which the assistance is provided to the organisation do not comply with section 12, (d) a decision not to conduct a review under section 15 or to conduct a review that is not in accordance with the requirements of that section. 4 In a letter to the Tribunal dated 7 August 1999 PWD clarified that the decision appealed under s 20(a) of the DSA relates to the annual approval of re-current financial assistance under the DSA. On 20 December 1999 the Tribunal dismissed the application for review of the decisions made under s 20(a) on the ground that agreements between parties implementing a decision approving the provision of financial assistance are not themselves reviewable decisions. 5 The application in relation to a decision purportedly made under s 20(b) was also dismissed on the ground that the terms and conditions on which the assistance is to be provided must relate to an approval of the provision of financial assistance before it can be reviewed by the Tribunal. We noted that PWD would have to make a fresh application identifying, with the assistance of the Minister, the document or documents containing the terms and conditions on which approval was given. This left the decision under s 15 and the decision to approve the transition plan as the two reviewable decisions to be determined by the Tribunal in relation to the Peat Island Centre. 6 On 2 February 2000 PWD filed a further application identify the following decisions under s 20(a) and s 20(b) as the decisions they wished to have reviewed: A decision to approve financial assistance to the Department of Community Services under s 10 of the Disability Services Act 1993 to operate the Peat Island Centre A decision to provide financial assistance to the Department of Community Services under the Disability Services Act, 1993 to operate the Peat Island Centre in circumstances where the terms and conditions on which this financial assistance is provided do not conform to s 12 of the Disability Services Act 1993. 7 PWD noted in a letter accompanying this application dated 2 February 2000 that the current application relates to the actual approval of financial assistance to the Department of Community Services to operate the Peat Island Centre, which has yet to be identified. 8 The purpose of the hearing on 2 May 2000 was to identify the decision or decisions, if any, made under s 20(a) in relation to the Peat Island Centre and to decide whether the application to review that decision or those decisions had been made within time. If not, the further question arose as to whether the application should be accepted out of time. Preliminary decision On 2 May 2000, following a preliminary hearing, the Community Services Division of the Tribunal made a preliminary decision in this matter in the following terms: The decision of the Minister of Disability Services made on 8 April 1996, to approve the transition plan for Peat Island was not a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993. On or soon after 8 April 1996 the Minister made a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the Disability Services Act 1993. The Tribunal extends the time for the making of an application for a review of that decision to 2 February 2000 to People with Disabilities Inc pursuant to s 57 of the Administrative Decisions Tribunal Act 1997. The Tribunal leaves open the question of whether the Minister for Disability Services has made any further decisions under s 10 of the DSA to approve financial assistance to the Department of Community Services to provide services at Peat Island. 9 On 8 June 2000, the respondent to these proceedings requested written reasons for this decision. These reasons are set out below. Evidence 10 The Peat Island Centre is an accommodation support service providing residential accommodation to more than 100 residents, all with an intellectual disability. 11 The respondent tendered a statement dated 28 April 2000 from Mr Ken Pope, Director, Corporate Services in the Ageing and Disability Department (ADD). That statement explained that the Minister gives approval each year for ADD to provide annual "block" funding to the Department of Community Services (DOCS) for Supported Accommodation and Community Support services. Mr Pope's understanding was that "block" funding is allocated within DOCS in accordance with a resource allocation formula developed by the Department. 12 Mr Frank Azzopardi, Management Accountant in the Department of Community Services, provided a statement dated 17 April 2000 which said, in part, that the funding from Treasury and ADD to DOCS is on an agreed historical basis. The total budget is disseminated throughout the Department of Community Services on the agreed allocation determined in the previous year. Areas of DOCS then allocate their budgets to the individual units within their administration. For the current financial year, the Department's allocation from Treasury via ADD for direct DOCS disability services is $277.460m. $71.685m was allocated from Treasury directly with respect to the provision of administrative and support disability services. The sum of $8,686,753 was allocated by the relevant area to the Peat Island Centre in the 1999/2000 financial year. 13 ADD and DOCS entered into an Interim Funding Agreement which set out the standard terms and conditions to apply to funding. The Agreement expired on 30 June 1999 but was extended on two occasions, firstly to 1 October 1999 and then to 31 December 1999. Mr Williams, for the respondent, was under the impression that the agreement was entered into some time prior to February 1999. There was no other evidence of the date that the Agreement was originally entered into, or its current status.