Community services complaints and carers recognition in New South Wales 

This article states the law of New South Wales. Two statutes sit alongside the disability and aged care systems: the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), which routes complaints about community services to the Ombudsman, and the Carers (Recognition) Act 2010 (NSW), which defines who is a carer and what agencies must do about them. Each turns on a threshold — standing in the first, and the existence of a carer relationship in the second.

Complaints about service providers

Section 22(1) of the Complaints Act permits a person to complain to the Ombudsman about the conduct of a service provider "with respect to the provision, failure to provide, withdrawal, variation or administration of a community service" in respect of a particular person or group¹. The five listed forms of conduct matter: a failure to provide, and a withdrawal or variation, are as complainable as something done badly.

A complaint may be made about the conduct of any employee of, or person acting for, a service provider (s 22(2)), and may be made orally or in writing (s 22(3)). Section 22(5) preserves any right to complain to the Ombudsman under the Ombudsman Act 1974 (NSW), and s 24 applies that Act to complaints made under this one.

Standing: the genuine concern test

Section 23 does not list who may complain. Under s 23(1), a community services complaint may be made by "any person who demonstrates to the satisfaction of the Ombudsman that he or she has a genuine concern in the subject-matter of the complaint".

That is a substantive test rather than a category, and it works differently from the closed list in South Australia's Health and Community Services Complaints Act 2004 (SA), where standing attaches to identified roles including the donee of a power of attorney and a substitute decision-maker under an advance care directive. New South Wales asks about the complainant's connection to the subject matter; South Australia asks what capacity they hold.

Section 23(2) confirms, without limiting the test, that a complaint may be made by a person advocating on behalf of the person affected, or by a person who is responsible for, or a next friend of, that person.

Section 23(3) then supplies the counterweight: a person who is, in the Ombudsman's opinion, unjustifiably interfering in a matter is not entitled to complain about it. In deciding that, the Ombudsman must take into account, so far as practicable, the wishes and interests of any other persons with an interest in the matter (s 23(4)). Standing is therefore open at the front and controlled at the back, and s 23(5) gives the section effect despite the Ombudsman Act 1974.

Who is a carer

The Carers Act defines a relationship². Under s 5(1), a person is a carer if they are an individual who provides ongoing personal care, support and assistance to another individual who needs it because that person is a person with disability within the meaning of the Disability Inclusion Act 2014 (NSW), has a medical condition including a terminal or chronic illness, has a mental illness, or is frail and aged.

Section 5(2) excludes three situations, mirroring South Australia: care provided under a contract of service or for the provision of services; in the course of voluntary work for a charitable, welfare or community organisation; or as part of the requirements of a course of education or training.

Section 5(3) then adds a clarification South Australia's Act does not contain, and it is worth knowing. A person is not a carer "merely because" they are the spouse or de facto partner, the parent, guardian, child or other relative, or because they live with the other person. Relationship and cohabitation are not the test; the provision of ongoing care is.

What the Charter requires, and what it does not create

The NSW Carers Charter is set out in Schedule 1 (s 6). Section 7(1) requires a public sector agency to take all reasonable steps to ensure its staff and agents have an awareness and understanding of the Charter; s 7(2) requires consultation with carers or representative bodies when developing policies that impact on carers; and s 7(3) requires internal human resources policies, so far as they may significantly affect a staff member's carer role, to be developed having due regard to the Charter.

Section 8 imposes more on a human service agency: it must take all reasonable steps to ensure that it and its staff and agents act to reflect the Charter's principles, and must report on its compliance in each reporting period, with the report included in its annual report.

Section 9 then closes off the remedy in unusually direct terms. "Nothing in this Act gives rise to, or can be taken into account in, any civil cause of action", and nothing in it creates legal rights not in existence before its enactment or affects the validity of, or provides grounds for review of, any judicial or administrative act or omission. Section 9(2) adds that where another law requires an agency to consider particular matters, nothing in this Act requires it to act inconsistently with that law.

A student must therefore not plead the Charter as a source of rights, and must not use it to attack a decision. Its obligations are directed at agency conduct and reporting.

Applying this in a problem question

1. For a complaint, identify which of the five forms of conduct in s 22(1) is engaged, including failure to provide or withdrawal.
2. Argue standing under the genuine concern test in s 23(1) rather than looking for a category, and use s 23(2) as illustration.
3. Consider whether s 23(3) unjustifiable interference is in play, and address the s 23(4) matters.
4. For a carer question, apply s 5(1) — ongoing care, and one of the four grounds of need — then the s 5(2) exclusions.
5. Apply s 5(3): do not treat a spouse, relative or co-resident as a carer without the care element.
6. Do not plead the Charter as a right or as a ground of review; s 9 forecloses both.

Self-check

• Have I applied the genuine concern test rather than looking for a listed category?
• Have I considered the unjustifiable interference bar?
• Have I required ongoing care rather than inferring carer status from relationship?
• Have I avoided treating the Charter as a source of rights?