Secretary, Department of Health v DLW Health Services Pty Limited [2016] FCA 108 is an appeal to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal, concerning a decision by delegates of the Commonwealth Department of Health to reduce classification levels of aged care recipients.

The question for the Federal Court was whether or not the Classification Principles 1997 (Cth) purported to classify care recipients based on the care actually provided as opposed to their care needs.

The Classification Principles determines the appropriate classification level for a care recipient being provided with residential care.

The case concerned the Secretary’s decision to reduce the classification levels for the five residents of Footscray Aged Care, in relation to complex medical and therapeutic procedures. The scheme requires the Approved Provider to make an appraisal of the level of care needed by a care recipient and for the Secretary to take that appraisal into account when classifying the care recipient. However, if the classification is based on an incorrect or inaccurate appraisal or if the classification is for any other reason incorrect, the Secretary must change the classification.

There were four issues to consider:

  1. The Court held that the Tribunal was correct to decide that the Minister’s power to make Classification Principles is limited by a requirement under section 25-1 of the Aged Care Act 1997 (Cth) (the Act) that such principles classify the care recipient according to the level of care the care recipient needs, relative to the needs of other care recipients.
  2. More importantly, the issue is whether they purport to classify the care recipients according to the treatment actually provided to the recipient.
  3. A care recipient will only come within Items 4a or 4b of ACFI 12 if a Directive issued by a medical practitioner or allied health professional indicates that the treatment specified in respect of those items is to be provided (i.e. performed) by an allied health professional (or registered nurse for Item 4a). The Court held that the Tribunal made an error in allowing a care recipient to come within those items where an allied health professional delegates treatment to someone who is not an allied health professional.
  4. Whether an examination of the Directives and other records before the Tribunal shows that Items 4a and 4b of ACFI 12 are satisfied in respect of the five residents? The Court allowed the appeal, set aside the decision of the Tribunal and remitted the matter to the Tribunal to decide again.

The appeal has revealed some significant inconsistencies, ambiguities and difficulties in the language of the Answer Appraisal Pack and the User Guide and is a useful example as to the complexities of Approved Providers assessing care recipients needs.