Able Australia Services and National Disability Insurance Agency

[2024] AATA 2470

Able Australia Services and National Disability Insurance Agency [2024] AATA 2470 (15 July 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/2198

Re:Able Australia Services

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker 

Date:15 July 2024

Place:Melbourne

The Tribunal dismisses this application.

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

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – application for reinstatement – Tribunal granted application and reinstated proceeding – jurisdictional issue – Applicant is an NDIS registered service provider – Applicant seeking review of a decision by an NDIA payment officer to refuse to pay an invoice for services provided to a National Disability Insurance Scheme (NDIS) participant – whether decision has been made under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) following review of a “reviewable decision” under s 99 – no reviewable decision before the Tribunal – application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

SENIOR MEMBER K. PARKER

15 JULY 2024

Reinstatement Application 

1.This application was dismissed by the Tribunal (as presently constituted) on 18 June 2024 pursuant to subsection 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) after the Applicant failed to appear at an interlocutory hearing on 18 June 2024. The purpose of the interlocutory hearing on 18 June 2024 was to determine whether the Tribunal has jurisdiction to undertake a review in this proceeding.

2.On 19 June 2024, the Applicant made an application under subsection 42A(8) of the AAT Act for this proceeding to be reinstated.

3.Following an interlocutory hearing on 12 July 2024, the Tribunal decided to grant the Applicant’s reinstatement application on the basis that the manager of the Applicant was unaware of the previous interlocutory hearing because the Notice of Listing for that hearing had been sent to a former representative of the Applicant who is no longer employed by it. The manager said that at the relevant time, he did not have access to his former employee’s emails.

4.The Respondent did not contest that this was a reasonable explanation for the non-attendance by the Applicant at the interlocutory hearing on 18 June 2024. The Tribunal finds that the Applicant has a reasonable explanation as to why it failed to appear at the interlocutory hearing on 18 June 2024.

5.Accordingly, pursuant to subsection 42A(9) of the AAT Act, the Tribunal reinstates this application.

Jurisdictional Issue

6.This matter was also listed for an interlocutory hearing on 12 July 2024 to determine whether the Tribunal has jurisdiction to the undertake a review.

7.The Applicant is seeking review of a decision made by a payments officer at the NDIA to refuse to pay an invoice issued by the Applicant for the provision of services to a NDIS participant. The Tribunal is unable to identify any provision within s 99 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) which describes this type of decision. It follows that the decision about which the Applicant seeks review, is not a “reviewable decision” under s 99 of the NDIS Act. There is also no evidence of a decision having been made under s 100 of the NDIS Act. For these reasons, the Tribunal does not have the power to undertake a review in respect of the decision of the payment officer affecting the Applicant.

8.Following a further exchange with the Tribunal, Mr Nguyen, on behalf of the Respondent, undertook to make some enquiries within the NDIA to ascertain whether there is a person or team at the NDIA which the Applicant may contact to ask for the decision to refuse payment of its invoice, to be reconsidered. The Tribunal suggested that the Applicant write an email confirming this request and may wish to set out any extenuating circumstances. Mr Nguyen undertook to get back to the Applicant to let it know the outcome of his enquiries.

9.The Tribunal is satisfied that the decision is not reviewable by the Tribunal and that it does not have the power to undertake a review in this matter.

10.Accordingly, pursuant to subsection 42A(4) of the AAT Act, the Tribunal dismisses this application.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

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

Associate

Dated: 15 July 2024

Date of hearing:	12 July 2023
Applicant:	In person
Advocate for the Applicant:	Mr Robert Fraser, Able Australia Services
Respondent:	In person
Solicitors for the Respondent:	Mr Leo Nguyen, NDIA