Al Sadek and National Disability Insurance Agency

[2021] AATA 1770

Al Sadek and National Disability Insurance Agency [2021] AATA 1770 (16 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4194

Re:Yassmin Al Sadek

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:16 June 2021

Place:Sydney

(a)The Applicant is directed to inform the Tribunal in writing, on or before 14 July 2021, of whether she seeks review of the Agency’s decision dated 1 July 2020. The Applicant is directed to also provide medical evidence from a properly qualified medical practitioner certifying that she has capacity to make such a direction.

(b)The Applicant’s mother is removed from the Tribunal proceedings as the Applicant’s representative.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – authority of applicant’s representative to represent applicant in Tribunal proceedings – where no evidence of representative’s authority to represent applicant – capacity and competency of applicant – where no evidence of applicant’s capacity or competency – applicant’s representative removed from proceedings – applicant directed to establish capacity and competency

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

16 June 2021

BACKGROUND

1. The Applicant in this matter is a 21-year-old woman who has been diagnosed with schizophrenia. The Applicant has previously resided with her mother and 3 younger siblings. She is currently said to be receiving treatment in a secure mental health facility.

2. The Applicant’s current plan, which commenced on 16 March 2020, contains funding for the following supports:

   (a)$49,035.12 in funding for core supports, which includes $1,784.00 for transport;

   (b)$12,389.87 in funding for capacity building supports, which includes:

   (i)$1,454.89 for improved life choices;

   (ii)$6,228.10 for improved daily living; and

   (iii)$4,706.88 for support coordination.

3. On 13 July 2020, the Applicant lodged an application for review with the Tribunal, seeking review of the internal review decision of the National Disability Insurance Agency (‘the Agency’) dated 1 July 2020 to affirm the Agency’s earlier decision of 16 March 2020, which approved the statement of supports under the Applicant’s disability support plan.

4. In the course of these proceedings a question has arisen as to whether the Applicant’s mother has authority to represent the Applicant. The mother has made a number of claims in support of her having authority to represent her daughter but has not been able to present any proof that she has the requisite authority, despite being given time to get the necessary authority, properly signed by her daughter and witnessed by an independent and properly qualified person.

   ISSUE

5. The primary issue to be determined by the Tribunal is whether the Applicant’s mother has authority to represent the Applicant for the purposes of these proceedings.

6. The Agency has consistently claimed that the Applicant does not want her mother to represent her. Further it was said that the Applicant now does not wish to proceed with the application for review. This has not been explicitly confirmed by the Applicant at this stage and the matter has not been formally withdrawn.

   DISCUSSION

7. The application for review seems to have been made by the Applicant’s mother who claimed to be acting on her daughter’s behalf.

8. The Applicant’s mother has made various statements to the Tribunal to support her claim, but without any supporting evidence except for providing the Tribunal with a photo of a statement purportedly signed by her daughter, authorising the Applicant’s mother to represent her at a hearing before the New South Wales Civil and Administrative Tribunal (‘NCAT’). This was of little evidentiary value.

9. Following a Telephone Directions Hearing on 7 April 2021, the Applicant’s mother was ordered to provide the Tribunal with a signed consent form from her daughter, witnessed by a lawyer and authorising her mother to represent her, along with relevant psychiatric evidence that her daughter had the mental capacity to make such a decision. No such consent was provided to the Tribunal.

10. At the Interlocutory Hearing held on 9 June 2021, the Applicant’s mother said her daughter was in hospital and was being held under the “Mental Health Act”. This was confirmed by the Agency. The Applicant’s mother said she was making an application to the Guardianship Division, part of NCAT, although she seemed unsure of the date of the hearing, at first saying it was taking place next week, but later saying next month. The Applicant’s mother had no documentary evidence of such an application having been made.

11. The Applicant’s mother expressed grave fears for her daughter’s wellbeing, and said that she had disappeared for some time, and that she had been unable to locate her.

12. On the other hand, the Agency claimed the Applicant was safe, receiving proper care, and did not want her mother to represent her and that she wished to withdraw her application before the Tribunal.

13. This is a classic case where the best resolution would be for the Applicant to appear in person before the Tribunal when she is well enough to do so and express her views. Alternatively, there needs to be clear documentary evidence in an acceptable form as to the Applicant’s wishes.

14. In light of all the material presented to the Tribunal, the Applicant’s mother was directed to present the Tribunal with written proof of her application to the Guardianship Division by close of business on Friday, 11 June 2021. The mother provided a photocopy of what appeared to be a listing notice of an application for a hearing before the Guardianship Division on 16 June 2021.

    DECISION

15. Given the confusion and the complete lack of any evidence from the Applicant herself, rather than dismiss the matter the Applicant is allowed 4 weeks to decide whether she seeks review of the Agency’s decision dated 1 July 2020, that is to continue the current proceedings before the Tribunal, and to notify the Tribunal and the Agency in writing, signed and witnessed by a properly qualified medical practitioner who is able to certify that she has capacity, of her decision.

16. In relation to the mother’s application to the Guardianship Division, this Tribunal is unaware as to whether the Applicant has been notified of the proceedings and, in fact, the material the mother provided from the Guardianship Division indicates that NCAT does not have any contact details for the Applicant in the proceedings and that the mother should notify the Applicant of the application to the Guardianship Division.

17. This Tribunal has no knowledge as to how any application in the Guardianship Division might proceed or of any ultimate outcome. Accordingly, although the Applicant’s mother provided evidence of proceedings before the Guardianship Division, it is of little evidentiary value in these proceedings unless and until there is a decision on the matter which supports the Applicant’s mother’s claims.

18. Accordingly, in all the circumstances, it is appropriate that:

    (a)The Applicant is given until 14 July 2021 to inform the Tribunal and the Respondent whether she wishes to proceed with the application for review; and

    (b)The Applicant’s mother is removed as the Applicant’s representative in these proceedings, as she has been unable to establish that she has authority to represent the Applicant.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 16 June 2021

Date(s) of hearing:	9 June 2021
Representative for the Applicant:	Waffa Al Sadek
Solicitors for the Respondent:	Lachlan Waldron and Naoimh Donaghy, Australian Government Solicitor