A recent trend shows an increasing number of child care services receiving “show cause” notices under the A New Tax System (Family Assistance) (Administration) Act 1999 (the ‘Family Assistance Law’).
The Department of Education and Training (DET) undertakes detailed investigations of claims made by services through the Child Care Management System (CCMS), and cross checks information against other available sources of information about sessions of care provided, including by checking records of overseas travel by educators and children, writing to and telephoning parents, and identifying overlapping sessions of care claimed by other child care services.
There are a range of potential sanctions that can be applied to a service for breach of the Family Assistance Law, including the imposition of additional conditions for the continued approval of the service, reduction of the number of child care places allocated to the service, through to suspension or cancellation of the CCB approval.
In deciding which sanction to impose on a service, DET must take into consideration whether:
- the breach is minor or serious
- the service has breached the Family Assistance Law before, and if so, how often and
- the breach may threaten the safety of children for whom care is provided.
If DET identifies a breach of educator to child ratios, then this may be taken as a breach that may threaten the safety of children for whom care is provided.
With family day care services, if an educator is found that have been overseas for more than a month whilst claims for CCB were made for sessions of care, then DET may infer that the family day care service has failed to carry out monthly home visits or risk assessments, and decide that this is a threat to the safety of children with the service.
Before DET makes any decision about consequences for breaches, it must provide the service with notice of the sanction together with the grounds and evidence upon which DET relies. The service will then have 28 days within which to make written submissions to the DET stating why the sanction should not be imposed.
If DET nevertheless decides to impose a suspension or cancellation, the service will have the right to apply for an internal review of the decision, although the decision is likely to take effect before the outcome of the internal review is known.
If the service is still dissatisfied with the decision following an internal review, then it will have the right to apply to the Administrative Appeals Tribunal for a review of the decision.
Suspension or cancellation of CCB approval
Suspension or cancellation of CCB approval is a major impediment for any child care service, and will frequently lead to reputational damage and loss of business.
Services should ensure that the reporting of attendances in CCMS is accurate in all respects. Staff should be thoroughly trained in the requirements of the Family Assistance Law, and checks should be introduced into the CCMS data entry process to double check the accuracy of data which is being inputted.
For family day care services, the service will be held responsible for inaccurate information entered into CCMS. It is therefore important that educators are thoroughly and regularly trained in the Family Assistance Law as well as the National Law and National Regulations, and that the service has a strong governance system to keep in close contact with educators, require them to comply with the service’s policies and the educator’s contract, and take appropriate action should educators be non-compliant.
Meridian Lawyers is able to provide advice and assistance in relation to DET investigations relating to compliance with the Family Assistance Law, responses to Notices of Intention to Suspend or Cancel CCB approval, and applications to the Administrative Appeals Tribunal for reviews of suspension or cancellation decisions.
Meridian Lawyers are also able to provide training on aspects of the Family Assistance Law, National Law and National Regulations, and assistance with educator and other employee contracts, policies and disputes.
Please contact Principal Georgina Odell for more information.
This article was published in Meridian Lawyers Child care insights, December 2016.
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