13Homecare and National Disability Insurance Agency

[2023] AATA 793

13Homecare and National Disability Insurance Agency [2023] AATA 793 (4 April 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/1536

Re:13Homecare

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D. Connolly

Date:4 April 2023

Date of written reasons:        18 April 2023

Place:Sydney

The application is dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD]...................................

Senior Member D. Connolly

Catchwords

PRACTICE AND PROCEDURE – Applicant is a registered NDIS provider – Applicant provided services to a participant who is now deceased – Applicant has sought reimbursement for unpaid invoices – Applicant seeks review of the Agency’s decision –no applicable internal review decision – application dismissed under section 42A(4).

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Complete Nursing and Home Care Pty Ltd and NDIA [2020] AATA 360

REASONS FOR DECISION

Senior Member D. Connolly

18 April 2023

1. The Applicant, a registered National Disability Insurance Scheme (NDIS) service provider, provided supports to a participant, Ms R, prior to her death on 13 September 2022. Before she passed away, Ms R sought review of a decision relating to supports. Her matter was finalised pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) after she and the National Disability Insurance Agency (the Agency) filed terms of agreement with the Tribunal. The Tribunal’s order included a notation that:

   a person from the Payments team of the Respondent will be in contact with the Applicant’s service provider, 13HomeCare, to discuss the issue of the outstanding invoices with a view to resolving it after and outside the Tribunal proceedings.

2. The Applicant has written to the Tribunal, setting out their correspondence with the Agency regarding this issue and requesting:

   support from your office for a fair decision and follow-up about this matter that was supposed to be closed and or resolved already given that an agreement was already reached last year. I really hope that with your follow-up support, the NDIA payments team will comply to pay us.

3. I made an oral decision on 4 April 2023 to dismiss the application on the basis that there was no evidence that a review of a reviewable decision had been completed. The Applicant has asked for written reasons.

4. The Applicant sent to the Tribunal copies of various emails exchanged with the Agency regarding this issue.

5. The Applicant has referred to correspondence from the Agency dated 11 January 2023 in which the Agency provides a response in relation to the Applicant’s enquiry about the reimbursements sought. The Agency sets out the claims made by the Applicant and provides a view on the claims. The Applicant was advised they would be contacted by the Agency to assist with uploading the claim. There is nothing in the email to suggest that it is a review of a reviewable decision pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

6. I considered all the material filed by the Applicant, including the various email exchanges with the Agency, but noted none of the correspondence provided appeared to be notice that a review of a reviewable decision pursuant to subsection 100(6) of the NDIS Act had been undertaken.

7. The Agency wrote to the Tribunal before the hearing and submitted in part:

   The Agency is still reviewing the invoices provided and considering whether they can be paid….

   In our view the Tribunal does not have jurisdiction to hear this matter. A decision by the payments team/branch is not a reviewable decision listed under s99, nor an internal review decision under s100(6). In fact, the dispute appears to rest between the Applicant provider and the person/organisation responsible for managing the relevant participant’s plan, and not with the NDIA. We note the Tribunal’s decision on a similar issue regarding payment to providers: Complete Nursing and Home Care Pty Ltd and NDIA [2020] AATA 360.

8. At the hearing I explained to the Applicant that the Tribunal’s jurisdiction arises when an application is made for review of a decision made by an internal reviewer under subsection 100(6) of the NDIS Act. I asked the Applicant if they had received notice of review of a reviewable decision undertaken pursuant to that provision. The Applicant could not provide evidence that the Agency had made such a decision. I explained that I had considered all the material filed, but there was no evidence before me that the Agency had reviewed a reviewable decision.

9. I considered the Agency’s email sent on 11 January 2023 and the notation in the order made finalising Ms R’s matter. I am not satisfied either of those are decisions that may be reviewed by an internal reviewer, or are reviews undertaken pursuant to subsection 100(6) of the NDIS Act.

10. I accept that the Applicant has conveyed to the Agency that they wish to be reimbursed for services provided before Ms R passed away. I also accept the Agency’s advice that it is still considering the request. I am not satisfied however that any decision made comes within the terms of subsection 100(6) of the NDIS Act.

11. As there is no evidence that a decision was made under subsection 100(6) at the time of the review application, I have concluded the Tribunal does not have jurisdiction in this case.

12. Subsection 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. Having regard to all the evidence in this case, I have formed the view this is the appropriate action to take.

13. The application is dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

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Associate

Dated: 18 April 2023

Date(s) of hearing:	4 April 2023
Solicitors for the Respondent:	Ms S Minhas, National Disability Insurance Agency