Al Saed and National Disability Insurance Agency
[2022] AATA 271
•18 February 2022
Al Saed and National Disability Insurance Agency [2022] AATA 271 (18 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/6223
Re:Fatima Al Saed
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Senior Member P J Clauson AM
Date:18 February 2022
Place:Sydney
The Tribunal decides that in this matter the correct and preferable decision is that it is appropriate for the Applicant to be represented by Mr. Alkhalayleh.
..................[SGD]....................................
Senior Member P J Clauson AM
Catchwords
PRACTICE AND PROCEDURE – interlocutory application that Applicant’s support coordinator does not represent Applicant in proceedings – conflict of interests – pecuniary interest in outcome of proceedings – interlocutory application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)Cases
Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678
Kallinicos v Hunt [2005] NSWSC 1181REASONS FOR INTERLOCUTORY DECISION
Senior Member P J Clauson AM
18 February 2022
FACTUAL BACKGROUND
On 29 August 2021, Fatima Al Saed (the Applicant) filed an application for review of a decision by the National Disability Insurance Agency (the Respondent) dated 28 July 2021 and sought an extension of time to bring the application. The Respondent did not oppose an extension of time to bring the application, and the Tribunal issued an order on 30 September 2021 allowing that extension. The matter proceeded, as is common, to be listed for a case conference held by one of the Tribunal’s Conference Registrars.
The Applicant suffers from a series of medical conditions which led to her being granted access to the National Disability Insurance Scheme (the NDIS) in September 2019.
In advance of that case conference, the Conference Registrar identified that the Applicant was to be represented by her support coordinator, Mr Hesham Alkhalayleh. He is the sole owner of his organisation, which is a registered NDIS provider of support coordination services. The Conference Registrar took the view that a conflict of interest arose because the Applicant was seeking funds for support coordination as a part of her application for review; the application reflected that one of the reasons the Applicant sought review was that “the support coordinmator [sic] was cut”.[1] The Conference Registrar contacted Mr Alkhalayleh to discuss the issue with him.
[1] The Tribunal notes that, at this early stage, it is unclear what specific support in respect of support coordination the Applicant seeks in her review. However, the Applicant’s previous plan prior to the decision being reviewed saw support coordination funding to the amount of $2,353.44 included in the plan. Her most recent plan totalling $87,424.61, implemented by the decision on review, contained no funding for support coordination.
It is apparent that the Conference Registrar formed the view that it would be inappropriate for Mr Alkhalayleh to attend the conference due to the conflict. Mr Alkalayleh, however, was not content to accept that position. He emailed the Tribunal shortly after having been advised of the issue, indicating that he had discussed the matter with the Applicant and her representative and provided his view that no conflict existed. His email reflects that he considered that the Tribunal was preventing him from participating in the conference. That much is self-evident; when the Conference Registrar received the email, she then gave instructions to vacate the conference and referred the matter to a member of the Tribunal for an interlocutory hearing.
An interlocutory hearing was originally listed for 17 December 2021, and the Respondent filed submissions that day (the Respondent’s First Submissions). For reasons which are unnecessary to detail, the hearing could not proceed that day and was instead conducted by telephone on 20 December 2021. The Applicant’s husband, Mr Tkaczuk for the Respondent, and Mr Alkhalayleh were present.
Following the hearing, the Tribunal made directions permitting the filing of further written submissions. The Respondent filed further written submissions on 17 January 2022 (the Respondent’s Second Submissions), and the Mr Alkhalayleh filed further written submissions on 19 January 2022 (the Applicant’s Submissions).
THE PARTIES’ CONTENTIONS
In the Respondent’s First Submissions, the Respondent detailed its understanding of the issue before the Tribunal: “[t]he Respondent understands that the Tribunal has identified a potential conflict of interest regarding the Support Coordinator (Hesham Alkhalayleh) acting as the Applicant’s representative in the current Tribunal proceedings”.[2]
[2] Respondent’s First Submissions, [9].
The Respondent submitted that there may be a potential conflict of interest on three varying bases:
(a)The Respondent considered that it was not within the scope of the role of a Support Coordinator to represent an Applicant during the review process in the Tribunal;[3]
(b)That where, as in this case, the Applicant’s Support Coordinator may obtain a direct financial benefit from a successful review application, a conflict exists where the Support Coordinator may influence the choice and control of the Applicant;[4] and
(c)That the Respondent may wish to call the Support Coordinator to provide evidence, and that where the Support Coordinator stands to gain such a benefit, a question might arise as to the reliability and impartiality of the Support Coordinator’s evidence.[5]
[3] Respondent’s First Submissions, [12].
[4] Ibid, [13].
[5] Ibid.
The Respondent also considered that the Applicant should attempt to obtain alternate legal representation or advocacy from a disability advocate.[6]
[6] Ibid, [14].
At the interlocutory hearing, Mr Tkaczuk spoke to the submissions that had been filed by the Respondent. He clarified, in answer to a question from the Tribunal, that it was not the case that the Respondent maintained that a support coordinator should never represent an Applicant – instead, that it was only in certain circumstances. He accepted that a support coordinator could properly appear in the Tribunal where there was no conflict or potential financial gain.
The Tribunal enquired as to the Respondent’s position on whether it would be an appropriate possibility that a Support Coordinator might merely be silent on issues of support coordination. Although noting that he would need to seek instructions, Mr Tkaczuk submitted that if Mr Alkhalayleh was to be called as a witness, some difficulty would attach due to confidential discussions which take place within the Tribunal’s alternative dispute resolution processes. He submitted that the evidence might be affected, or influenced by, those processes. He sought time to take further instructions on that issue.
The Respondent also made submissions in relation to other material, which, Mr Tkaczuk submitted, may be relevant to determining whether it is appropriate for a support coordinator to represent an Applicant in matters such as these. Those submissions were more fulsomely outlined in the Respondent’s Second Submissions and will be addressed below.
Mr Alkhalayleh, on behalf of the Applicant, submitted that his role as a support coordinator involved “everything about the participant’s plan”. He submitted that he did not see a conflict of interest arising, because each plan contains support coordination funding. He submitted the primary issue was that the Respondent’s decision was not made fairly, and lacked the procedural step of undertaking a planning meeting. He further submitted that the support coordination had been removed without reasons, and that the Applicant’s supports had been substantially reduced. In the circumstances, he considered that debate about whether the Applicant’s support coordinator could appear in the Tribunal was unreasonable and invited the Tribunal to make a decision in that regard.
Mr Alkhalayleh also submitted that Legal Aid was not presently able to assist the Applicant in a meaningful way. He submitted that advocacy services were all overwhelmed in response to a question from the Tribunal as to whether the Applicant had sought assistance from a Disability Advocate. He submitted that the Applicant spoke limited English, and that she and her husband lived alone. His view was that his input would not add anything to the support coordination funding, in part because the Respondent would fund support coordination in the ordinary course.
Respondent’s Further Written Submissions
(a)That, by way of section 32 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Applicant has a right to be represented (but that the right attaches to the party, not to the representative);[7]
[7] Respondent’s Second Submissions, [16].
(b)The Tribunal has broad discretionary powers over its proceedings and the way in which its proceedings are conducted, but that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to present his or her case;[8]
(c)The Tribunal may obtain evidence from experts in a subject area to assist in a review;[9]
(d)The Tribunal has the power to exclude a legal representative from appearing in order to protect its processes;[10]
(e)That, in this case, the Tribunal should exercise its power to preclude Mr Alkhalayleh from representing the Applicant due to:
(i)a perceived conflict of interest; or
(ii)the possibility that Mr Alkhalayleh would be required to provide witness or opinion evidence (including because he may not be able to comply with the Tribunal’s Guidelines for Persons Giving Expert and Opinion Evidence, or alternatively, because he would be exposed to confidential ADR information);
(iii)A lack of evidence as to whether Mr Alkalayleh had acted to ensure that the Applicant’s best interest was being advanced, including by informing the Applicant so that the Applicant could exercise choice and control without constraint or influence.[11]
(f)The public interest in the Applicant not being deprived of assistance in her review application should be paid due consideration, though balanced against appropriate consideration of the proper administration of justice.[12]
[8] Respondent’s Second Submissions, [17].
[9] Ibid, [19].
[10] Ibid, [36].
[11] Ibid, [38] – [49].
[12] Ibid, [50].
The Respondent observed[13] that the Tribunal, in carrying its functions, must pursue the objective as outlined by s 2A of the AAT Act by providing a mechanism of review which:
(a)Is accessible;
(b)Is fair, just, economical, informal and quick;
(c)Is proportionate to the importance and complexity of the matter; and
(d)Promotes public trust and confidence in the decision-making of the Tribunal.
[13] Ibid, [15].
It should be noted that, for completeness, the Respondent did not submit (and expressly disavowed) that Mr Alkhalayleh had engaged in misconduct. The Respondent’s case was limited to protections for the Applicant, presumably because of a risk, or perception of that risk, rather than actual conflict.
Mr Alkhalayleh filed submissions in reply on 19 January 2022 (Mr Alkhalayleh’s Submissions). He submitted that:
(a)The Applicant had limited English and that her husband needed assistance in understanding some terms and concepts within the NDIS plans (and presumably, in the Tribunal, though that was not explicitly stated);[14]
(b)He spoke the same language as the Applicant, which allowed her to ask questions or raise concerns;[15]
(c)He had struggled to find legal assistance for the Applicant or assistance from a disability advocate, primarily due to those services being “overwhelmed”;[16]
(d)Since he began working in NDIS matters, his priority was the participant’s best interests and that he always maintained neutrality;[17]
(e)He had participated in other Tribunal matters without complication in the past;[18]
(f)He always abided by the National Disability Insurance Scheme (Code of Conduct) Rules 2018;[19] and
(g)Whilst avoiding conflicts of interest would generally be preferable, that some situations may mean that those conflicts cannot be wholly avoided and which therefore need to be managed in a manner which would survive scrutiny.[20]
[14] Mr Alkhalayleh’s Submissions, [2].
[15] Ibid, [3].
[16] Ibid, [6].
[17] Mr Alkhalayleh’s Submissions, [7] – [8].
[18] Ibid, [10].
[19] Ibid, [12].
[20] Ibid, [13].
CONSIDERATION
There are several issues which must be considered by the Tribunal. They are:
(a)Does the Applicant have a right to appoint a support coordinator as their representative in the Tribunal?
(b)Does the Tribunal have the power to disallow a representative from being appointed or otherwise to prevent the representative from appearing?
(c)If so, when should the Tribunal exercise that power? and
(d)On whom is that power conferred within the Tribunal?
Does the Applicant have a right to appoint a support coordinator as their representative in the Tribunal?
The Applicant is a party to the review application within the NDIS Division of the Tribunal. By operation of paragraph 32(1)(a) of the AAT Act, the Applicant is afforded the ability to appear either in person or be represented by another person. The Respondent, correctly, submits as much.
The Tribunal also accepts that its objective must be achieved by providing a mechanism of review that:
(a)Is accessible; and
(b)Is fair, just, economical, informal and quick; and
(c)Is proportionate to the importance and complexity of the matter; and
(d)Promotes public trust and confident in the decision-making of the Tribunal.[21]
[21] Administrative Appeals Tribunal Act 1975, s 2A.
The accessibility of the Tribunal to its users is of particular importance in the NDIS Division. That is so because nearly all applicants within the Division either have, or claim to have, a disability which is or is likely to be permanent, and which results in substantially reduced functional capacity in a range of areas which impact upon social or economic participation.[22] The use of representatives in the Tribunal can often promote economical use of the Tribunal’s resources, and typically leaves an applicant in a position where they are not left without support in navigating a complex process whilst dealing with other challenging complications.
[22] As to access to the NDIS generally, see the National Disability Insurance Scheme Act 2013, subsection 24(1).
The role of support coordinators is a necessary one, well recognised by the Respondent’s inclusion of their function in many NDIS participant plans. Perhaps unsurprisingly, a large number of applicants seek to use their support coordinators as their representatives in the Tribunal. They are often the person most familiar with the lived experience of the participant, including the struggles in life that the relevant Applicant faces. Support coordination is itself a regular feature of plans under the NDIS. That is because, for many participants, support coordination is vital to ensuring that supports are maintained on budget and adjusted according to the needs of each participant in accordance with their plan. Support coordinators are a vital resource for both participants and carers and can be the single biggest asset in dealing with complex care needs and the logistics that are required to support a participant.
It follows that, where an applicant seeks to utilise their support coordinator in the Tribunal, there are substantial benefits which may flow from that. It is also the case that there are some dangers that the Tribunal must be alive to in considering how it regulates its own procedure.
The Respondent properly accepts that the Applicant is entitled to appoint a representative but submits that the right to be represented attaches to the Applicant, rather than to the representative.[23] The Respondent cites Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678 (Campbell-Maruca) as authority for that proposition. The Tribunal notes that Deputy President Tamberlin QC immediately followed that proposition by noting that it was:[24]
…necessary to give due weight to the consideration that parties should normally be entitled to select their representative and to receive the assistance of solicitors and counsel of their choice unless there is good cause for excluding the representative.
[23] Respondent’s Second Submissions, [33].
[24] Campbell-Maruca, [26].
The Tribunal is mindful that it is a significant step to take to deprive a person of their chosen representative. There are many reasons why a person may choose to prefer a particular advocate over another, and it is typically for the Applicant, not the Tribunal, to determine who should represent a party. That decision lies for each party to decide on their own.
The fact that the Applicant should be afforded the ability to exercise her control over who she chooses as a representative is further supported by the fundamental basis of the NDIS itself. Section 3 of the National Disability Insurance Act 2013 (the NDIS Act) provides a core objective of the Act, which is to enable people with disabilities to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. By extension, the review process in the Tribunal must form a part of that pursuit, planning and delivery – it is a mechanism by which the Applicant can assert her interest in the supports she wishes to receive from the Respondent.
The Respondent did not submit that support coordinators, by virtue of a class of persons, cannot appear in the Tribunal. The Respondent did submit that section 200A of the NDIS Act prevents the Respondent from funding legal assistance in relation to reviews, and further submitted that the NDIS Operation Guidelines expressly prohibit a person from using NDIS funding for a support coordinator to represent them at the Tribunal. Those matters relate, however, to questions of funding. They do not prevent the mere appearance of the Applicant’s support coordinator in circumstances where the Support Coordinator acts pro bono or is otherwise privately paid without drawing on NDIS funding.
It follows that the Applicant is entitled to appoint a support coordinator as her representative in the Tribunal.
Does the Tribunal have the power to disallow a representative from being appointed or otherwise to prevent the representative from appearing?
The Respondent submitted that the Tribunal has the power to exclude a legal representative from appearing before it in order to protect its processes. In Campbell-Maruca, Deputy President Tamberlin QC held that such a power was afforded to the Tribunal by operation of subsection 33(1) of the AAT Act, stating:
Section 33(1) of the AAT Act provides that in a proceeding before the Tribunal the “procedure” is within the discretion of the Tribunal. This is a broad discretion, in other words, subject to the Act and the Regulations, it is for the Tribunal to decide how matters are conducted before it. This conferral of power is sufficiently broad, in my view, to encompass power to do everything that is incidental or necessary to ensure that the Tribunal is able to perform its duty and care function which is to review the matter before it in order to reach the correct and preferable decision.
The Tribunal considers that the proposition advanced by Deputy President Tamberlin QC is consistent with further authority in Kallinicos v Hunt[25], Brereton J held that a court should order a legal practitioner to cease to act for a client where:[26]
A fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process, and the due administration of justice, including the appearance of justice.
[25] [2005] NSWSC 1181.
[26] Ibid, [76].
Whilst, of course, the Tribunal is only entitled to apply jurisdiction conferred upon it by statute, the Tribunal is entitled to determine its own procedure (subject to restrictions contained within the statute). The excerpt from Brereton J’s judgment places at its forefront the integrity of lawful process. Whilst matters before the Tribunal are administrative in nature, and not judicial, the Tribunal sees no reason to depart from the fundamental principles of integrity and justice in the due administration of decision-making in the Tribunal.
It follows, therefore, that the Tribunal does have the power to prevent a specific person from being a representative. The Tribunal therefore turns to the question of whether it should exercise that power.
Should the Tribunal Exercise its Power to Prohibit Mr Alkhalayleh from Appearing for the Applicant?
Whether the Tribunal should exercise its power will necessarily turn upon the facts of the particular case at hand. Nonetheless, the Tribunal considers that there are some key considerations that must be had as to when the power should be exercised.
Key facts here:
(a)The representative is not likely to gain significantly such that his bias might be called into question. The relative value of the claim for support coordination is a paltry sum compared to the supports that the Applicant seeks
(b)It is unlikely that he should be called as a witness because the existence of a need for support coordination arises from facts which must be proven by reference to the person’s disability.
(c)Even if an expert witness was required to give evidence about the need for support coordination or the relevant level required by the Applicant, it would not be for Mr Alkhalayleh to give that evidence. He is not independent, and an independent assessment of the Applicant’s need would be required. It is therefore unlikely that Mr Alkhalayleh would give evidence in this matter.
(d)Even if support coordination is ordered by the Tribunal, there is no guarantee that he would receive it. The support funded is support coordination, rather than Mr Alkhalayleh’s services directly. The participant is entitled to choice and control (see section 3 of the NDIS Act) and may choose not to engage his services.
(e)Ultimately, in view of all of the possibilities, it is up to the judgment of the Tribunal as to whether it considers that the representative is acting in self-interest, or is instead acting in the best interests of the Applicant in all the circumstances.
(f)Given the high bar that should apply before the Tribunal were to disqualify a representative, it would be appropriate that the Tribunal have some evidence that the representative was acting inappropriately. There is no suitable evidence in this case. Where there was, the Tribunal might well disqualify. But the Respondent’s submission that there is no evidence of Mr Alkhalayleh having engaged in discussions with his client introduces an undue evidentiary requirement and onus upon the Applicant and their Representative. It is therefore not sufficient to show an absence of evidence – evidence of misbehaviour is required. That may be supported by the specific nature of the representative’s acts in the Tribunal, or by some other evidence, but in the absence of such corroboration, it would be inappropriate to do so.
(g)In these circumstances, it appears Mr Alkhalayleh is relied upon by the Applicant, contrary to the suggestion that he may not have their interests at heart. He provides a useful support where none would otherwise exist and has not, at this time, demonstrated to this Tribunal anything to suggest inappropriateness.
On Whom is That Power Conferred?
Section 33(1) of the AAT Act confers upon the Tribunal the discretion to determine its procedures. The Tribunal is established pursuant to Section 5 and 5A of the AAT Act defines the Tribunal membership as consisting of:
(a)The President;
(b)Deputy Presidents;
(c)Senior members;
(d)Other members.
It is the membership therefore that must make decisions about the regulation of its procedure, subject to whether any express power has been conferred.
Part IIIA of the AAT Act in all its parts refers to the appointment and powers of the Registrar and officers, as derived from the AAT Act or delegated as needed. The AAT Act clearly enunciates that the roles of the Registrar and the Officers of the Tribunal are administrative and are also defined by any delegation from the President to conduct activities associated with the administrative requirements of the Tribunal. It is the Tribunal’s view that the roles of the Registrars in conducting pre-hearing conferences are such administrative undertakings as properly delegated to ensure that the administration of the Tribunal proceeds smoothly and effectively to a hearing. The Registrars in fulfilling this role are so doing within the definition of Tribunal contained in section 3 of the Act at subsection (c) where it is stated that: includes a member, or an officer of the Tribunal, exercising the powers of the Tribunal.
Clearly, the Registrar’s powers are formulated under the AAT Act to provide valuable assistance in areas of procedural compliance, facilitation of conciliation discussions and other relevant and important administrative pre-hearing engagements. However, question of the procedural powers of the Tribunal rests with those Members as defined within section 5 of the AAT Act.
It is Tribunal’s view therefore, that the question as to whether or not a person should be permitted to act as an Applicant’s representative before the Tribunal is one that properly rests for decision with the Tribunal’s defined membership, by way of an interlocutory application.
Nothing however, would suggest, that it would be inappropriate for an officer of the Tribunal to raise concerns of possible bias for the Tribunal’s consideration – indeed, such an approach would be consistent with the protection of the Tribunal’s process. That this matter was referred to a member to consider was entirely appropriate.
DECISION
The Tribunal decides that in this matter the correct and preferable decision is that it is appropriate for the Applicant to be represented by her support coordinator Mr. Alkhalayleh.
42.
43. I certify that the preceding 41
(forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM.…………[SGD]………………………..
Associate
Dated: 18 February 2022
Dates of Hearing: 20 December 2021 Representative for the Applicant Mr Alkhalayleh, Sydney West Support Services Representative for the Respondent Ms Czyzewska, National Disability Insurance Agency
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