Aiden and National Disability Insurance Agency
[2021] AATA 4099
•9 November 2021
Aiden and National Disability Insurance Agency [2021] AATA 4099 (9 November 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/0494
Re:Andrew Aiden
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President F Meagher
Date:9 November 2021
Place:Brisbane
The Tribunal has jurisdiction to consider the supports which the Applicant seeks to have reviewed.
.................................[SGD].......................................
Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision to approve a statement of participant supports – where additional supports not considered within internal review decision – jurisdiction of the Tribunal – Tribunal has jurisdiction to consider matters that were before the primary decision-maker.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 25, 29, 29AB
National Disability Insurance Scheme Act 2013 (Cth) ss 31, 32, 33, 34, 36, 99, 100, 103National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 2, 4
Cases
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
QDKH and National Disability Insurance Agency [2021] AATA 922
VXVL and National Disability Insurance Scheme [2021] AATA 1709REASONS FOR INTERLOCUTORY DECISION
Deputy President F Meagher
This decision arises from an application made by the National Disability Insurance Agency (the Respondent) on 3 June 2021 as to the scope of the Tribunal’s jurisdiction in relation to an application made by Mr Andrew Aiden (the Applicant) to the Tribunal 23 January 2020 pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Background
The Applicant is a 56-year-old male who became a participant in the National Disability Insurance Scheme (the NDIS) on 28 March 2019.[1] The Applicant’s experiences Parkinsons, Lewy body Dementia, Dystonia Movement disorder, Marfan syndrome, Gynecomastia, Epilepsy, Spinal Disorder, PTSD, and Degenerative Osteoarthritis.[2]
[1] Applicant’s Submissions, [21].
[2] Applicant’s submissions, [21].
The application by the Respondent was made in the context of the decision of QDKH and National Disability Insurance Agency [2021] AATA 922 (QDKH) made by the Tribunal on 16 April 2021.
On 4 June 2021 the Tribunal conducted a telephone directions hearing with respect to the issue of jurisdiction and both parties made oral submissions in addition to their written submissions. The material before the Tribunal with respect to the interlocutory decision relevantly include:
(a)Submissions from the Respondent with respect to jurisdiction dated 3 June 2021 (Respondent’s Submissions).
(b)Submissions from the Applicant with respect to jurisdiction dated 11 June 2021 (Applicant’s Submissions).
(c)Further submissions from the Respondent in reply to the Applicant’s Submissions dated 25 June 2021 (Respondent’s Submissions in Reply).
In QDKH the Tribunal decided that the Tribunal’s jurisdiction in relation to review of statements of participant supports under the NDIS Act was confined to supports specifically raised by a participant in the internal review process undertaken pursuant to subsection 100(6) of the NDIS Act.
On 18 October 2021, the Full Federal Court made orders by consent in relation to the matter of QDKH as follows:
4. The appeal be allowed.
5. The decision of the Administrative Appeals Tribunal dated 16 April 2021 (2019/4503) be set aside.
6. The matter be remitted to the Administrative Appeals Tribunal for determination according to law, having regard to the contents of the notation below.
On 29 October 2021, the Full Federal Court, in making its orders, provided brief reasons for their judgement in the matter of QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (QDKH No. 2) which relevantly stated:
2. While orders conceding the appeal and the accompanying notation were made by consent and there is, strictly speaking, no requirement therefore for the Court to give reasons, the Court considers that it is desirable to publish reasons given the public importance of the issues raised on the appeal.
…
7. On 18 October 2021, the Full Court ordered by consent that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal for determination according to law, having regard to the notation to the orders to which the parties had agreed. That notation reads:
The parties agree that [the Tribunal’s] conclusion involved an error of law for the following reasons:
a) The Tribunal’s jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO’s or delegate’s decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4).
b) The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.
c) On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports “put before” the internal reviewer. A participant in the National Disability Insurance Scheme need only “request” a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review.
d) Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to “facilitate” the preparation of a participant’s plan (s 32(1)) and to prepare the SOPS “with” the participant (s 33(2)).
e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that “[p]eople with disability should be supported to receive reasonable and necessary supports” (s 4(5)) and that “[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs” (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26].
8. The Court considers that the appeal was correctly conceded for the reasons set out in the above notation. Accordingly, the Tribunal had jurisdiction to consider the additional supports.
Legislation
Chapter 3 Part 2 of the NDIS Act is entitled ‘Participants plans’. Section 31 of the NDIS Act sets out the principles relating to a participant’s plan as follows:
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 32 of the NDIS Act sets out that the CEO must facilitate the preparation of participant’s plan and subsection 32(2) of the NDIS Act specifically refers to the CEO’s obligation to prepare the plan in accordance with the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules) as follows:
The CEO must commence facilitating the preparation of the participant’s plan in accordance with the National Disability Insurance Scheme rules.
Section 33 of the NDIS Act sets out the matters which must be included in a participant’s plan. Relevantly subsections 33(2) and (5) of the NDIS Act read as follows:
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
…
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The Support Rules include the following with respect to the matters to which the CEO is to have regard in deciding whether to approve a statement of participant’s supports:
2.2 In deciding whether to approve a statement of participant supports, the CEO is to have regard to a range of matters set out in the Act including the participant’s statement of goals and aspirations. This will also specify the environmental and personal context of the participant’s living (which might include, among other things, their gender and cultural background).
…
2.4 The CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these.
…
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b) assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c) assess risks and safeguards in relation to the participant; and
(d) relate support needs to the participant’s statement of goals and aspirations.
[Emphasis added]
Section 34 of the NDIS Act set out the matters in respect of which the CEO must be satisfied in relation to general and specific supports to be provided or funded.
Section 36 of the NDIS Act refers to information and reports for the purposes of preparing and approving a participant’s plan. It sets out requests the CEO may make of the participant or another person for information or that the participant undergo an assessment or examination and provide a report to the CEO. It further provides that the CEO may decide to approve a statement of participant supports before the information of reports are provided, but that the participant must be given a reasonable opportunity to provide them.
Subsection 99(1) of the NDIS Act contains a table of reviewable decisions and specifically includes at item 4 and item 6:
Reviewable decisions and decision-makers
Item
Column 1
Reviewable decision
Column 2
Provision under which the reviewable decision is made
Column 3
Decision-maker
4
a decision to approve the statement of participant supports in a participant's plan
subsection 33(2)
CEO
6
a decision not to reassess a participant's plan
subsection 48(2)
CEO
Subsection 100(2) of the NDIS Act makes provision for ‘[a] person who is directly affected by a reviewable decision may request the decision maker to review the reviewable decision’, and prescribes a time frame in which such a request must be made. By reference to subsection 100(3) of the NDIS Act, a request may be made in writing or orally, and subsection 100(4) of the NDIS Act states:
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
With respect to review by the Tribunal, section 103 of the NDIS Act provides that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the circumstances in which an application may be made to the Administrative Appeals Tribunal and subsection 29(1) of the AAT Act stipulates that an application must be made in writing (except in particular circumstances not relevant here)[3] and that the application ‘must contain a statement of reasons for the application’.[4] Section 29AB of the AAT Act makes provision for the Tribunal to request the Applicant to amend the statement of reasons for application in circumstances where it considers them insufficient.
[3] AAT Act, s 29(1)(d).
[4] AAT Act, s 29(1)(c).
Respondent’s Submissions
The Respondent’s Submissions set out the framework of the NDIS Act insofar as it applies to the approval of the statement of participant’s supports. Specifically, they refer to section 25 of the AAT Act and sections 33, 99, 100 and 103 of the NDIS Act.[5]
[5] Respondent’s Submissions, [14] – [17].
The Respondent, adopting the reasoning in QDKH, submits that the supports set out in Annexure A of the Respondent’s Submissions, described as the ‘New Supports’, are not within the Tribunal’s jurisdiction[6] and that the Tribunal’s jurisdiction was confined only to the supports that were the subject of the Applicant’s application for review of a reviewable decision.[7]
[6] Respondent’s Submissions, [19].
[7] Respondent’s Submissions, [24]; T-Documents, T8.
Specifically, the Respondent submitted that, if the Tribunal were to consider the New Supports, it would be reviewing supports that had not been the subject of an internal review pursuant to section 100(6) of the NDIS Act by the Respondent and would therefore be bypassing the two-tiered review process outlined by Deputy President Constance in QDKH.[8]
[8] Respondent’s Submissions, [23], citing QDKH, [20] – [22].
The Respondent’s Submissions in Reply purported to address two main issues, namely:
(a)Is the jurisdiction of the Tribunal limited to a consideration only of those supports that the Applicant applied for when making the application for a reviewable decision or does its jurisdiction extend to a consideration of any support that the Applicant now asks the Tribunal to include in a statement of participant supports?[9] and
(b)Whether the New Supports were in fact ‘before’ the decision-maker[10] simply because they were referred to in the documentary material that was put before the decision-maker or because they were made the subject of the Applicant’s application for review of the reviewable decision.[11]
[9] Respondent’s Submission in Reply, [5].
[10] As defined by subsection 100(6) of the NDIS Act.
[11] Respondent’s Submission in Reply, [7].
In addressing the first question, the Respondent submitted that for several reasons, which it is not necessary to address in light of the outcome of the appeal referred to above in QDKH No. 2, that the Tribunal should prefer the decision of QDKH over VXVL and NDIA [2021] AATA 1709 (VXVL)[12], and in making that submission purported to identify four errors of law it considered had been made by the Tribunal in VXVL. In particular, the Respondent concluded that, subsection 33(2) of the NDIS Act makes clear that, contrary to the conclusions of the Tribunal in VXVL, the participant is to play an active role in assisting the decision maker to identify the supports that are ‘reasonable and necessary’.[13]
[12] Respondent’s Submissions in Reply, [6].
[13] Respondent’s Submissions in Reply, [23].
In addressing the second question, the Respondent submitted that it is not sufficient, with respect to ‘putting matters’ before the decision-maker for the supports to have been referred to in the material that was available to the decision-maker.[14] Rather, the Applicant needs to have specifically requested such supports.[15] According to the Respondent, ‘[t]he decision-maker must have had reason to understand that the decision-maker was being asked to consider particular supports’[16] and, in most cases, ‘it will not be enough, to enable the decision-maker to reach that understanding, for the support to be no more than referred to in passing in part of some of the documentary material that is put before the decision-maker.’[17]
[14] Respondent’s Submissions in Reply, [29].
[15] Respondent’s Submissions in Reply, [29], citing Shi v Migration Agents Registration Authority (2008) 236 CLR 286, [142].
[16] Respondent’s Submissions in Reply, [33].
[17] Respondent’s Submissions in Reply, [33].
Applicant’s Submissions
The Applicant submits that the decision under review is the decision to approve the statement of participant supports for the Applicant under subsection 33(2) of the NDIS Act and that therefore the Tribunal’s jurisdiction is not limited in the way for which the Respondent contends.[18]
[18] Applicant’s Submissions, [5].
The Applicant’s Submissions contend that the Respondent mischaracterises what constitutes the reviewable decision for the purposes of the review process at the Tribunal.[19] In particular, the Applicant submits that the ‘New Supports’ are not in fact new supports as they are supports which have either previously been included in the Applicant’s statement of participant supports and/or are partially funded already in the Applicant’s plan, but are not currently funded to the extent required to meet the Applicant’s disability support needs.[20]
[19] Applicant’s Submissions, [40].
[20] Applicant’s Submissions, [41].
The Applicant’s further submits that there is no requirement for supports to be specifically identified either by the participant or the decision maker – however, if the participant has identified or requested specific supports, that the decision-maker will ‘have regard’ to them as outlined in rule 2.4 of the Support Rules.[21] Despite this, the Applicant submits that the NDIS Act does not impose an obligation or expectation on the participant during the review process and that the decision-maker may consider, when developing a participant’s plan, particular supports or a package of supports.[22] The Applicant further submits that the only limitation on what can be a funded support is those which meet the criteria in section 34 of the NDIS Act.[23]
[21] Applicant’s Submissions, [42].
[22] Applicant’s Submissions, [42].
[23] Applicant’s Submissions, [43].
The Applicant indicated that several of the New Supports were actually identified within a report by an Occupational Therapist which was available to the decision-maker when making their decision.[24] The Applicant’s submissions include that:
47. The Applicant contends that the fact he provided further evidence about his needs and or articulated his needs through the ‘Experts’ because the decision maker failed to sufficiently consider his disability support needs at the initial stage, does not justify a conclusion that those “Expert’ recommendations are ‘New Supports’’.
48. In other words, the Applicant contends that where the information presented and supports sought still retains a direct nexus to the information before the original decision-maker about the applicant’s disability needs, the supports sought would properly fall within the ambit of the reviewable decision as envisaged by the NDIS Act. The interpretation is consistent with the firmly established existing case law relating to the merits review.
[Footnotes omitted]
[24] Applicant’s Submissions, [46].
The Applicant then made submissions at length regarding the duty and responsibility of the CEO, or their delegate, in approving a statement of participant supports in light of a participant’s goals, objectives and aspirations[25] and submitted that the language of the NDIS Act ‘raise a legitimate expectation’ on the CEO to ensure ‘that the participant’s disability needs will be addressed, appropriate supports (reasonable and necessary supports) will be provided and funded…’[26]
[25] Applicant’s Submissions, [50].
[26] Applicant’s Submissions, [51].
The Applicant submits that the NDIS Act is very different to other legislative schemes, such as the Social Security Act 1991 (Cth) and the Safety Rehabilitation and Compensation Act 1988 (Cth), insofar as these schemes are ‘entitlement focused, criteria based and written claim form reliant’.[27]
[27] Applicant’s Submissions, [53].
The Applicant submits that the Respondent’s position amounted to an ‘impermissible attempt to place the burden upon the participant’[28] and that, if Parliament had intended to create such a responsibility on participants, that this would have been clearly articulated within the legislation.[29]
[28] Applicant’s Submissions, [55].
[29] Applicant’s Submissions, [56].
The Applicant’s submissions, with respect to statutory interpretation, are that:
62.NDIS Act s99, Table row 4, specifies that the decision to approve the statement of participant supports in a participant’s plan is a reviewable decision.
63.Section 100 of NDIS Act sets out the process for seeking a review of a reviewable decision. Section 100(6) specifies that a reviewer must, as soon as reasonable confirm, vary or set aside the reviewable decision.
64.The matter before the Tribunal, on an application for review under s 103 of the NDIS Act, is (relevantly) the decision to approve a statement of participant supports.
65.It is the decision itself which informs the Tribunal’s jurisdiction and powers because, by virtue of s.43(1) of AAT Act, the Tribunal has the powers and discretions of the original decision maker.
…
68.There is nothing in the NDIS Act which alters the general position above regarding merits review at the AAT. Therefore, the AAT in this matter is standing in the shoes of the reviewer and is able to exercise the same powers as the delegate of the CEO of the NDIA making a decision under s 33(2) to approve a statement of participant supports.
[Footnotes omitted]
The Applicant also advanced a number of reasons as to why she believed the decision in QDKH was wrong and in doing so, distinguished QDKH from Fuad and Telstra Corporation Limited (2004) 39 AAR 496; [2004] AATA 1182. In light of the outcome of the appeal referred to above in QDKH No. 2, it is not necessary to address such submissions in further detail.
Consideration
The Tribunal deals first with the submissions regarding jurisdiction, and consistent with the Court’s decision in QDKH No. 2, considers that the Tribunal’s jurisdiction in relation to the review of the statement of participant supports is not confined as submitted by the Respondent and extends to the matters raised by the Applicant as outlined in Annexure A of the Respondent’s Submissions.
The Tribunal further notes that here is nothing in the NDIS Act to suggest that the Applicant is obliged to put all, or indeed any, of the supports sought before the decision maker, whether at first instance or internal review. It considers that the words in rule 2.4 of the Support Rules –‘“[I]f the participant has identified or requested particular supports, the CEO will also have regard to these’ – can be read harmoniously with the overarching principles of the NDIS Act regarding the central role of the participant, described as “active” by the Respondent, but that the language of the NDIS Act still makes it clear that the CEO’s role is a proactive one – both in accordance with subsections 33(2) and (5) of the NDIS Act and in considering the supports either as a particular support or as a package of supports as set out in rule 2.4 of the Support Rules.
This approach is further supported by the use of the words ‘either as a particular support or as a package of supports’, as outlined in rule 2.4 of the Support Rules, and point to a further difficulty in the approach suggested by the Respondent. Many statements of participant supports involve a range of supports – for example core supports and capacity building supports, and those supports are frequently interdependent, and need to be considered pursuant to all of the criteria identified in section 34 of the NDIS Act. Otherwise, in circumstances where the evidence considered by the internal reviewer, or by the Tribunal upon external review, leads to a conclusion that the general and reasonable and necessary supports to be provided to a participant should be of a different composition to those before the primary decision maker, on the Respondent’s approach, the internal reviewer or the Tribunal, as the case may be, would be constrained in undertaking its statutory function.
Further, in that regard, the CEO must have regard to certain matters set out in subsection 33(3) of the NDIS Act which sets out that the ‘supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise’ (emphasis added). Were the supports to be described generally, it may be that it is not possible to crystallise the precise nature of the difference between what is proposed in the decision under review and what is most appropriate having regard to subsection 33(2) of the NDIS Act and section 34 of the NDIS Act until the matter is being considered substantively and there is an opportunity to fully address the parties’ cases.
Accordingly, and further to the Court’s judgement in QDKHNo. 2, it is difficult to see how a meaningful review of a decision by an internal reviewer or by the Tribunal can be undertaken if constrained by what is ‘put before’ the internal reviewer or the Tribunal, as may be the case, in circumstances where the participant is not required to, and indeed may not specify precisely the supports it is that he or she is seeking. This issue is amplified in circumstances where the supports may be ‘specifically identified’ or ‘described generally’.[30]
[30] NDIS Act, s33(3).
Therefore, the Tribunal’s view is that the all the supports which the Applicant seeks to have reviewed are properly before it, providing that they are matters which could properly been before the original decision maker. Accordingly, there is no need for the Applicant to be heard with respect to the question of what was defined by the Respondent as ‘new supports’.
INTERLOCUTORY DECISION
For the reasons set out above the supports which the Applicant seeks to have reviewed are within the Tribunal’s jurisdiction.
I certify that the preceding 39
(thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher.…………………[SGD]………………..
Associate
Dated: 9 November 2021
Date of directions hearing: 4 June 2021
Final submissions received: 25 June 2021
Representative for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Ms K O’Gorman
Representative for the Respondent: National Disability Insurance Agency
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