Administrative Decisions Tribunal New South Wales Medium Neutral Citation: WM v Barnardos Australia [2011] NSWADT 164 Hearing dates: 15 December 2010 Decision date: 06 July 2011 Jurisdiction: Community Services Division Before: S Higgins, Deputy President P Foreman, Non judicial member J Green, Non judicial member Decision: The decision of the respondent is set aside and in substitution thereof a decision that the name of the applicant be restored to the respondent's family day care carer register. Catchwords: Childcare Provider Registration-Cancellation Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004 Cases Cited: Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 Q v Wyong Shire Family Day Care [2007] NSWADT 79 YG & GG Community Services [2002] NSWCA 247 Category: Principal judgment Parties: WM (Applicant) Barnardos Australia (Respondent) Representation: Counsel JM Patel (Applicant) S Kluss (Respondent) Rasan T Selbah Associates (Applicant) Muggenthaler and Associates (Respondent) File Number(s): 104027 Publication restriction: s126 of the Administrative Decisions Tribunal Act 1997 REasons for decision Introduction 1COMMUNITY SERVICES DIVISION (S Higgins, Deputy President, P Foreman Non-Judicial Member and J Green Non-Judicial Member): The applicant, WM, seeks review of a decision made by the Chief Executive Officer (CEO) and Director of Welfare of Barnardos Australia (the respondent) to 'de-license' the applicant from the organisation's family day care programme. 2The respondent is authorised (i.e. licensed), under the Children's Services Regulation 2004 (the Regulation), to provide home based children's services. These services are provided by family day care carers, appointed by the respondent and listed on its family day care register as required under clause 100 of the Regulation. In November 2008, the applicant was appointed by the respondent to be a family day care carer and her details were placed on the respondent's register of family day care carers. The respondent's decision to remove her from its register (i.e. de-license her) arose following an incident that occurred, on Friday 21 July 2010, when the applicant had in her care two small children (child A and child B). The children were in her care in her capacity as a registered family day care carer of the respondent. At about 4.30pm on the day in question the applicant left child A in her unit, while she took child B to his mother who lived in the units behind the applicant and who was waiting at the fence to collect her son. At the time the applicant had an IT technician working on her computer. 3The respondent accepted that the applicant regretted her actions in leaving child A in her unit. However, it formed the view that the applicant had failed to understand the serious nature of her conduct. The respondent was also concerned that the applicant had failed to maintain proper records of when children were collected by the parents from her care. 4WM's application was heard on 15 December 2010. At the hearing, the parties relied on material that had been filed. This included an affidavit by the applicant sworn on 9 November 2010 and a number of affidavits filed by the respondent. The affidavits relied on by the respondent were as follows: an affidavit of the mother and father of the child A; an affidavit of the friend of the mother of child A who had accompanied the mother to collect her child on the day in question; an affidavit of Louise Voigt, CEO of the respondent an affidavit of Judy Luong, Child Development Officer employed by the respondent; an affidavit of Ramona Debs, Child Development Officer employed by the respondent; two affidavits of Trish Gibbs, Programme Manager and authorised supervisor employed by the respondent; and an affidavit of Rosemary Hamill, Senior Manager employed by the respondent. 5At the conclusion of the hearing of submissions of the parties, the Tribunal made orders for the filing and serving of additional documents and submissions. Documents and submissions were filed in accordance with the orders that were made. Relevant legislation 6Part 12 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act) contains provisions for 'children's services' which are defined in subsection 200(1) to mean a service that provides education or care, or both education and care, whether directly or indirectly, for one or more children under the age of 6 years and who do not ordinarily attend school. Subsection 200(2) sets out those services, which are not children's services. These include babysitting, playgroup or child minding services that are organised informally. The essence of this Part is the regulation of all childcare services that are provided through family day care centres and those that are home based. 7The objects of Chapter 12 of the Care and Protection Act are set out in section 201, which provides: 201Object of Chapter The objects of this Chapter are: (a)to ensure the safety, welfare and wellbeing 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. 8Section 202 of the Care and Protection Act sets out the principles underlying Part 12. These include the principle that the paramount consideration in the provision of children's services is the best interest of children (see paragraph 202(a) of the Care and Protection Act). Section 203 provides that the role of the objects and principles in sections 201 and 202 is to provide guidance in the administration of this Part of the Act. 9Section 204 of the Care and Protection Act provides that a 'prescribed children's service' may only be provided by a person who is authorised to provide the type of service concerned by a service provider licence. A 'prescribed children's services' is defined in clause 3 of the Children's Services Regulation 2004 (the Regulation). These are (a) a centre based children's services, (b) a family day care children's services, (c) home based children's services and (d) mobile children's services. 10Subsection 213(1) of the Care and Protection Act provides that 'a prescribed children's service may be provided only if the operation of the particular children's service is authorised by a children's service approval.' Subsection 213(3) provides that 'a home based children's service may be provided only by a licensed service provider authorised by a service provider licence to provide that particular home based children's service.' 11It is not disputed that the respondent is a holder of a service provider licence under s 205 of the Care and Protection Act and that it is authorised to provide home based children's services, through a family day care carer it registers on its family day care carer's register (see clause 100 of the Regulation). Clause 100(2) provides that a licensee is not to enter the name of a person as a family day care carer unless, in the opinion of the authorised supervisor of the licensee, the person satisfies the requirements set out in that subclause. These requirements include that the person is a fit and proper person to be concerned in provision of family day care children's services and also has a general understanding of the relevant requirements of the Regulation (see cl 100(2)(g) and (h)). Clause 100(5) provides that where a licensee does enter the name of a person on its register for the service as a family day care carer, the licensee is required to issue the carer with a certificate of registration. As I have mentioned, the applicant was issued with such a certificate by the respondent in November 2008. 12The Regulation prescribes numerous obligations on a licensee and an authorised supervisor when providing children's services they are authorised to provide. In many cases these obligations are also imposed on family day care carers. One such obligation relates to the supervision of children, which is set out in clause 66 of the Regulation. That Regulation relevantly provides as follows: 66 Supervision of children (1)All children's services (2)The licensee and authorised supervisor of a children's service must ensure that no member of the primary contact staff, a family day care carer or the home based licensee is performing other duties while supervising children. (3)The licensee and authorised supervisor of a children's service must ensure that children at the service are supervised at all times (including while they are asleep) having regard to their ages and physical and intellectual development and to the activities in which they are engaged. (4)In the case of a family day care children's service, the obligations of an authorised supervisor under subclauses (1) and (2) are taken to be the obligations of each family day care carer of the service. (5)... 13Clause 101 of the Regulation deals with the removal of the name of a person from the family day care register of a licensee. That clause relevantly provides as follows: 101Removal of names from Family Day Care Register (1)The Director-General may direct the licensee of a family day care children's service to remove a family day care carer's name from the Register for the service: (a)if the carer: (i)... (ii)fails to comply with an obligation that this Regulation required the licensee to impose on the carer, or (b)... (3)Nothing in this clause prevents the licensee of a family day care children's service from removing the name of a family day carer from the family day care Register for the service at any time and for any reason. 14Clause 123(2) makes provision for an application to be made to the Tribunal for a review of a decision of a licensee of a family day care children's service to remove or suspend a family day care carer's name from the register of the service. This subclause together with section 4 and paragraph 28(1)(b) of the Community Services (Complaints, Review and Monitoring) Act 1993 and section 38 of the Administrative Decisions Tribunal Act 1997 gives the Tribunal jurisdiction to hear and determine the applicant's application for review. The evidence 15The applicant is a single parent of a child aged 9 years old. Her husband died in August 2002 due to a heart disease. In her affidavit (sworn on 9 November 2010) the applicant explained she was currently undertaking a Certificate III course in childcare. She explained that since she has been registered as a family day care carer, with the respondent, she has been responsible for the care of six children, four under school age and 2 children (including her son) above school age. The applicant explained that, on Friday16 July 2010, she had in her care, at her home, two children, child A and child B. Child A was 2 years old and we assume child B was about the same age. It was the applicant's evidence that at about 4.35 pm that afternoon, a computer technician visited her home to carry out some work on her computer which had a virus. The applicant explained that the technician had been recommended to her by her uncle as he was of the same ethnic background, came from her community and was the father of three children, two daughters and one son. She said that he had been to her place on three previous occasions to undertake work on her computer. She said that child A had seen the technician at her home previously. 16It was the applicant's evidence that not long after the technician arrived, the mother of child B asked her to hand the children to her through the fence. At the time child B was crying. The applicant explained that the balcony door of her unit and the window of the unit of her neighbour faced each other. She inferred that the neighbour heard her child cry and asked the applicant to pass the child over the fence. The applicant said she requested the mother to come and pick him up from her home. When the mother said she was wearing her house clothes and could not come and collect her child, the applicant decided to quickly leave her unit and take the crying child back to his mother. The applicant said she informed the technician that she was going to quickly return the crying child to his mother over the neighbouring fence. She said that she locked the door with child A standing behind her front flyscreen door. She said that child A was always within hearing distance. She said she took child B out of her unit and down the driveway to the adjoining fence where the mother of child B was waiting on the other side of the fence. She said she handed child B over the fence to his mother and immediately returned back to her unit. She said that this would have taken no more than two minutes. When she returned she saw the mother and child A standing at the door to her balcony. She explained that the mother had returned to pick up her child early and on seeing the applicant the mother said to her words to the effect 'why is my child standing alone inside the house?' The applicant then informed the mother that her child was not alone as the technician was keeping an eye on her until she returned from passing the crying child to his mother over the back fence. The applicant said that the mother then said words to the effect 'I want to see him personally' to which the applicant responded by asking the technician to come out of the room he was working in. 17The applicant said, two days later, on 18 July 2010, the father of the child telephoned her and requested an explanation of what happened on 16 July. The applicant said she explained to him what had happened. She was subsequently informed that the father had made a formal complaint to the respondent in regard to what had happened that day. She said that very early that morning, she had called Ms Ramona Debs, the child development officer employed by the respondent as she wanted to explain personally what had happened. However, Ms Debs was unavailable so the applicant left a message on her mobile asking her to call her urgently. She said that she received a call from Ms Debs at about 7.00 am that morning and after she had informed Ms Debs about what had happened she said Ms Debs advised her not to be 'scared' and that she would most likely only be suspended for a period of three months. She explained that later that day Ms Debs and Ms Trish Gibbs came to see her and to discuss what had occurred. She said that at no time during this conversation did she receive any formal warning that her registration would be terminated due to the incident. 18In support of her application the applicant tendered into evidence 2 references from parents of children in her care. One was dated 21 July 2010 and the other was dated 16 August 2010. Each referee states that the applicant is a good carer and they are very happy with the care that the applicant gives their child. The reference dated 16 August said that it was a great shock to the referee and her husband that the applicant had been stopped by the respondent from working as a carer and a reference was made as to the reasons for this. Notwithstanding this the referee said: 'We strongly believe if she is given a second chance as a carer she will prove it [i.e. her hard work and dedication in caring and nurturing children] to the fullest. 19In making her application to the Tribunal, the applicant contended that the action taken by the respondent in removing her from its register of family day care carers was, in the circumstances, unfair and unreasonable. 20In her affidavit, sworn on 23 November 2010, the mother of child A said that as she was approaching the applicant's unit, she saw the applicant carrying a child on her hip and chatting with her neighbour across the compound wall. She said that she initially thought the child on the applicant's hip was her child however when she got closer she realised it was the neighbour's child. She said that she immediately became panicky and rushed to the applicant's unit. She said that at the same time she saw the applicant run back to her unit. The mother said that when she arrived at the balcony door of the applicant's home she found her child 'desperately' standing behind the closed flyscreen door looking for someone. She said that when she went into the applicant's unit her daughter came running towards her and asked to be picked up. The child's mother said she immediately broke down in tears and began conversing with the applicant in their language. She said that the applicant explained to her that she had to go to her neighbour's house to return the neighbour's child and that she had not taken her child as she was concerned that she may run across the roadway. The mother said the applicant justified her actions by claiming that she had left her child for only two minutes and that she had left her under the supervision of the technician who was well known to her. It was the mother's evidence that she told the applicant that she would follow the matter up with the respondent and that her daughter would not return to her for family day care. The mother also went on to say that in her view the applicant was a 'reasonably good family day carer' but she had noticed on a couple of occasions the applicant's 'negligence' with childcare. These she said were mainly around safety issues. She gave an example, in that on the day of the incident she saw some wires going through the hall to another room. She mentioned another time where she saw the applicant allowing a three and a half year old child in her care to push a one year old child in a stroller up the ramp. She also said that she believed the relationship between the applicant and her neighbour was something that had to be seriously looked into. Her concerns related to comments made by the applicant that the neighbour tended to control her and that she intruded on her privacy by checking quite often while the children were under the applicant's care. She also states that the applicant had mentioned that there were some financial issues between her and the neighbour. 21The evidence contained in the affidavit (sworn on 23 November 2010) of a friend of the mother whose child was left in the applicant's home was consistent with that given by the applicant and also the child's mother. 22In his affidavit, sworn on 23 November 2010, the father of child A said that he telephoned the applicant a few days after the 16 July incident. He also said that he later went to the applicant's house to pick up his child's clothes. He said that the applicant told him that 'many parents' had some minor issues and did not make a formal complaint and that she repeatedly asked him not to complain. It is not disputed that the father of child A telephoned Ms Gibbs at about 9.30am on the morning of 21 July 2010. The hand written file note of Ms Gibbs was in the following terms: [The applicant] left [child A] in unit computer man Don't trust her any more -Not catastrophie, but very serious Wife very upset $ will stay home from work to look after child Seen other things - not said anything because feels sorry for [applicant] Puts some of blame on neighbour Treats [applicant] badly $ doesn't pay- owes [applicant] money [applicant] told his wife about it Feels we need to know as [applicant] does not understand how serious Saw [child A] thru balcony door Doesn't need FDC now but may in future Saw her in driveway with neighbour Friend with her - she saw it all - witness Not vindictive, but have to be able to trust carer Very important job - doesn't blame Barnardos 23In her affidavit, sworn on 22 November 2010, Ms Debs acknowledged that she had received a mobile phone message from the applicant very early in the morning of 21 July 2010. She acknowledged that she called her back at about 7.00 am that morning. She said that the applicant explained to her what had happened on the previous Friday (16 July 2010). However, Ms Debs denied that she at any time during her conversation with the applicant said to the applicant that she should not to be scared and that she would most likely be suspended for three months. 24In her affidavit, Ms Debs explained that she had been the respondent's allocated child development officer for the applicant from February 2010 to July 2010. She said that during this time she had increased the number of home visits she made to the applicant from one visit a month to two visits a month. She explained that she had done this as she believed the applicant needed extra support and supervision to maintain an adequate standard of service for the children in her care. She said that during these visits she raised concerns with the applicant about some health and safety issues that needed to be addressed. These she explained included concerns about the cluttered and unclean state of the applicant's kitchen, the children's accessibility to shampoos and creams that were left out, unlocked doors and toys and equipment being unnecessarily scattered on the floor in the playroom causing a hazard for children. Attached to Ms Debs' affidavit were six carer home visit reports that had been completed by her and signed by the applicant. These reports supports Ms Debs' evidence in regard to the concerns she had raised with the applicant about the applicant's care of the children in her care. However, the last report, dated 11 June 2010, stated that the applicant had managed the children in her care well and that she interacted well with the children, but she needed to encourage them to comply with instructions that she had given them. It was noted that one of the children in the applicant's care had an accident the previous day. The child fell over and had a bruise on his head and it was noted that the applicant had completed an 'accident' form, as she was required to do. The only required follow-up that was noted on this report was a request that the applicant made sure that the toys were not over the floor as 'they were an obstacle over which the children could trip'. 25In her affidavit, sworn on 22 November 2010, Ms Luong gave evidence of the carer training that the applicant had attended during 2008 and 2009. She went on to say that at times she was concerned about the applicant as she was not an organised person. She said sometimes the applicant's house was very untidy and a possible safety risk to the children in her care. She said that on occasions she had to tell the applicant to move some of the furniture around the house to minimise the risk of small children bumping into it and hurting themselves. However, Ms Luong did not identify any specific incident, nor was a record of such an incident produced. Ms Luong also said parents of children in the applicant's care had reported to her that when they telephoned the applicant she would not pick up the phone and this caused them to worry about their children. Again no specific incidents were identified and there is no record of any such incident having been raised with the applicant. 26In her affidavit, sworn on 22 November 2010, Trish Gibbs said that the applicant's family day care attendance records for July 2010 showed that child A had been signed out at 4.50 pm when the child's usual booked hours were between 10.30 am to 3.30 pm. She also noted that child B in the applicant's care that afternoon was signed out at 4.30 pm when his usual booked hours were 9.00 am to 1.00 pm. From these records it would appear that the applicant also had in her care an older sibling of the child whose booked hours are 8.00 am to 4.00 pm. Ms Gibbs also noted that the children of the applicant's neighbour had not been signed out by the neighbour, as was required under the rules of the respondent's family day care scheme. 27In her affidavit, sworn on 8 November 2010, Ms Rosemary Hamill, explained that each family day care carer was self-employed and responsible for maintaining her own records of income and expenditure for taxation purposes. Each carer she said was responsible for her own payment of taxes. In addition to this, family day care carers were required to meet the national requirements for quality assurance in early childhood and childcare skills, planning, administration and communications. Having passed a police or credit history check prior to commencing work in family day care, she said all carers had to have their own public liability insurance, a current first aid certificate and maintain a safe child care environment. She explained that each carer set the fees and conditions for her own home based child care service and received payment from the parent of the child for whom she provides care. 28Ms Hamill went on to explain that when she returned from leave in early August 2010 she was briefed by Ms Gibbs about the complaint that had been made by the father of child A against the applicant. Ms Gibbs had determined to de-register the applicant on 22 July 2010 and gave written notice of this decision to the applicant on the same day. Documents produced to the Tribunal show that the applicant sought review of this decision and it would appear that Ms Hamill was given the task to undertake that review. On 12 August 2010, Ms Hamill and Ms Gibbs visited the applicant's home. Ms Hamill said that she listened to the applicant explain what had happened on 16 July 2010. She said that after hearing what the applicant had said, she was not confident that the applicant had the capacity to sufficiently improve so as to meet the family day care standards in a number of areas, including risk management and child safety. She said the applicant did not appear to understand that what she had done 'could have been unsafe situation for a young, vulnerable child.' Ms Hammil said that on leaving the applicant's home she walked up the driveway between the applicant's home and that of her neighbour. She said that, in her opinion, the applicant would not have been able to supervise or see child A as she handed over child B across the fence. 29Ms Hamill explained that on 19 August 2010 she determined to affirm the decision of Ms Gibbs and provided written notice of that decision to the applicant. 30In her affidavit of 8 November 2010, Ms Gibbs gave evidence of the visit by her and Ms Debs to the applicant's home on 21 July 2010. In her affidavit she said the following: ... [the applicant] did not understand the safety implications of her actions and said that nothing happened to the child. When I asked [the applicant] if she could understand the mother's reaction to finding the child alone and locked in the unit [the applicant] described it in terms of the mother screaming at her and being very upset. When I asked [the applicant] if she understood she had breached the Regulations, the Carer contract and our policy about supervision of children, she asked me if she got a witness to say it was only for a short time would it be alright. I told her no and that because this was a very serious breach of the children's services regulations and Barnardo's policies regarding a child's safety and supervision, I would be deregistering her as a family day carer.' 31Ms Gibbs stated that she had also raised with the applicant issues about her lack of confidentiality in that the parent of child A had known so much about the mother of child B. Ms Gibbs asserted that the applicant said that she had told the mother 'a few things'. 32Ms Gibbs stated that when she visited the applicant on 12 August 2010, the applicant denied that she had previously taken child B to his mother. She said the applicant was firm in that the incident of 16 July was the first and only time that it had happened. Ms Gibbs noted that three other children were present at the applicant's home when she visited her on 12 August 2010. Ms Gibbs said she informed the applicant that she was unregistered and could not provide home based care to children for payment. 33Attached to Ms Gibb's affidavit were copies of documents signed by the applicant prior to the incident. This included a copy of Barnardo's ' Family Day Carer Code of Conduct' (signed by the applicant on 23 May 2008) and a ' Carer Agreement/Acceptance Contract ' (signed by the applicant on 4 November 2008). The 'Carer Agreement/Acceptance Contract ' contains 44 clauses of matters the applicant agreed she would or would not do while she had children in her care as a family day care carer. Clause 1 provided that at no time, except in an emergency situation as per the respondent's scheme policy, was the applicant to leave children in her care unsupervised by her. 34In addition to these documents, Ms Gibbs attached a document entitled ' Grounds For De-Registration ' and a document entitled 'Supervision of Children'. The applicant had signed the former document, on 31 March 2010. The content of both documents is discussed more fully below. 35In an affidavit filed by the applicant on 10 January 2011, the applicant again stressed that all that had happened on 16 July 2010 was that she handed over the child to her neighbour across the fence because the neighbour's child had been crying. She again stressed that this took less than two minutes before she returned to her home. In regard to the wire referred to by the mother of child A, the applicant explained that the wire was an internet telephone cable and it was one that she only used when she was using the internet. She also denied that at any time she had allowed a three and a half year old child to push a one year old child in a stroller up a ramp. She again confirmed that the incident that happened on 16 July was an isolated incident and had never happened in the past. She also said that she cared for children in her care equally, and that she always tied her rubbish bags and kept the place in a clean manner. Consideration 36The role of the Tribunal is to determine whether the decision of the respondent is the correct and preferable decision having regard to the material before it and also the relevant law (see section 63 of the Administrative Decisions Tribunal Act 1997) 37It is well accepted that in making this determination, the Tribunal considers the matter afresh and has regard to the material that was available to the respondent at the time the reviewable decision was made and any other material available to the Tribunal at the time of hearing (see Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45] and YG & GG Community Services [2002] NSWCA 247 at [25]). 38The discretion vested in the respondent in clause 101 of the Regulation is very broad. However, as I have indicated above, in making its determination, the respondent was required to be guided by the objects and principles set out in sections 201 and 202 of the Care and Protection Act. The same requirements apply to the Tribunal in making its determination. 39In Q v Wyong Shire Family Day Care [2007] NSWADT 79 at [50] to [52] Deputy President Britton, made the following remarks as to the regulatory framework for family day care services and how they are to be applied: 50A glance at the 2004 Regulation reveals that family day care services are now heavily regulated. They proscribe minimum standards about a wide range of matters such as the storage of dangerous equipment, food preparation, record keeping, children's safety, to name but a few. In addition carers are required to provide equipment that is adequate and proficient and provide a programme of activities that are aged-appropriate, stimulating, educational and balanced. 51What is apparent from a review of the regulatory framework in which family day care now sits, is that Parliament intended that family day care services need certain exacting standards. The safety net of regulation, which underpins the sector, has been set high. It is apparent that it is no longer sufficient for a family day care carer to possess those essential and intangible attributes that are the hallmark of quality care, such as the ability to relate to children. They must also meet the standards set out in Regulations. 52It is against that regulatory framework that the allegations concerning the applicant are to be judged. 40There is no dispute that on 16 July 2010, the applicant left child A unsupervised by her while she was in her care. There does not appear to be a dispute that the applicant's conduct was contrary to the respondent's ' Supervision of Children ' policy, clause 1 of the ' Carer Agreement/Acceptance Contract ' signed by the applicant, and possibly the supervision provision in clause 66 of the Regulation. The issue is whether, this conduct, together with the other conduct raised by the respondent, warranted her being removed from the respondent's family day care carer register. For the reasons set out below, it is our view that the applicant's conduct did not warrant her name being removed from the respondent's register of home based care carers. This does not mean that her conduct did not warrant a formal warning being issued under the respondent's policy of ' Grounds for De-Registration'. A decision to issue such a warning is of course not reviewable by the Tribunal. The only reviewable decision is the decision to remove the name of a carer from the register of an authorised home based care service provider. However, the policy of the respondent (to the extent it is not inconsistent with the Care and Protection Act of the Regulations) in regard to de-registration, is relevant to the decision to remove the name of the applicant from the respondent's register of carers, as this is indicative of how the respondent will exercise its discretion under clause 101 of the Regulation. We are by no means critical of the terms of the respondent's policy, which can only be of assistance to carers that are registered pursuant to the respondent's licence. 41While we did not have the benefit of hearing oral evidence from the applicant or the witnesses of the respondent, we accept the applicant's account of events in that the events of 16 July were an isolated incident and one of a very short duration. We also accept her evidence that at all times she was within hearing distance of her home. The applicant was clearly distressed by what had occurred. In our view, her explanations to Ms Gibbs and Ms Hamill about what had happened on the day in question were no more that an attempt to show that while her conduct was serious, it was at the less serious end of the scale for conduct of this nature. We understand that this may nevertheless warrant disciplinary action to be taken. 42In regard to the other conduct raised by the respondent, we accept that matters regarding the applicant's tidiness and health and safety concerns were raised with her in 2010. However, from the reports of Ms Debs, the applicant appeared to have addressed these by 11 June 2010. In any event, at no time was the applicant informed that the concerns that were raised with her were of such significance that her registration might be in jeopardy. What the evidence does indicate is that the applicant was having some difficulty in coping with, or perhaps fully understanding, what was required of her. She was clearly a person who required support. This, as we understand from the evidence of the respondent, is something that the respondent willingly provides in its supervisory role. That the applicant was experiencing difficulties in dealing with her neighbour, whose children were in her care, does not appear to be disputed. What role the respondent had, or should have had in assisting the applicant with these difficulties is not clear. In regard to the issues of confidentiality, we are not altogether persuaded by the contention of the respondent. Without a thorough investigation, it is equally plausible that the mother of child A had witnessed some of the difficulties rather than having been told about them by the applicant. 43In regard to the other matters of concern to the respondent, we note that, other than the reports of Ms Debs, there is no record of any specific incident of the kind referred to by the respondent's witnesses. 44As we have said the primary responsibility of the respondent is to ensure that the children's services it is authorised to provide are provided in accordance with the Act and the Regulation. We are not critical of the respondent in this regard in that it acted quickly and promptly to ensure the safety, welfare and wellbeing of children in the children's services it was authorised to provide. However, on the material provided there appears to be grounds to argue that the respondent failed to adhere to its policy entitled ' Grounds For De-Registration '. In our view, the applicant had a legitimate expectation that the respondent would follow the terms of that policy in deciding whether to exercise its power of de-registration. 45The policy we note sets out the circumstances where de-registration will take immediate effect (see page 2). The circumstances that are specified do not include conduct of the nature engaged in by the applicant. The policy states that in all other circumstances, a termination will not take place until a process of two warnings had been implemented. It also states that a caregiver will be given an option to have a support person present at any formal meeting held in relation to the termination process. These processes do not seem to have been followed (e.g. no previous formal warnings and no offer of support person at the meetings with Ms Gibbs on 21 July 2010 and Ms Hamill and Ms Gibbs on 12 August 2010). As we have already indicated, decisions of the respondent to issue a warning pursuant to its policy, is not a reviewable decision. Conclusions and decision 46For the reasons set out above, having regard to all the material before the Tribunal and the relevant law, we find that the decision of the respondent is not the correct and preferred decision and should be set aside. The consequence of this is that the applicant's name should be restored to the respondent's family day care carer register and an order should be made accordingly. 47Our findings and decision do not affect any internal action the respondent may take in regard to the applicant's conduct of 16 July 2010, or conditions the respondent might place on the applicant's registration. ********** 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: 06 July 2011