CITATION: People with Disabilities (NSW) Inc -v- Minister for Disability Services re: The Peat Island Centre [1999] NSWADT 131 DIVISION: Community Services APPLICANT: People with Disabilities (NSW) Inc RESPONDENT: Minister for Disability Services FILE NUMBER: 994010 HEARING DATES: SUBMISSIONS CLOSED: 10/08/1999 DATE OF DECISION: 20 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 - Review of decision not to conduct a review of Peat Island Centre MATTER FOR DECISION: Preliminary matter - Application re whether decision is within jurisdiction Applicant: P French, advocate, People with Disabilities Inc REPRESENTATION: Respondent: G Williams, solicitor, Ageing and Disability Department ORDERS: 1. The applications to review decisions under s 20 (a) and s 20 (b) of the Disability Services Act 1993 are dismissed as no reviewable decision has been identified. Background 1 These reasons relate to jurisdictional issues about whether certain decisions made by the Minister for Disability Services (the Minister) in relation to the Peat Island Centre are reviewable by the Tribunal. 2 On 26 July 1999, PWD lodged an application with the Tribunal against three "decisions" by the Minister. The three decisions, purportedly made under s 20(a), 20(b) and s 20(d) respectively are 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 DSA to operate the Peat Island Centre in circumstances where the terms and condition on which this financial 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 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. Legislation - approval of the provision of financial assistance 4 Under s 20(a) of the Disability Services Act 1993, the Tribunal has jurisdiction to hear reviews of decisions approving the provision of financial assistance. 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 (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. The first decision "approval of financial assistance" 5 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. 6 The Minister set out the background to funding for the Peat Island Centre in the following terms: Funding responsibility for Peat Island and its associated facilities and services was transferred from the NSW Department of Health to DOCS prior to the enactment of the Disability Services Act. When the DSA came into force, the funding of services provided by the Department of Community Services continued, as it had been previously, to be drawn from sums appropriated by the Parliament for the administration of the Department. This persisted until the establishment of ADD when that department was to assume the role of funder. Sections 7 and 10 of the DSA provide that the Minister may determine that a designated service that did not conform with the requirement of the DSA could receive financial assistance if a transition plan was prepared regarding the service and the Minister is satisfied on reasonable grounds that it would conform with the objects and principles and application of principles in Schedule 1 of the Act. The adoption in April 1996 by the then Minister of Disability Services of the transition plans for Peat Island constitutes the currently operative decision regarding the provision of financial assistance to the service. 7 In their submission dated 3 November 1999, the Minister advised that there are two processes by which the Department of Community Services (DOCS) can be funded. A DOCS service provider, such as the Peat Island Centre, can be funded directly or through money allocated to DOCS for the provision of core disability services. If the money is allocated directly to DOCS by ADD then the allocation process to individual government service providers is coordinated by DOCS. 8 The Minister does not state explicitly in their submission whether the Peat Island Centre is funded directly or through an allocation to DOCS. However the existence of an "Interim Funding Agreement" between the Ageing and Disability Department and the Department of Community Services indicates that the Peat Island Centre is funded through DOCS. 9 The initial agreement provided to PWD and the Tribunal states, at clause 16, that it will continue in force until 30 June 1999. On 22 November 1999, at the request of the Tribunal, the Minister provided copies of documents evidencing the extension of this Agreement until 31 December 1999. 10 These agreements between ADD and DOCS, do not amount to "a decision approving the provision of financial assistance" under s 20(a). As I found in the decision concerning the Warrah School Society, (People with Disabilities (NSW) Inc v Minister for Disability Services [1999] NSWADT 133), agreements between two parties implementing a decision approving the provision of financial assistance are not themselves reviewable decisions. Consequently the Tribunal does not have jurisdiction over any funding "decision" relating to the annual approval of re-current financial assistance under the DSA. PWD's application in relation to the first decision is dismissed. The second decision - providing financial assistance when terms and conditions do not conform to s 12 11 The second decision which PWD seeks to have reviewed is a decision to provide financial assistance to the Department of Community Services to operate the Peat Island Centre in circumstances where the terms and condition on which the assistance is provided do not comply with s 12 of the DSA. 12 In their letter to the Tribunal dated 7 August 1999 PWD clarified that the decision appealed under s 20(b) of the DSA relates to the annual approval of re-current financial assistance under the DSA. For the reasons set out in relation to the first decision, above, there has been no decision approving the provision of financial assistance made in relation to funding for the 1999/2000 financial year. The terms and condition 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. PWD's application in relation to any decision under s 20(b) is dismissed. 13 For the Tribunal to have jurisdiction over a decision described in s 20(b) 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 originally given. Assuming that such a decision has not been made in the last 28 days, any application would have to be accepted out of time before it could proceed. The third 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 14 Section 15 of the DSA states that: The Minister must ensure that, at intervals of not more than 3 years, a review is conducted: (a) of the extent to which each eligible organisation that has received financial assistance for the provision of designated services has complied with the terms and conditions on which the assistance was given and (b) of the extent to which the outcomes required by those terms and conditions have been achieved by persons in the target group." 15 The terms and conditions on which financial assistance may be provided are set out in s 12 of the DSA. The Minister has submitted that reviews were carried out in 1997, 1998 and 1999 as part of the annual self assessment that the Minister, through ADD, required funded services to undertake. PWD has submitted that the self-assessments do not satisfy the requirements of s 12. 16 The Tribunal has jurisdiction to review a decision not to conduct a review under s 15 or to conduct a review that is not in accordance with the requirements of that section. The Minister has identified the documents which they say constitute a review under s 15. It will be a question for the Tribunal at the hearing as to whether a review has been conducted in the last three years and, if so, whether it has been conducted in accordance with s 15. Conclusion 17 Of the three decisions identified by PWD, the only one which the Tribunal has jurisdiction to hear, is 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. 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