2.2 Application for service approval

[  National Law, Sections 43, 287 ]

An approved provider may apply to the regulatory authority for a service approval, provided they operate (or will operate) the service and are responsible for the management of staff members and the nominated supervisor for the service.

A person who has applied for a provider approval may also apply for a service approval. However, the service approval can only be granted if the provider approval is granted.

More than one entity may hold a provider or service approval. Each entity is jointly and severally responsible for complying with the National Law and Regulations. Regulatory authorities will assess the risk associated with joint applicants when determining applications for approvals.

How does an approved provider apply?

[  National Law & Regulations, Sections 44, 161, Regulations 24–26 ]   WA 

An application must be made in writing to the regulatory authority where the service is to be located and must include payment of the fee (see Fees).

The National Regulations specify information that must be included in an application for service approval (see Application checklists – Tables VIII, IX).

Consent to be a nominated supervisor

The approved provider must nominate one or more individuals to be nominated supervisors for the service.

The application for service approval must include written consent from each person nominated acknowledging that they consent to performing the role of nominated supervisor for the service. The only exception is if an approved provider is an individual and nominates themselves to be a nominated supervisor, in which case they do not need to provide written consent. Written consent is required in all other cases.

A service must have at least one nominated supervisor. There is no maximum number of nominated supervisors that may be appointed at one time for a service.

 WA  See Operational Requirements – Staffing Arrangements for more information on persons in day-to-day charge and nominated supervisors.

Applications for service approval including an associated children’s service

[  National Law, Sections 44, 102 ]

If an approved provider wants to operate a service covered by the National Law on the same premises as a service regulated under a different state or territory law (an associated children’s service), they can apply for service approval for both services under the National Law. For example, a provider may deliver a long day care service (approved education and care service) and an occasional care service (an associated children’s service) from the same premises.

Separate approvals are not needed but the associated children’s service must comply with the relevant state or territory children’s services law. See the Glossary for relevant state and territory children’s services laws.

Applications for service approval including request for approval of a family day care venue

[  National Law, Sections 50A, 103A ]

An approved provider may operate a family day care service at a venue only in exceptional circumstances and if approved by the regulatory authority.

An approved provider may apply to have a place approved as a family day care venue by the regulatory authority as part of an application for a new service approval. If the approved provider already holds a service approval, they may apply by seeking an amendment of the service approval (section 54(1A)).

Examples of exceptional circumstances that a regulatory authority may consider in approving a venue include:

• where the proposed venue is located in a rural or remote area, and the location or characteristics of residences are not suited to family day care
• other locations where potential residences may be unsuitable
• for a temporary period (generally up to 12 months), where a residence is unavailable due to essential major repairs or the effects of natural disaster
• where care is provided for a small group of vulnerable or disadvantaged children and a suitable residence is not available. What is considered vulnerable and disadvantaged would depend on the circumstances of each case.

In addition to considering whether exceptional circumstances exist, regulatory authorities must have regard to the suitability of a proposed venue when assessing a new service approval application, and may have regard to suitability when assessing an amendment of a service approval. Approved providers support this process by providing an assessment of the proposed venue in their application. See Assessments of family day care residences and venues.

It is an offence for an approved provider to provide education and care to children from a place that is not an approved family day care venue or residence. This offence attracts a penalty of $22,900 in the case of an individual, or $114,900 in any other case.

Incomplete applications

[  National Law, Section 265 ]

If an application does not include all the prescribed information, the regulatory authority may treat the application as invalid. The timeframe for processing an application does not begin until an application is complete and therefore valid.

Timeframe for assessing an application

[  National Law, Sections 45, 48 ]

A decision must be made within 90 calendar days of the regulatory authority receiving a complete application. This period may be extended with the applicant’s agreement. There is no limit on how long this may be if the applicant agrees.

If more information is requested, the time taken to provide it is not included in the 90 day period.

If a decision is not made within 90 calendar days (including any extension), it is taken to be refused.

[  National Law, Section 50 ]

The regulatory authority must give the applicant written notice of its decision, including the reasons, within seven (7) calendar days after it makes the decision.

Calculating time

Considering an application

Conducting enquiries and investigations

[  National Law, Sections 14, 46 ]

When considering an application for service approval, the regulatory authority may:

• ask the applicant to provide more information
• undertake inquiries and investigations, including in relation to the previous licensing, accreditation or registration of the service under a former education and care service, children’s services or education law
• inspect the policies and procedures for the service
• inspect the service premises and enter the service premises at any reasonable time
• administer questions to an applicant and/or persons with management or control by oral or written assessment of their knowledge of the NQF.

Regulatory authorities will generally inspect a proposed service premises as part of the decision-making process wherever possible for an application for a centre-based service approval, and the Principal Office as part of an application for family day care service approval.

Where an inspection is not possible, the regulatory authority can use other methods such as inspection of certified plans or topographical evidence, video or photographic evidence. The regulatory authority may also delegate a visit by a third party, as permitted under section 262 (see Monitoring, Compliance and Enforcement).

Matters the regulatory authority must consider

[  National Law & Regulations, Section 47, Regulation 27 ]

The regulatory authority must consider the below matters when determining an application for service approval.

When submitting an application for service approval for a centre-based service or family day care venue proposed to be located in a multi-storey building shared with other occupants, applicants should ensure the documentation supplied to the regulatory authority demonstrates there is direct egress to an assembly area.

The regulatory authority may also consider any other matters that are relevant to the application.

Other matters the regulatory authority may consider include:

• whether the applicant’s financial capacity, management ability or any other relevant matters affect their capacity to operate the service
• the applicant’s history of compliance with the National Law, including in relation to any other service they operate.

The regulatory authority may do the following:

• Check the status (that is, approved, suspended, refused or cancelled) of services in other states or territories associated with the approved provider, including the status of services in respect of the Commonwealth Family Assistance Law, for information that may be relevant to their ability to operate a service in accordance with the National Law
• Request proposed budgets for the service, including wages, resources, utility costs, insurances, maintenance of service and professional development. However, it is not the regulatory authority’s responsibility to provide advice to applicants about operational budgets for a service
• Request the approved provider to submit all their policies, or a sample for review. The required policies and procedures are set out in regulation 168. Additional policies and procedures required for family day care services are set out in regulation 169. If there are concerns about the adequacy of the policies, the regulatory authority may seek to review further policies and procedures for the service. Further guidance about preparing policies and procedures can be found on the ACECQA website at https://www.acecqa.gov.au/latest-news/prepare-nqf-policies-and-procedures. 

For applications that include an associated children’s service, the regulatory authority must consider the criteria for grant of a children’s service approval under the relevant children’s services law, not including the criteria for assessing the applicant’s fitness and propriety.

Requiring more information to make decision on application

[  National Law, Sections 15, 45 ]

The regulatory authority may ask the applicant for any information reasonably required to assess their application. This includes administering questions to an applicant, or a person with management or control by oral or written assessment to assess their knowledge of the NQF.

It can also ask for more information if it is not satisfied the proposed education and care service premises will be suitable because its design makes supervision difficult. In this case, the regulatory authority may ask how they intend to mitigate design issues and ensure adequate supervision at all times.

Conditions on service approval

[  National Law & Regulations, Section 51, Regulations 29–32A ]

 A condition is a requirement that the person holding the approval must comply with to avoid committing an offence under the National Law.

A service approval is granted subject to conditions that the approved provider must comply with, set out in the table below.

It may also be granted subject to other conditions imposed by the regulatory authority. For example, if there are concerns about the approved provider’s ability to provide an environment safe for infants at the service, such as in a multi-storey building, a condition may be imposed preventing the provider from providing education and care to children under 12 months of age.

A condition applies to the approved provider unless the condition expressly provides otherwise.

A condition of service approval does not apply to an associated children’s service, unless the regulatory authority specifies otherwise. The regulatory authority may apply a condition of service approval solely to an associated children’s service only if it has first consulted with the relevant children’s services regulator.

Conditions may be imposed at the time the service approval is granted, or at a later time (see Amendment of service approval). See Monitoring, Compliance and Enforcement – Conditions for more information about conditions on a service approval.

Mandatory maximum number of family day care educators

[  National Regulations, Regulations 32A, 384 ] 

A condition on each family day care service approval requires there to be a limit on the number of family day care educators that may be engaged by or registered with a family day care service. The regulatory authority must set the maximum number of educators who may be engaged or registered with that service.

The regulatory authority will consider each service on a case-by-case basis, taking into consideration:

• current educator numbers
• NQS rating
• provider compliance history
• length of time the provider and the service has been in operation
• support and supervision arrangements for educators.

The regulatory authority may consult with the provider when determining appropriate maximum educator numbers for the service.

Management companies

[  National Law, Sections 5A, 43 ]

Occasionally, an approved provider will engage a management company to help them operate their service. Management companies vary in the range of services they offer, from payroll, bookkeeping and short notice staffing solutions to a wide range of day to day management services.

The approved provider retains legal responsibility under the National Law for the service even if it engages a management company. Approved providers cannot delegate or outsource their statutory obligations, or liability, regardless of what contractual arrangement the approved provider has with the management company.

The approved provider may only apply for service approval if it (and not the management company) is or will be the operator of the service, and is, or will be, responsible for the management of the staff members and nominated supervisor.

Persons employed by a management company contracted by the approved provider may be considered a person with management or control of the service if they have authority or responsibility for, or significant influence over planning, directing or controlling the activities or the delivery of the service. This means they must be a fit and proper person.

Requiring more information to make decision on application

[  National Law, Sections 51, 55 ]

Regulatory authorities can seek more information from the approved provider to determine a service approval application (section 51). For example, the regulatory authority may request details of the management company’s name, structure and experience in operating approved education and care services.

Where a management company is or will be involved in running the service, the regulatory authority may make enquiries with the approved provider, by interview or otherwise, to ensure that the approved provider:

• will be responsible for management of staff members and the nominated supervisor
• is fully aware of their responsibilities under the National Law, and understands that they cannot ‘contract out’ those obligations
• has a contingency plan in place should the management company fail to meet expectations or the contract is terminated
• ensure that services provided by the management company which directly impact the day to day operating of the education and care service are provided in a way that is compliant with the National Law, and does not pose a risk to children or the ability of the provider to meet its obligations under the National Law.

The regulatory authority may impose a condition on a service approval (section 51(5)). For example, a condition to require the approved provider to notify the regulatory authority of a change in the management company, or a significant change in the scope of services supplied by the management company, or that the approved provider ensures that officers engaged through the management company are fit and proper persons.

Similarly, where the regulatory authority becomes aware of a management company after granting a service approval, the approval may be amended and a condition imposed where appropriate (section 55(2)).

Determining an application

[  National Law, Section 52 ]

If the regulatory authority grants a service approval, it must provide a copy to the approved provider including the information below.

The service approval must be displayed so that it is visible from the main entrance of the approved service.

The National Law does not specify how much time the regulatory authority has to give the approved provider a copy of the service approval. This means it must be done as soon as possible after deciding to grant the approval (Schedule 1, clause 31).

[  National Law, Section 48 ]

If an application for service approval includes an associated children’s service that does not meet state or territory-based licensing requirements for children’s services, the regulatory authority may grant a service approval only for the education and care service. The regulatory authority cannot grant a service approval that is only for an associated children’s service.

Refusing to grant service approval

[  National Law & Regulations, Section 49, Regulation 28 ]

 The regulatory authority cannot grant a service approval if the applicant does not have a provider approval, or if the regulatory authority is satisfied the operation of the service would constitute an unacceptable risk to the safety, health or wellbeing of children.

The regulatory authority may refuse to grant a service approval if it is:

• not satisfied that the grounds for granting approval are met
• not satisfied the applicant can operate the service in a way that meets the National Law and Regulations, including the National Quality Standard
• not satisfied the applicant is entitled to occupy the proposed service premises (for centre-based services)
• not satisfied the applicant is capable of assessing family day care venues or residences or monitoring family day care educators (for family day care)
• not satisfied the provider can maintain the premises or equipment or provide staff as required by the National Law. This may be due to the provider’s financial capacity, management ability or another reason.

Giving notice of the determination

A decision must be made within 90 calendar days. The regulatory authority must give the applicant written notice of its decision, and the supporting reasons, within seven (7) calendar days of making the decision (see Timeframe for assessing an application).

Appeals

[  National Law, Section 190 ]

A decision to refuse to grant a service approval, or to grant service approval subject to conditions, is a reviewable decision under the National Law (see Reviews).

After an application has been determined

Publication on the register of approved services

[  National Law & Regulations, Sections 267, 270, Regulation 230 ]

 Regulatory authorities must keep a register of approved education and care services operating in their jurisdiction including the information set out below.

The regulatory authority and ACECQA may publish the rating levels of the service, the name of the service, the address of the education and care service (except for family day care services) and, in the case of a family day care service, the address of the principal office.

This published information must not identify or lead to the identification of an individual, other than:

• an approved provider
• a person who is being prosecuted for an offence under the National Law.

The address of the principal office of a family day care service should not be published if it is at a private residence. In such cases, the register will not include an address for the service. ACECQA will publish the register of approved services, and regulatory authorities will meet their obligation to publish by linking to the ACECQA website at www.acecqa.gov.au.

Duration and effect of service approval

A service approval authorises the approved provider to operate the education and care service.

A service approval is ongoing unless cancelled or suspended by the regulatory authority, or surrendered or voluntarily suspended by the approved provider. A service approval can also be limited by a condition applied by the regulatory authority.