Ministry of Education and Child Care

Appeal Number 2024-0157 Part C – Decision Under Appeal The decision under appeal is the Reconsideration Decision of the Ministry of Education and Child Care (the “Ministry”) dated April 4, 2024 (the “Reconsideration Decision”). The Ministry found the Appellant was ineligible for amounts of Affordable Child Care Benefit (“ACCB”) received between May 2021 and September 2023 and as a result the Appellant received an overpayment of $51,903.40. The Ministry further found that the Appellant is liable to repay the amount of the overpayment ($51,903.40) to the Ministry applying section 7(1) of the Child Care Subsidy Act.

Part D – Relevant Legislation Child Care Subsidy Act, R.S.B.C. 1996, c. 26, sections 5 and 7.

Child Care Subsidy Regulation, B.C. Reg. 74/97, sections 14 and 15.

The full text of this legislation is included in the Schedule of Legislation at the end of this decision.

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Appeal Number 2024-0157 Part E – Summary of Facts The hearing of this appeal took place over two days via video-conference. Both the Appellant and Ministry had representatives attend the hearing. In between the two hearing dates, the Appellant provided further written submissions regarding the accounting in question in the Appeal.

Background

The following is a chronology leading to the Reconsideration Decision:

• On April 1, 2021 and April 1, 2022, Child Care Operating Funding Program agreements between the Province of British Columbia and the Appellant were completed;

• Ministry records indicate that for the period between May 2021 and September 2023, the Appellant submitted CF2798 ACCB Care Arrangement forms that did not deduct the Child Care Fee Reduction Initiative (“CCFRI”) fee amounts received by the Appellant;

• On January 4, 2024 the Verification and Audit Unit of the Ministry conducted a review for the period between May 2021 and September 2023 for 6 children attending the child care facility. The Verification and Audit Unit determined that the Appellant received $51,903.40 for which it was not eligible;

• An overpayment notification letter was delivered to the Appellant on January 10, 2024. Enclosed with this letter were Child Care Subsidy Overpayment Calculation Forms signed by the auditor outlining the accounting used to reach the determination that an overpayment of $51,903.40 had been made to the Appellant. In this letter the Ministry indicated that in coming to its determination that of the overpayment that it considered the statements of the Appellant as well as CF2798 Care Arrangement Forms signed February 2, 2023, April 20, 2023, April 24, 2023, and July 31, 2023;

• On February 5, 2024 the Appellant emailed a Request for Reconsideration;

• On March 15, 2024 the Request for Reconsideration was received at the Verification and Audit Unit and the Reconsideration, Appeals, and Administrative Fairness Branch;

• The Request for Reconsideration included excel spreadsheets provided by the Appellant setting out the Appellant’s calculations of payments received and a written submission, which stated: Re: Childcare Subsidy Overpayment Appeal VAU File Number: [xxxxxxxxxx]

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Appeal Number 2024-0157 Service Provider ID: [xxxxxxxxxx] March 15, 2024 Before December 2022 the Childcare Fee Reduction Initiative (FRI) was not processed by us. We were unaware of how it was processed and trusted that it was being done correctly as we had no control over the disbursement before December 2022. In the beginning our centre reached out to express confusion on how it was processed. Even after that, we just trusted the ones processing the FRI program were doing the calculations correctly.

After December 2022 we again reached out asking for guidance and were unable to get a clear answer. It seemed the staff there were unclear as well. One inaccurate information was relating to the parent portion. We were told to put $200 as our fee per month. There was an expectation that families who were fully covered by subsidy were now expected to pay $200 per month. Or that subsidy would only be maximum of $200 which is incorrect. Due to this we were shorted funds that are owed to our centre.

When I talked about this discrepancy the auditor said she was unable to address this issue. So, I wish to state during this audit review that it be acknowledged that this amount is below what we are entitled to receive for some of our children. This is in recognition of the inaccurate information on how to process the FRI and subsidy in the paperwork.

During the audit and now the special needs fund to help with the extra costs we cover for supporting our special needs children is being taken away from childcare centres like ours. With a completed form signed by the child's doctor recognizing the special need of the child. This $150 per month is not intended to cover towards the child's monthly attendance fee. This fund is separate and should not be prorated as the amount is low to begin with. In this audit and some communication about current fees there have been attempts to disqualify the intent / purpose of this special needs support. This is a way to say to childcare centres that there is no understanding of the challenges of working with special needs children. If anything, there should be an increase for this support that could help pay towards separate special need workers who can give more direct support to these children. It feels like a disrespect to the children, their families and to us, the centres, who are trying to be there for the special needs children. Please, invest in this and show the value now so when the children get to school age, they will be better prepared.

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Appeal Number 2024-0157 I have attached an excel sheet with m y notes on the calculations to show the discrepancies that I believe happened due to the incorrect eligible amount statement . This relates to my earlier discussion here about the $200 parent portion expectation for parents, who in the past would not have paid any fee as they are low- income families and to the misuse of the special need funds being allocated towards monthly attendance fees. MYFRS – [XXXXXXXX] should not be held accountable for the time up to December 2022, as we not involved with the payment calculations. I acknowledge that we did some errors in our submissions due to misunderstandings of the process. To help, I would like to request that the subsidy application form that show where we put our rates can have a section that will allow for the FRI calculation to be included which will provide the amount for subsidy payment. This will minimize the confusion. I realize not all childcare providers use the FRI program, but they can just leave that section blank. Ideally it would be better if it was done like before, where it is not done by us, and we just submit the subsidy forms and operating fund reporting. It would save us on administrative time which we do not have.

Thank you for understanding and please note that the operating funds does not cover the cost of administration which means ones like me must be counted on the floor and do administrative work on the side. As staff, we are responsible for the cleaning, disinfecting and providing the childcare as there are no funds to pay a cleaner or administration. The review I did of the audit calculations and my assessed amount owed of $15,193.40 are provided as a 7 page excel spreadsheet (see attached).

The Reconsideration Decision

On April 4, 2024, the Ministry completed its reconsideration and confirmed the finding that the Appellant had received $51,903.40 of ACCB that it was not eligible for and was liable to repay that amount to the government, applying section 7(1) of the Act.

The Reconsideration Decision stated that upon review of the overpayment calculator that the CCFRI amount was not applied correctly in all cases for each month CCFRI was claimed by the Appellant. For example, for child 1, the amount of ACCB claimed in June 2021 was $1,100.00 and the amount the Appellant was eligible for after the CCFRI was calculated was $835.00, which means the Appellant was overpaid $265.00 for the month for child 1. The same applied, in differing amounts for the other children, and totalled, over the audit period, an overpayment of $51,903.40 for ACCB that the Appellant was ineligible to receive.

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Appeal Number 2024-0157 The Ministry stated that while the Appellant subm itted that before December 2022 the CCFRI amount was not processed by the Appellant. The Ministry responded that, although CCFRI amounts are used in calculating ACCB, the CCFRI is a different program and the only change between before December 2022 and after was the amount of CCFRI.

The Ministry also stated that it was unable to determine how different processing would affect the calculations as it is the Appellant’s responsibility to ensure that the correct amount of CCFRI is deducted from the cost of childcare when making a claim for ACCB. Further, the ministry noted that any issues or concerns with the amount of CCFRI received are outside the scope of the Reconsideration Decision.

In addressing the Appellant’s concerns regarding additional money paid for special needs children in the calculation of ACCB, the Ministry stated that children who have a designated special need and require extra support may be eligible for an additional $150 per month towards the cost of child care, but that the total of this supplement and the ACCB cannot be more than the rate charged by the child care provider. If the charge exceeds that amount the supplement amount will be reduced so that the total combined amount is equal to the child care provider’s rate. In any event, the Ministry noted that as this top up amount was administered under a different program than the ACCB, top up amounts were not collected back as part of the audit.

Finally, the Ministry noted that the overpayment amount only relates to the six children whose accounts were audited and that any concerns regarding payments relating to other children in the care of the provider were outside the scope of the audit and the Reconsideration Decision.

Summary of Evidence

The following documents were available to the Ministry at Reconsideration:

Overpayment Notification Letter, dated January 4, 2024 and enclosures

• This letter notified the Appellant of the overpayment. As mentioned above, enclosed with the letter were the Child Care Subsidy Overpayment Calculation Forms. These forms are organized by child and list the number of days each month each child attended the child care facility, the ACCB amount that was issued each month of the audit period, the amount of eligible ACCB for the period, and the overpayment amount. These forms do not provide any information about the CCFRI amount or the $150.00 special needs supplement referenced by the Appellant.

Four Child Care Subsidy Child Care Arrangement Forms

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Appeal Number 2024-0157

• These forms are completed by the parents of the children receiving child care and the child care provider, which in this case is the Appellant. The Forms note that “[t]he child care provider must complete sections 1-4, and sign. The Form must then go to the applicant to complete sections 5-8 and then submit to the Child Care Service Centre.” • In the child care provider’s sections of the forms the Appellant has to provide the following information: o Contact information for the Appellant o Type of child care provided (in this case, Licensed Group Child Care) o Children’s names, birthdates, dates and time of attendance at the child care facility and the following financial information relating to the care provided: • Monthly Fee • Daily Fee • Full date rate for days of school closure o Signature and date • Upon review of these forms, it appears as though two different editions of the forms were used over the audited period. On the later edition, there is an asterisk below the section of the form requesting information about the children and the child care fees. Behind the asterisk the form states “Monthy/Daily Fee is the parent’s cost after Child Care Fee Reduction Initiative [CCFRI]”. This notation is not included on the earlier edition of the forms.

Child Care Operating Funding Program Funding Agreements, dated April 1, 2021 and April 1, 2022

• These agreements set out the formula for calculating the CCFRI payments for children attending the Appellant’s child care facility. The calculations are based on the age of the child and the number of days the child attends the child care facility.

Screen Printouts Showing ACCB paid to the Appellant

• These screen printouts appear to reflect some of the financial information included in the Child Care Subsidy Child Care Arrangement Forms mentioned above and appear to be generated from the Ministry’s records.

After the first day of the hearing, the panel adjourned the hearing of the appeal to a later date as the time set aside for the hearing of the appeal had expired and the Appellant wanted to provide further information to clarify their version of the accounting. Prior to the hearing reconvening for a second day, the Appellant submitted the following documents to the Tribunal:

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Email to the Tribunal, dated May 24, 2024

Appeal Number 2024-0157

• This email briefly summarized the documents attached to it.

One page print-out from Ministry regarding monthly enrolment reporting

• This document sets out a high-level summary of what needs to be reported for funding payments based on total monthly enrolment. The Appellant highlighted that the monthly enrolment is requested to be reported, not monthly attendance.

Two Missing pages from the Child Care Operating Funding Agreements

• These pages set out documents that must be retained for audit purposes and the requirement to take part in audits and service evaluations as well as some defined terms used throughout the Agreements.

Various Screenshots of Information relating to Childcare Program Rates and Funding Program Tables, dated 2023

• These images and tables were provided by the Appellant from various sources and show breakdowns of child care rates by age bracket and the various savings available from CCFRI rates, ACCB subsidy and special needs amounts.

Various correspondence between the Appellant and the Ministry/Auditors

• These letters and emails request provision of the various numbers being relied on by the Ministry in their calculation and ask for clarification regarding the audit process and information sought to be provided.

Childcare Subsidy Overpayment Calculation Forms with notations made by Appellant

• These are duplicates of the same forms provided by the Ministry but include handwritten notations made by the Appellant to highlight the areas where they agree that there has been an overpayment and those areas where they disagree with the auditor’s conclusions.

During the hearing, when asked by the panel, the Appellant and Ministry both provided oral evidence explaining each’s view of the process for claiming both CCFRI and ACCB so the panel could understand the various programs and how they were administered. The panel found this information very useful and thanks both parties for their assistance in providing a clear

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Appeal Number 2024-0157 understanding of the background of how ACCB is recorded and claimed by the childcare provider.

Preliminary Issue Regarding Notice of Appeal

Prior to the hearing commencing, the panel chair requested the parties provide written submissions regarding the potential need to notify the parents of the children for whom excess ACCB was found to be paid to the Appellant by the Ministry. The Appellant provided brief written submissions submitting that the parents did not need to be notified of the appeal as the payment did not affect them in any way. The Ministry did not provide any written submissions.

Admissibility of New Evidence

Neither party objected to the admissibility of the other’s evidence provided on appeal. The panel finds that the additional evidence provided by both parties was reasonably required for the full and fair disclosure of all matters in the appeal. Therefore, the panel finds that the additional evidence is admissible under section 22(4) of the Employment and Assistance Act.

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Appeal Number 2024-0157 Part F – Reasons for Panel Decision Preliminary Issue Regarding Notice of Appeal

Before proceeding with the hearing, the panel contemplated whether the parents of the children whose childcare accounts were audited and where overpayment was found should be notified of the appeal as it would be a violation of the rules of procedural fairness to determine an appeal affecting the legal rights of individuals without giving them an opportunity to respond to the case. However, after reviewing the submissions provided by the Appellant and reviewing the evidence submitted in this appeal, the panel finds that the overpayments in question do not concern funds that risk affecting benefits received by the parents or that would need to be repaid by the parents even if the Reconsideration Decision is confirmed. As determined by the Ministry the amounts in question are funds the Appellant received in excess of the total amount charged to the parents for daycare meaning that the Appellant would not be in a position to seek repayment from the parents should they have to repay the government for the amounts overpaid. In further support of this finding, the Appellant stated that regardless of the outcome of the appeal that they would not be seeking recompense from the parents whose accounts were involved in the audit. Accordingly, the panel also found that there was no need to notify the parents and the appeal proceeded with the panel hearing only from the two named parties, the Appellant and the Ministry.

The Issue to be Decided

With the preliminary issue determined, the panel must determine whether the Reconsideration Decision that found that the Appellant received an overpayment of ACCB in the amount of $51,903.40 and that this overpayment must be repaid to the Ministry pursuant to section 7(1) of the Act was reasonably supported by the evidence or was reasonable application of the applicable enactment in the circumstances of the Appellant.

The Appellant’s Position

The Appellant admits that they received an overpayment of amounts of ACCB when they received ACCB that they were ineligible to receive for certain children attending their childcare facility. However, the Appellant states that the total amount of the overpayment is larger than it should be and that 29% of the amount claimed as an overpayment should not have to be paid back. The Appellant submits that the amount claimed as overpayment does not take into account months where the Appellant received underpayments or when the CCFRI forms did not specify that the Appellant was to report the net amount of the cost of child care per child in care after the deduction of any ACCB received.

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Appeal Number 2024-0157 Further, the Appellant submits that there was con fusion as to what amount child care providers were to submit for the cost of child are on the ACCB forms under a newly implemented $200 per month child care program. The Appellant’s representative stated that the Appellant was told to submit $200 as the fee per month even when ACCB would provide more than $200 per child. The Appellant submits that due to this error that existed for a number of months, there were several instances where the Appellant was underpaid ACCB rather than overpaid.

Likewise, the Appellant submits that the $150 fee provided to care providers of special needs children was also set off against the ACCB payable rather than paid as a “top up” for providing care to a special needs child. The Appellant suggests that these are other instances where the Appellant has been underpaid and not accounted for in the audit.

In support of this position, the Appellant’s Representative submits that the Appellant did its best to navigate a program that is complex, not coordinated between the ACCB and CCFRI, poorly administered, and that during the roll-out answers to questions were inconsistent or unobtainable. The Appellant’s Representative stated that the initial CCFRI forms did not specify that the child care provider needed to provide the net cost of child care after ACCB was deducted when applying for CCFRI and that later versions of the CCFRI forms changed the wording. However, by the time the Appellant learned of the change in wording, or application, they had incorrectly submitted several months on the earlier forms with the wrong numbers. They assumed that this would not be problematic as they thought the ACCB and CCFRI departments were one and the same and that they communicated with one another and made any accounting adjustments between them as needed. The Appellant’s Representative stated that the contact information for both programs was the same when they wanted to ask questions about either program, both programs were administered by the same ministry and shared an auditor, and together administer the financial side of subsidized childcare in British Columbia. The Appellant also stated that the respective forms that are submitted cover different periods. One is prospective disclosing enrolment and the other retrospective disclosing attendance. The Appellant now recognizes an adjustment must be made between the programs for every filing.

The Ministry’s Position

The Ministry relies on its Reconsideration Decision and states that the Appellant received ACCB that it was not entitled to receive and must repay the sum received in excess as required by the Act. The Ministry submitted that the onus is on the care provider to provide correct information that they are in receipt of CCFRI funds for a child prior to claiming ACCB for that child and that as the CCFRI and ACCB programs do not share information, this is the only way the ACCB program would know how much to provide the child care provider with.

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Appeal Number 2024-0157 The Ministry stated that money received from CCF RI is based on what the child care provider charges the client per day/month and that the Ministry overpaid ACCB to the Appellant because the Appellant did not provide the Ministry with the CCFRI information necessary to calculate and pay the correct amount of ACCB. The Ministry states that the Appellant received more in CCFRI and ACCB combined than the total cost of childcare for some children in attendance and submits that this excess of funds is what they classify as an overpayment and seek repaid from the Appellant.

With respect to the Appellant’s submission that the audit does not take into account instances where the Appellant was underpaid, the Ministry states that the Appellant is correct that underpayments are not set off against the overpayments. The Ministry explained that this was because the legislation governing the ACCB program does not permit underpayments to be dealt with as part of an audit. The Ministry also stated that if an applicant submitted a form filled out incorrectly requesting a lesser amount of ACCB than the child was entitled to, that an audit would find no error.

With respect to the Appellant’s submission that the special needs “top up” payments were not paid on top of the ACCB, the Ministry states that the ACCB and top up payment cannot equal more than the total cost of daycare. The Ministry states that it is not an extra fee the child care provider can charge, but rather, an extra amount of subsidy to go towards the cost of child care for a child with special needs.

The Panel’s Decision It is undisputed that the Appellant received ACCB payments that they were ineligible to receive and that there was an overpayment made by the Ministry to the Appellant. This is admitted by the Appellant whose representative stated that it is not the existence of an overpayment but the amount of the overpayment that they are appealing to the Tribunal.

Section 7(1) of the Act states:

If a child care subsidy is paid to or for a person who is not entitled to it, that person is liable to repay to the government the amount to which the person was not entitled.

As it relates to the Appellant, this means that, if the Appellant received ACCB that it was not entitled to receive, the Appellant is liable to repay the amount of the overpayment. As it is undisputed that the Appellant received ACCB that it was ineligible to receive, the panel finds that the Ministry’s decision declaring that an overpayment existed and must be repaid was reasonable.

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