INSIGHTS: Amendment of service approvals – your options if you are refused

Child care services may wish to apply for an amendment to their service approval for example, to increase the number of children that can be cared for at any one time.

Applications to amend service approvals must be in writing and contain prescribed information. Child care services are encouraged to submit the application online using the National Quality Agenda IT System (NQS ITS), and in NSW and Victoria, the regulatory authorities will only accept applications and notifications using the NQS ITS. In NSW form SA3 would be used.

The regulatory authority may ask the approved provider to provide any further information that is reasonably required for the purposes of assessing the application. In NSW, the authority must make a decision on the application within 60 days of it receiving the application.

The authority must decide the application by:

• amending the service approval in the way applied for;
• with the applicant’s written agreement, amending the service approval in another way; or
• refusing to amend the service approval.

The authority will give written notice of its decision to the approved provider. In certain circumstances, for example where there have been previous non-compliances with the National Law or National Regulations, the regulatory authority may decide to refuse an application.

This can be a significant impediment for a child care service, particularly where expansion of numbers of children attending the service is a key part of the business plan.

What are the options if refused?

In NSW, a refusal to amend a service approval is a reviewable decision pursuant to section 190 of the Children (Education and Care Services) National Law (National Law NSW).

This means that you can apply for an internal review of the refusal. Such an application must be in writing, again using the required form in the NQS ITS, and must be submitted:

• within 14 days after the date on which the service is notified of the decision; or
• if the service is not notified of the decision, within 14 days after the person become aware of the decision.

The officer of the regulatory authority who conducts the review must not be a person who was involved in the assessment or investigation of the service, and he or she may ask for further information.

The internal review must be conducted within certain timescales, and the reviewing officer may either confirm the decision to refuse, or make any other decision that he or she thinks appropriate.

It is also useful to know that the internal review decision is generally also able to be reviewed under section 191 of the National Law NSW. This provides an opportunity for independent review by an external tribunal, the Administrative Decisions Tribunal of NSW.

Tips:

• Education and care services should make applications for amendments to service approvals as persuasive as possible. Provide the reasons why the amendment is being applied for, and if possible, provide evidence of any representations you make.
• If your application is refused and you wish to have an internal review, ensure that you comply with the deadlines for submission of the application for internal review.
• Legal representation may assist with the submission of an application for internal review, and is strongly recommended should a service wish to apply for external review of an internal review decision to a tribunal or court.

For further information, please contact Principal Georgina Odell.