Second tier review - putting your best case forward

The right to have decisions reviewed is an important part of promoting fairness and accuracy in the quality assessment and rating (A&R) process under the National Quality Framework (NQF). 

Where an approved provider disagrees with their service’s quality rating, they have the opportunity to seek a review of the decision. Following A&R, approved providers may apply for review by the regulatory authority (also referred to as a first tier review - a separate process to the draft report feedback stage, which is part of A&R).

If approved providers remain unsatisfied after a first tier review, they can apply for review by a ratings review panel, also referred to as second tier review. Second tier review applications are received by ACECQA, who facilitate the review process. Rating reviews are conducted by an independent Ratings Review Panel. Only rating levels confirmed or amended by the regulatory authority at first tier review can be reviewed at second tier review.
Applying for second tier review requires time and consideration, and there are a few things approved providers can do to help make the best case for their service. While the following information has been prepared with a second tier review application in mind, similar concepts apply to a first tier review. 

One of the most important things you can do before taking any further action is to take time to read and deeply consider the feedback and findings of your assessment and rating report and first tier review decision notice. What consistent themes are evident? What does this cause you to think about? What have you learnt about your processes and practices? How might this guide your quality improvement planning and implementation? How will the effort required to seek a ratings review support your efforts to continuously improve?

To be eligible for second tier review, the service must have been through first tier review by their regulatory authority. Additionally, an application for second tier review must be made within 14 days of receiving the first tier review decision, and be accompanied by the prescribed application fee. Approved providers should also consider whether second tier review is the best option, or if requesting reassessment of the service may be a more suitable alternative. Reassessment is generally more suitable when, for example, quality improvement has taken place at a service to address an identified issue after A&R. Evidence of quality improvement after the A&R is not able to be considered through the first or second tier review process.

Before you decide to apply for a review of your quality rating, it’s important you know and understand what the previous review decision-makers determined and why. You should also consider how you can address that feedback in your application for the next stage of review, and what supporting evidence you’ll provide. 

Although it can be disappointing to receive a decision you weren’t expecting or don’t agree with, make sure you’ve read it in detail and considered the feedback against evidence in existence up until the time of the original A&R, before you apply for the next stage of review.

Ask yourself, do you think you have clear, relevant and substantive evidence that addresses areas the first tier review decision notice identified as either lacking or insufficient? If you decide to apply for a second tier review, consider how you might demonstrate this more clearly in your submission and supporting evidence. For example, how can you explain a piece of evidence to make its purpose clearer? You should also consider whether more time is needed to embed a particular practice or process to enable it to be demonstrated at your next A&R (including as part of a request by you for a future reassessment, rather than a review of a current rating). 

Evidence submitted for second tier review must have existed at the time of your original A&R visit, irrespective of whether the authorised officer did or did not see it or consider it. This is because A&R is a ‘point in time’ assessment, meaning that evidence of new or improved practices implemented after A&R cannot be considered or used to justify a higher rating at second tier review. An exception to this is where the authorised officer offered the approved provider the opportunity to make a ‘minor adjustment’  prior to finalising the service’s A&R report and overall quality rating.

It’s also important to think about how you’re presenting your information and how this might need to be adjusted from one stage of review to the next. If a first tier review panel has determined that there wasn’t clear, substantive evidence to justify changing a rating, consider how you can improve your evidence or find other ways to demonstrate your claims. In some instances, presenting the same evidence to a ratings review panel without considering why that evidence did not lead to a change in your service’s rating at first tier review may result in the same outcome at second tier review.

Prior to completing your application, take the time to carefully read through and understand the second tier review process. We also recommend reviewing sections 144 – 151 of the Education and Care Services National Law, and regulations 69-70 of the Education and Care Services National Regulations, relating to second tier review. If you need assistance or have questions about a second tier review you can contact ACECQA

As you plan your application, talk to your team(s) about the application process so they know and understand your purpose and intention for seeking a ratings review. This also gives them an opportunity to suggest evidence to support your application.

Ratings review panels are sometimes inundated with large quantities of evidence, which may not necessarily support an approved provider’s application. Every piece of evidence should have a purpose and be clearly linked to your claims. This means thinking critically about the usefulness of each piece of evidence against those claims. 

Does the evidence clearly demonstrate what you want it to? Will it be understood in isolation by a panel who is not physically visiting your service? For example: if you’re trying to show that your service engages in critical reflection, a blank critical reflection template only shows the panel that you have a template - it doesn’t tell a panel anything about how you critically reflect, or how those critical reflections resulted in changes in practice. 

It’s also of great assistance to a panel for each piece of evidence to be clearly and logically labelled and cross-referenced to statements made in your submission. This helps the panel to see which piece/s of evidence you are using to support each specific claim. Additionally, take care to ensure that any scanned documents can be read easily by the panel. These steps help the panel to focus on their deliberations rather than trying to locate, match up or decipher the evidence before them.

Review applicants sometimes focus on one part of a requirement, but fail to address the requirement in its totality. For example, an approved provider seeking to show that their service’s practice reflects Exceeding theme 3 might provide examples of meaningful engagement with families and/or the community, but not how this engagement shapes practice as the theme requires. The same can often be true for Exceeding theme 2, where evidence of reflection may be provided, but not with the deeper level of analysis, examination and thinking required for critical reflection (e.g., journal entries simply describing an incident or event without analysing or reflecting). Evidence for this Exceeding theme also needs to demonstrate how reflection has informed ongoing practice not just that critical reflection has occurred. 

The same idea can also apply outside of the Exceeding themes: For example, Element 2.1.2 requires that effective illness and injury management and hygiene practices are promoted and implemented. Therefore, evidence that all staff know where the relevant forms are and that these forms are kept up to date might be evidence that the practices are promoted. Providing blank forms as evidence with your application, however, doesn’t demonstrate to a panel how these processes are implemented.

When you receive your (second tier review) decision notice, whether the outcome of the ratings review is what you wanted or expected or not, take time to consider and reflect on the panel’s feedback with the service team. This includes taking note of any specific advice and recommendations made by the panel, including undertaking and reflecting on further professional reading. This may also include identifying areas for improvement and the specific steps you will take to address them, to support your efforts to continuously improve. 

A final word

Ratings review panels can only confirm or amend ratings decisions based on the evidence provided. They cannot review the conduct of the regulatory authority or authorised officer(s). Even if an approved provider states that they felt their service was treated unfairly, a review panel cannot make a determination on these issues. If necessary, these matters should be raised with regulatory authorities via their respective complaints process, or if it is in relation to ACECQA with the National Education and Care Services Ombudsman.

Further information