Public hearing 13: Disability services (a Case Study), Sydney - Day 4
Video transcript
CHAIR: Good morning, everybody. Before we commence today's hearing, I wish to acknowledge the Wangal people of the Eora Nation, the traditional custodians of the land upon which Commissioner McEwin and I are sitting as a Royal Commission. We pay our respects to their Elders past, present and emerging.
We also acknowledge the Wurundjeri people of the Kulin Nation upon whose lands Commissioner Galbally is sitting in Melbourne. We pay our respects to their Elders past, present and emerging.
We also pay our respects to all First Nations people who may be attending the hearing in person today, as well as those who are following the proceedings on the livestream. Yes, Ms Eastman.
MS EASTMAN: Good morning, Commissioners, and good morning, everyone following the proceedings who are on the webcast. Commissioners, I apologise for the delay, and to those following the proceedings this morning, for the later start. I understand Mr Duggan wishes to make an application.
CHAIR: Yes, Mr Duggan.
MR DUGGAN: No, sorry, there may be some miscommunication. Can I indicate yesterday
CHAIR: Are you near a microphone?
MR DUGGAN: Apologies, I am. Can you hear me now, Chair?
CHAIR: It's not me that is the problem. We have to make sure you can be heard for the purposes of transcription, and so forth. The answer is yes, it's fine. Go ahead.
MR DUGGAN: Thank you, Chair. Can I indicate that yesterday an issue was raised about the issue of a summons to the Ombudsman. Can I indicate that my instructions are not to seek the issue of that summons.
CHAIR: Thank you.
MR DUGGAN: But I do wish to make clear that we will be making submissions at the end of the day that adverse findings should be made against the Ombudsman. The basis of those submissions will be the two statements of Mr Miller, the Ombudsman, and some documents, largely unredacted, that we have been provided with.
CHAIR: Thank you. I think we understand that and that course is no doubt open to you, thank you.
MR DUGGAN: Thank you. There's nothing else I wish to raise at this stage, Chair.
CHAIR: I should say that there have been some written submissions received from Mr O'Brien.
MS EASTMAN: I am aware of that, Chair. I haven't had a chance to read them this morning.
CHAIR: I might just inquire of Mr O'Brien what the purpose of these submissions might be.
MR O'BRIEN: Those submissions are aimed at the same issue that Mr Duggan took you to earlier, Commissioner.
CHAIR: Yes, I understand, but do you have some application about the Ombudsman?
MR O'BRIEN: Yes, we would seek that the Ombudsman should be summonsed.
CHAIR: What is the basis of that, from your perspective?
MR O'BRIEN: The basis of that is we will, similarly, be making adverse submissions in the end, whether the Ombudsman is here or not; and, secondly, for the reasons set out in those written submissions, we say that he is compellable.
CHAIR: I understand the legal argument which raises a series of quite complex issues. What I am not clear about is why you have a sufficient interest to warrant issuing a summons to the Ombudsman. You are not prevented, are you, from making such submissions as you think fit, including of the kind Mr Duggan has foreshadowed?
MR O'BRIEN: That is true. There are four reasons that we say and set out in those written submissions as to why the witness Eliza thinks it would be of benefit to the Commission to have the Ombudsman give evidence in relation to those matters. They are matters going to complaints that were raised to the Ombudsman by Eliza in respect of the abuse and misconduct by particular members of staff of Sunnyfield, in particular SP1 and I believe SP2, that came about almost two years before Sunnyfield took termination action against SP1 and SP2. We say they are matters which would be of great use to the Commission in examining. And to the extent that the Ombudsman might choose, should he not be compellable to attend, he should give evidence in relation to those matters.
CHAIR: At present, Mr O'Brien, my view would be that the presence of the Ombudsman is not necessary to protect Eliza's interests because you are able to make submissions about the matters that are, as you have indicated, of concern to her. If there is anything further you wish to put in support of the application to issue a summons, I will give you leave to file any further brief written submissions in support. But at the moment, that's the view I am inclined to take.
MR O'BRIEN: I respect that, Commissioner. We rely entirely on those submissions and make no further submission.
CHAIR: Thank you, Mr O'Brien. Yes, Ms Eastman.
CAROLINE CUDDIHY, ON FORMER OATH
EXAMINATION IN CHIEF BY MS EASTMAN, CONTINUED
MS EASTMAN: Thank you, Ms Cuddihy, for your patience. I believe you now have a light. Is that better for you in terms of reading documents?
MS CUDDIHY: Yes, thank you kindly. I am vision impaired and it was very difficult for me yesterday, so thank you for organising the light.
MS EASTMAN: I apologise for that and thank you for bearing with us yesterday. If at any time you need any further assistance, please let me know and we will make those arrangements.
CHAIR: I reiterate that. If there is any problem you are experiencing, including if you need a break at any time, please let either Counsel Assisting or the Office of Solicitor Assisting know.
MS CUDDIHY: Thank you.
MS EASTMAN: I want to start with one matter that I raised with you yesterday and that was in relation to whether there was a policy concerning the identification of violence, abuse, neglect or exploitation. Do you remember that?
MS CUDDIHY: Mm hmm.
MS EASTMAN: I think you said yesterday you did have a policy.
MS CUDDIHY: We certainly, I believe, had policies and procedures about the prevention of abuse and neglect of people with disability.
MS EASTMAN: Can I take you to a document which is, Commissioners, in the hearing bundle B at tab 19. Ms Cuddihy, do you recognise that document?
MS CUDDIHY: Yes.
MS EASTMAN: That is a policy, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Is this one of the wall style policies?
MS CUDDIHY: Yes, it's a poster, a wall policy.
MS EASTMAN: A poster. That is headed "Prevention of and responding to allegations of abuse, assault or neglect of Sunnyfield clients policy".
MS CUDDIHY: Yes.
MS EASTMAN: When I asked you yesterday about a framework for identification of violence, abuse, neglect and exploitation, is this the document you had in mind when you answered that question?
MS CUDDIHY: Yes, and there's a series of other documents that also cascade from this document.
MS EASTMAN: Looking at this document, it says the purpose of this policy is to develop an organisational culture of prevention, reporting, and a consistent and fair approach by staff in responding to allegations of abuse, assault or neglect of Sunnyfield clients which are not tolerated at Sunnyfield. So that's the purpose of the policy?
MS CUDDIHY: Correct.
MS EASTMAN: The policy then sets out some key principles in the dot points on the page.
MS CUDDIHY: Yes.
MS EASTMAN: I want to ask you about the final dot point, which says:
Sunnyfield will follow the Australian common law presumption of innocence until fact finding proves otherwise in its investigations of allegations.
What does that mean?
MS CUDDIHY: My understanding is that means that we will be fair and reasonable, we will follow all relevant laws, including industrial relations laws and that we will we may stand staff down, but we would always look to seek the facts in the matter and not presume an outcome, but treat that complaint very seriously.
MS EASTMAN: Is that presumption of innocence a presumption of innocence with respect to Sunnyfield staff who may be the subject of allegations of abuse, assault and neglect? Is that right?
MS CUDDIHY: It could be any person who we sometimes have client to client
situations, it could be a member of the community, it could be a variety of potential people. But we always act in a very respectful manner and we look for the facts, that's really what that is saying.
MS EASTMAN: I don't need to ask you anything further about that. I want to come back to the contracts we were discussing yesterday afternoon. We spent some time yesterday afternoon on the Service Supports Agreements. But there is a second agreement that Eliza and Melissa entered into when Sunnyfield started to provide the services from May 2017 and that is the Shared Living Residency Agreement.
Commissioners, you will find this in hearing bundle part A, volume 1 at tab 14. Could you perhaps assist Ms Cuddihy to open it up. Do you have tab 14 there? Thank you. Do you recognise that document?
MS CUDDIHY: Yes.
MS EASTMAN: The purpose of the Shared Residency Agreement is to record the rights and responsibilities and obligations of the resident, that's Melissa, the resident's representative, that's Eliza, and Sunnyfield in relation to the provision of and payment for accommodation, meals, utilities at the house; is that right?
MS CUDDIHY: That's my understanding.
MS EASTMAN: In terms of this agreement, it sets out Sunnyfield's obligations and they appear on page 3 of 12 at paragraph or clause 3.
CHAIR: They do also appear at page 1 in relation to accommodation.
MS EASTMAN: Yes. I just want to deal with home services. You have read that?
MS CUDDIHY: Which clause?
MS EASTMAN: Clause 3.
MS CUDDIHY: Clause 3, yes.
MS EASTMAN: This is setting out the services provided at the house with respect to providing meals and utilities. Do you agree with that?
MS CUDDIHY: Yes.
MS EASTMAN: The fees for these services are set out at 3.2.
MS CUDDIHY: Yes.
MS EASTMAN: In effect, they are deducted from the resident's Disability Support Pension; is that right?
MS CUDDIHY: We do not receive their Disability Support Pension.
MS EASTMAN: No, but the resident
MS CUDDIHY: We have a relationship to a person's pension, but we have no access to the person's pension.
MS EASTMAN: No, I am not suggesting that is the case, but in terms of the source of funding for the resident's meals and utilities related to the resident's room, then the resident or her representative agrees to ensure that those costs will be met and paid by the resident by way of a deduction from their Disability Support Pension. That's the effect of clause 3.2, isn't it?
MS CUDDIHY: As I said, we don't directly deduct it but it does have a relationship to the support pension and, yes, it would be the guardian or financial manager who would organise that.
MS EASTMAN: Coming back, in addition to the meals and utilities, this agreement also sets out the provision of accommodation generally, which is the right to occupy well, it's a non-exclusive licence to use and occupy a private bedroom in the house; is that right?
MS CUDDIHY: Correct.
MS EASTMAN: And the resident is expected to make a contribution for rent in relation to that non-exclusive licence to occupy a bedroom in the house?
MS CUDDIHY: Yes.
MS EASTMAN: This agreement also sets out the use of the common areas in the house; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: The agreement sets out the responsibilities of the resident or the resident's representative in clause 5, which is on page four of 12?
MS CUDDIHY: Yes.
MS EASTMAN: Then clause 6 deals with the provision of service supports in the house. I want to ask you about this, at the bottom of page four of 12 and to the top of the next page. It says "The residents", and if I make this referable to Melissa and Eliza.
...... [Melissa and Eliza] acknowledge that Sunnyfield in its capacity as accommodation provider may require there to be a single service support provider
engaged by all residents of the house to provide them with shared living supports. [Melissa and Eliza] acknowledge that this service support provider may also be Sunnyfield, subject to Sunnyfield complying with any requirements of the NDIA in relation to separation of functions and management of conflicts of interest between accommodation providers and service support providers.
So I've just read that clause.
MS CUDDIHY: Yes.
MS EASTMAN: Is the effect of this clause that Sunnyfield has the agreement in relation to providing Melissa with accommodation in this particular house?
MR DUGGAN: I object. The issue is this: if the question can please be clarified that it is this witness' understanding. Obviously it is a legal document and there is a legal interpretation.
CHAIR: I take it, Ms Eastman, you are asking about Ms Cuddihy's understanding?
MS EASTMAN: Yes, that's right.
CHAIR: Put that way, I will allow it.
MS EASTMAN: I want to understand what this clause means and your understanding of it. I'm not asking you for a legal opinion.
MS CUDDIHY: Okay.
MS EASTMAN: What this does is, you've got the house itself and this agreement is an agreement to allow Melissa to live in the house and associated with living in the house, is the provision of meals and utilities and access to the common space.
CHAIR: Ms Cuddihy, if you are agreeing, I think I saw you nod, would you mind saying "yes" if you agree, because we need to record it on the transcript.
MS CUDDIHY: My apologies, Commissioner.
CHAIR: That's all right.
MS EASTMAN: So that's one. In addition to being able to live in the house, Melissa requires supports to live in the house.
MS CUDDIHY: Yes.
MS EASTMAN: Supports in terms of her daily life. The nature of those supports are separately provided from the accommodation, they don't travel together; is that right?
MS CUDDIHY: That's correct. They're two separate agreements.
MS EASTMAN: The document we looked at yesterday, the contract we looked at yesterday, is the contract that sets out what supports would be provided to Melissa and that is based on the NDIS plan, NDIS funding and the identification of Melissa's goals?
MS CUDDIHY: Yes.
MS EASTMAN: In theory, it is possible for an NDIS participant to live in a house which is operated by a particular service provider and have her supports provided by a different service provider, either coming into the house or more generally in the community. Do you agree with that? So that's possible?
MS CUDDIHY: I wouldn't say that there is in theory. You could not, I don't believe, in practice, have two different service providers providing the supports in a house, but you certainly could have a separate provider who provides the accommodation.
MS EASTMAN: Why couldn't you have both?
MS CUDDIHY: It is under the roster and the way the roster of care works and the roster of support works, in practice, that would be very, very difficult to achieve.
MS EASTMAN: It would be more difficult to achieve, would it not, than if you had, for example, four residents in a house and each of the residents wanted a separate and different service provider for the services to support their day to day living?
MS CUDDIHY: It would be very difficult, yes.
MS EASTMAN: Coming back to this clause, is it your understanding that the clause in this agreement is to reach an agreement that Sunnyfield not only provides the accommodation but also provides the service supports? So Sunnyfield is both service provider for accommodation and service provider for supports, plus all of the residents should have the same service provider?
MS CUDDIHY: I have a slightly different perspective to that.
MS EASTMAN: Tell me what your understanding is.
MS CUDDIHY: Yes, I will tell you my understanding. My understanding is this clause says there is an accommodation provider and that Sunnyfield says there should be one support provider, but that one support provider does not need to be Sunnyfield.
MS EASTMAN: But as you say, that sounds fine in theory but in practice that
would be very difficult; is that right?
MS CUDDIHY: No, no. To have one support provider in the house and a different accommodation provider, in practice, is quite achievable and Sunnyfield does operate some facilities where we are not the accommodation provider. And this is an old agreement now. These agreements have been superseded by
MS EASTMAN: No, I will just ask you about this agreement
MS CUDDIHY: Okay.
MS EASTMAN: because this is the one Melissa and Eliza have signed.
MS CUDDIHY: Yes, and they have signed subsequent ones that came from the Department of Communities and Justice. But at the time this agreement was written, it clearly states, in my view, my understanding, and I'm not a lawyer, but it is that you would have there is an accommodation provider and in this instance it's Sunnyfield, but Sunnyfield recognises you could have a different supports provider, but there would need to be one supports provider because, in practice, to have multiple support providers in a house is practically unachievable.
MS EASTMAN: Can I ask you about the next clause, which says "Transition to another house". This deals with the transition of a resident, but is also a clause dealing with the transition of all residents. You have seen this clause before?
MS CUDDIHY: Yes, but I would like to read it, please. Yes, I've read it.
MS EASTMAN: Is it your understanding that this clause sets out what would happen if the accommodation arrangement was to come to an end?
MS CUDDIHY: It's about transitioning to another house, not necessarily it could be that the arrangement came to a conclusion, but it also offers the opportunity to transfer to another accommodation service, whether that's in Sunnyfield or external, or the whole house transfer to another house because sometimes property leases can expire and they can't be renewed.
MS EASTMAN: The transition of a resident could arise if the resident's support needs change?
MS CUDDIHY: Mm hmm.
MS EASTMAN: And it's a case that Sunnyfield agrees to support the resident to do three of the following: to move to another Sunnyfield house with a vacancy that has appropriate levels of support; secondly, to find alternate supported accommodation services; or apply to the NDIA for additional funding to allow the resident to remain in the current house with increased levels of support. Those are the three options?
MS CUDDIHY: Yes.
MS EASTMAN: Can I ask about ending this agreement. Clause 8 sets out when the resident can end the agreement in clause 8.1.
MS CUDDIHY: Yes.
MS EASTMAN: Clause 8.2 is when Sunnyfield can end the agreement.
MS CUDDIHY: Yes.
MS EASTMAN: In summary, that provides that Sunnyfield can give the resident, which would be Melissa, and her representative, Eliza, at least three months' notice in writing if the resident stops being funded for services and supports in shared living accommodation for any reason?
MS CUDDIHY: Yes.
MS EASTMAN: Sunnyfield can also end the agreement if the resident fails to pay any rental contribution or fees due?
MS CUDDIHY: Yes.
MS EASTMAN: The accommodation can be terminated if the resident's, so Melissa's, support needs change or Melissa persistently behaves in a way that creates an unsafe or intimidating environment for the other residents of the house and Sunnyfield. That is, though, in consultation with Melissa or Eliza, and Sunnyfield decides it can no longer support the resident. Is that right? I'm just summarising that.
MS CUDDIHY: Yes, the clause is there in 8(c).
MS EASTMAN: This termination clause is a bit different to the Service Supports Agreement we looked at yesterday, which provides no reason for termination. But for terminating the accommodation, which I assume means asking somebody to leave a house, Sunnyfield has to identify that one of those three reasons will apply before somebody can be asked to leave the house. Is that right?
MS CUDDIHY: Yes.
MS EASTMAN: The last thing I want you to look at in this document is schedule 2, which is page 10 of 12.
MS CUDDIHY: Yes.
MS EASTMAN: That is called a Charter of Residents' Rights and Responsibilities.
MS CUDDIHY: Yes.
MS EASTMAN: It sets out that each resident of a Sunnyfield shared living house has the right, and then there is quite a list of rights set out there; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Is this a Sunnyfield document or is this part of the standard clauses that come from the NDIA?
MS CUDDIHY: I can't recall specifically, but I do think it's something that Sunnyfield wanted in this document.
MS EASTMAN: Do you have any knowledge about how the Charter of Residents' Rights and Responsibilities was formulated? Who drafted it? How did it come to be?
MS CUDDIHY: My understanding, it was something that our organisation thought was important and we do have very much a person centred choice and control
MS EASTMAN: I'm sorry to interrupt you. Can I come back to my question?
MS CUDDIHY: Yes.
MS EASTMAN: What do you know about when this document was created or these rights identified in this way? Who drafted it? Who formulated it?
MS CUDDIHY: I can't recall the exact details.
MS EASTMAN: You can't recall. One of the Commissioners asked you yesterday about the Convention on the Rights of Persons with Disability, the CRPD. Is it Sunnyfield's view that the Charter of Residents' Rights and Responsibilities set out at schedule 2 are intended to give effect to the rights in the CRPD or is it something different?
MS CUDDIHY: I don't believe it's different. I think it's within keeping, but it's at a more practical level.
MS EASTMAN: The last three rights in this list say that the resident has a right to complain and take action to resolve disputes.
MS CUDDIHY: Correct.
MS EASTMAN: To have access to advocates and other avenues of redress.
MS CUDDIHY: Yes.
MS EASTMAN: What does redress mean?
MS CUDDIHY: Well, areas where they may want to seek advice or seek consult from any other organisations, to assist them in what they're trying to achieve.
MS EASTMAN: That's your understanding of what redress means?
MS CUDDIHY: It could mean quite a broad variety of things.
MS EASTMAN: To be free from reprisal or a well founded fear of reprisal in any form for taking action to enforce his or her rights.
MS CUDDIHY: That's correct.
MS EASTMAN: What does that mean?
MS CUDDIHY: There will be no recourse from the organisation in regards to any complaints or matters or disputes that they bring forward.
MS EASTMAN: In the preparation of your evidence for this hearing
COMMISSIONER McEWIN: Sorry, Ms Eastman, before you move on from this document, I would like to ask one question.
Ms Cuddihy, can I take you back to 7.1, the transition to another house.
MS CUDDIHY: Certainly.
COMMISSIONER McEWIN: To clause 7.1. It says that if the resident's support needs change and either Sunnyfield or the resident consider that the house is not the most appropriate location, Sunnyfield will support the resident to, (c), "apply to the NDIA to seek additional funding to allow the resident to remain in the current house". So why would you, if you have determined that they want to transition out of the house, you have that clause to then seek additional funding for them to remain in the house? Could you explain how that works?
MS CUDDIHY: Certainly. There may be situations where we have clients who are normally quite ambulatory and as their needs change, their mobility may change and there may be that there is modifications to the house required. If that is what they want to do, to stay in that house, but they need some modifications to assist them to modify the house to enable their declining mobility, then if that's what they would like, we would approach the NDIS, with their permission, and seek some SDA funding or house modification funding to make those modifications or assist them with equipment, so they could stay in the home of their choice.
COMMISSIONER McEWIN: Thank you.
MS EASTMAN: I think I was starting to ask you, in the course of preparing your evidence for the Royal Commission, did you have a chance to read Eliza's statement?
MS CUDDIHY: I did, yes.
MS EASTMAN: Did you read any of the documents that were referred to in her statement or attached to her statement?
MS CUDDIHY: I did.
MS EASTMAN: You are aware, aren't you, that Eliza was concerned that the terms of the written agreements did not reflect some of her earlier discussions that she had with representatives of Sunnyfield? You're aware of that?
MS CUDDIHY: I was aware that she had hand marked up on a service agreement some changes that she would like made.
MS EASTMAN: You are aware that she provided those changes to the Sunnyfield Client Engagement Manager? Are you aware of that?
MS CUDDIHY: Yes.
MS EASTMAN: She had asked for those changes to be made. You're aware of that?
MS CUDDIHY: Yes.
MS EASTMAN: You are aware, aren't you, that she was told that the changes couldn't be made?
MS CUDDIHY: I believe a couple of the changes were made but I do believe that others, yes, were stated that they could not be changed.
MS EASTMAN: You have addressed the position in relation to Sunnyfield making changes in your statement, if you have that with you, at paragraphs 86 and 87. Can I just draw your attention to that?
Commissioners, you will find in your version these paragraphs at pages 11 and 12. Ms Cuddihy, I know your pagination is different but can I take you to paragraph 86.
MS CUDDIHY: Thank you, yes.
MS EASTMAN: Do you have that?
MS CUDDIHY: Yes, I have, thank you.
MS EASTMAN: Immediately before 86, in 85 there's a summary of the material
terms of the Service Supports Agreement and the Residency Agreement. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: You tell the Royal Commission this:
Although those agreements were, as I state above, standard documents, it is reductive and inaccurate to approach the two agreements as inflexible contracts; rather, the documents account for and facilitate client autonomy and selection of service in [a number of] ways …
And you set them out. What do you mean by it is reductive and inaccurate? What does that mean?
MS CUDDIHY: So, we're saying that there is flexibility with the agreements.
MS EASTMAN: So that's what that means. Look over at page 87.
MS CUDDIHY: I'm sorry, which
MS EASTMAN: Sorry. Page 12, paragraph 87.
MS CUDDIHY: Yes.
MS EASTMAN: You say there:
In addition, although the agreements were standardised to ensure consistency in service delivery and expectations across all Sunnyfield clients, the standard terms concern provisions outlining legal terms of Sunnyfield and the client's arrangement. Those terms concern matters which are not readily susceptible to negotiation or customisation, and which cannot reasonably be expected to be qualified or removed, such as the rights and responsibilities of each of Sunnyfield and a client, termination rights and payment arrangements.
What does that mean?
MS CUDDIHY: It means that certain parts of the contract are standard and there are areas in the contract which can be tailor made. A very important area of all of the supports agreements is the schedule 1, which respects the individual person's NDIS plan and their NDIS goals. But there are other areas of the contract which are standard and, as I had mentioned in specific, were from the model agreement from the NDIA.
MS EASTMAN: But why couldn't, for example, the clauses dealing with termination rights be the subject of negotiation? Surely you could negotiate whether you were to give 14 days' notice or a month's notice, three months' notice or six
months' notice? They're susceptible to negotiation, aren't they?
MS CUDDIHY: Yes, I'm not aware that Eliza actually asked for a change
MS EASTMAN: I'm not asking you that.
MS CUDDIHY: Oh, right.
MS EASTMAN: I'm trying to understand your evidence where you say that it cannot reasonably be expected to be qualified or removed, and these include rights and responsibilities for Sunnyfield and the client's termination rights and payment arrangements. So termination rights, I'm asking you why couldn't that be the subject of negotiation?
MS CUDDIHY: At the time, this was a very new NDIS was a very new system, a very new service. We very much wanted to follow the model benchmark agreements. I think now, in hindsight, with the NDIS being some years progressed, it is appropriate for us as an organisation and for our clients to consider the review of the contracts.
MS EASTMAN: But you haven't said that in this part of your statement, have you?
MS CUDDIHY: No, I haven't. It was in reference to those.
MS EASTMAN: In fact, you will recall that the New South Wales Ombudsman raised the issue about negotiation of some of these terms with you. Do you recall that?
MS CUDDIHY: No, I don't.
MS EASTMAN: You don't recall the Ombudsman writing to you on 18 December 2018 and discussing in a letter your advice about Sunnyfield's position being that the service agreement could not be amended, as it is a legal document, standardised to ensure consistency in service delivery and expectations across the organisation. And the Ombudsman saying to you:
We agree with Sunnyfield that the NDIA Terms of Business encourage a written agreement. However, information communicated by the NDIA makes it clear that participants can change model service agreements to suit their own needs. To give effect to the tenets of choice and control of people with disability that underpin the NDIS, it is vital that participants (and their representatives) are able to work with respective providers to discuss and reach agreement on the provision of supports to them, to most appropriately meet their needs. We note that the NDIS Practice Standards also require providers to demonstrate that they collaborate with each of their participants to develop their service agreement.
Do you remember the Ombudsman writing to you in those terms?
MR DUGGAN: Commissioners, I object. That is a very long passage that has been read.
MS EASTMAN: I'll show the document. It's in the bundle D at tab 415. Ms Cuddihy, can you see the letter?
MS CUDDIHY: Yes.
MS EASTMAN: The passage I have just read is on the second page in the middle of the page.
CHAIR: While Ms Cuddihy is reading it, just to be clear, this is a letter dated 18 December 2018 from the New South Wales Ombudsman, addressed to Ms Cuddihy.
MS EASTMAN: See that?
MS CUDDIHY: Yes.
MS EASTMAN: Then can I ask you to look at the paragraph immediately before the heading "Communications Issues", the Ombudsman says:
We do not accept that presenting standard service agreements that are unable to be modified is consistent with the NDIA terms of business or the expectations of practice under the NDIS. Providers are able to ensure a standard level of quality across its organisation in the delivery of services without requiring a standard service agreement for all participants. We consider Eliza's request for variations, such as those relating to medication, to be reasonable.
Then this sentence is in bold:
In our view, Sunnyfield should review its position that its service agreements cannot be amended, to ensure its practice is in line with the NDIA terms of business and the NDIS practice standards.
Do you remember the Ombudsman writing to you in those terms?
MS CUDDIHY: Yes.
MS EASTMAN: You didn't accept the Ombudsman's suggestions, did you, and do you recall writing to the Ombudsman on 10 January 2019?
MS CUDDIHY: Is that in one of the folders?
MS EASTMAN: No, I don't know if it's in the document folder that you have but,
Commissioners, this is document D414. Look at that letter, it bears your signature on the final page. Can I take you back to the first page.
MS CUDDIHY: Yes.
MS EASTMAN: Just to preface it, there are a lot of issues raised in the Ombudsman's letter and I am only asking you to look at the letter with respect to the question of the terms and conditions of the contract. You will see on page 1 you tell the Ombudsman that you appreciate the important role of the New South Wales Ombudsman in investigating complaints and making recommendations regarding the improvement of service delivery in the best interests of people with disability.
MS CUDDIHY: Sorry, which paragraph are you on?
MS EASTMAN: This is on page one, third paragraph.
CHAIR: Begins with the word "firstly".
MS CUDDIHY: Oh, thank you. Yes.
MS EASTMAN: Any recommendations that will improve how Sunnyfield provides services to clients are welcome.
MS CUDDIHY: Yes.
MS EASTMAN: And a vital channel for ensuring continuous improvement, as required by the NDIS practice standards.
MS CUDDIHY: Yes.
MS EASTMAN: You go on to say:
While we accept a number of recommendations made by the New South Wales Ombudsman, we would like to record our disagreement with others, as detailed below.
As background, you indicate that inquiries by the Ombudsman were limited to certain aspects of Eliza's complaint "due to a number of complainant issues."
In the next paragraph you say:
We respect Eliza's right to complain and Melissa's right to quality service delivery. However, as we have explained on a number of occasions, the high number of complaints and the sheer volume of correspondence from Eliza regarding alleged shortcomings in Sunnyfield's services, has been an ongoing source of anxiety for her home and the house staff. This is not representative of all the shared living other clients' and guardians' views. It has also
consumed disproportionately many hours and resources for Sunnyfield staff members that should be directed at improving service delivery for all Sunnyfield clients.
So you make that point?
MS CUDDIHY: Yes.
MS EASTMAN: Over the page, one of the points of disagreement with the Ombudsman are Sunnyfield's service agreements. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: You tell the Ombudsman this on 10 January 2019:
In relation to Sunnyfield's position that we will not alter our standard service agreements, you have suggested this position is inconsistent with the NDIA terms of business. We do not accept this finding. We reiterate our earlier advice in our letter of 4 June 2018 that Sunnyfield agreed to a number of practices that are outside our normal operating procedure in response to requests from Eliza. This followed collaboration with her as Melissa's guardian. We continued to collaborate on specific client requirements that fall outside our standard service agreement for individual clients or groups of clients within the service.
And you say this:
Sunnyfield is within its right to have a position on acceptable contract terms.
So it's the case, isn't it, that on 10 January 2019 you rejected the New South Wales Ombudsman's recommendations in relation to all three of your contracts? Is that right?
MS CUDDIHY: My understanding, this was very specifically related to Eliza's requests for contract alteration and we were presenting the view on, specifically, Eliza's case. There were components recognised by the Ombudsman that were flexibly adapted in the contracts excuse me, my voice is going.
MS EASTMAN: I am just asking whether or not a fair reading of your response to the Ombudsman on 10 January 2019 is that you disagreed and you rejected the Ombudsman's advice. That's the case, isn't it?
MS CUDDIHY: Not exactly, no.
MS EASTMAN: Right, okay. I want to move to a different topic. One of the issues that Eliza raised with Sunnyfield in the negotiations to take over the house was the installation of CCTV in the house. Do you remember that?
MS CUDDIHY: I did get involved at a later date.
MS EASTMAN: But at the time, were you aware of the correspondence between Eliza and Dr Clayton on the installation of CCTV?
MS CUDDIHY: No, not to my knowledge at the time.
MS EASTMAN: Have you seen the internal correspondence in relation to Eliza's request for the CCTV and how this was dealt with internally?
MS CUDDIHY: I believe there's information that's in the bundles.
MS EASTMAN: Can I ask you to have a look at the document D344.
MS CUDDIHY: Thank you.
MS EASTMAN: It's a long email chain but what I want to draw your attention to is that first page.
MS CUDDIHY: Thank you.
MS EASTMAN: You will see it is an email from the Client Engagement Manager to Regional Manager 1 and Dr Clayton, which is Monday, 10 April 2017.
MS CUDDIHY: Yes.
MS EASTMAN: It says "Hi, [Client Engagement Manager] and Mark". Do you see that? The Client Engagement Manager says:
I remember this conversation coming up when Mark and I did our initial presentation to the families. Mark, correct me if I am wrong, but I am pretty sure you said it would be okay, provided all families consented and the cameras were not in areas such as bathrooms? Can we say that we have since spoken to HR and found out that we cannot, due to staff privacy if need be.
Sorry, "We can say", thank you. You see that exchange?
MS CUDDIHY: Yes.
MS EASTMAN: Had you had any involvement at this point whether the cameras could be in the house or not?
MS CUDDIHY: I can't recall that I did.
MS EASTMAN: Regional Manager 1, who is the regional manager, responds later that day, so working back up the chain. She says:
If CCTV is involved, I have no idea what impact that would have on recruitment, but I'm pretty sure we'd have to disclose prior to hiring. I'm not even sure [redacted] ......
Who's [redacted]?
MS CUDDIHY: [redacted] is our commercial manager.
MS EASTMAN:
...... [redacted] would agree to working with CCTV ......
MS CUDDIHY: Oh, no, that sorry, it's a different [redacted], my apologies. That would have been [redacted], the lady who was there for a few weeks after her ribs were damaged.
MS EASTMAN:
...... working with CCTV monitoring, not because I think anyone is going to do anything wrong but even the best intentioned actions at times could be interpreted incorrectly. Is there precedence for this? I've previously heard many discussions around CCTV and always been told it can't happen but as I said maybe things have changed.
So you see that?
MS CUDDIHY: Mm hmm.
MS EASTMAN: Were you aware that was Regional Manager 1's view?
MS CUDDIHY: No, I wasn't. Not to my knowledge, no.
MS EASTMAN: Dr Clayton then responds, saying:
Leave it with me. Everyone's concerns are valid and must be considered. I will address with ......
And it says "HER". Do you know what that is? Is that a reference to HR, perhaps?
MS CUDDIHY: It could be. It could be a typo, yes.
MS EASTMAN:
...... we'll also need to look at privacy issues and who retains the info and how it is interpreted. Obviously we don't want to create a prison like environment or culture.
Were you aware of these discussions going on?
MS CUDDIHY: I can't recollect these particular discussions but I do know at, I think, a later date where we sought some legal advice about a CCTV.
MS EASTMAN: But it was the case, wasn't it, that when Sunnyfield took over the operation of the home on 1 May 2017 that cameras were not installed?
MS CUDDIHY: There was not, to my knowledge, any cameras. I did visit the house in May 2017 and I don't believe there were cameras there.
MS EASTMAN: You are aware, aren't you, that the question of cameras has remained an issue that the families have raised from time to time?
MS CUDDIHY: I'm aware that I'm aware, reading this, that it was raised at the beginning, which I don't recollect, but I certainly am aware that at one point we did seek legal advice. Yes, we did.
MS EASTMAN: Are you aware that a request for cameras to be installed in January 2020 was rejected by Ms Luff. Were you aware of that?
MS CUDDIHY: I specifically can't recall but I certainly know we had legal advice, as I mentioned, about the installation of CCTV and that it was a vexed issue.
MS EASTMAN: Perhaps just to be clear about this, there is a letter to Melissa sorry, a letter to Eliza, dated 17 January 2020, and this is document 393. Thank you.
MS CUDDIHY: I have that document now.
MS EASTMAN: The second paragraph says:
Sunnyfield has sought expert advice regarding your request and considered all aspects of this matter. Sunnyfield respects the dignity and privacy of all house residents and also aims to comply with our legal obligations towards our clients and staff, as such our organisational policy is not to install CCTV cameras in clients' homes.
So, when you have just given evidence about getting advice
MS CUDDIHY: Yes.
MS EASTMAN: is that second paragraph reflective of the advice you got?
MS CUDDIHY: I believe so.
MS EASTMAN: It's the case, isn't it, that the decision around not
MR DUGGAN: Commissioners, can I state my objection here? There are some
questions around legal advice and they are obviously delicate issues. If my friend is going down this path, I would like some opportunity to get some instructions about that, if the substance of the advice is sought.
MS EASTMAN: I'm not asking about the substance of the advice, I'm just giving the witness the opportunity to comment on what she described as advice, as to whether this paragraph reflects the advice that she has just referred to. Do you agree with that?
MS CUDDIHY: That is my understanding.
MS EASTMAN: I want to put to you that the decision not to install the CCTV was a decision made to protect the staff's interest, not the residents' interests. That's right, isn't it?
MS CUDDIHY: No, it is not.
MS EASTMAN: And at no time has anyone at Sunnyfield sought the residents' view about the installation of cameras in their home. That's right, isn't it?
MS CUDDIHY: No, I don't believe that's the case at all.
MS EASTMAN: When do you say that Chen was asked to express a view about cameras in his home? When did that occur?
MS CUDDIHY: I can't give you the date for Chen but certainly I'm aware that Eliza had expressed a keenness for that to happen.
MS EASTMAN: I'm not asking about the guardians, I'm asking about the residents themselves.
MS CUDDIHY: I don't know.
MS EASTMAN: You said you don't know when Chen was asked?
MS CUDDIHY: No, I don't.
MS EASTMAN: When was Carl asked?
MS CUDDIHY: I don't know when.
MS EASTMAN: When was Melissa asked?
MS CUDDIHY: I don't know when.
MS EASTMAN: But you say they were asked for their views about the installation of cameras; is that right?
MS CUDDIHY: No, I didn't say that.
MS EASTMAN: Well, they weren't. They were never asked their views about cameras, were they?
MS CUDDIHY: This was an issue that we felt was a very complex issue and I'd actually be really keen to get the Royal Commission's advice on this.
MS EASTMAN: I just want you to concentrate on the questions that I am asking you.
MS CUDDIHY: Yes.
MS EASTMAN: What I am putting to you is that the decision not to install the cameras was to protect the staff. That's right, isn't it?
MS CUDDIHY: No, it is not.
MS EASTMAN: And the decision not to install the cameras back in May 2027 was because of concern about recruiting staff. That's what Regional Manager 1 is saying.
MS CUDDIHY: That is not the legal advice we received. That is a conversation, obviously by email, between staff and then we sought external advice. This is a very complex matter and, as I have said and I can explain why I think it's a complex matter.
MS EASTMAN: No, I want you to just focus on what I am asking.
MS CUDDIHY: I am, I'm answering the questions truthfully.
MS EASTMAN: But it's the case, isn't it, that there has been cause to reflect on the CCTV, is that right, in more recent times?
MS CUDDIHY: In what regard?
MS EASTMAN: Well, who is the Client Safeguarding Manager, what's her role?
MS CUDDIHY: The Client Safeguarding Manager, at the time, not currently but at the time, was the Safeguarding Manager and the head of the Response Team.
MS EASTMAN: Do you remember having an email exchange with the Client Safeguarding Manager on 20 October 2020, where she said words to where she said this?
MS CUDDIHY: May I see the document?
MS EASTMAN: Yes. This is at document 252 and the page it's not paginated, but I want you to go into the document, and Mr Taylor might help you, to an email from the Client Safeguarding Manager to you, from a person who I've identified to you, and others on 20 October at 2:04pm. Mr Taylor can help you find that email. Do you have that?
MS CUDDIHY: Yes.
MS EASTMAN: When you read that email, you will see that the Client Safeguarding Manager is reporting to you what had happened in court the day before and this is in relation to SP2. So you see that context?
MS CUDDIHY: Yes.
MS EASTMAN: The email sets out what happened in court. But can I draw your attention to the bottom of the page where it says:
Sophia and Carl's sister were in court. Sophia was understandably upset by the outcome. She raised the issue of cameras in houses. After hearing the Magistrate say the case was dismissed as only one single witness, no video footage or photos, I am tending to agree that in some circumstances for some residents there may be a good reason to have cameras in place.
You received that email?
MS CUDDIHY: Yes.
MS EASTMAN: What was your response to the Client Safeguarding Manager, indicating that she tended to agree that, in some circumstances for some residents, there may be a good reason to have cameras in place? What was your view?
MS CUDDIHY: That this is a complex issue. All of our staff were understandably upset by the outcome of the court case.
MS EASTMAN: I'm not asking about the outcome of the court case, I'm asking about your view on the installation of cameras.
MS CUDDIHY: That this is a complex issue, that there are advantages but there are also some disadvantages, and there would need to be significant consideration to this issue and what protocols would be put around the management of cameras. So our concerns that we raised and discussed and we do not have a final resolution and I would be delighted by the Royal Commission's finding on such a matter is where would you have cameras in a house? Where you have deceitful staff, would they still, if it wasn't in bedrooms or wasn't in bathrooms, behave inappropriately and unacceptably? How would you then have those cameras installed? Where would they be installed, in vehicles, outside the property? How would you then manage the recording of those? The records, who would be able to access them? What's the
security over that so someone can't wipe anything. So I think it's a very complex issue.
MS EASTMAN: Why haven't these complex issues been addressed by Sunnyfield and why is it that you have to wait for a Royal Commission to tell you what to do?
MS CUDDIHY: Because we think it's a very complex issue and it's something that needs deep consideration, so that in the way that it would be done, it does not disadvantage the clients and their personal privacy and dignity but, at the same time, deceptive people can't bypass such a system, and that also it respects the rights, in the industrial relations environment, of all people who come to the house.
MS EASTMAN: Has Sunnyfield done any work to address what you describe as complex issues?
MS CUDDIHY: We deal with a lot of complex issues all the time.
MS EASTMAN: I'm talking about this one.
MS CUDDIHY: We have not come to a resolution.
MS EASTMAN: Have you done any work on this at all?
MS CUDDIHY: We sought legal advice previously but, to my knowledge, there hasn't been any recent work. This is an issue that we think is a vexed issue for Sunnyfield, it's a vexed issue for our clients and we think it's a vexed issue for the sector.
MS EASTMAN: And you want to wait for the Royal Commission to give you an answer; is that right?
MS CUDDIHY: No, that's not correct. But while I'm here
MS EASTMAN: When will the issue be addressed by Sunnyfield?
MS CUDDIHY: It is an issue that we are looking at.
MS EASTMAN: When will it be addressed by Sunnyfield?
MS CUDDIHY: I don't have a date to give you.
MS EASTMAN: There are presently no cameras in the house that Melissa, Carl and Chen live in; is that right?
MS CUDDIHY: To my knowledge, yes.
MS EASTMAN: And no plans to introduce cameras into that house; is that right?
MS CUDDIHY: Not at this point in time, no.
MS EASTMAN: Thank you, Commissioners, that might be an appropriate time.
CHAIR: How long would you like?
MS EASTMAN: 20 minutes.
CHAIR: We will adjourn until 11.40.
ADJOURNED [11.17 AM]
RESUMED [11.40 AM]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Commissioners and Ms Cuddihy, I need to go back to ask you some questions about some evidence you gave just before we had morning tea. This morning I said to you:
You are aware, aren't you, that she [Eliza] was told that the changes couldn't be made?
Your answer was:
I believe a couple of changes were made but I do not [sic] believe that others, yes, were stated that could not be changed.
Do you remember giving that evidence?
MS CUDDIHY: If that's what's on the record.
MS EASTMAN: I need to take you to the hearing bundle at part A, volume one, tab 19. This is part of the evidence of Eliza.
MS CUDDIHY: Yes.
MS EASTMAN: You will see that there's and I dealt with this in Eliza's evidence when she was here earlier in the week. It is an email from Bruce Tosello to the Client Engagement Manager and Dr Clayton. This was the proposed email from Mr Tosello to Eliza and, just following the chain, you will see that the Client Engagement Manager sends the email to Eliza and forwards Mr Tosello's response. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: It says in the second paragraph:
We cannot amend the services agreements as these are legal documents that are standardised to ensure consistency in service delivery and expectations across Sunnyfield and in compliance with the NDIA's terms of business. That said, Sunnyfield does not understand ......
MS CUDDIHY: "Does understand".
MS EASTMAN: Sorry.
...... does understand Eliza's issues and we are open to discussing possible solutions to them.
MS CUDDIHY: Yes.
MS EASTMAN:
I would suggest our priority should be to get staff into the house and get the services running. I'm sure that Mark [that's a reference to Dr Clayton] would welcome Eliza and the other families to meet the staff to see what we are setting up. We will separately work with Eliza over the next eight weeks to ensure we resolve all of her concerns. Could you please forward this email to Eliza and let her know that I'm available if she wishes to discuss any of this.
Have you seen that email before?
MS CUDDIHY: Yes.
MS EASTMAN: I want to put to you that to the extent you say a couple of changes were made, that evidence is not correct, there were no changes made to the written agreements. And to the extent there were any changes made, they were made outside the context of the written agreement and consistent with what's put in this email. Would you agree with that?
MS CUDDIHY: There was a change that I noted and it's been on the contract. It was to remove certain services out of that contract and that's crossed out, I believe, in the contract.
MS EASTMAN: That's the only change?
MS CUDDIHY: I believe that change was made. In addition to the contract, other requests were also adhered to. For example, there was a request that the Kylie be changed each day. My understanding is, in practice, that is changed more frequently
than each day.
MS EASTMAN: Can I do it this way, then: if you're still on the email and you turn over the page, in terms of the amendments that Eliza was seeking
MS CUDDIHY: Yes.
MS EASTMAN: they are set out in the following page and the third page of that email.
MS CUDDIHY: Yes. That's correct, that's the changes that were made. In addition
MS EASTMAN: You are saying all these changes were made as set out here?
MS CUDDIHY: No. I'm saying it says here --- each one is mentioned and then it says "take out 'improved relationships'". That was taken out.
MS EASTMAN: Yes, that's the only one that was deleted?
MS CUDDIHY: That was deleted. But, in practice, the changing the Kylies every day, that was put into practice.
MS EASTMAN: So those are the two changes
MS CUDDIHY: Yes.
MS EASTMAN: out of all of the changes that
MR DUGGAN: Commissioners, in fairness, there were other changes, in particular schedule two, item two is in the contract. The documents speak for themselves and, in fairness to the witness, it shouldn't be suggested that none of these changes were made because some of them were.
MS EASTMAN: Commissioners, I am just putting to the witness that the changes were not made and if she disagrees with that, then she can give that answer.
MS CUDDIHY: That is what I said before.
MS EASTMAN: Also before morning tea, I asked you about the agreements that Melissa and Eliza signed and you said they signed subsequent ones that came from the Department of Communities and Justice. Do you remember giving that evidence?
MS CUDDIHY: I believe that's the case.
MS EASTMAN: Can I suggest to you that there was never a further agreement
signed between Sunnyfield and Melissa and Eliza. There are no agreements signed, further agreements signed. That's right, isn't it?
MS CUDDIHY: That's not my knowledge of the situation.
MS EASTMAN: You are aware, aren't you, that the Royal Commission issued a notice to produce?
MS CUDDIHY: Yes.
MS EASTMAN: For Sunnyfield to produce all documents, including documents of signed agreements?
MS CUDDIHY: Yes.
MS EASTMAN: Are you aware that no documents have been produced in relation to any agreements between Sunnyfield, Melissa and Eliza that would be updated documents of the kind we've been looking at? Are you aware of that?
MS CUDDIHY: Not specifically, but we certainly didn't hold back any information that the Royal Commission has requested in any shape or form. We've presented information as requested by the Royal Commission.
MS EASTMAN: Then how do you explain that the evidence you have given is that, as you say, they signed subsequent ones that came from the Department of Communities and Justice, if you are confident that there are subsequent signed documents, and how do you explain to the Royal Commission why they have not been produced?
MR DUGGAN: Commissioner, can I just request there be some clarity about signed documents? I understand my friend to be talking about Service Supports Agreement and the Residency Agreement, so perhaps that can be made clear?
CHAIR: Very well, yes. I think it was clear enough but perhaps it could be
MS EASTMAN: I am just, Commissioners, instructed on what was said on the transcript this morning, which was in the context of asking this witness about the agreements that I have taken her to, and her answer was:
...... and they have signed subsequent ones that came from the Department of Communities and Justice.
MS CUDDIHY: If I'm wrong, I do apologise. I was under the impression, whether it's right or wrong, that the houses and this house is one house that is actually owned by the Department of Communities and Justice, and Department of Communities and Justice, when they moved to a new model of arrangements for organisations to lease those properties, they made recommendations into different
agreements. Whether that applies to this house or not, if I've got that wrong, I apologise, but certainly in no way, shape or form am I trying to present anything other than the facts here today.
MS EASTMAN: Could those contracts be contracts that came into use after the decision was made to evict Melissa?
MS CUDDIHY: They could be, yes.
MS EASTMAN: I want to return to the transition from the previous service provider to Sunnyfield taking over the operation of the house on 1 May 2017.
CHAIR: Ms Eastman, could I just interrupt to observe perhaps to Mr Duggan that if there are, in fact, some further documents that do need to be produced, no doubt you will arrange for that to be done. I am not suggesting there are but if there are
MR DUGGAN: Thank you, Commissioners. I don't understand there are but we will make further inquiries.
CHAIR: Thank you.
MS EASTMAN: When Sunnyfield took over the house, would you agree, on reflection, that Sunnyfield seriously misunderstood the nature and the extent of the services required by the residents of the house in Western Sydney?
MS CUDDIHY: Not entirely, I don't believe. I think that there was a situation there where, unfortunately, the previous provider gave very short notice and there was an insufficient or inadequate transition plan.
MS EASTMAN: Who do you say is responsible for the insufficient or inadequate transition plan?
MS CUDDIHY: We were not aware that the other organisation were going to exit on the date that they exited and we did attempt to work with the other organisation to organise that transition plan and, unfortunately, they were not in a position to do that, to the best of my knowledge.
MS EASTMAN: But once Sunnyfield took over the operation of the house, it became apparent that the residents of this house had very high support needs. That's right, isn't it?
MS CUDDIHY: Yes.
MS EASTMAN: At paragraphs 102 to 137 of your statement, you set out in some detail the nature of the services provided to the residents; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: You would agree with me, would you not, in terms of delivery of services for the residents at the Western Sydney house, that the staff who work in the house are key to the delivery of services? That's right, isn't it?
MS CUDDIHY: Yes.
MS EASTMAN: Therefore, it is important that Sunnyfield recruit the right staff?
MS CUDDIHY: Yes.
MS EASTMAN: The staff have to have appropriate qualifications?
MS CUDDIHY: Yes.
MS EASTMAN: Appropriate experience?
MS CUDDIHY: Yes.
MS EASTMAN: Appropriate temperament?
MS CUDDIHY: Yes.
MS EASTMAN: They need to be trained?
MS CUDDIHY: Yes.
MS EASTMAN: They need to be supervised?
MS CUDDIHY: Yes.
MS EASTMAN: There needs to be a culture within the house that people feel sorry, people who work at the house feel that they can report or raise concerns about the welfare and safety of the residents; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: The approach to recruiting staff for this house commenced with a recruitment day for 12 staff and that occurred on 18 April 2017; that's right?
MS CUDDIHY: That's my understanding.
MS EASTMAN: That's what you have said in your statement at paragraph 37. In terms of the recruitment of staff at the house, what are the staffing arrangements at a house, and what level of workers are required?
MS CUDDIHY: So, the determination in regards to the staff at the house relates to
each individual client's roster of care, which is something that is agreed in their NDIS plan, and each client's roster of care then combines to create a house roster of care. There usually is a key worker for each of the clients in the house and there is usually a service coordinator. Some positions have changed since this point in time, where we now have a senior support coordinator, and in this house we actually have two.
MS EASTMAN: I ask you to turn to paragraph 138 of your statement. This sets out the nature of the workers who may provide support to residents in a Sunnyfield home; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: One level is community support worker?
MS CUDDIHY: Correct.
MS EASTMAN: Then there are key workers?
MS CUDDIHY: Yes.
MS EASTMAN: They are specific staff who care for clients at supported independent living homes. Sunnyfield typically allocates a key worker to each client from a pool of community support workers; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Key workers are accountable for ensuring broad support needs are met and maintained, and for key document maintenance, detailing residents' support needs, as well as oversight of any incident reports. So that's a key worker?
MS CUDDIHY: Yes.
MS EASTMAN: Then over the page, you identify senior support workers?
MS CUDDIHY: Yes.
MS EASTMAN: This is a new category, is that right?
MS CUDDIHY: No.
MS EASTMAN: Since May?
MS CUDDIHY: No. The senior oh, sorry, the senior support workers
MS EASTMAN: That's what you say in your statement, Sunnyfield created a new senior support worker role
MS CUDDIHY: Correct. My apologies. Thank you.
MS EASTMAN: commencing in May 2020. So that's new, isn't it?
MS CUDDIHY: Yes.
MS EASTMAN: In terms of the description of senior support workers, that's the current situation but not what existed at the time Sunnyfield took over the operation of the home in May 2017; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Then there's a position called service coordinator, and a service coordinator is responsible for ensuring the smooth running of the service in a way that is tailored to individual support needs of each resident?
MS CUDDIHY: Yes.
MS EASTMAN: They are also responsible for ensuring a safe and supportive home for residents and workplace for staff?
MS CUDDIHY: Yes.
MS EASTMAN: A service coordinator performs a range of administrative duties and they're set out in that paragraph; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Sunnyfield requires the service coordinators to hold tertiary qualifications; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: You identify Certificate III in Individual Support and Aged Care qualifications, Certificate III in Leadership and Management?
MS CUDDIHY: Mm hmm.
MS EASTMAN: Or they are to commit to obtaining a Certificate IV in Disability within 12 months of commencing in that role?
MS CUDDIHY: Yes.
MS EASTMAN: Was that a requirement back in May 2017?
MS CUDDIHY: I couldn't tell you exactly.
MS EASTMAN: In May 2017, what were the requirements that Sunnyfield identified for a service coordinator?
MS CUDDIHY: It depends on the house and it will also depend on the complexity of the clients and the number of clients as well. So I couldn't, hand on heart, tell you exactly the qualifications then, but I'm sure they wouldn't have been a great deal different.
MS EASTMAN: You identify on the next page, so this is part of paragraph 138, subparagraph (e), a position of regional manager.
MS CUDDIHY: Yes, that's correct.
MS EASTMAN: Someone who holds a regional manager role has the responsibility of doing the following, is this right: to address any issues that cannot be resolved at the service level, those issues are escalated by the service coordinator to a regional manager, based in Sunnyfield's main office at Allambie Heights; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: And the regional manager is responsible for managing services provided by Sunnyfield within a defined region, and that's a geographical region; is that right?
MS CUDDIHY: Yes. Although the regional manager will spend a fair bit of time in each service.
MS EASTMAN: Regional managers are required to hold tertiary degrees in human services or a related discipline, and have held a minimum of five years' leadership at a middle or senior management level. Was that a requirement in May 2017 or is that something new?
MS CUDDIHY: Whether that's that's certainly the case now but I couldn't comment about what was in 2017. I haven't investigated that.
MS EASTMAN: In June 2017, Sunnyfield decided to employ SP1 in the role of service coordinator; is that right?
MS CUDDIHY: That's my understanding.
MS EASTMAN: Did you have any personal role in the recruitment of SP1?
MS CUDDIHY: No.
MS EASTMAN: Do you accept that when Sunnyfield recruited SP1, it did not have a complete picture of his prior work history?
MS CUDDIHY: Absolutely.
MS EASTMAN: And that you did not know about certain allegations that had been made about him in the course of previous employment?
MS CUDDIHY: No, we did not know about those allegations.
MS EASTMAN: Have you reviewed the relevant workplace records concerning the recruitment of SP1?
MS CUDDIHY: I have looked at those records, yes.
MS EASTMAN: Have you read the report prepared by Jennie Piaud in relation to the recruitment of SP1?
MS CUDDIHY: Yes.
MS EASTMAN: Commissioners, you may remember Ms Piaud gave some evidence about this earlier in the week. The relevant report is at hearing bundle part A, tab 139. Ms Cuddihy, you have included the Piaud report as part of your statement?
MS CUDDIHY: That's correct.
MS EASTMAN: Unless you need to go to that Piaud report, I want to put some propositions to you arising from the Piaud report. It's the case, isn't it, that when Sunnyfield undertook its recruitment process, no one asked SP1 about whether allegations had been made about him in the course of any previous employment?
MS CUDDIHY: I'm not sure about that. Where is that?
MS EASTMAN: Do you accept that there were gaps in SP1's CV and those gaps in his CV or resume were not interrogated?
CHAIR: Do you want Ms Cuddihy to have access to the report?
MS EASTMAN: I'm happy to, Commissioners. I am trying to move through matters and I don't want to spend half an hour on the report.
CHAIR: No, I understand. But I think it's fair that Ms Cuddihy have access to the document, if that could be arranged, thank you.
MS CUDDIHY: My understanding is a police check was done for SP1, as well as a Working with Children check, and those checks are reliant on a person's you know, they're very important checks, and were at the time. There is a new check that's come in now from the NDIS Quality and Safeguards Commission which came in on 1 February. I do believe that when people sign their contract, they are saying they have a clear police check and a clear Working With Children check. And
they're asked in their contracts that if anything changes at any point in time, they are to notify about that.
MS EASTMAN: Do you accept that Ms Piaud identified in her report that SP1's resume or CV provides very patchy dates of his employment history?
MS CUDDIHY: I didn't say I don't recall the word "patchy". I don't believe that's the word
CHAIR: Page 4 towards the bottom of the page.
MS CUDDIHY: Thank you.
MS EASTMAN: Do you accept that
MS CUDDIHY: Sorry, may I be taken to that, where it says that?
MS EASTMAN: Have you read this report recently?
MS CUDDIHY: I have, I have. There are thousands and thousands of documents here.
MS EASTMAN: I am just asking if you have read this report recently?
MS CUDDIHY: Yes.
MS EASTMAN: Did you listen to Ms Piaud's evidence earlier in the week?
MS CUDDIHY: I certainly did, yes.
CHAIR: It's the first bullet point.
MS CUDDIHY: Okay, patchy dates. So, yes, my understanding is that when she means patchy dates, there are years rather than specific months of when he states that he was employed. So, the dates are more in years rather than actually specific months.
MS EASTMAN: There was no evidence in the notes that cover any questioning of those gaps?
MS CUDDIHY: There actually was, I understood, on the interview notes some queries or questions where people had asked. I wasn't aware particularly that SP1 had lots of gaps in his resume. I believe the person who had more, well, areas were to do with SP2.
MS EASTMAN: There were references provided by SP1 that state the role he is applying for was a community support worker role, not a house coordinator or a
service coordinator role. Were you aware of that?
MS CUDDIHY: I understand that in hindsight, yes.
MS EASTMAN: Are you aware whether any inquiries were made as to whether SP1 met the qualifications that you have identified in your statement in terms of holding particular certificates or having those relevant tertiary qualifications?
MS CUDDIHY: I don't know whether the recruitment team verified them. That is a standard practice but in this specific instance, I can't tell you exactly.
MS EASTMAN: Have you read the interview notes that were undertaken in relation to the interview of SP1?
MS CUDDIHY: Not specifically in detail.
MS EASTMAN: So you don't know whether, during the course of the interview, any of the Sunnyfield staff interviewing SP1 asked him if there were any allegations that were made about him in the course of any previous employment? You don't know that, is that right?
MS CUDDIHY: I wasn't involved in the interview. I was not there at the time. I can't specifically say what happened or didn't happen at that point in time.
MS EASTMAN: You are aware, aren't you, that there's no signed contract of employment with SP1?
MS CUDDIHY: No, that is not correct. There is a signed contract of employment.
MS EASTMAN: Ms Piaud concludes in her report on page 5, third dot point, there is no signed employment contract on file.
MS CUDDIHY: There actually is, there is a signed contract on file. I think, unfortunately for Ms Piaud, who has written these reports, when she had looked at it, she could not find them. I believe that they are there.
MS EASTMAN: Ms Piaud identified as a matter of concern that SP1, this is page 8, made no mention of being employed by a particular organisation on his resume, yet there are staff who confirmed that SP1 had spoken about being employed by that organisation and having been terminated from employment from the particular organisation. Ms Piaud says this might be one of the unexplained gaps in his resume where dates are very vague.
MS CUDDIHY: I'm aware of that as at the date of this report in 2 September '19, yes, but at the time of his recruitment, our staff were not aware of that.
MS EASTMAN: She says these gaps should be covered, in the first instance, by the
phone screening interview and the interviewer should ask the applicant to provide more detailed dates and to provide a reasonable explanation for those gaps. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: That didn't happen in relation to SP1, would you agree?
MS CUDDIHY: I believe the gaps are not year gaps. I think you'll see on many peoples CVs where they are year on year. But subsequently we've introduced a system called a CV check, which apparently allows you to have an organisation review someone's CV for its accuracy over the last ten years.
MS EASTMAN: That didn't happen in June 2017?
MS CUDDIHY: No, it didn't and, no, our staff were not aware that, it appears in hindsight, SP1 had falsified parts of his CV.
MS EASTMAN: Reflecting on the recruitment process for SP1, is it your view that those Sunnyfield staff who were involved in recruiting SP1 failed to follow the relevant procedures?
MS CUDDIHY: I'm not sure they entirely failed to follow the procedures but, yes, there could have been omissions in what they did.
MS EASTMAN: If there were omissions in what they did, you'd accept they failed to follow the procedures with respect to those omissions? Do you accept that?
MS CUDDIHY: No, I don't accept that. I think they followed our procedures. I think, in hindsight, if we had any idea of the character, nature and background of SP1, he would never have been employed in our organisation.
CHAIR: I don't think that's the question you have been asked, Ms Cuddihy. Would you like to repeat the question?
MS EASTMAN: This is what I put to you: if there were omissions in what they did, do you accept they failed to follow the procedures with respect to those omissions? Do you accept that?
MS CUDDIHY: Not in its entirety, no.
MS EASTMAN: With respect to the procedures for recruiting someone at the level of service coordinator back in June 2017, is it the case that there have been some changes that have now been made in relation to the recruiting practices?
MS CUDDIHY: Yes, there is.
MS EASTMAN: One of the changes is in relation to some guidelines from the NDIS in relation to recruitment and screening; is that right?
MS CUDDIHY: There's a whole raft of initiatives and benchmarking and information that we have sought to improve our recruitment practices.
MS EASTMAN: In the course of preparing to appear before this Royal Commission, you became aware of some information set out in Mr Miller, the Ombudsman's statement; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: You have provided a statement dated 24 May 2021 in relation to Mr Miller's evidence; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Do you have a copy of that with you?
MS CUDDIHY: I do, indeed.
MS EASTMAN: This is a statement that you have made, dated 24 May. Are the contents of this statement true?
MS CUDDIHY: To the best of my knowledge, yes.
MS EASTMAN: You have seen in the material from the Ombudsman, a draft letter to Sunnyfield that has the date 13 September 2018; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Commissioners, you have a copy of this draft letter in hearing bundle part C behind tab 8.
CHAIR: Thank you.
MS EASTMAN: Ms Cuddihy, just before I take you to that draft letter, in your statement you annex as the document CC 1 a copy of the Sunnyfield Employment Application Form?
MS CUDDIHY: Yes.
MS EASTMAN: This was the standard form that people had to complete in relation to seeking a position at Sunnyfield; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: On the second page, there are a number of questions there?
MS CUDDIHY: Yes.
MS EASTMAN: One of the questions, the second one down, was whether you have any convictions, finding of guilt or pending police charges against you that are less than 10 years' old?
MS CUDDIHY: Mm hmm.
MS EASTMAN: SP1 has ticked "no" there?
MS CUDDIHY: Mm hmm.
MS EASTMAN: The next is, have you ever been the subject of any prior employment related investigations, and he has ticked "no"?
MS CUDDIHY: Yes.
MS EASTMAN: But it doesn't ask whether there has been any allegations of violence, abuse, neglect or exploitation in previous employment; do you agree?
MS CUDDIHY: Yes.
MS EASTMAN: Can I take you to the draft Ombudsman's letter. The Ombudsman says in his statement that, as far as he can determine, this letter was never sent to Sunnyfield, but it was sent to the Office of the Children's Guardian. You are aware of that from reading his statement?
MS CUDDIHY: Yes.
MS EASTMAN: In terms of the matters set out in the draft letter, which is addressed to you.
MS CUDDIHY: Yes.
MS EASTMAN: You have had a chance to read the draft letter; is that right?
MS CUDDIHY: Yes, but I did not receive this letter.
MS EASTMAN: In terms of your reading of the letter and the description of SP1's employment history, with various allegations in relation to SP1's conduct with previous employers, how much of the matters set out in this letter were you aware of before you read it?
MS CUDDIHY: None. None. And neither were our staff in our recruitment team.
MS EASTMAN: As I understand your evidence, this is the 24 May statement, if you had been aware of the matters described in the draft letter, you would have taken steps to suspend and terminate the employment of SP1?
MS CUDDIHY: Correct.
MS EASTMAN: Is it your position that it is the Ombudsman's responsibility to notify you about the sorts of matters set out in the draft letter?
MS CUDDIHY: I don't know that I mean, I wish they had sent me the letter. I would have really appreciated that. But I understood they also corresponded with the Office of the Children's Guardian, and so I don't understand all of those mechanisms in great detail. But I don't understand how a satisfactory Working with Children check could have been given for SP1, given I understand they had knowledge of this background.
MS EASTMAN: Do you accept that if there had been a more thorough checking of SP1's CV and an interrogation of him with respect to the gaps in his CV or resume, back in May or June 2017, that Sunnyfield may have been able to make inquiries that could have led to the type of information that you have read in the Ombudsman's letter?
MS CUDDIHY: I don't know that anyone can surmise that. We had subsequently tried to make further investigations and did not were not successful in doing that. So I don't know that I could, in hindsight, say that was the case. Certainly Sunnyfield regrets employing someone having now seen this document and with their employment background we would never have employed or, if we had found out, we would have ceased their employment. But I don't think, in hindsight, any of us, unfortunately, can say that that would have if we had known this, it would have changed the course of events, but I don't believe that at that point in time we necessarily would have had any further information that would have revealed this.
MS EASTMAN: Would you agree now that SP1 was totally unsuited to hold the role that he did at the house?
MS CUDDIHY: I think he is totally unsuitable to have held that role and would be totally unsuitable to work in this sector.
MS EASTMAN: Do you accept that there were the red flags that identified to Sunnyfield that SP1 was not the right person at the house from fairly early on in his employment?
MS CUDDIHY: There were inquiries, there were matters raised, but when they were investigated, there could be no substance found to those inquiries and so
MS EASTMAN: I'm not even talking about complaints or allegations about him, but his own behaviour.
MS CUDDIHY: I didn't have a lot to do with him personally, but my inquiries of staff is that he was, or still is, no doubt, a very persuasive individual, can be quite charming and I would believe to be quite deceitful, with people not being aware of that, and a very deflecting individual. So I think that, in hindsight, we deeply regret employing him and deeply regret his actions. But, unfortunately, our staff did not have any idea of the nature of the person they were dealing with and this person was, I suppose you might call, a con artist.
MS EASTMAN: He was giving you some pretty good signs about struggling, wasn't he, from fairly early on in his employment?
MS CUDDIHY: His signs in terms of his employment was that he felt he was being and other staff had mentioned this, this comes up in the Piaud reports as well, that they felt they were being harassed by one particular guardian.
MS EASTMAN: That was Eliza, wasn't it?
MS CUDDIHY: Yes, that's correct.
MS EASTMAN: He was saying to the regional manager that his job's really hard, his stress levels were going through the roof. Were you aware that he was reporting feeling this way?
MS CUDDIHY: Yes, I was aware of that, yes, and I believe that mechanisms were put in place to assist him in his role, even to offer him a transfer somewhere else. But we had no idea that this was the nature of the person and their prior behaviour.
MS EASTMAN: He's saying things to the response team, for example, that he'd been thrown under the bus and he didn't feel supported and that these allegations that Eliza was making were the straw that's broken the camel's back. Do you remember him saying things like that?
MS CUDDIHY: I believe he worked very closely with the regional managers, EAP, human resources team and he, himself, said that he had improved the situation and that he was coping well in the role. I do believe we offered for him to be transferred because we hadn't known about this and he didn't want to accept that transfer and that things had improved.
MS EASTMAN: By October he's saying that he's so stressed he doesn't know when he will pop. That's a pretty strong red flag, wasn't it?
MS CUDDIHY: He did say that but also I believe the staff worked with him. We had a regional manager who spent a lot of time there, a lot of time with the team and the team also, at a point, put in a workplace health and safety request or concern in regards to the guardian.
MS EASTMAN: He was describing Eliza as unhinged. You've seen that, haven't you?
MS CUDDIHY: Yes. Very inappropriate.
MS EASTMAN: He was also questioning, saying he can't understand why Eliza is Melissa's guardian. You're aware he's saying that?
MS CUDDIHY: I don't exactly recall that particular comment but it's most inappropriate.
MS EASTMAN: Around this time, the regional manager was highly supportive of him, was she not, and she thought he was doing a great job under difficult circumstances.
MS CUDDIHY: Yes, and I think our staff have reflected deeply, I certainly know I have, our general manager, the two regional managers involved and other staff involved, to actually understand how everyone could have been deceived so badly by someone who misrepresented who they were and their actions, and committed what I believe is totally unacceptable acts.
MS EASTMAN: It's caused you personally great embarrassment and distress, hasn't it?
MS CUDDIHY: I'm not worried about embarrassment. I'm not worried about that. My main concern is what happened for the clients and their families and the staff in the house.
MS EASTMAN: In terms of you going to the house, I think you say around this time, at paragraph 159(a) --- Commissioners, this is page 32 --- that during the relevant period you visited the house on two occasions. The first was the afternoon of 17 May, and:
This visit was to meet each of the clients and staff on shift, to gain a briefing on matters relating to the client support needs, staffing, property improvements following transition ......
Is that right?
MS CUDDIHY: Correct.
MS EASTMAN: And the second in this --- during the relevant period, the second time was not until 13 December 2019. Is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: So between 17 May 2017 and 13 December 2019, you did not visit
the house?
MS CUDDIHY: That's correct.
MS EASTMAN: And to the extent that you knew what was happening at the house, you had no first hand knowledge during that period of time. Is that right?
MS CUDDIHY: I hadn't physically been to the house.
MS EASTMAN: And so anything that you knew about what was happening at the house was based solely on what was being reported to you?
MS CUDDIHY: In various shapes and forms, yes.
MS EASTMAN: And in terms of what was reported to you, that was reporting initially through SP1 as the service coordinator, because that's what his job was, wasn't it?
MS CUDDIHY: He didn't report directly to me, no.
MS EASTMAN: In terms of the reporting up the line of what was happening in the house, step one was SP1, step two was the regional manager and then the regional manager reports to somebody in the senior leadership team who in turn reports to you?
MS CUDDIHY: That's correct. They
MS EASTMAN: So you are at least four steps away from having direct knowledge about what happens in the house, is that right?
MS CUDDIHY: That is correct. However, there is also other staff that would go to the house, our quality audit team. So our quality assurance audit team would go to the house. Also I understand the safeguarding team went to the house. There would be other personnel that would have gone to that house.
MS EASTMAN: But essentially, what happened in the house is based on what you are told, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Now, I want you to have a look at a document which is in bundle D at 351. This is an email exchange between the Client Engagement Manager and Regional Manager 1. And Regional Manager 1 was the regional manager, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: And, in effect, SP1 reports to, or reported to, Regional Manager 1; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Now I will summarise the document this way: this email chain starts off in relation to the funding for a vehicle at the house.
MS CUDDIHY: Right.
MS EASTMAN: And the emails cover the period 26 June through to 29 June. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: I want to start with the email from Regional Manager 1 to the Client Engagement Manager on Monday, 26 June 2017, at 3:02pm. That's the second page of that bundle. Have you got that?
MS CUDDIHY: Yes, I have.
MS EASTMAN: I just want you to read to yourself, not out loud, that email exchange. Have you read just that email exchange?
MS CUDDIHY: I'm just up to the second one. But there's a series of emails, here, yes.
MS EASTMAN: I just want you to read the 26 June at 3.02pm.
MS CUDDIHY: Yes.
MS EASTMAN: The author of this email says, after covering a few issues:
This house is like nothing I've ever experienced before and hope never again. Even to try and train staff on site is proving near impossible. It is literally one incident after another, all day, every day. If it's not the clients, it's the family!!!!
Looking at this email now, is this a red flag?
MS CUDDIHY: I understood at the time, because
MS EASTMAN: Can I just ask you to listen to my question and answer it.
MR DUGGAN: Commissioners, with respect, I think she had said about three words then to try to answer the question and she was endeavouring to do so.
MS EASTMAN: I asked her whether that sentence I read out was a red flag. That's all I'm asking you. Not why.
CHAIR: Do you understand the question? If you would be good enough to direct your answer to that question.
MS CUDDIHY: At the time it was a red flag.
MS EASTMAN: Thank you. At the time it was a red flag?
MS CUDDIHY: Yes.
MS EASTMAN: In terms of the response to that email, which you will see on 27 June 2017 at 8.53 am, the author of that email says:
I'm sorry to hear this house is so challenging. We could never have known.
And then I'm not going to read onto the transcript the balance of that paragraph. But I want to ask you whether or not whether what's expressed in that paragraph is a red flag?
MS CUDDIHY: This was a series of emails here that raised at the time a red flag which was addressed.
MS EASTMAN: Going up the email chain, so turn to the front page, you will see that --- again, I want you to read this to yourself, I'm not going to read all of this onto the record --- you will see an email exchange on Tuesday, 27 June at 4.03pm. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: And in the second paragraph of that email it says:
Should we cut and run? Definitely! Can we? Probably not. I'm guessing Eliza would see to it that our reputation was left in tatters. I live every minute in fear of another call to advise that a staff member has been badly hurt. It really is only a matter of time. Anyway, we press on. I'm going to let the families know that Sunnyfield owns the vehicle.
And then there's a discussion about the vehicle. That's a red flag, isn't it?
MS CUDDIHY: Yes, it was a red flag that was addressed.
MS EASTMAN: Following that email chain, there's a response on 29 June at 14:41, do you see that?
MS CUDDIHY: Mm hm. Yes.
MS EASTMAN: And the effect of that email is:
We will need to request more funding and if this is denied, we may need to pull out.
See that, the second paragraph, last sentence?
MS CUDDIHY: Yes.
MS EASTMAN: This exchange is highlighting that Sunnyfield was struggling in being able to deliver the services to the residents at the house, isn't that right?
MS CUDDIHY: At that time, yes.
MS EASTMAN: And at that time, I can't see anywhere in the records that the concerns expressed in these emails were ever shared with the families, with Eliza or with Sophia. That's right, isn't it?
MS CUDDIHY: I have no knowledge of whether they were or weren't.
MS EASTMAN: Would you accept that a comment "I'm guessing Eliza would see it that our reputation was left in tatters" might be indicative of this adversarial relationship between Eliza and Sunnyfield?
MS CUDDIHY: I don't know.
MS EASTMAN: And that the concerns expressed by the author of this email were suggesting that Sunnyfield's reputation was a very significant concern in how the issues might be addressed?
MS CUDDIHY: That may be their perspective but I don't believe that was the organisation and certainly not my perspective.
MS EASTMAN: So you're aware --- and you haven't referred to this email in your evidence. Can you take me where there your evidence that the issues raised in this email were addressed? Where in your statement do you deal with that?
MS CUDDIHY: I don't know the answer to that question. But I do know the issues in this email were addressed. This was still very close to the period of time when the house transferred over. My understanding is that the clients --- the transition was not a good one for the clients and I think, again in hindsight, it's so important that the transition from one provider to another is very well conceived. We certainly had our clinician, and I believe it's somewhere there that Michael Caballero went to the house and worked with the clients. I know he worked closely with the parents about health issues for the clients and also about the behavioural intervention support plans, understanding those plans, up skilling and training the staff.
The vehicle issue was resolved. That's a minor issue. But I think that it's not a good idea to transition a house without really having a good handover and a good understanding and the time frame was way too short to do it in the three week period that we had.
MS EASTMAN: Are you aware that a risk assessment was undertaken around this time?
MS CUDDIHY: Not particularly.
MS EASTMAN: Commissioners, I will just get the document up. It's in D at 240. Can you see this document?
MS CUDDIHY: I don't specifically recall it but it's on Sunnyfield letterhead so it's a Sunnyfield document.
MS EASTMAN: Remember yesterday I asked you about risk management and risk assessment?
MS CUDDIHY: Yes.
MS EASTMAN: And in terms of how the risk assessments were undertaken, if you look at this document, this is typical of the way in which Sunnyfield prepares a risk assessment form.
MS CUDDIHY: This is a risk assessment form from Sunnyfield, yes.
MS EASTMAN: And are these risk assessments the type of assessments that make their way to you and then on to the board?
MS CUDDIHY: No.
MS EASTMAN: Not at all?
MS CUDDIHY: No.
MS EASTMAN: Where do these risk assessment forms go?
MS CUDDIHY: The risk assessments would go through to the General Manager of the service, our Quality, Risk and Compliance team. And it may also involve our business development team.
MS EASTMAN: If you have a look at this document, you will see that the current risk ratings for many of the items here are high.
MS CUDDIHY: Yes.
MS EASTMAN: There's a few mediums.
MS CUDDIHY: Mm hm.
MS EASTMAN: But most of them are high.
MS CUDDIHY: The current risk rating, yes.
MS EASTMAN: This risk assessment, which has the date 13 July 2017
MS CUDDIHY: Yes.
MS EASTMAN: --- would suggest that if the risks are identified as high, that's something of a significant red flag. Is that right?
MS CUDDIHY: We do deal with a number of high risk clients. This was a very new service and my understanding is this has a plan in place to reduce that to a target lower risk rating. So this plan, is my understanding, is to identify the risks and to reduce the risks.
MS EASTMAN: And reflecting back on the events, do you accept that, in terms of managing the risks at the house, that the risks that were identified around this time were never fully addressed, were they?
MS CUDDIHY: No, I don't believe that's true. I believe the risks were significant. As I mentioned, the transition between service providers was not adequate and that over time these risks were addressed. I think obviously, in hindsight, when you have a look at the behaviours of SP1 and SP2, those created a new level of risks and I think those risks have been addressed to date. So I think that at the house at the moment, we would have a very different risk assessment form. But I don't know if there is one currently.
MS EASTMAN: Have you ever shared a risk assessment form or the information of that kind with the guardians of parents of the residents at the house?
MS CUDDIHY: I'm not aware of that.
MS EASTMAN: Is there any mechanisms by which the parents and guardians can know what Sunnyfield identifies as risks and then be involved in addressing the management of the risks?
MS CUDDIHY: I'm not aware of a process but that sounds --- I'm not aware of that process.
MS EASTMAN: Why isn't there a process for disclosing to the residents and their representatives risks?
MS CUDDIHY: I'm not aware of a process so I couldn't say that there is or there isn't. I'm sure many risks are discussed with the family members and those risks are addressed.
MS EASTMAN: But there's not a specific mechanism for ---
MS CUDDIHY: Not a specific mechanism, to my knowledge, other than there's a weekly meeting, I believe, with two of the guardians of the house.
MS EASTMAN: That's now?
MS CUDDIHY: Yes. But there was regular contact with the guardians, very frequent contact with the guardians.
MS EASTMAN: There was frequent contact with the guardians because would you accept that when Eliza, for example, is raising issues, then those issues are the very sorts of things that assist in identifying risks. That's what was happening, wasn't it?
MS CUDDIHY: Certainly there were a lot of very good points that Eliza raised.
MS EASTMAN: But as Eliza continued to raise those points, the points were ignored because she could only be seen through the prism of being a querulent complainant; isn't that right?
MS CUDDIHY: No, I don't believe that was the case at the time. I think people were working at the time to try and resolve some very challenging issues. I don't believe the view of that was the case at the beginning of the relationship.
MS EASTMAN: And is that based on what people told you or what you yourself observed?
MS CUDDIHY: What I had been told and also what I had observed. But I think, unfortunately, over time that relationship did deteriorate.
MS EASTMAN: But you'd accept, wouldn't you, that communication between service providers and their clients and families are plainly of key importance?
MS CUDDIHY: Yes, absolutely.
MS EASTMAN: And Sunnyfield has a communication protocol for coordinating communication between a client's circle of support and Sunnyfield, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: And the purpose of the protocol is to foster communication that supports the clients' dignity, choice and opportunity, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: And you're aware, aren't you, that when Sunnyfield took over the operation of the house, that it provided its complaints and feedback brochure to the families, specifically Eliza?
MS CUDDIHY: Yes.
MS EASTMAN: And Eliza gave some evidence about that earlier this week. Commissioners, this is hearing bundle A, tab 17. I put the document up on the screen and we might bring it up again, if that's convenient. The document reference is IND.0080.0004.0001. Ms Cuddihy, do you have the document?
MS CUDDIHY: Yes, I do. Thank you.
MS EASTMAN: The first page is just a photograph and a description of the guide.
MS CUDDIHY: Yes.
MS EASTMAN: But the guide itself appears on the second page, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: All right. Now, what can you tell us about how this document was prepared? Do you know?
MS CUDDIHY: This is --- we have a more detailed complaints, praise and feedback document.
MS EASTMAN: I'm just asking you about this document.
MS CUDDIHY: This is a summary document of our procedures and essentially what it does is welcome all feedback.
MS EASTMAN: When you say essentially it welcomes all feedback, what do you mean by that?
MS CUDDIHY: We do appreciate all feedback. That's what it says and that's actually how as an organisation and how I personally feel.
MS EASTMAN: It goes further than that, doesn't it? It says:
You have the right to give feedback or make a complaint.
MS CUDDIHY: Yes, yes, I accept that.
MS EASTMAN: What do you understand to be the nature of having a right to give feedback and complaint?
MS CUDDIHY: It's an inherent right for a person to speak their mind.
MS EASTMAN: And there's no requirement to speak your mind in any particular way set out in this document, is that right?
MS CUDDIHY: This document doesn't say that but in the contracts it asks people to act in a reasonable manner, yes.
MS EASTMAN: They're the contracts for the provision of services and housing. But this is the specific agreement --- sorry, a specific guide to complaints and feedback. Is that right?
MS CUDDIHY: That's right.
MS EASTMAN: And when you say it's a summary, this summary is the document provided to clients and families, is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: And the more detailed document you're referring to is an internal working procedures document?
MS CUDDIHY: Yes, that's correct. Yes.
MS EASTMAN: So from the families' perspective, if they are to understand what they can raise by way of feedback or complaints, this is the document that explains to families and clients what to do, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: You haven't made it your practice to provide to families and clients the more detailed procedures, is that right?
MS CUDDIHY: It has a lot of, as you said, internal information that may not be relevant to the clients.
MS EASTMAN: This document says:
If you want to give feedback you should do it as soon as you can.
MS CUDDIHY: Yes.
MS EASTMAN: So that's to encourage someone who has feedback to be able to tell you at the earliest opportunity; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: There's nothing here to say that you can only give feedback once a week or once a day, but you encourage people, don't you, to give feedback as soon as they can?
MS CUDDIHY: Yes.
MS EASTMAN: You give this commitment, don't you, "You will not be treated differently for saying what you think or how you feel"?
MS CUDDIHY: Yes.
MS EASTMAN: "If you are a client, you will not lose your service."
MS CUDDIHY: Yes.
MS EASTMAN: Now these are representations, aren't they?
MS CUDDIHY: Yes.
MS EASTMAN: And do you accept that the clients are entitled to rely on these representations made by Sunnyfield?
MS CUDDIHY: Yes.
MS EASTMAN: And do you accept that their families and guardians are entitled to rely on the representations made by Sunnyfield?
MS CUDDIHY: Yes.
MS EASTMAN: And do you accept that this document represents that a person will not lose a service because they say what they think or they tell you what they feel?
MS CUDDIHY: That is correct.
MS EASTMAN: That didn't happen in Eliza's case, did it?
MS CUDDIHY: That's not quite the same issue.
MS EASTMAN: What do you mean it's not quite the same issue?
MS CUDDIHY: The staff at the house had put forward bullying and harassment by the guardian of Melissa, and this continued on for a long period of time.
MS EASTMAN: In terms of bullying and harassment, the entirety of any, and I will
use your expressions, bullying and harassment were emails raising feedback and complaints. That's right, isn't it?
MS CUDDIHY: No, it was not. It was beyond that. It was phone calls to staff's personal, private emails, it was threats made around feedback.
MR O’BRIEN: I object to this, Commissioner.
CHAIR: Yes.
MR O’BRIEN: These suggestions are suggestions that should have been put through this witness's own counsel to Eliza if this evidence was to be adduced in relation to this type of complaint against that witness. Otherwise it's entirely unfair, as Eliza has given evidence, she's come and gone and then this type of evidence is being adduced. I know it's not being adduced through her counsel, and that's the problem.
CHAIR: Yes, I think that the witness can be asked, in response to the question that Counsel Assisting posed, whether the proposition put by Counsel Assisting is or is not correct in her view. Any weight that is given to the evidence would have to take account of the point that you have made. But I think the witness is entitled to respond to the question that counsel has asked.
MR O’BRIEN: Thank you.
MS EASTMAN: So you have, to this day, a very negative view of Eliza, don't you?
MS CUDDIHY: No, that's not true. I don't have a view of Eliza at all. But if you refer to the Piaud reports, it was raised in the Piaud reports in the interviews to staff about that relationship.
MS EASTMAN: So is your evidence that the document that's up on the screen, which is the right to give feedback and being able to tell Sunnyfield what you think and how you feel, is somehow limited by the number of matters that you raise or the manner in which you raise matters; is that right?
MS CUDDIHY: I don't believe it's limited by the number but I think the manner in which things are raised consistently over a period of time, the issue with this is what impact it has on staff and then the impact on their ability to deliver the services to the clients in the house and our first and foremost concern is the welfare of the clients.
CHAIR: Why do you think the relationship broke down?
MS CUDDIHY: Why do I think the relationship broke down? I think that the manner of the communication and it's in the Piaud reports. If you have a look in the Piaud reports there are interviews with the staff and the staff raise their concerns and their matters.
CHAIR: Why do you think that Eliza behaved the way she did?
MS CUDDIHY: I couldn't surmise.
CHAIR: It had nothing to do with the fact that she got no responses from the people that you have accepted were totally unsuitable to be employed by your organisation?
MS CUDDIHY: Look, I think that there is obviously justified concerns in hindsight in regards to SP1 and SP2 and that relationship was fraught. But when we have a look at our records, we brought in a brand new, very qualified, very experienced
CHAIR: My question is why do you think this happened and what I'm putting to you is the proposition that if, and I say if, Eliza's communications had a character of the kind that you attribute to her, that it was very likely this had something to do with the lack of response to what she had put for a period of time before.
MS CUDDIHY: I think that there could be that argument, but as I was trying to explain, we brought in a brand new manager, very capable with no
CHAIR: Thank you, I think you answered my question.
MS CUDDIHY: with no prior knowledge and she also left the organisation due to stress.
CHAIR: All right, thank you. I think you've answered the question. Yes.
MS EASTMAN: It's the case that the communication between Sunnyfield and Eliza broke down fairly quickly, did it not?
MS CUDDIHY: I believe so.
MS EASTMAN: And the primary source of communication between Sunnyfield and Eliza was through SP1; do you agree?
MS CUDDIHY: In the first instance, but also with other people and then later on there was another manager, entirely brand new and that started afresh and on very good grounds and unfortunately exactly the same sort of breakdown of behaviour occurred.
MS EASTMAN: Okay. I'm going to slow down. I want to focus on what happened in 2017. I put to you that the communication between Eliza and Sunnyfield broke down quickly. Do you agree with that?
MS CUDDIHY: Not entirely. I believe that we were still trying to communicate with Eliza, address her issues and concerns. I didn't really become fully aware of those matters until most probably the latter part of 2017.
MS EASTMAN: I'm not asking you about those things. Could I please ask you to listen to the question that I'm asking? I know you've got a lot that you want to say and we'll get to it. I'm putting to you that the communication broke down between Eliza and Sunnyfield fairly quickly. Do you agree with that?
MS CUDDIHY: I'm not sure what you mean by fairly quickly.
MR DUGGAN: Commissioner, can I just indicate for the record that, in my submission, she was answering that previous question and she's endeavouring to answer all questions that are put to her and the comment was unfair.
CHAIR: Thank you for that. Please continue.
MS EASTMAN: By the 17th of July 2017, there was correspondence between Sunnyfield and Eliza about communication and communication difficulties. You're aware of that, aren't you?
MS CUDDIHY: Is there a reference to that document?
MS EASTMAN: Eliza has included this letter in her evidence at bundle A at tab 28. This is a letter sent by the Acting General Manager, Shared Living, and it's sent to Eliza; do you see that?
MS CUDDIHY: Yes, it's in response to an email that Eliza sent with exactly the same or close to the same points so Eliza sent an email, I believe, to could be [redacted]
MS EASTMAN: I'm not asking you about what Eliza did. I'm asking you to identify this document. That's the only thing I've asked you to do.
MS CUDDIHY: Yes.
MS EASTMAN: Have you read do you want to have a read of it before I ask you the question?
MS CUDDIHY: Thank you. I've summarily looked at it.
MS EASTMAN: This sets out how Eliza is to communicate. Would you agree? On page 1 it says:
All operational and administrative communications in the first instance are to be directed to SP1.
MS CUDDIHY: Yes. This is in response to her request.
MS EASTMAN: I'm not asking you what it's a response to. I didn't ask you that, did I?
MS CUDDIHY: No, but that's the fact.
MS EASTMAN: It says:
Should you feel your requests have not been met, please contact the regional manager.
MS CUDDIHY: Yes.
MS EASTMAN: Then number (b):
SP1 should be contacted regarding any dispute or complaint in the first instance.
MS CUDDIHY: Yes.
MS EASTMAN:
If this cannot be resolved, please contact the regional manager.
MS CUDDIHY: Yes.
MS EASTMAN: And (c) deals with arrangements if SP1 is on scheduled leave, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: And if we look at the totality of this document, this sets out what Sunnyfield requires of Eliza with respect to how Eliza is to communicate with Sunnyfield; is that right?
MS CUDDIHY: In response to her request, yes.
CHAIR: Sorry, what request was that?
MS CUDDIHY: Eliza had sent a detailed email of all of these topics, exactly or pretty close to this format, requesting Sunnyfield to reply to that. So that was a request and it related to an upcoming meeting that they were going to hold.
MS EASTMAN: I'll find that document and, Chair, I will come back to that document.
It's the case, isn't it, that that arrangement, described in mid July, was not successful as a communication tool. Is that right?
MS CUDDIHY: I believe and understand that.
MS EASTMAN: And in October 2017, Sunnyfield developed a communication protocol and a draft action plan to ensure effective communication between Sunnyfield and Eliza. And you're aware, aren't you, that Eliza was broadly supportive of the plan and she provided comments in the draft?
MS CUDDIHY: Yes.
MS EASTMAN: And the draft plan required that any communication with Sunnyfield must go first through the house manager, that's SP1?
MS CUDDIHY: Yes.
MS EASTMAN: Who would be the primary point of contact for Melissa's family and the clinicians. Is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Now that communication protocol was never finalised?
MS CUDDIHY: Yes.
MS EASTMAN: And the extent that the communication protocol and draft was never finalised, you're aware, aren't you, that Eliza understood the matters set out in that July letter that I've taken you to, was the basis upon which she should communicate, is that right?
MS CUDDIHY: Yes. But that letter also did include in there, which you didn't read out, was to also she could go through our complaints and praise and feedback system as well.
MS EASTMAN: Now thi you're aware, aren't you, that this draft protocol was the subject of a complaint to the Ombudsman; is that right?
MS CUDDIHY: I don't specifically mention recall.
MS EASTMAN: If we go back to the document which is D 415, this is the Ombudsman's letter of the 18th of December 2018.
MS CUDDIHY: Thank you. Is there a particular clause I should refer to?
MS EASTMAN: So if you turn to page three you will see there's a draft heading "Draft Action Plan" and "Draft Communication Protocol".
MS CUDDIHY: Yes.
MS EASTMAN: Can I just ask you to read those paragraphs up to "restrictive
practices" yourself. Have you read that?
MS CUDDIHY: Yes, thank you.
MS EASTMAN: Now, can we take from those passages that Sunnyfield had provided to the Ombudsman a copy of the Draft Communication Protocol and the Draft Action Plan?
MS CUDDIHY: Yes.
MS EASTMAN: And you're aware that the Ombudsman's view, which is expressed in this letter, and I'm not asking you to second guess the Ombudsman or get into the mind of the Ombudsman's office but the Ombudsman says:
However, despite having developed a comprehensive communication protocol and action plan, Sunnyfield did not take adequate further steps to discuss and resolve the communication issues.
MS CUDDIHY: Yes.
MS EASTMAN:
And in this regard we note that Sunnyfield did not finalise these key documents, did not provide Eliza with the draft communication protocol and did not meet with Eliza in January 2018.
MS CUDDIHY: Yes.
MS EASTMAN: Now, the reason that that had occurred is for the reasons that follow, isn't this right? That on 29 January 2018 Sunnyfield advised the Ombudsman's office that Sunnyfield had made the decision to exit Melissa?
MS CUDDIHY: I don't know at that point in time whether that decision had been made but a decision was subsequently made.
MS EASTMAN: A decision to exit Melissa was made on the 29th of January 2018.
CHAIR: Is that a question?
MS EASTMAN: Yes. That's right, isn't it?
MS CUDDIHY: That's what --- (overspeaking) ---
MS EASTMAN: But that's what you told the Ombudsman.
MS CUDDIHY: --- (overspeaking)
MS EASTMAN: But that's what you told the Ombudsman, isn't that right?
MS CUDDIHY: I don't know that I personally told the Ombudsman that, but if that's what's in the letter I'll accept what's in the letter.
MS EASTMAN: The Ombudsman says in the next paragraph:
We appreciate that Sunnyfield took important first steps to address the communication problems that were affecting service provision to Melissa, and the working relationship between Sunnyfield and the Eliza.
The Ombudsman says this:
However, we do not consider that the organisation took all reasonable steps to resolve the issues prior to making the decision to exit Melissa from her accommodation.
See the Ombudsman said that?
MS CUDDIHY: Yes.
MS EASTMAN: Now I took you earlier to your response to the Ombudsman of 10 January 2019. Would you like to have a look at that letter again?
MS CUDDIHY: Yes.
MS EASTMAN: It's D 414. It's page two under the heading "Communication Issues".
MS CUDDIHY: Yes, thank you.
MS EASTMAN: Would it be fair to say that Sunnyfield did not agree with the Ombudsman's assessment with respect to taking reasonable steps to discuss and resolve communication issues with Eliza?
MS CUDDIHY: We had a different view, yes.
MS EASTMAN: You say you disagree with this assessment, don't you?
MS CUDDIHY: Yes.
MS EASTMAN: And then you provide the Ombudsman with a range of reasons as to why. Is that right?
MS CUDDIHY: Yes. A great deal of effort had gone into try and finalise the protocol and without being able to do so.
MS EASTMAN: And the reason that you say you weren't able to do so, can I summarise from what's on this letter, is that you blamed Eliza for that, didn't you?
MS CUDDIHY: We did try and work very, very closely with the guardian and unfortunately we weren't able to and it was said that exactly what it says in that paragraph there. It says that a face to face meeting was cancelled, external involvement would be required by Eliza and that unfortunately the failure, alleged failure, to finalise the draft action and communication protocol was related to a decision by Eliza to withdraw from engaging on the protocol.
MS EASTMAN: And in terms of Sunnyfield's thinking about exiting Melissa, which I assume meant exiting her from the home and also withdrawing services, is that Sunnyfield had started to make plans to effect her eviction by June 2018. Is that right?
MS CUDDIHY: I think it was around June 2018 that the letter was sent.
MS EASTMAN: And in terms of the timing of it, you were aware, weren't you, that Sunnyfield's view was that there was a window of opportunity with respect to effecting that eviction and the window of opportunity was related to having to get the residents to sign up new agreements that would increase their rights in relation to eviction or termination of services. Isn't that right?
MS CUDDIHY: I don't specifically recall that, no.
MS EASTMAN: Commissioners, I wanted to show the witness a document on the window of opportunity and I'm conscious of the time and this may take some time to go through that document. So if we could adjourn now and return to this
CHAIR: Yes, thank you very much. We'll adjourn now and resume at 2.05 pm.
We'll return at 2.05.
ADJOURNED [1.04 PM]
RESUMED [2:05 P.M.]
CHAIR: Yes, thank you, Ms Eastman.
MS EASTMAN: Ms Cuddihy, I was asking you questions about the decision to evict Melissa and I suggested to you that decision had been made by January 2018, so we're up to that point.
MS CUDDIHY: We're up to that point?
MS EASTMAN: Yes. Do you remember me asking you those questions before lunch?
MS CUDDIHY: I do. I do.
MS EASTMAN: I want to show you a document from bundle D at 210. This is an email directed to you on 21 February 2018. Do you see that?
MS CUDDIHY: Yes, I do. Thank you.
MS EASTMAN: It's from Jennifer Luff and cc'd to Jonathan Swain. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: Can I just ask you to read that email to yourself. Have you read that document?
MS CUDDIHY: Yes, thank you.
MS EASTMAN: It indicates that Ms Luff and Mr Swain had met that morning regarding the exit strategy for Melissa. That's right?
MS CUDDIHY: Yes, that's what it says.
MS EASTMAN: It says:
As you noted yesterday, the lease agreement is due to be signed on 1 July, which gives us a window of opportunity to act.
First of all, the reference to "As you noted yesterday", do you have a recollection of having some form of communication with Ms Luff or Mr Swain on 20 February 2018?
MS CUDDIHY: No, I don't.
MS EASTMAN: You don't. Would you have taken any notes if you had a discussion with either of them?
MS CUDDIHY: I don't have any recollection of that.
MS EASTMAN: Do you have a recollection of having any discussion with either or both of them about an exit strategy for Melissa?
MS CUDDIHY: I don't recall that, no.
MS EASTMAN: To the extent this email says that you noted the lease agreement was due to be signed on 1 July, do you know what that's a reference to?
MS CUDDIHY: Not specifically. I could infer what it might mean.
MS EASTMAN: What's your inference?
MS CUDDIHY: I don't know. It could mean the new lease agreements for DCJ, but those lease agreements I don't believe actually got executed until 2020.
CHAIR: But they were backdated?
MS CUDDIHY: They were backdated and there were some considerable representations between Sunnyfield and the sector with both the New South Wales Minister for Disability at the time and the Department at the time about those agreements.
MS EASTMAN: Would it be your best recollection, turning your mind back to February 2018, that at that period of time the lease agreements were due to be signed by 1 July 2018?
MS CUDDIHY: I can't specifically recall and I certainly would tell you if I could.
MS EASTMAN: Do you know what "a window of opportunity to act" is a reference to? Is that something that you told Ms Luff or Mr Swain?
MS CUDDIHY: As I said, I can't recall that.
MS EASTMAN: You can't recall that?
MS CUDDIHY: No, and I would tell you if I could.
MS EASTMAN: This says:
Given FACS is such a key stakeholder in the Sunnyfield provision of services, we reviewed the reputational and relationship risk in proceeding.
Do you understand that is reputational and relationship risk in proceeding with the eviction of Melissa?
MS CUDDIHY: I'm not sure exactly what it means but it could mean that.
MS EASTMAN: But you don't know?
MS CUDDIHY: I don't know exactly, no.
MS EASTMAN: But you accept, don't you, turning your mind back to February
2018, that if Sunnyfield was to evict Melissa, that would have a reputational and a relationship risk with the FACS, the relevant department in the New South Wales Government? That's right, isn't it?
MS CUDDIHY: It potentially could, but it may not.
MS EASTMAN: There was concern, wasn't there, that if Melissa was evicted, it could have a reputational and relationship risk?
MS CUDDIHY: Possibly.
MS EASTMAN: Reputational and relationship risk is a risk that is of concern to Sunnyfield; isn't that right?
MS CUDDIHY: It's not our primary concern.
MS EASTMAN: But it is a concern?
MS CUDDIHY: It is a concern, but not our primary concern.
MS EASTMAN: It's not? So, what, damaging relationships with the New South Wales Government department wasn't a primary concern?
MS CUDDIHY: I don't believe it was a primary concern. I mean, the major concern here, if I read this, would be obviously in relation to the clients.
MS EASTMAN: That's how you read the document, is it?
MS CUDDIHY: The document may not read that way but that would be my interpretation, but this document that's written says that they've reviewed this.
MS EASTMAN: How could you be having a primary concern for a client when you're discussing an exit strategy for the client? They don't seem to fit well together, do they?
MS CUDDIHY: I think sometimes, unfortunately, there are situations that occur, only rarely, where it may not be in the mutual interest of the client to continue with a particular service provider.
MS EASTMAN: But you didn't know at February 2018 whether Melissa wanted to stay in the house or not. You had no idea, did you?
MS CUDDIHY: No, I didn't.
MS EASTMAN: As at 21 February 2018, there had been no discussion with Eliza about Melissa being the subject of an exit strategy. That's right, isn't it?
MS CUDDIHY: That's correct.
MS EASTMAN: The email suggests some risk mitigation strategies, does it not? A meeting with the department?
MS CUDDIHY: Yes, it does. Yes.
MS EASTMAN: To brief them on the situation.
MS CUDDIHY: Yes.
MS EASTMAN: And to discuss what they desired as outcomes. Do you see that?
MS CUDDIHY: Yes, desired outcomes, yes.
MS EASTMAN: The email asks you if you agree it would be possible for you to arrange a meeting.
MS CUDDIHY: Yes.
MS EASTMAN: Did you arrange that meeting?
MS CUDDIHY: I can't recall, I'm sorry, I just can't.
MS EASTMAN: If you did arrange that meeting, should we expect to see a document?
MS CUDDIHY: You would think so, but I don't know. Is there a document that relates
MS EASTMAN: I'm asking you.
MS CUDDIHY: I don't know. I can't recall, as I said.
CHAIR: I'm sorry to interrupt, I am just wanting to understand your evidence, Ms Cuddihy. Reading this letter, it looks as though it is from Ms Luff, who wants to work out a way of removing the client with minimal reputational and relationship risk. Are you suggesting that you understood it any other way?
MS CUDDIHY: Reading this, but I don't recall the specific email at that time.
CHAIR: No, I am not asking whether you recall, I am asking are you saying that you understood it in any different way than I have just outlined?
MS CUDDIHY: No, I agree with what you said.
CHAIR: Thank you.
MS EASTMAN: I want to put to you that the reference to the window of opportunity is this: you knew, with respect to the lease agreements that were due to be signed on 1 July, the effect of those lease agreements would make it difficult, if not impossible, for you to evict Melissa after those agreements had been signed. That's right, isn't it?
MS CUDDIHY: I don't recall, as I said.
MS EASTMAN: But what did you understand with respect to the lease agreements and any changes that would be brought about by those lease agreements in relation to evicting residents?
MS CUDDIHY: I didn't have an understanding specifically about that. There were terms in those lease agreements, as I said, that Sunnyfield found quite onerous and we had been making representations to the Minister for Disability, to the Department of Communities and Justice, the whole sector had been raising issues around the terms of those agreements and that was a real issue. It was particularly around the payment to DCJ in regards to not only the reasonable rent contribution, but SDA funding or Specialist Disability Accommodation funding, of which we had a number of residents who did not receive Specialist Disability Accommodation funding.
MS EASTMAN: Just in response to that answer, can I take you to a document, D226. In the top right hand corner the final four numbers are 1591. Do you see that?
MS CUDDIHY: Thank you, yes.
MS EASTMAN: There is an email there from [redacted], do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: You are cc'd into the email?
MS CUDDIHY: Oh, down the bottom?
MS EASTMAN: No. It says "cc", 13 June 2018. Do you see that?
MS CUDDIHY: At 4.08pm?
MS EASTMAN: No.
CHAIR: I think you might be on the wrong page. It is the page that has 1591 on the top right hand corner.
MS CUDDIHY: Yes, 1591.
MS EASTMAN: It is the first full email, [redacted], 13 June 2018, 4.56.
MS CUDDIHY: Oh, 4.56.
MS EASTMAN: You are copied into that, aren't you?
MS CUDDIHY: Oh, 4.56. Yes, I am.
MS EASTMAN: It says:
Bruce, we will issue the leases with conditions and adjustments to the leases shortly but terminations like this will be in breach of the lease (pro forma versions which have been circulated) and which you have written to and met with the Minister about previously. The NDIA also has quite clear directions regarding evictions/terminations and the work that needs to be done to source alternative accommodation before a resident can be evicted. Those processes are reflected in our leases and accommodation agreements with residents.
Do you see that?
MS CUDDIHY: Yes, I do.
MS EASTMAN: Can I suggest to you that you could not have been in any doubt that the effect of those lease agreements would mean that the strategy to exit Melissa could not be done after the leases were entered into. Do you accept that?
MS CUDDIHY: I don't recall, as I said before, and I'm sorry, but I don't read every email that I'm cc'd into.
MS EASTMAN: This is a pretty important email about Sunnyfield's legal obligations with respect to its leases with FACS and the implication about changes of such matters as termination rights. That's a really important matter, isn't it?
MS CUDDIHY: We had many ongoing communications with DCJ over the leases. It is a long time ago now, so I'm not trying to be evasive but I can't specifically answer your question.
MS EASTMAN: You are aware, aren't you, that these leases had to go up to the board for review; is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Do you know when these matters were brought to the board's attention?
MS CUDDIHY: I can't remember what date, no.
MS EASTMAN: What I want to put to you, and I will say it again, is that the window of opportunity to act that's referred to in the email exchange between Jennifer Luff and yourself, that window of opportunity to act is to act before 1 July if you wanted to evict Melissa. That's right, isn't it?
MS CUDDIHY: I don't know that. I don't know that.
MS EASTMAN: Some time around March 2018, the New South Wales Ombudsman offered to conciliate between you and Eliza in relation to the issues she had raised with the Ombudsman. You are aware of that, aren't you?
MS CUDDIHY: Yes.
MS EASTMAN: Sunnyfield declined to participate in a conciliation in March 2018. That's right, isn't it?
MS CUDDIHY: Yes.
MS EASTMAN: The reason Sunnyfield refused to participate in a conciliation is you had already decided to evict Melissa and you did not wish to have any conciliation until after the eviction had occurred. That's right, isn't it?
MS CUDDIHY: I think, in hindsight, that's a regretful position.
MS EASTMAN: It's right, isn't it? That's the only question I asked you.
MS CUDDIHY: I said yes.
MS EASTMAN: On 4 June 2018, Sunnyfield wrote to Eliza and sent the letter via email, telling her that Melissa's services would terminate with effect from 5 September 2018. You're aware of that?
MS CUDDIHY: Yes. Can we get that letter?
MS EASTMAN: Sunnyfield told Eliza if it could not find new accommodation with a new provider by 5 September 2018, Eliza would need to assume responsibility for Melissa's accommodation for support at that time? Is that right?
MS CUDDIHY: I would like to see the letter.
MS EASTMAN: Bundle A, tab 29.
MS CUDDIHY: 4 June 2018?
MS EASTMAN: That's right. You are cc'd on that letter?
MS CUDDIHY: Yes.
MS EASTMAN: You are aware that the letter was going to Eliza on 4 June 2018?
MS CUDDIHY: Yes.
MS EASTMAN: You are aware, aren't you, that Eliza was not given any forewarning that Sunnyfield had made this decision?
MS CUDDIHY: Correct.
MS EASTMAN: You say at paragraph 213 of your statement that the decision was not made lightly?
MS CUDDIHY: Correct.
MS EASTMAN: That Sunnyfield considered the potential impacts on Melissa?
MS CUDDIHY: Yes.
MS EASTMAN: But there was a balancing act, is that right, and the impacts on Melissa
MS CUDDIHY: It was on balance. It was on balance, not a balancing act.
MS EASTMAN: There was a balancing act, wasn't there? On one side, there's the potential impacts on Melissa and, on the other side, it's Sunnyfield's concern for the wellbeing of staff, due to the levels of stress they reported, and Sunnyfield was also concerned that issues reported by staff had resulted in a situation that it was not in Melissa's best interests to remain. Is that right?
MS CUDDIHY: Yes.
MS EASTMAN: How did you assess Melissa's best interests?
MS CUDDIHY: There were a number of concerns that were raised
MS EASTMAN: How did you assess Melissa's best interests?
MR DUGGAN: I object. She was asked how Melissa was taken into account and she said there were a number of concerns, and she was cut off.
CHAIR: I think the answer was not exactly responsive to the question. There is a difference. How did you assess her best interests?
MS CUDDIHY: We weighed up the impact that it was having on the staff and how they were frightened and scared to provide services to support Melissa and the
MR DUGGAN: I object, Chair, on the same basis I raised before. This is gratuitous. It is gratuitous evidence against Eliza's interests that you, Commissioner, and the other Commissioners have been asked to take into account in assessing the credibility of a witness which was never put to Eliza herself.
CHAIR: I understand. Ms Cuddihy, what you have been asked is how did you assess. I think the question goes to a process. Perhaps, more specifically, you might direct attention to did you ask Eliza or Melissa
MS CUDDIHY: No, I did not. We did not ask
CHAIR: to ascertain what their best interests were?
MS CUDDIHY: We did not ask Eliza and Melissa.
CHAIR: That, I think, is the point.
MS EASTMAN: Thank you. I want to put to you that what you have said at paragraph 213, the reason was the wellbeing of staff due to the levels of stress they reported, is the real reason was that Sunnyfield had had enough of Eliza's complaints and feedback. Isn't that right?
MS CUDDIHY: The issue was much more complex and nuanced than that. We had received, and it's shown in the Piaud reports, where our staff had raised workplace health and safety issues. We had very high staff turnover in the house. There were a range of concerns raised. This impacted the care of the clients, not only Melissa but also Carl and Chen. There was a whole raft of issues and we felt that the relationship had broken down to such an extent that, unfortunately, no longer were things able to really be, I think, in the best interests of all parties.
MS EASTMAN: Why didn't you say that in your statement to the Royal Commission?
MS CUDDIHY: I'm sorry if that was an omission but that wasn't intended to be.
CHAIR: More to the point, perhaps, why didn't you say anything to Eliza between February when, according to the email exchange, you knew what was planned, until the notice of eviction was issued on 4 June?
MS CUDDIHY: I think the relationship had been broken down to such an extent, but I think you're right, we regret that and I think we regret that
CHAIR: No, I didn't ask you whether you regretted it, I asked why you, as the Chief Executive Officer, who knew in February what was planned, on the basis of the email of 21 February 2018 if nothing else, why you did not think it was appropriate for Eliza, if not Melissa, to be informed that it was deemed not in their interests to continue with their
MS CUDDIHY: It was an omission on my behalf.
CHAIR: Hmm?
MS CUDDIHY: It was an omission on my behalf.
CHAIR: Omission?
MS CUDDIHY: Mm hmm.
MS EASTMAN: The June 4 letter gives no reason whatsoever, does it, for the eviction?
MS CUDDIHY: No.
MS EASTMAN: That was a deliberate decision, was it not?
MS CUDDIHY: We felt that it was very difficult to explain the situation.
MS EASTMAN: It was a deliberate decision?
MS CUDDIHY: If you say so.
MS EASTMAN: I'm asking you.
MS CUDDIHY: I don't believe it was a deliberate decision. I think it was a very difficult decision, as I have mentioned, and a complex decision and we also didn't want to put the staff at further risk.
MS EASTMAN: For those reasons, you decided not to tell Eliza why Melissa would be evicted. Those are the reasons; is that right?
MS CUDDIHY: We did later on explain why.
MS EASTMAN: I will get to that but I'm not asking you that now. But it was a deliberate decision not to include reasons in this letter; is that right?
MS CUDDIHY: I think it's another omission and I think that's regretful, in hindsight.
MS EASTMAN: You have heard Eliza's evidence, haven't you, that receiving this letter came out of the blue for her?
MS CUDDIHY: Yes.
MS EASTMAN: You heard her give evidence that she was terrified that Melissa
was going to lose her home and about the impact this would have on Melissa. You've heard that?
MS CUDDIHY: And I'm sorry for that distress caused.
MS EASTMAN: Did you think about those concerns when you were making the decision and planning the exit strategy over the many months prior to 4 June?
MS CUDDIHY: I don't believe that at the time we thought that would cause that distress. We felt that the relationship had broken down. But I do see, in hindsight, that that was an assumption that was not valid.
MS EASTMAN: You did not, in this letter of 4 June, offer to provide alternative or find alternative accommodation within another Sunnyfield residence, did you?
MS CUDDIHY: No.
MS EASTMAN: In this letter, you did not offer to provide any assistance to Eliza with respect to finding another service provider; is that right?
MS CUDDIHY: I believe we did later on.
MS EASTMAN: But not in this letter?
MS CUDDIHY: No.
MS EASTMAN: I assume that you saw
MR DUGGAN: Commissioner, I object to that. There is a paragraph in that letter which is an offer of assistance.
CHAIR: Which letter are we now talking about?
MR DUGGAN: 4 June 2018, as I understand it, paragraph three.
MS EASTMAN: You say there "We are able".
CHAIR: Sorry, one at a time.
MS EASTMAN: That's not the question.
CHAIR: What paragraph are you referring to, please?
MR DUGGAN: Paragraph three:
We are able to assist you, if required, to approach other service providers regarding supported independent living and specialist disability
accommodation services for Melissa.
CHAIR: Thank you. Ms Eastman will take that into account.
MS EASTMAN: That is not an offer, is it?
MS CUDDIHY: Yes, it is. She may not want to accept that but we would offer to do that.
MS EASTMAN: "If required".
MS CUDDIHY: Yes.
MS EASTMAN: And you say that's an offer?
MS CUDDIHY: Yes.
MS EASTMAN: Are you aware what Eliza had to do following receipt of this letter?
MS CUDDIHY: I heard that on Monday.
MS EASTMAN: For the first time?
MS CUDDIHY: I think it's been in some of the paperwork, the statements.
MS EASTMAN: You are aware, aren't you, that Eliza sought some reasons for the decision?
MS CUDDIHY: Yes.
MS EASTMAN: Were you involved in any discussions about whether you should provide reasons to Eliza?
MS CUDDIHY: I can't recall the specifics.
MS EASTMAN: When you say you can't recall the specifics, do I take it that you're telling me you were involved in discussions?
MS CUDDIHY: I said I can't recall.
MS EASTMAN: Was this a matter that reached the level of the board?
MS CUDDIHY: I can't recall that either.
CHAIR: Is this the first time somebody, a resident in the 48 houses, had been given a notice of eviction?
MS CUDDIHY: No.
CHAIR: How often had it happened prior to this?
MS CUDDIHY: Not very often.
CHAIR: How often?
MS CUDDIHY: Please, this may not be accurate, but possibly four or five times in ten years.
CHAIR: It is a pretty significant thing, isn't it?
MS CUDDIHY: It depends on what for this particular situation, yes, it was a significant thing.
CHAIR: What I am struggling with, I must say, is you seem to be suggesting that you have no recollection or little recollection of your involvement in the process.
MS CUDDIHY: No, that's not what I'm saying.
CHAIR: That is not what you're saying?
MS CUDDIHY: I'm saying I can't remember some of the specifics and that is truth. I'm not trying to be evasive.
MS EASTMAN: Did you take any notes of any meetings that you had in considering what you call the specifics that you now no longer remember? Did you keep notes?
MS CUDDIHY: No, I'm sorry, that implication is unfair. I'm saying I can't I would tell you if I could recall.
MS EASTMAN: I'm asking if you took any notes.
MS CUDDIHY: I don't know that I took notes.
MS EASTMAN: Is your practice to take notes in meetings that deal with such significant issues?
MS CUDDIHY: We don't actually have a practice because this is something that happens very rarely.
MS EASTMAN: If it happens very rarely, wouldn't it suggest that it might be quite important to take a note of the decision making process, the factors taken into account?
MS CUDDIHY: Possibly, yes.
MS EASTMAN: You would have been aware that it might have been possible to challenge this decision. You'd be aware of that, wouldn't you?
MS CUDDIHY: That someone would challenge this decision? That's a possibility, yes.
MS EASTMAN: That would have made it very important to keep notes about the way in which you made the decision and the factors relevant to the decision; is that right?
MS CUDDIHY: Likely, but I do not recall if I have notes for this, and all the information that is available has been given to the Royal Commission, so if you have those notes.
MS EASTMAN: Do you recall keeping or making any notes?
MS CUDDIHY: As I've said, but if you have something, that's in the statements, there is vast quantities of information here.
MS EASTMAN: When you prepared your statement for the Royal Commission dealing with this part of your evidence, which is the decision to terminate, can we assume that we have included references to documents you have done your best to include every document that will be relevant to this part of your evidence; is that right?
MS CUDDIHY: Absolutely, yes.
MS EASTMAN: With the letter that I think you have referred to or tried to refer to, giving reasons, the reasons were provided to Eliza on 13 June 2018 and you will see that letter behind tab 30 in bundle A.
MS CUDDIHY: Yes.
MS EASTMAN: Did you see a draft of this letter before it was sent?
MS CUDDIHY: Possibly.
MS EASTMAN: Do you know who drafted the letter?
MS CUDDIHY: No.
MS EASTMAN: Were you asked to give your permission or consent to the letter being sent?
MS CUDDIHY: Possibly.
MS EASTMAN: But you can't remember; is that right?
MS CUDDIHY: I don't remember specifically, no.
MS EASTMAN: You don't have a note, I assume?
MS CUDDIHY: I don't know. I may have, I may not. I don't know. I can't recall.
MS EASTMAN: Just take a moment to read that letter.
MS CUDDIHY: Yes.
MS EASTMAN: Looking at the whole of the letter, would you agree with me that this is not a person centred approach?
MS CUDDIHY: Yes.
MS EASTMAN: Looking at the whole of the letter, would you agree with me that the letter does not reflect what you have earlier described as the Sunnyfield way?
MS CUDDIHY: Yes.
MS EASTMAN: Is there a reason why you decided to depart from both those policies in providing reasons?
MS CUDDIHY: I think it's a lack of system and process in regards to the unusual circumstances where we exit clients.
MS EASTMAN: Could it be the case that unusual circumstances with respect to exiting the clients require a departure from the Sunnyfield way
MS CUDDIHY: No, no.
MS EASTMAN: from a person centred approach?
MS CUDDIHY: No.
MS EASTMAN: Why did it happen then?
MS CUDDIHY: I think, in hindsight, this was very regretful, the way that it was worded.
MS EASTMAN: You have never apologised to Eliza for that, have you?
MS CUDDIHY: No, we haven't apologised and that also, I think, is of regret.
MS EASTMAN: You haven't apologised in your statement to the Royal Commission for that, have you?
MS CUDDIHY: Yes, I have. We have said we were sorry.
MS EASTMAN: For this letter?
MS CUDDIHY: Not for this letter, no.
CHAIR: What was your expectation as to what would happen after 5 September if Eliza was unable to find suitable alternative accommodation for Melissa?
MS CUDDIHY: I think there's two factors there. One is that at the time we understood there was quite a high vacancy rate in shared living. The second issue was, I think, which is always very regretful, we would never have exited Melissa, we would never have left her without accommodation and supports, and she still resides with us today.
CHAIR: But that letter is precisely the opposite, isn't it?
MS CUDDIHY: It is. It is. And I think that is very regretful.
MS EASTMAN: I took you to this letter yesterday in the context of the underlying ethos of the NDIS, where flexibility of choice and control is conferred on both the participant and the service provider. Do you remember that yesterday?
MS CUDDIHY: Yes.
MS EASTMAN: I think you agreed that was wrong?
MS CUDDIHY: Yes. The choice and control is around the clients but, as I mentioned before, when it comes to agreements, I think that in any agreement it should always be that there is a mutual benefit.
MS EASTMAN: In terms of actually setting out the reasons for the eviction
MS CUDDIHY: Yes.
MS EASTMAN: Sunnyfield's position was it wasn't obliged to give reasons.
MS CUDDIHY: And I think that was regretful, in hindsight, as I said.
MS EASTMAN: To the extent we can distill from this letter what the reasons are, essentially it comes down to the breakdown in the relationship between Eliza and Sunnyfield; is that right?
MS CUDDIHY: And the impact that had on the service and supporting the clients, yes.
MS EASTMAN: Where does it say that?
MS CUDDIHY: That's what I'm saying to you, but it directly says that.
MS EASTMAN: If that's the reason, why didn't you tell Eliza on 13 June that was the reason?
MS CUDDIHY: As I said, there were a number of regrets and that one I would add to it.
MS EASTMAN: Would you accept that this letter purports to set out the reasons for the termination.
MS CUDDIHY: Yes.
MS EASTMAN: When you say different things in your statement at paragraph 213 and now some additional matters in your oral evidence, it's very difficult, would you agree, to work out what Sunnyfield's reasons actually were?
MS CUDDIHY: No, I don't. I think they were all consistent.
MS EASTMAN: Is it the case that you are thinking about some of these reasons with the benefit of hindsight?
MS CUDDIHY: Yes, certainly.
MS EASTMAN: And you are looking at what has happened in the subsequent period and you are adding to the reasons as you go along?
MS CUDDIHY: No, I'm not. I'm not creating a fictitious story. That's not the case.
MS EASTMAN: I am not suggesting you are creating a fictitious story, but can I suggest to you that you are seeking for reasons that help justify a decision you now know is wrong. Isn't that right?
MS CUDDIHY: No, I don't believe that's the case.
MS EASTMAN: It was the wrong decision, wasn't it?
MS CUDDIHY: I think what Sunnyfield also needs is a dispute resolution process. That is something we don't have.
MS EASTMAN: It was the wrong decision to evict Eliza; isn't that right?
MS CUDDIHY: The way in which it was done, I think, is inappropriate. Whether the decision itself to evict I can't say that it was the wrong decision.
MS EASTMAN: At what point in time have you come to the position that it was an inappropriate or wrong decision?
MS CUDDIHY: Only in terms of the way that it was done.
MS EASTMAN: The way?
MS CUDDIHY: Yes.
MS EASTMAN: Not the fact it was done?
MS CUDDIHY: No. And I think the way it was done and not making it clear that we would never put Melissa's service and supports and care at risk.
MS EASTMAN: You have just said to the Chair a moment ago that, in terms of the timing, you believed there were a lot of vacancies. Do you remember saying that to the Chair?
MS CUDDIHY: Yes. In the marketplace, that was my understanding at the time.
MS EASTMAN: But you are aware now that Eliza and the support coordinator assisting Melissa, had identified 13 organisations and that none of them had suitable alternative accommodations?
MS CUDDIHY: Yes.
MS EASTMAN: Are you aware of that? Did you know that at the time?
MS CUDDIHY: Not particularly, no.
MS EASTMAN: Other than what you describe as the offer to assist in the 4 June letter, was there ever any assistance around these first couple of weeks in June to find alternative accommodation?
MS CUDDIHY: No, our offer wasn't accepted.
MS EASTMAN: If your understanding, as at 4 June and through to 13 June, was that there was lots of vacancies in the market, why is it that you never advised Eliza of your understanding of the vacancies or what those vacancies might have been? That never happened, did it?
MS CUDDIHY: No.
MS EASTMAN: You are aware, aren't you, that Eliza made a complaint about the
proposed eviction to both the New South Wales Ombudsman and to the NDIS Quality and Safeguards Commission?
MS CUDDIHY: Yes.
MS EASTMAN: She also approached her local member.
MS CUDDIHY: Yes.
MS EASTMAN: And the media.
MS CUDDIHY: Yes.
MS EASTMAN: Sunnyfield was unhappy that Eliza had approached the media; is that right?
MS CUDDIHY: Not to my recollection. I don't know that there were any comments. That's her right to do that.
MS EASTMAN: In June 2018, Sunnyfield was asked by FACS to reconsider evicting Eliza (sic); is that right?
MS CUDDIHY: I don't know the exact date. Is there a particular reference?
MS EASTMAN: I can take you to some specific documents.
MS CUDDIHY: Thank you.
MS EASTMAN: But I will just ask you, before I do that, do you have a recollection of FACS asking Sunnyfield to reconsider the eviction in around June 2018?
MS CUDDIHY: I'll need to see the documents, please.
MS EASTMAN: Bundle D, doc 200. Do you have that document?
MS CUDDIHY: I believe so.
MS EASTMAN: Just have a read of that to yourself. Ms Cuddihy, I'm sorry, I don't think that is the document that I want you to have a look at. My apologies. I'll come back to the FACS issue. But you don't have a recollection of FACS asking you to reconsider the eviction; is that right?
MS CUDDIHY: They may have but, I'm sorry, I don't remember back to then.
MS EASTMAN: By August, you are aware, aren't you, that Eliza had, through a lawyer, requested a mediation in relation to the situation?
MS CUDDIHY: I believe so, yes.
MS EASTMAN: I think you say in your statement that Sunnyfield paid for the mediation and organised the mediation; is that right?
MS CUDDIHY: I believe there was a mediation and WestWood Spice assisted with that mediation.
MS EASTMAN: The mediation took place in December 2018; is that right?
MS CUDDIHY: I believe so.
MS EASTMAN: In your statement you make the point that the delay in the mediation was because Eliza had other commitments; is that right?
MS CUDDIHY: I understand that.
MS EASTMAN: Why did you feel it necessary to make that comment?
MS CUDDIHY: I think all parties would have liked to have made that mediation earlier but she wasn't available.
MS EASTMAN: Would you accept this proposition: if you had decided not to proceed with the eviction, there wouldn't have been any need for a mediation about the eviction?
MS CUDDIHY: No, I think that, as I mentioned before, it would have been much better, in hindsight, to have had a proper dispute resolution process that possibly could have involved and I hadn't mentioned this before, but could have involved mediation. I think that, in hindsight, would have been a better approach.
MS EASTMAN: You had that opportunity, didn't you, in March 2018 when the Ombudsman offered to do a conciliation. You had that opportunity, didn't you?
MS CUDDIHY: We did and I said hindsight.
MS EASTMAN: When the mediation occurred, both on your side and on Eliza's side, there are a number of conditions that you each imposed on each other for the mediation; is that right?
MS CUDDIHY: I don't know the specifics of that but I would imagine that the mediation --- I wasn't at the mediation, but I would imagine that WestWood Spice would have some parameters in which to work.
MS EASTMAN: One of the conditions for Sunnyfield was that the mediation had to be confidential. Are you aware of that?
MS CUDDIHY: Not specifically, no, and I was interested to learn about that on Monday when Eliza raised that.
MS EASTMAN: What was your understanding back in December 2018 as to whether confidentiality was a requirement for this mediation?
MS CUDDIHY: It wasn't a matter that was brought to my attention. The organisation was considered to be a very professional organisation. I'm not aware that that was a specific request of Sunnyfield's. I wasn't aware of that.
MS EASTMAN: You are aware, aren't you, that one of the outcomes of the mediation was that Sunnyfield would not agree to press the eviction notice until such time as suitable alternative accommodation was found?
MS CUDDIHY: I believe so.
MS EASTMAN: But one of the outcomes of the mediation was not an agreement that Sunnyfield would revoke the eviction notice; is that right?
MS CUDDIHY: I think so.
MS EASTMAN: You have said in your statement at paragraph 215, subparagraph (d)
MS CUDDIHY: Sorry, which one was it?
MS EASTMAN: Paragraph 215, subparagraph (d).
MS CUDDIHY: Yes.
MS EASTMAN: This refers to the mediation.
MS CUDDIHY: Yes.
MS EASTMAN: The agreement was to continue to provide the services whilst Melissa's guardian sourced alternative accommodation and services for Melissa.
MS CUDDIHY: Yes.
MS EASTMAN: And you say:
Melissa's guardian has not provided any update to the status of this process.
Is that true?
MS CUDDIHY: That was my understanding.
MS EASTMAN: When you wrote your statement?
MS CUDDIHY: That was what my staff had indicated to me, yes.
MS EASTMAN: Did somebody help you write this statement?
MS CUDDIHY: This statement is my statement. It was contributed, the factual matters, by staff and also there was oversight by our lawyers.
MS EASTMAN: But you would have wanted to ensure that if you were going to put something in the statement it was true, wasn't it?
MS CUDDIHY: And I am informed that this is true.
MS EASTMAN: Is it still your belief that Eliza has not provided any update as to the status of this process since 6 December 2018?
MS CUDDIHY: I think that may be the case, yes.
MS EASTMAN: If that is the case, why haven't you asked her? Why haven't you asked her about the status of the process?
MS CUDDIHY: I don't know the answer to that.
MS EASTMAN: How is that consistent with your communication policies?
MS CUDDIHY: Oh, communication has been a challenge all the way along.
MS EASTMAN: But if you have not asked her since 6 December 2018 what she is doing to find alternative accommodation, that's put Sunnyfield and all the staff in this state of limbo, hasn't it?
MS CUDDIHY: There has been a difficult state of limbo, yes.
MS EASTMAN: As the CEO, that's an unacceptable state of affairs, isn't it?
MS CUDDIHY: It an unacceptable state of affairs, yes.
MS EASTMAN: That could have been readily and easily resolved by somebody speaking to Eliza and asking her.
MS CUDDIHY: Yes, possibly.
MS EASTMAN: Why has that not been done?
MS CUDDIHY: I think there is a position where the organisation has tried to resolve the tension in the relationship by not raising controversial matters.
MS EASTMAN: How could that possibly be to the benefit of Melissa?
MS CUDDIHY: No, it's not to the benefit and, as I said, I think, in hindsight, having a particular policy around mediation where there is disputes would be a beneficial thing.
MS EASTMAN: Would it have occurred to you that maybe if you hadn't heard about the status of searching for alternative accommodation, that Eliza may be struggling to find alternative accommodation? Did your mind ever turn to that concern?
MS CUDDIHY: It would be a contributing factor, yes.
MS EASTMAN: If Eliza was having trouble finding alternative accommodation, then what happens with the offer to help her find alternative accommodation? That hasn't been done, has it?
MS CUDDIHY: Well, we have offered to do things and we found as the relationship has been very difficult.
CHAIR: With any mediation where there are two parties, the usual practice is that there be somebody from each party who has authority to make decisions about how the mediation might be resolved. Who was the person from Sunnyfield who had authority to say yes or no to anything discussed at the mediation?
MS CUDDIHY: I believe our General Manager of Shared Living.
CHAIR: You were not that person?
MS CUDDIHY: No, and, in hindsight, I think that's also regrettable and if there was to be a future mediation, then I believe I should be involved.
MS EASTMAN: You are aware, aren't you, of Eliza's evidence that over a two year period and despite her efforts, along with those of multiple support coordinators and advocates, they have not found new accommodation for Melissa?
MS CUDDIHY: I did, yes, hear that.
MS EASTMAN: But you heard her say when COVID 19 struck they stopped looking?
MS CUDDIHY: Yes.
MS EASTMAN: And Melissa remains in the house.
MS CUDDIHY: That is correct.
MS EASTMAN: You have heard Eliza say that it's her belief that time has passed, so you couldn't enforce the eviction notice? You heard her say that?
MS CUDDIHY: Yes.
MS EASTMAN: But she still remains very concerned about what might happen to Melissa, is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: You have said in your statement at paragraph 215 subparagraph (h) that at the present time it's not clear to you whether Melissa's guardian is still seeking to find alternative accommodation.
MS CUDDIHY: Yes. When this statement was written, that's the case. But listening to the hearing on Monday, that has answered that question.
MS EASTMAN: You also say that you continue to have concerns for staff wellbeing at the house. They're ongoing, is that right?
MS CUDDIHY: Yes.
MS EASTMAN: Do we take it by you expressing those concerns that, in a sense, whatever is the situation as it was in December 2018, that continues to be the situation?
MS CUDDIHY: No, no. The situation is very different. As you would be aware, SP1 and SP2 are their employment has been terminated with Sunnyfield and we reported their behaviour to the police. They no longer are involved in the house. As the Piaud report shows, the culture has improved considerably at the house, but we still do experience high staff turnover. A service coordinator that we had, a highly experienced and capable service coordinator, left after 10 months. She was very stressed by the relationship with the guardian. We still have a higher than satisfactory staff turnover and I found out this week that one of our key workers in the house no longer wants to work in the house as a result of these proceedings.
MS EASTMAN: You heard Ms Piaud's evidence, didn't you?
MS CUDDIHY: Yes, I did hear Ms Piaud's evidence.
MS EASTMAN: You heard her agree that the state of the house, when she investigated, was a house that could be described as in crisis?
MS CUDDIHY: The culture at that time, yes, but she also put in her report the culture has improved tremendously.
MS EASTMAN: Can I put to you that while ever this eviction issue is not resolved, then there is the potential for the house to be living in a state of crisis? Would you agree with that?
MS CUDDIHY: I don't believe it's related to the eviction notice at all. I think possibly that would have an impact on Eliza, but Eliza has recognised that that eviction notice it has been some period of time and Sunnyfield hasn't enacted that and, as I said, we would never ever put a client of Sunnyfield's out on the street. We would not do that. I think there are other factors beyond that. I don't believe the staff at the house are involved or aware of that notice.
MS EASTMAN: Sunnyfield has never formally withdrawn the eviction notice, has it?
MS CUDDIHY: That's correct.
MS EASTMAN: Why is that?
MS CUDDIHY: I think the period of time has lapsed and that wasn't something that was considered. But, again, that could be an oversight.
MS EASTMAN: Do you accept that having not formally withdrawn the eviction notice, not having any communication with Eliza about finding alternative accommodation, that you are allowing Eliza and Melissa to remain in a state of deep uncertainty and insecurity as to Melissa's ongoing residence? Do you accept that?
MS CUDDIHY: I think Eliza has said that she believes that the notice to exit has no tenancy anymore, but that's certainly not what we're trying to do and at no stage have we ever forced the issue that Melissa needs to move out. We've always made it very clear we will still you know, we may not have made it clear, but we certainly would not put Melissa on the street.
MS EASTMAN: When, if ever, will you withdraw the eviction notice?
MS CUDDIHY: I haven't given that a matter of consideration, but thank you for raising it and I will give it some consideration.
MS EASTMAN: What is the present situation for Melissa? If you haven't withdrawn the eviction notice, you remain uncertain as to whether Eliza is seeking alternative accommodation, as you say it's not clear to you, at the time you made your statement, is it your understanding that Melissa and her guardian were looking for alternative accommodation?
MS CUDDIHY: To the best of my knowledge, but obviously a long period of time has elapsed since then. So, yeah, I think things at the house have improved. However, we still don't have a permanent Service Coordinator at the house. That seems to be quite problematic in terms of employing somebody. But as I said, it's
something that we need to think about and obviously I also recognise that we really need a good dispute resolution process and procedure.
MS EASTMAN: How long will it take to think about whether Sunnyfield will withdraw the eviction notice?
MS CUDDIHY: I can't give you a date right now but that is something
MS EASTMAN: Why? Why can't you give a date now?
MS CUDDIHY: No, I can't. I don't have a date. It's something I need to think about and I need to do it when I'm not in this environment.
MS EASTMAN: Not in this environment?
MS CUDDIHY: Yes.
MS EASTMAN: What is the present situation now for Melissa?
MS CUDDIHY: Melissa is provided for, as per her contract. The staff there I was there a couple of weeks ago. She looked very happy, she'd just completed her exercises, she was quite cheerful. The staff at the house were, at that point in time, quite communicative. I also saw Carl. Carl seemed to be very happy. He was having a snack.
MS EASTMAN: I'm just asking about Melissa at the moment. I'll come to Carl in about five minutes.
MS CUDDIHY: Sure. So my understanding is Melissa is a resident at the house and is receiving services and appeared to be, when I saw her a couple of weeks ago, quite cheerful and in a good place.
CHAIR: That would seem to suggest it is in Melissa's interests for her to remain, doesn't it, in the house?
MS CUDDIHY: There's other interests that also need to be considered.
CHAIR: That's not what I asked.
MS CUDDIHY: It may be in Melissa's interests, but I think there's also other factors that affect the staff and there is the bottom line here is that if the relationship continues, the impact and the stress that it has on the staff and we've had more staff leaving and very high staff turnover. It's very hard to keep trained, qualified, skilled staff that fully understand these behavioural intervention support plans and the complexity of the clients. So it's not always in someone's best interests if we can't provide the services easily and well and have a stable work force there, when it is a very short the market's very, very difficult to recruit people because there are
shortages of staff, that makes it quite difficult.
CHAIR: Who is going to do better?
MS CUDDIHY: I'm not sure. I'm not sure the answer to that.
CHAIR: No. No.
MS EASTMAN: I was asking you earlier about whether you recall FACS asking you not to proceed with the eviction and you said you don't recall that.
MS CUDDIHY: That's right.
MS EASTMAN: Can I draw your attention to an email that was sent to you on 6 June 2018 at 2.12pm. Commissioners, this is bundle D 226 and it's the final page which has the number 1592 in the top corner. It's the email in the middle of the page. I just want you to read that. Please tell me whether or not that assists you in a recollection about being asked not to proceed with the eviction that you notified two days before.
MS CUDDIHY: It's on 6 June 2018?
MS EASTMAN: Yes. That's two days after the letter.
MS CUDDIHY: Right. Thank you.
MS EASTMAN: Does that assist your recollection?
MS CUDDIHY: Yes, thank you for that.
MS EASTMAN: The other thing I want to draw to your attention is with respect to any request to assist to find alternative accommodation. Can I draw your attention to the document D 282? Ms Cuddihy, you're quite right, there are thousands and thousands of documents, so bear with us. Just have a look at that document.
MS CUDDIHY: 13 June 2018.
MS EASTMAN: It starts with the first email, which you're not copied into, on 5 June. Tell me when you've read that.
MS CUDDIHY: Sure. Okay, I hadn't seen that one.
MS EASTMAN: This is from the Support Coordinator for Melissa. It's not Eliza, do you see that?
MS CUDDIHY: Yes, yes, yes.
MS EASTMAN: The Support Coordinator asks for written advice as to why the decision had been made and what Sunnyfield intend to do to find Melissa alternative accomodation.
MS CUDDIHY: Yes.
MS EASTMAN: The response you will see is from Jennifer Luff?
MS CUDDIHY: Yes.
MS EASTMAN: Jennifer Luff says:
Sunnyfield has provided a response directly to your client regarding the cessation of services to Melissa.
MS CUDDIHY: Yes.
MS EASTMAN: But by that stage, this 13 June, so that's around the time Ms Luff wrote to Eliza with the reasons; is that right?
MS CUDDIHY: I think so.
MS EASTMAN: Ms Luff says:
With regard to your question about what support Sunnyfield can provide to find a new provider .... with approval from the client's representative, we can share client records and details that will assist the new service providers to assess Melissa's support needs.
MS CUDDIHY: Yes.
MS EASTMAN: I want to put to you, in terms of the records that Sunnyfield has provided about assistance in relation to finding alternative accommodation, that's the extent of it?
MS CUDDIHY: Yes. I wasn't aware that because if we had been asked, from my perspective, we would have assisted, not and beyond that.
MS EASTMAN: Offering to share the client's records with a new provider, that is not assistance in finding alternative accommodation, is it?
MS CUDDIHY: No.
MS EASTMAN: Thank you. Commissioners, I understand there has been a request that we have a short break. Perhaps if we can do so for ten minutes? I'm not sure the reason for it but I'm passing that on.
CHAIR: Yes. Are you proposing to move on to Carl?
MS EASTMAN: I'm conscious of the time and so I do propose to move on to Carl. It may be that if the Commissioners have any questions around the eviction, I will obviously have to come back to it right at the end in terms of some of the future issues, but for the process of the eviction, I have finished what I need to ask Ms Cuddihy. So if the Commissioners have questions, it might be helpful to deal with them now before we have the break.
CHAIR: Before we break, I might ask, first, Commissioner Galbally if she has any questions to put to Ms Cuddihy?
COMMISSIONER GALBALLY: Thank you. My only question is to get more of an understanding about why you didn't take up the Ombudsman's offer of a dispute resolution process?
MS CUDDIHY: I think, in hindsight, that was a poor decision.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Commissioner McEwin?
COMMISSIONER McEWIN: In relation to the eviction, no. Thank you.
CHAIR: This relates to the eviction, sort of. Can I take you, please, to paragraph 23 of your statement and I would like to understand what it is you are conveying in that paragraph. May I take it from the paragraph that you accept that SP1 and SP2 caused considerable hurt and distress, among others, to the residents and their families?
MS CUDDIHY: Yes. And that paragraph is very clear in my mind. I do wish to express my regret and deep sympathy for the pain and distress suffered as a consequence of the events which occurred at [redacted].
CHAIR: Which events?
MS CUDDIHY: Specifically, the events that relate to SP1 and SP2, and also I do regret any hurt that would have been caused to Melissa and to Eliza in the way in which we did not progress dispute resolution and in the way that we served the termination notice.
CHAIR: Yes, that is what I was wondering about because paragraph 23, at best, is ambiguous as to what you are expressing regret about. I wondered whether it was any more than expressing regret for the actions of SP1 and SP2 and my question is, what else is it that you are expressing regret for? What is it that Sunnyfield has done, if anything, that you are expressing regret for?
MS CUDDIHY: As I said, we were expressing regret, and my personal regret, in regards to SP1's and SP2's totally unacceptable behaviour
CHAIR: No, no, I'm asking what are you expressing regret for anything Sunnyfield has done or failed to do?
MS CUDDIHY: Yes. Well, they were employees of Sunnyfield and so we regret that. I regret that that also caused a great disruption to the service and the clients and to the families. I do regret the lack of mediation or dispute resolution and the fact that I think it's extremely sad that the relationship had broken down and I think that's regretful also, and the way in which the contract or the termination notice would have caused distress to the guardian.
CHAIR: Do you express any regret for the processes that led to the selection of SP1 and SP2 as members of staff?
MS CUDDIHY: I honestly believe that, in hindsight, it wouldn't have made any difference, unfortunately, to --- we wouldn't have, at the time, been able to, I don't believe, have been able to uncover the characters of these two folk. I would love to have hoped so. I regret that we employed them, certainly, but to actually sit there and say that, in hindsight, with the information we had at hand, I don't know that we could have avoided that unless we'd had the information that subsequently has been made available through the Ombudsman.
CHAIR: So it's the Ombudsman's fault?
MS CUDDIHY: No, I'm not blaming the Ombudsman. We paid for Working with Children Checks and we had those Working with Children Checks ---
CHAIR: Your position is that the selection processes were as reasonably good as they could have been.
MS CUDDIHY: Yes, I do believe so.
CHAIR: Notwithstanding what has been put to you about
MS CUDDIHY: I believe
CHAIR: a series of matters concerning that process?
MS CUDDIHY: I think there are further improvements now. The NDIS Quality and Safeguards checks which have come in.
CHAIR: I am not asking you about whether it has improved now, I am asking you about whether you have regret for the process that led to the selection of these two people.
MS CUDDIHY: I don't believe there were significant errors in the process, but I certainly regret that we employed the two people.
CHAIR: Thank you. Shall we take an adjournment. It is now 3.10, is 10 minutes enough?
MS EASTMAN: Yes.
CHAIR: Until 3.20.
ADJOURNED [3:09 P.M.]
RESUMED [3:21 P.M.]
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Ms Cuddihy, I now want to move to some evidence that Sophia gave earlier this week and, in particular, events concerning Carl and Chen in June 2019. So I want to move to that topic.
MS CUDDIHY: Thank you.
MS EASTMAN: You heard Sophia's evidence this week?
MS CUDDIHY: Yes.
MS EASTMAN: Do you recall her saying in mid June a staff member at the house shared the staff member's concerns with Sophia and the staff member was worried about Carl's safety. The staff member said she wouldn't forgive herself if something happened to Carl and she had not told anybody. Do you remember that?
MS CUDDIHY: Yes.
MS EASTMAN: Around this time, Sophia gave some evidence saying that she learnt that a few months earlier when the Christchurch mosque shootings had occurred in New Zealand, that was around March 2019, that SP1 had said words to the effect, "If it was up to me, I would have shot them all". SP1 made a comment about the victims of the shooting being Middle Eastern. The staff member said that she responded to SP1 with words to the effect, "How can you say that? Carl is Middle Eastern." SP1 had replied "I don't care". You will remember Sophia gave evidence that when she heard about this conversation, she found it absolutely shocking. When did you first learn about this conversation?
MS CUDDIHY: My recollection is that it came out in the Piaud reports but I could be wrong because, I apologise, I've seen so many documents. But I likewise agree with Sophia that it is shocking.
MS EASTMAN: Would you have expected a staff member to have reported SP1's comments?
MS CUDDIHY: Yes.
MS EASTMAN: Do you accept that SP1's comments were totally unacceptable in the workplace?
MS CUDDIHY: Yes, totally unacceptable. In any place.
MS EASTMAN: When you heard about this, you said it may have been the Piaud reports, did it concern to you why a staff member would not have reported SP1's conversation?
MS CUDDIHY: Absolutely.
MS EASTMAN: You heard Sophia say that on 20 June SP1 called Sophia to tell her that Carl had been injured in the Sunnyfield van during an outing, and when Carl had returned to the house, there was blood throughout the van. Do you remember her giving that evidence?
MS CUDDIHY: I do.
MS EASTMAN: Sophia didn't say this but would you accept that if Sophia had been told about the conversation involving the shooting and Carl being Middle Eastern, that Sophia would have had a right to feel a lack of trust in SP1?
MS CUDDIHY: Absolutely.
MS EASTMAN: You're aware, aren't you, at around 4.40 pm on Friday, 21 June 2019, the NDIS Quality and Safeguards Commission received an anonymous telephone complaint about SP1 and SP2's treatment of Carl and Chen, you now know that, don't you?
MS CUDDIHY: Yes, I do.
MS EASTMAN: You now know the anonymous complainant alleged SP1 and SP2 had physically pushed Carl and Chen, and had subjected them to verbal abuse, you know that?
MS CUDDIHY: Yes.
MS EASTMAN: You also know the anonymous complainant alleged that SP1 and SP2 had used racist and insensitive language about African and Indian support workers?
MS CUDDIHY: Yes.
MS EASTMAN: You knew, did you not, that some of the support workers at the house were of African or Indian heritage?
MS CUDDIHY: We had a lovely multicultural team at the house, yes.
MS EASTMAN: That includes people of African or Indian heritage, is that right?
MS CUDDIHY: Yes, and it was very inappropriate.
MS EASTMAN: It was also alleged that SP1 told people that he was at a meeting, but in fact he had left the house to go fishing, and that was alleged to have occurred on a regular basis. Are you aware that allegation was made?
MS CUDDIHY: Yes.
MS EASTMAN: You're aware also the allegation was made that SP1 had been terminated from previous employment with an organisation providing services in aged and disability settings?
MS CUDDIHY: Yes.
MS EASTMAN: None of these matters that were the subject of the anonymous complaint to the NDIS Quality and Safeguards Commission had been made through the complaint procedures at Sunnyfield, that's right, isn't it?
MS CUDDIHY: I believe so.
MS EASTMAN: Does that cause you concern?
MS CUDDIHY: Deep concern. Deep concern.
MS EASTMAN: Does the absence of the anonymous complainant utilising Sunnyfield's complaint procedures cause you to reflect on whether those procedures are effective?
MS CUDDIHY: It causes me to reflect and say I'm really delighted that they went to the NDIS Quality and Safeguarding Commission, and raised those matters. I am, of course, very concerned that they didn't utilise those procedures, but the findings from the Piaud report lead me to believe that there was also a bullying and harassment that had occurred by SP1 and SP2 to the staff which made it fearful for them to report.
MS EASTMAN: What was your expectation? If a support worker heard this type of conduct occurring in the house, what would you have expected them to have done? What should they have done?
MS CUDDIHY: What they should have done, I think, is to directly call someone outside of the house. They should have been able to speak to the regional manager, the general manager, speak to someone in the response team. There is a number of people on a poster that relate to our response team that they could call. They could call anybody, they could call myself, they could email. They could go to our whistleblower service. We would obviously, that's what we would want all staff to feel very comfortable to do.
MS EASTMAN: You mention the response team. I haven't asked you about that so far. You set out in detail in your statement the complaints procedures, and you've also described the role of the response team. Taking yourself back to this period of time between 2017 and June 2019, what was the role of the response team?
MS CUDDIHY: The response team has, I suppose, three roles. They, one, act as --- anyone can contact them, there is posters with the staff's names, anyone can contact them about any concerns whatsoever in regards to any abuse, neglect, or ill treatment or exploitation of any clients from any persons and raise those matters, and they can --- they should be able to raise those matters.
They have a training function to help educate staff in addition to people learning and culture team. And they also have an investigative component to what they do.
MS EASTMAN: Looking at your statement at paragraph 322, and Commissioners, you will find this on page 74, this is where you set out the role of the response team. Is that right?
MS CUDDIHY: I'm sorry, I just haven't got there yet.
MS EASTMAN: 322.
MS CUDDIHY: Yes, it is.
MS EASTMAN: In terms of who is a member of the response team, can I just ask you to explain paragraph 324. It just wasn't clear to me who are members of the response team and how that works.
MS CUDDIHY: So my understanding is that we have permanent staff in the response team, although at the moment we have some additional contract staff working in the team. But, in addition, there are staff throughout Sunnyfield who are contact liaison points, who are familiar and well known to the staff so that if staff want to report or raise matters, they can do that. These people may, from time to time, assist in investigations and assist the response team. But there are dedicated, full time staff, plus these additional staff that are across different geographies of Sunnyfield service.
MS EASTMAN: I think you just said a moment ago that this team also has a role in training, is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: It is the response team the principal body in Sunnyfield that has, from the period 2017 up to even the present day, the responsibility for training staff about complaint handling, is that right?
MS CUDDIHY: It would be in conjunction with the quality risk and compliance manager, and also with our people learning and culture team. So there is training in the orientation programs, there's online training, and there's face to face training, as well as, of course, everyone at Sunnyfield must undertake the NDIS worker orientation training.
MS EASTMAN: Have you seen Mr Graeme Head? He's the Commissioner of the National Disability Insurance Quality and Safeguards Commission. Have you seen his statement of 23 May 2021?
MS CUDDIHY: Yes.
MS EASTMAN: Have you seen what he says about areas of nonconformity in relation to Sunnyfield meeting certain indicators?
MS CUDDIHY: I'd need to be reminded of that.
MS EASTMAN: Can you have a look at Mr Head's second statement, described as supplementary statement 23 May 2021? In particular, can I just --- I don't need you to go through the whole of the statement but I just want to draw your attention to page 7, paragraph 33, subparagraph (b).
MS CUDDIHY: Is this in reference to an audit, the Sunnyfield quality audit?
MS EASTMAN: Yes. That's my understanding. We will ask Mr Head about that tomorrow.
MS CUDDIHY: Right.
MS EASTMAN: So you're aware that the NDIS Quality and Safeguards Commission has identified there was a lack of evidence of complaints handling training for staff?
MS CUDDIHY: Right.
MS EASTMAN: And that Sunnyfield's been required to provide a corrective action plan to address non conformities?
MS CUDDIHY: Yes.
MS EASTMAN: And Sunnyfield has submitted a corrective action plan in response to the identified non conformances?
MS CUDDIHY: Yes.
MS EASTMAN: Thank you. Can you put that to one side. I want to come back to where we were with the anonymous complaint to the Quality and Safeguards Commission.
Now, according to the records, and, again, set out in Mr Head's first statement, if you wanted to have a look at it. But he says, at around 520 or 530, the Quality and Safeguards Commission telephoned Sunnyfield's senior risk and compliance manager and expressed serious concerns relating to the provision of services to Carl and Chen in the house.
MS CUDDIHY: Which clause are you at?
MS EASTMAN: Mr Head's first statement. This is Mr Head's statement can be found behind tab 4 in hearing bundle A.
MS CUDDIHY: Yes.
MS EASTMAN: And --- sorry, I will just turn up the paragraph. The paragraph, can I draw your attention to paragraph 92 and in particular paragraph 93.
MS CUDDIHY: Thank you.
MS EASTMAN: Paragraph 93 is an email that was sent from the complaints officer at the Quality and Safeguards Commission to Sunnyfield, and copied to Ms Luff.
MS CUDDIHY: Yes.
MS EASTMAN: What's set out there in the italicised writing is what was the subject matter of the anonymous complaint.
MS CUDDIHY: Yes.
MS EASTMAN: Just walking back a little bit, if I can draw your attention to paragraph 84
MS CUDDIHY: Yes.
MS EASTMAN: --- this is Mr Head saying at 5.20 on 21 June, the complaints officer telephoned the quality, risk and compliance manager at Sunnyfield.
MS CUDDIHY: Yes.
MS EASTMAN: The complaints officer outlined the allegations and requested assurance that the two participants were safe and supported, and the complaints officer asked which workers were rostered at the house over the weekend.
MS CUDDIHY: Yes.
MS EASTMAN: And you will see, at 5.40, there was a conversation with someone and Ms Luff with the complaints officer.
MS CUDDIHY: Yes.
MS EASTMAN: So you can see, at that chronology, that within an hour or so of the anonymous complaint, the Quality and Safeguards Commission had contacted Sunnyfield to raise its concerns.
MS CUDDIHY: Yes, and I thank them for that.
MS EASTMAN: Now, you are aware, aren't you, from Sophia's evidence that on 24 June, she received a phone call from a support worker at the house, and she was told Carl had had a major behaviour and had split his eyelid open ? You heard that evidence?
MS CUDDIHY: Mm hm.
MS EASTMAN: You're aware, aren't you, that that required Carl to attend the hospital?
MS CUDDIHY: Yes.
MS EASTMAN: You probably were not aware that Sophia herself had made a complaint, or raised an issue with the Quality and Safeguards Commission a week before, you weren't aware of that?
MS CUDDIHY: No, and I thank her for that.
MS EASTMAN: You will have heard her evidence that she spoke to somebody at the Quality and Safeguards Commission while she was in the ambulance with Carl on 24 June. You heard that evidence?
MS CUDDIHY: Yes, I did.
MS EASTMAN: And you're aware, aren't you, that the following day, on 25 June, Sophia contacted the general manager, shared living at Sunnyfield about the incident because she was concerned about Carl's wellbeing at the house.
MS CUDDIHY: Yes.
MS EASTMAN: Now, those steps, which is the contact from the Quality and Safeguards Commission, was that the --- and then Sophia's conversation on 25 June with the general manager of shared living, those two events alone were sufficient, were they not, to suspend SP1 immediately?
MS CUDDIHY: Those two events, yes.
MS EASTMAN: But there was no reason to undertake any investigation prior to making the decision to suspend SP1?
MS CUDDIHY: I believe, yes, and that's what happened.
MS EASTMAN: And he was suspended on pay?
MS CUDDIHY: That is the industrial relations requirement, that they have to be suspended on pay.
MS EASTMAN: Then, the following day, Sunnyfield suspended SP2 on pay, is that right?
MS CUDDIHY: My understanding is that the reason it took an extra 24 hours to suspend SP2, he was going to be suspended on exactly the same day but we were unable to contact him. But he hadn't been on shift on the 25th.
MS EASTMAN: Now, with respect to SP2, you're aware, aren't you, that he had been given a final warning back in September 2018?
MS CUDDIHY: I believe ---
MS EASTMAN: Are you aware of that?
MS CUDDIHY: Yes.
MS EASTMAN: If he'd been given a final warning, why not terminate his employment at that time rather than merely suspend him on pay?
MS CUDDIHY: My understanding is that in the industrial relations legal framework, that those sorts of warnings are --- sit on file for 12 months and after 12 months, and a period of time, they no longer can be cumulative.
MS EASTMAN: Was that your understanding when you made the decision to suspend SP2 rather than terminate him immediately?
MS CUDDIHY: I was not on any legal grounds under the industrial relations law, and that's what I was briefed. And we certainly did contact lawyers not Clayton Utz, other lawyers and I wasn't in a position to terminate either their employment. We have to follow fair and due process to do that. But they were both suspended
from work.
MS EASTMAN: And you made the decision to suspend both of them, is that right?
MS CUDDIHY: Absolutely, straight away.
MS EASTMAN: By 28 June Sunnyfield had told the Quality and Safeguards Commission that both SP1 and SP2 had been suspended?
MS CUDDIHY: Yes.
MS EASTMAN: You had told the Quality and Safeguards Commission that you had engaged an independent investigator?
MS CUDDIHY: Yes.
MS EASTMAN: You told the Quality and Safeguards Commission that you had referred the matters to the police, is that right?
MS CUDDIHY: I believe so, yes.
MS EASTMAN: What and how referrals are made to the police by Sunnyfield? How does that occur?
MS CUDDIHY: The response team, if there are allegations of abuse or assault or neglect, will report them to the police.
MS EASTMAN: All the time?
MS CUDDIHY: We do report regularly to the police. The police really work out what the threshold is.
MS EASTMAN: Do you have a policy for reporting to the police?
MS CUDDIHY: It's in our --- I believe it's in our response team procedures about that reporting. Also, for people of, you know, children, there are additional reporting requirements as well.
MS EASTMAN: And was this the first time that the police had been asked to investigate a matter in relation to this particular house?
MS CUDDIHY: I can't recall, but I certainly know that police had been to the house previously.
MS EASTMAN: Were you involved personally in notifying the police?
MS CUDDIHY: No. Our staff in the response team went to the police. I believe
they went to the police at Frenchs Forest and then the Frenchs Forest police referred it to the Castle Hill police.
MS EASTMAN: By 28 June, what information had you provided to any of the residents in the house about why SP1 or SP2 were suspended?
MS CUDDIHY: I believe that our regional manager had said that they had been put --- that they were on extended leave.
MS EASTMAN: Why didn't you just tell them the truth, that they were suspended for allegations concerning misconduct and, indeed, treatment concerning Chen and Carl?
MS CUDDIHY: I believe that there are industrial laws that protect staff, and that we also, whether, you know, we have obligations and we need to be very, very careful about what we say about staff who are suspended.
MS EASTMAN: So that's the reason, industrial laws, is that right?
MS CUDDIHY: I believe we do have to abide by laws that relate to people's employment, yes.
MS EASTMAN: I'm just asking about why you didn't tell the residents and perhaps even tell Carl and Chen's families about they'd been suspended and why they'd been suspended. Why didn't you do that?
MS CUDDIHY: As I said to you, it relates to my understanding is industrial relations laws, and we have to be very, very careful about our obligations as an employer as, of course, our obligations to our clients and families.
MS EASTMAN: I'm not expecting you to know the law inside out, but can you help me a little bit more on what industrial law you're referring to that will prevent you telling the residents or their parents, that two people, including the house manager, had been suspended in relation to allegations about the treatment of them?
MR DUGGAN: I object, Commissioners for this reason. The witness has given evidence that it's her understanding industrial relation laws has prevented her from saying these things. She's been asked that question twice and she's answered it twice. In my submission it's unfair to revisit it.
CHAIR: I think the question was asking for more specific information as to what the source of the understanding was. Either Ms Cuddihy will be able to elaborate or she won't, so I think the question was clear enough and it adds something to the previous two questions. I would ask Ms Eastman just to refresh Ms Cuddihy's recollection.
MS EASTMAN: I'll read the question directly. I said to you, I'm not expecting you to know the law inside out but can you help me --- as I'm speaking it's moving so I'm
struggling here.
CHAIR: Can you help me --- what industrial law you're referring to, I wish --- can we have the screen --- now I've lost it on the screen. Try again, Ms Eastman. We've lost it on the screen.
MS EASTMAN: This is what I asked you. I'm not expecting you to know the law inside out, but you can help me, what industrial law you're referring to, that will prevent you telling the residents or their parents that two people, including a house manager, about the suspension and the treatment of them? Just had to add some words there.
MS CUDDIHY: As I had mentioned before, I'm not a lawyer myself. I do rely on advice that is given to me as CEO from my senior leadership team, and I believe that at that time, I would have received advice that we could not do that. There are industrial relation laws, to my knowledge, that would have prevented us from doing that, and we have to look at the rights of staff as well as the rights, importantly, of clients and guardians.
MS EASTMAN: Now in terms of the steps that Sunnyfield took to engage an independent investigator, that person was Jennie Piaud, is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: What was the purpose of engaging her as an investigator?
MS CUDDIHY: We engaged her because we wanted to have an external investigator. We also didn't really have the resources at hand to undertake the investigation and we thought that it would be most appropriate to have that external, impartial investigation.
MS EASTMAN: Isn't this the very thing that the response team should be investigating?
MS CUDDIHY: The response team was still busy. This was a significant complaint. I don't recall Sunnyfield having a complaint of this type of severity and we thought that was most appropriate. The response team, we've actually had to bring in some extra resources which we've got at this point in time and we do that from time to time.
MS EASTMAN: Is one of the reasons for engaging Jennie Piaud that Sunnyfield wanted to protect its reputation?
MS CUDDIHY: No, not at all. We wanted to get to the bottom of the situation and I'm very pleased that Ms Piaud could make available her services and provide us with those reports.
MS EASTMAN: Initially, Ms Piaud was asked to investigate the allegations about SP1 and SP2's treatment of Carl and Chen, respectively; is that right?
MS CUDDIHY: My understanding, that was the nature of the original complaint on 20 June.
MS EASTMAN: At some point in time, you asked her to suspend the investigation while the police investigation was ongoing; is that right?
MS CUDDIHY: I don't believe I asked. I didn't actually instruct Jennie Piaud at all. My understanding is our response team staff were liaising with the police and the police had requested that we didn't interfere in any shape or form with their investigation and allow them to conduct their due process. So we were always my understanding is our staff were very mindful to allow the police to do their work and only to have that investigation progress when the police had said that that was acceptable.
MS EASTMAN: So you were waiting for the police to give, in a sense, the permission to undertake any external investigation?
MS CUDDIHY: I don't think it was just waiting, I think people were following up and liaising with the police, because we felt this matter was obviously very important.
MS EASTMAN: But you still asked Jennie Piaud to undertake some form of investigation?
MS CUDDIHY: Correct.
MS EASTMAN: Because you wanted to get a sense of what might be the reason that these events had occurred, as opposed to interviewing SP1 or SP2 specifically. Is that right?
MS CUDDIHY: We wanted them to interview as many staff and all the staff that they could, but also SP1 and SP2. So I think, as Ms Piaud said, Sunnyfield gave a very far reaching, broad brief and we did not interfere with her investigations in any shape or form.
MS EASTMAN: What do you mean you didn't interfere with her investigation?
MS CUDDIHY: Well, we didn't. We left we gave her an open remit to look at these matters, which she did do.
MS EASTMAN: I do want to take you to the Piaud reports but I want to deal with a few matters before we get to the particular reports. I want to suggest to you, with respect to Ms Piaud's first report, which is dated 29 July, you received a draft of the report before it was finalised; isn't that right?
MS CUDDIHY: I believe so.
MS EASTMAN: Is it possible that you received a draft on or around 22 July?
MS CUDDIHY: That is possible. I don't have any of those reports to hand right now.
MS EASTMAN: That's okay. Do you recall briefing the Chair of the Board about matters arising from Ms Piaud's draft report 25 July 2019?
MS CUDDIHY: On or around that time, I had briefed the Chair and notified the Chair of the complaint, I think it was on 27 June. I
MS EASTMAN: 27 June?
MS CUDDIHY: When the original complaint came in, I notified the Chair of the Board and I was providing regular briefing to the Chair of the Board, in addition to reports that I wrote to the board.
MS EASTMAN: I just want to ask you, specifically, whether you have a memory, of briefing the Chair of the Board on 25 July 2019 and, if so, whether you kept a note of the briefing with the Chair on that date?
MS CUDDIHY: I don't recall the specific conversation. I certainly keep the chair informed but I don't really keep briefing notes. If there is something, I'm very happy to look at it.
MS EASTMAN: One second, I'll just find the reference for you.
MS CUDDIHY: Please, thank you.
MS EASTMAN: I might need your help with this document. Commissioners, the document is in D at 460.
CHAIR: Ms Eastman, you are at grave risk that I might seek to fill the gap.
MS EASTMAN: I just want to make sure I have the right document. Sorry, can we look at 154. So what document have you got now, 154?
MS CUDDIHY: No, 3781.
CHAIR: Yes, 3781 is the number at the top of the page. That's the correct one.
MS EASTMAN: I had better apologise to you. I put to you that you briefed the Chair of the Board on 25 July. If you look at this document, there's a heading "Immediate actions".
MS CUDDIHY: Yes.
MS EASTMAN: And number 3.
MS CUDDIHY: Yes.
MS EASTMAN: And it says following the CEO's briefing of the board on 24 July 2019.
MS CUDDIHY: Yes.
MS EASTMAN: I think I put to you 25 July. Does that assist you with having any recollection of briefing the Board Chair on the 24th?
MS CUDDIHY: Yes, that's correct.
MS EASTMAN: We have not seen any notes of this briefing other than the reference here. Did you keep any notes of that briefing?
MS CUDDIHY: I don't recall that I would do. I normally don't keep notes for those briefings.
MS EASTMAN: This suggests the outcome of that briefing was the appointment of Clayton Utz lawyers pro bono and Repute Communications, given the seriousness of the issue and service history.
MS CUDDIHY: Yes.
MS EASTMAN: A stakeholder communique has been developed for Chair approval.
MS CUDDIHY: Yes.
CHAIR: What is Repute Communications, are they are PR firm?
MS EASTMAN: I am about to ask.
CHAIR: Oh, you are about to ask.
MS EASTMAN: Repute Communications is a PR company that specialises in crisis communication? That's right, isn't it?
MS CUDDIHY: My understanding is they're a media management company.
MS EASTMAN: But they have a particular expertise and advertise themselves as able to assist clients in crisis?
MS CUDDIHY: I am not aware of that.
MS EASTMAN: They say:
Crisis usually strikes without warning, with destabilising if not devastating effects. The difference between sinking in adverse publicity and remaining afloat usually comes down to communicating quickly and professionally with stakeholders, particularly the media.
Are you aware that's what they describe their services as?
MS CUDDIHY: I've never looked at their website. That's not how I've been introduced to that organisation.
MS EASTMAN: Did you make the recommendation that Clayton Utz be engaged or did that come from the Chair?
MS CUDDIHY: I can't recall how that happened but that's certainly what's in that report.
MS EASTMAN: Did you or the Chair make the recommendation to brief Repute Communications?
MS CUDDIHY: I can't recall specifically but that's a conversation that occurred between the two of us, yes.
MS EASTMAN: As far as you know, there's no record of that conversation; is that right?
MS CUDDIHY: That's correct.
MS EASTMAN: In addition to briefing the Chair, internally, is it the case that Jennifer Luff was providing some assistance to you in working out what might have happened?
MS CUDDIHY: Yes.
MS EASTMAN: I want to take you to a document 154, that's in D.
CHAIR: Ms Eastman, can I draw attention to the time. I don't want to curtail you in full flight, as it were, but perhaps you might indicate how long we are likely to need?
MS EASTMAN: I would like to just finish this topic, which will probably take ten minutes at most, and then Ms Cuddihy, I'm sorry, I will need you back tomorrow morning for a short period of time.
MS CUDDIHY: Oh, you do?
MS EASTMAN: Yes.
MS CUDDIHY: Thank you.
CHAIR: Thank you. We will continue then.
MS CUDDIHY: Is this the same document that's the same number, ending 3781?
MS EASTMAN: It is. There is another document which is immediately before, 153.
MS CUDDIHY: Yes, an email.
MS EASTMAN: That's an email from Jennifer Luff to you.
MS CUDDIHY: Yes.
MS EASTMAN: On Monday, 29 July.
MS CUDDIHY: Yes.
MS EASTMAN: It says:
Hi, Caroline
Please find track changes. I am also sending you some information re recruitment process for SP1. Need to have a quick chat about this today, if you have a moment, please.
Do you remember receiving that email?
MS CUDDIHY: Yes, I do.
MS EASTMAN: You do remember receiving catchment, which is document at 154?
MS CUDDIHY: Yes, I do.
MS EASTMAN: I want you to have a look at the document at 154, which is three pages, if you include the final page, saying "Draft 28 July 2019 Confidential".
MS CUDDIHY: Yes.
MS EASTMAN: Did you prepare this document?
MS CUDDIHY: Yes, I did write it.
MS EASTMAN: So you typed it up yourself?
MS CUDDIHY: Yes, I did.
MS EASTMAN: What was the process you undertook in typing up this document?
MS CUDDIHY: In what way?
MS EASTMAN: What information did you get? What were the sources of your information to prepare this document ?
MS CUDDIHY: My knowledge, to the best of my abilities, and obviously I had some input from Jen Luff.
MS EASTMAN: What was the purpose of preparing this document?
MS CUDDIHY: The purpose of this document was to try and it was a report in regards to the allegations of client assault at the house.
MS EASTMAN: Was the purpose of this report to brief the board?
MS CUDDIHY: I believe that subsequently to me writing this report, I had advice that this shouldn't be reported in this format to the board.
MS EASTMAN: Who gave you that advice?
MS CUDDIHY: I seriously cannot recall, but this is my report and I certainly own this report.
MS EASTMAN: Looking at the draft with the markups, are we to understand that you prepared that document and that the markups would reflect the markups provided by Jennifer Luff; is that right?
MS CUDDIHY: I think so.
MS EASTMAN: You posed the question on the second page, "How could this have happened?" Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: And you say a boiling frog scenario appears to have occurred at the house.
MS CUDDIHY: Yes.
MS EASTMAN:
Due to the querulent complaints of one guardian, a protectionist approach has
occurred towards staff. Also due to a high level of client disability and behaviours, it has masked a potential causation.
MS CUDDIHY: Yes.
MS EASTMAN: What did you mean by that?
MS CUDDIHY: A potential causation? Oh, it masks the behaviour of SP1 and SP2.
MS EASTMAN: Do we take it that you acknowledge that the perception of Eliza's complaints and the level of disability of the clients, that those factors masked SP1 or SP2's behaviour; is that right?
MS CUDDIHY: No, I think there was this is a very complex situation in this house and there is there were factors that contributed to creating, how would I put it? To create a whole raft of other issues that didn't able us to see through. And I go on further to say other matters that I feel have contributed to why we did not identify about SP1 and SP2's behaviour. And I'm certainly not blaming the clients in any shape or form in regard to SP1 or SP2.
MS EASTMAN: Looking at the matters set out on that page, it gives a fairly frank assessment as to what went wrong; isn't that right?
MS CUDDIHY: Yes, I believe that was the case.
MS EASTMAN: The purpose of this exercise was to really look internally at what happened and to identify where the weaknesses might have been to have allowed these events to occur; is that right?
MS CUDDIHY: In part, yes.
MS EASTMAN: This is part of reflecting on risk management, is it not?
MS CUDDIHY: Yes.
MS EASTMAN: Ultimately, the responsibility for risk management rests with the board, as well as yourself; is that right?
MS CUDDIHY: And our GM well, it rests with all of the SLT but certainly I accept that responsibility.
MS EASTMAN: I asked you earlier about when you received the Jennie Piaud report. If you turn to the first page, which is at the top right hand corner 3781, do you see that?
MS CUDDIHY: Yes.
MS E
ASTMAN: You have the heading "Investigation findings"?
MS CUDDIHY: Yes.
MS EASTMAN: That's a reference to the Jennie Piaud investigation; is that right?
MS CUDDIHY: I'm not sure to which report because it's very early in the piece. I can't recall what the date was of the first Piaud report.
MS EASTMAN: I want to suggest this is the draft report that you received on or around 22 July.
MS CUDDIHY: Yes.
MS EASTMAN: This is a report that you briefed to you spoke with the Chair of the Board; is that right?
MS CUDDIHY: It could well be, yes.
MS EASTMAN: Could it have been that the Chair of the Board asked you to prepare a document to go up to the board? This could be part of the reason for preparing this document?
MS CUDDIHY: No, I felt very strongly and passionately about this issue myself. This was something I took on board myself. I still, to this very day, regret deeply the actions of SP1 and SP2 and that their employment with Sunnyfield caused harm to clients, to family members and to staff. And I still, to this day, deeply regret that. Not because of my own personal concerns, but because of the suffering for clients, the suffering for families, and the suffering for the staff involved.
CHAIR: Someone reading this, Ms Cuddihy, that is the investigation findings, would perhaps wonder how it is possible for a pattern since March 2018, that is 16 months before this document is prepared, of staff bullying, racism, intimidation, deceit, absconding from duties, not adhering to client schedules, and cover up and condonement of laziness and falsifying records could not have been discovered.
MS CUDDIHY: I agree with you. And I think this is a very
CHAIR: Doesn't that demonstrate there must have been a fundamental weakness in your system?
MS CUDDIHY: No, I don't believe that that's the case but I do think
CHAIR: You don't believe that's the case?
MS CUDDIHY: No, but I think this is a great learning for our organisation. We would never, ever, ever want this to ever happen again.
CHAIR: I'm sure you don't, but what is the point of a response team if they can't be proactive and have a look from time to time at what is going on, if it is so pervasive and so fundamental to the wellbeing of the people with disability and the staff to ensure that these things are not happening? This went on SP1 was employed for nearly two years.
MS CUDDIHY: Yes, yes, and it's you know, if we had known of his character, I can assure you
CHAIR: That's the point.
MS CUDDIHY: We didn't know of his character.
CHAIR: Well, the question is what should you have known. Your organisation should have known.
MS CUDDIHY: And there's many learnings, many learnings and we put those in the statement. I think the learnings are more than the response team. The learnings come for our recruitment processes, the learnings come for our training processes, the learnings come for our management processes, the learnings come from the response team, as you mentioned. But also, in that particular house, creating a much better culture and environment where the staff could speak up.
MS EASTMAN: No doubt you wanted to share your learnings with the board; is that right?
MS CUDDIHY: Yes, and we did report to the board.
MS EASTMAN: The document you are looking at now, that was the document that was going to be used to provide a report to the board; is that right?
MS CUDDIHY: There is no clear set if it was a board report, it would have had a heading on it. It was a report that I put together and circulated to some of the SLT, as I thought that it was my reflections at the time of reading the first Piaud report.
MS EASTMAN: The top of that document says "Report allegations of client assault" and then there's the identification of the home. Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: Can I ask you now to turn to volume six of part A behind tab 187. These are some documents you have provided to the Royal Commission.
MS CUDDIHY: Thank you.
MS EASTMAN: On the first page, that's one of nine, it ends with 3047. Do you see
that? It says "Board meeting 6.59, 22 August 2019".
MS CUDDIHY: Sorry, this is not the right one. Tab 187. Thank you very much. This is a board report.
MS EASTMAN: This looks like item agenda 6.1, the CEO's board report.
MS CUDDIHY: Correct.
MS EASTMAN: To a meeting that appears to be on 22 August 2019; is that right?
MS CUDDIHY: That would be correct.
MS EASTMAN: There is a lot of financial information there but I want you to turn to page 7 of 9 and the page reference at the top right hand corner is 3053. This is attachment 3.
MS CUDDIHY: Yes.
MS EASTMAN: I want you to have a look at that document and just tell me whether or not this looks familiar to you. You will see it has the date 13 August 2019 on the bottom of the page?
MS CUDDIHY: Yes, so this is a final version of a similar report and it's not the same.
MS EASTMAN: No, it's not the same and I want to take you to some of the changes that were made in terms of reporting to the board.
MS CUDDIHY: Right.
MS EASTMAN: So you may need the draft that you have and also the board report at the same time. Have you got that?
MS CUDDIHY: No.
MS EASTMAN: You need both documents.
MS CUDDIHY: Yes, no, thank you kindly.
MS EASTMAN: The first point I want to raise in terms of difference is "Investigation Findings".
MS CUDDIHY: Yes.
MS EASTMAN: Can I ask you to identify that on the draft of 28 July?
MS CUDDIHY: Yes.
MS EASTMAN: And read the paragraph immediately under "Investigation Findings".
MS CUDDIHY: Yes. And this report to the board
MS EASTMAN: No, I'll just ask you to read that, please.
MS CUDDIHY: Well, I'm just trying to get it under the light.
MS EASTMAN: First of all, read the draft. Now, can I take you to the board paper under the heading "Investigation Findings To Date". Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: You tell the board:
Independent investigator J Piaud conducted a limited desktop review, as well as interviews with the two parents of the clients in question and other staff at the home.
Do you see that?
MS CUDDIHY: Yes.
MS EASTMAN: Why is it that you describe to the board that the investigation is "a limited desktop review"? You accept those words do not appear in your draft, do they?
MS CUDDIHY: No, they don't.
MS EASTMAN: Why did you want to suggest to the board that what Jennifer Piaud had done was a limited desktop review, whatever that means?
MS CUDDIHY: My recollection at the time is that my the first draft, which is the draft here, or a second draft with Jen's track change insertions, was a draft and that I had been given some feedback that that report was quite a subjective report and asked to make the report more objective.
MS EASTMAN: First of all, who gave you that advice and when?
MS CUDDIHY: It would have been in the period of time between 28 July and 15 August but I don't recall
MS EASTMAN: Who gave you that advice?
MS CUDDIHY: I don't recall. I do apologise, I just don't recall.
MS EASTMAN: Who would ordinarily advise you about the contents of your reports reporting to the board?
MS CUDDIHY: Various people can. The other colleagues in the SLT. At the time we were working with Williams & Barwick Lawyers, so there could have been various people who gave me that feedback.
MS EASTMAN: Well, I really want you to think about, to the best of your recollection, who gave you advice about changing what was in the draft to what we see in the report to the board? Who gave you that advice?
MS CUDDIHY: I'm sorry, I cannot tell you something I can't recall.
MS EASTMAN: On what basis could it be said that you giving your subjective views to the board was inappropriate?
MS CUDDIHY: That was the feedback that I believe I received and this was the report that I put to the board and I don't believe I held anything back from the board.
MS EASTMAN: You have an obligation, don't you, to report to the board honestly and truthfully?
MS CUDDIHY: I do.
MS EASTMAN: You have an obligation to be transparent?
MS CUDDIHY: And I always am.
MS EASTMAN: And you have an obligation not to hide matters that may effect the operations and the risks to Sunnyfield; is that right?
MS CUDDIHY: I never have. I've never hidden anything from the board and I never will.
MS EASTMAN: I've taken you a moment ago to that part of your draft report, "How could this have happened?" "A boiling frog scenario appears to have occurred at the house", do you remember that?
MS CUDDIHY: Yes.
MS EASTMAN: In the report that went to the board, there is no reference to the boiling frog. Do you agree?
MS CUDDIHY: No, it's not written in those terms. No.
MS EASTMAN: There is no reference to SP2 being good at covering up and deceitful in his behaviour that has gone undetected?
MS CUDDIHY: No.
MS EASTMAN: Sorry, that should be SP1. There's no reference in the document that went to the board about distractions of the regional managers, is there?
MS CUDDIHY: No.
MS EASTMAN: There is no reference in the document that went to the board about racial vilification or SP1's gun ownership, is there?
MS CUDDIHY: Look, I haven't got to the --- read through all of this report from August 2019 but if that's not there, it's not there. But there's certainly no attempt on my behalf to hold anything back from the board and there may have been verbal discussions at the board meeting that would be in much more detail and there usually is discussions because my report is normally for discussion.
MS EASTMAN: No reference to HR failing to follow up and exit interviews of negative feedback regarding SP1, you don't tell the board that?
MS CUDDIHY: I refer the reports to the board but I don't believe anything was held back from the board.
MS EASTMAN: What you told the board was something quite different, wasn't it? You wanted to say to the board there are intensive application of resources and efforts in exiting Melissa. That's what you tell the board, isn't it?
MS CUDDIHY: There would have been a very lengthy, no doubt, discussion about this matter at the board. But I do not recollect the exact words.
MS EASTMAN: What I want to suggest to you is that when one compares your honest opinion, and I put to you, expressed in the 28 July draft, and the report to the board that you've provided on 13 August, that you have not expressed your honest opinion to the board at all, have you?
MS CUDDIHY: I've given an honest --- excuse me, I'm losing my voice --- I've given an honest report to the board, they are different sorts of reports. This one here is a much more subjective type of report. This one here is a much more factual report at that point in time.
MS EASTMAN: But given the nature of the issues, wasn't your subjective report, and that is really your analysis about why and what could have gone wrong, didn't the board members need to actually know that rather than the more sanitised version that you presented to them?
MS CUDDIHY: I took advice, I took that advice and I ---
MS EASTMAN: But who gave you that advice? You keep saying that but you can't tell the Royal Commission who you took the advice from?
MS CUDDIHY: No, I don't recollect explicitly who gave me that advice but I do not hold anything back from the board.
CHAIR: You did.
MS CUDDIHY: No, I did not.
CHAIR: The first paragraph in the first document of the 28th of July under "Investigation Findings", that's not subjective. That's an analysis of what was --- what the independent investigation found.
MS CUDDIHY: No, I did not hold anything back from the board.
CHAIR: Where is the material in the first paragraph referred to in the document that goes to the board? How does the board know that from March 2018 staff bullying, racism, intimidation, deceit, absconding from duties, not adhering to client schedules, cover up, condonement of laziness, falsifying records, where is this?
MS CUDDIHY: There would have been discussions at the board meeting.
CHAIR: I see. Thank you.
MS EASTMAN: You say there were discussions at the board about the matters that were your subjective views that you didn't include in the formal papers, is that right?
MS CUDDIHY: There would have been fulsome discussions at the board.
MS EASTMAN: Where do we find a record of the fulsome discussions?
MS CUDDIHY: In the board minutes.
MS EASTMAN: Can I ask you overnight to provide to me the minutes where you say this fulsome discussion of the matters in your draft report were sent to the board, can you do that?
MS CUDDIHY: I can get you the minutes of the meeting.
MS EASTMAN: Thank you. Commissioners, I note the time, and it may be helpful to see the minutes of matters that don't are not reflected in the board papers overnight.
CHAIR: I'll just check whether Commissioner Galbally wants to ask anything at this
stage?
COMMISSIONER GALBALLY: No, I will hold my questions for tomorrow. Thank you.
CHAIR: Okay, thank you. Commissioner McEwin?
COMMISSIONER McEWIN: Same for tomorrow.
CHAIR: We'll adjourn until 10.00.
HEARING ADJOURNED AT 4.18 P