10. First Tier Review

[ National Law, Sections 141–143, 190–191 ] Under the National Law and Regulations an approved provider can request a review of the service’s rating if the provider disagrees with the rating given.

This review of ratings by the regulatory authority is referred to as a first tier review.

How to apply

An approved provider can apply to the regulatory authority for a first tier review of the service’s quality ratings. The application must:

be submitted within 14 calendar days of receiving the final assessment and rating report
be in writing to the regulatory authority which gave the rating
identify on what grounds the review is being sought and include information set out in the National Regulations (see table)
be submitted through the National Quality Agenda IT System.

[ National Regulations, Regulation 68 ]

Information that must be included in an application for first tier review
The name of the education and care service
The service approval number
The name and contact details of the contact person for the purposes of the request
The quality areas to which the grounds for review relate.

The National Law and Regulations do not specify particular grounds for first tier review. Possible grounds might include situations where a provider:

disagrees with a rating based on the evidence described in the final report
has additional contextual information about the evidence described in the final report
believes the authorised officer(s) did not take into account all of the relevant evidence available at the time
believes the service was not given adequate opportunity to demonstrate how it meets an element or standard.

Matters that do not materially affect the service’s rating are less appropriate grounds for first tier review. This means that the matter must be significant enough to warrant a reconsideration of the service’s rating.

Sometimes approved providers will have concerns that are better handled through, for example, the regulatory authority’s complaints process, or through seeking a reassessment of a service’s ratings.

Timeframe for conducting first tier review

[ National Law, Sections 142(4)(a), (b), (c) ] The regulatory authority must conduct a first tier review within 30 calendar days of receiving the request. The timeframe may be extended by up to 30 calendar days by agreement between the approved provider and the regulatory authority, or if the regulatory authority requests further information.

The regulatory authority may decide to extend the timeframe by up to 60 calendar days where it considers there are special circumstances.

‘Special circumstances’ is not defined in the National Law. Relevant case law indicates that ‘what is special is that which is not general in character’.1 The phrase is deliberately flexible and designed to cover circumstances that might not be easily anticipated. Special circumstances may be circumstances that are unusual, uncommon or exceptional. This will depend on the context in which they occur. For example, flooding or natural disasters may be unusual in one location and common or seasonal in another.

Special circumstances can vary on a case by case basis. Without being prescriptive, possible examples where the regulatory authority may decide to extend the timeframe by up to 60 calendar days might include:

an unexpected event that prevents the reviewer from reaching a decision within the legislated timeframe, for example an illness
an unexpected event affecting the gathering of or availability of information required for the first tier review, for example a natural disaster or unavailability of key personnel due to illness
an issue arising during the first tier review that requires investigation.

Conducting the first tier review

Information considered at the first tier review

A first tier review is a review of the initial ‘point-in-time’ assessment of the service against the NQS; it is not a reassessment of the service. The regulatory authority can take into account new information during a first tier review, but that information must relate to the facts at the point in time when the assessment was conducted. Any changes made at the service since the ratings assessment, which may have improved the service’s quality, cannot be taken into account at first tier review.
If changes have been made at the service since the ratings assessment that might improve the service’s quality and therefore rating levels, the provider should not apply for a first tier review. Instead, the provider should consider whether to apply for a reassessment and re-rating under section 139 of the National Law. During a reassessment and re-rating, the regulatory authority can take into account changes made after the initial ratings assessment. These changes cannot be taken into account during a first tier review.

How a review is conducted

The National Law does not prescribe how the first tier review must be conducted. The regulatory authority can decide how the first tier review is conducted, for example:

an individual officer or a panel may conduct the review and make the decision
an individual officer or a panel may conduct the review and make the recommendation to a delegated officer to make the final decision.

If a person was involved in the assessment and rating under review, for example, they conducted the original assessment or were the delegate who determined or approved the final rating, they cannot be involved in the first tier review.

Key requirements and skills for person(s) determining first tier review applications:

Person(s) determining first tier reviews
Should have access to all of the relevant information (including information submitted by the approved provider in its request for a first tier review, and all information used by the regulatory authority to determine the original rating)
Should have relevant knowledge of the NQF, NQS and assessment and rating process, including administrative processes and requirements
Should have knowledge of the relevant legislation
Should have effective communication and conflict resolution skills.

Process which regulatory authorities may follow when conducting a first tier review.

First tier review process
Receive request for review.
Register request for review on National Quality Agenda Information Technology System (NQA IT System).
Acknowledge receipt of application.
Identify person(s) within the regulatory authority involved in the original assessment and/or rating under review to ensure they are not involved in the first tier review.
Assign request for review to an individual officer or a panel.
Validate and review application: this process involves ensuring that the application form is complete and all supporting documentation referenced in the application has been included.
Seek further information if required, for example: information from the approved provider to support grounds for requesting review, excluding information that was not available to the original decision maker at the time of the ratings assessment notes, evidence or any other information (e.g. assessment and rating instrument) considered in original determination of rating comment from those involved in the assessment and rating of the service on the grounds of the request for review of rating any other relevant information from individual persons a visit to the service to collect or assess relevant information.
Assess application and determine what the correct rating levels should be based on the evidence provided. The regulatory authority may seek legal advice about a first tier review if required.
Individual officer or panel recommends the rating levels and/or the overall rating is confirmed or amended.
Individual officer or panel prepares a statement of reason(s). This statement will include the recommendation for each relevant element, standard or quality area, including the information taken into account when making the recommendation.
Regulatory authority staff member delegated first tier review decision-making powers confirms or amends the rating levels for the service.
Notify relevant regulatory authority staff, including original decision maker, of the grounds for review and outcome of the review.
Notify approved provider of the outcome of the review for each rating level, including reasons for the decision. The decision notification should also include information about further review rights.
Update the NQA IT System with the outcome of the first tier review application.
Identify any opportunities for the regulatory authority to improve the assessment and rating process.

Determining a first tier review

The regulatory authority may confirm or amend the rating levels under review and must give the approved provider notice in writing of the outcome of the review (including any revised rating levels) and the reasons for the decision made, within 30 days.

A first tier review decision notice should contain a sufficient level of detail for the approved provider to understand the regulatory authority’s reason(s) to amend or confirm the relevant element(s), standard(s) or quality area(s). This includes specifying the evidence the regulatory authority considered in relation to the relevant element, standard or quality area, its analysis of this evidence and its conclusion based on this analysis.

The regulatory authority must advise the approved provider of the outcome of the review in writing. This decision notice must:

set out the rating levels for the service
explain the reasons the decision was made.

Ensuring the decision notice provides sufficient detail supports procedural fairness. It also reduces the likelihood of a second tier review application.

Appeals

A decision to confirm or amend the rating levels of a service may be reviewed by a ratings review panel in a second tier review.

After the first tier review has been determined

ACECQA will publish the rating levels determined by the regulatory authority at first tier review 14 days after the decision, unless an application for second tier review is made. If an application for second tier review is made, ACECQA will publish the rating levels determined by the ratings review panel after the second tier review.