Alaska Care Pty Ltd and National Disability Insurance Scheme
[2024] AATA 817
•22 April 2024
Alaska Care Pty Ltd and National Disability Insurance Scheme [2024] AATA 817 (22 April 2024)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2024/1431
Re:Alaska Care Pty Ltd
APPLICANT
AndNational Disability Insurance Scheme
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:22 April 2024
Place:Melbourne
The Tribunal is satisfied that a decision made on 8 August 2023 by a payments officer of the Respondent, not to pay to the Applicant (being a National Disability Insurance Scheme (NDIS) service provider) an amount of $27,682.83 in respect of outstanding invoices issued to a NDIS participant for respite/short-term accommodation services provided by the Applicant, is not reviewable by this Tribunal.
Accordingly, the Tribunal dismisses this application under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
........................[sgd]...............................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – application for review lodged by a service provider who has delivered supports to a participant under the National Disability Insurance Scheme (NDIS) – payments officer refused to pay an amount to the Applicant for four outstanding invoices in respect of respite/short-term accommodation services – Tribunal is satisfied this type of decision, is not a “reviewable decision” under s 99(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), or under any other rules made under s 99(2) of the NDIS Act – 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)
CASES
Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360
LinkAssist Pty Ltd and National Disability Insurance Agency [2023] AATA 2063
Nganana Incorporated and National Disability Insurance Agency [2023] AATA 2906
REASONS FOR DECISION
Senior Member K. Parker
22 April 2024
Alaska Care Pty Ltd (‘Alaska’) is a registered National Disability Insurance Scheme (‘NDIS’) service provider under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). Alaska has provided respite services to a NDIS participant, Participant,[1] which has exceeded the level of approved respite/short-term accommodation supports provided for in their NDIS plan at the relevant time. Alaska seeks payment from the NDIA for those services in the total sum of $27,682.83 (for supports provided in about late April 2023), as described in four outstanding invoices issued by Alaska.
[1] The name of the NDIS participant is omitted to maintain their privacy.
The NDIA provided a chronology relevant to this application in its email to the Tribunal and Alaska dated 19 April 2024. Based on this chronology, the Tribunal notes the following history:
(a)on 19 June 2023, Uniting Country SA Limited, the Participant’s support coordinator (‘Support Coordinator’), lodged a Payment Enquiry with the NDIS on its “Complaint and Enquiry Details” portal;
(b)in response to the Payment Enquiry, on 3 August 2023, a Payments Officer of the National Disability Insurance Agency (‘NDIA’), responded to the Payment Enquiry and a message was sent to the Support Coordinator advising that the NDIA will not pay the outstanding invoices issued by Alaska to the Participant for those respite services (‘Payments Officer’s Decision’). The Payments Officer stated that the requested supports exceeded the amount of short-term accommodation for which the Participant was funded and noted that there had been no “change of circumstances or notification of required additional supports” requested. The Payments Officer also stated that the NDIA may conduct a plan reassessment if the Participant’s circumstances had changed and the current supports were not meeting the Participant’s needs. The Payments Office stated that all future payment enquiries, including replies relating to the Payment Enquiry should be submitted through the Participant’s “MyPlace Provider Portal as a new request”;
(c)on 17 October 2023, the Support Coordinator forwarded the Payment Officer’s Decision to Alaska; and
(d)on 17 October 2023, a representative from Alaska called the NDIA to enquire about why the payment was rejected.
On 28 February 2024, Alaska sought review of the Payments Officer’s Decision by the Administrative Appeals Tribunal. The circumstances in which the services were provided to the Participant were explained by Alaska on the “Application for Review of Decision” form. In summary, Alaska explained the complex and urgent circumstances of the Participant and that if Alaska had not provided the respite services to him, he would have been facing the risk of homelessness and it may have resulted in problems relating to his diabetes and insulin tracking. Alaska explained the Participant’s situation was precarious, and any interruption in his support may have had severe consequences for his health and safety.
The Tribunal has considered the documents on the Tribunal’s file relating to this matter and heard oral submissions from each party at the Interlocutory Hearing, which took place before this Tribunal by telephone on 22 April 2024 (Interlocutory Hearing).
For the reasons set out below, the Tribunal is satisfied that the Payments Officer’s Decision is not reviewable by this Tribunal. On this basis, the Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
CONSIDERATION
The Tribunal does not have inherent jurisdiction. Its jurisdiction or power to review a particular decision is derived from the express provisions of the relevant enactment operating in conjunction with s 25(1) of the AAT Act.
The relevant enactment in this case is section 103 of the NDIS Act. Subsection (1) states that (emphasis added):
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
A decision made by a reviewer under section 100(6) of the NDIS Act, will be made when a review of a “reviewable decision” under s 100(2) of the NDIS Act takes place at the request of a person directly affected by that reviewable decision. A person who is directly affected by a reviewable decision may, within three months of receiving a notice from the person who made the “reviewable decision”, request a review of that decision.[2]
[2] NDIS Act, s 100(2).
Section 9 of the NDIS Act defines “reviewable decision”, as having the meaning given by ss 99(1) and 99(2) of the NDIS Act. Section 99(1) contains an itemised table setting out the different types of reviewable decisions under the NDIS Act and the decision-maker in respect of those decisions. In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency,[3] then Deputy President Forgie, in general terms, summarised those items as follows:
…the first six items specify decisions that are made in respect of a person’s entitlement to be a participant in the NDIS and decisions that affect the content of a participant’s plan. The next ten…are concerned with registered provider[s] of supports…Items 17 to 19 are concerned with decisions relating to determinations made by the Chief Executive Officer of the Agency (CEO) regarding a person who may do acts or things required or permitted to be done by the NDIS Act in relation to a child. Items 20 to 22 specify…decisions made in relation to the appointment, suspension or cancellation of a plan nominee or a correspondence nominee…items 23 to 28…relate to decisions made under Chapter 5 of the NDIS Act. Chapter 5 is concerned with decisions relating to compensation…Items 29 to 33…[are] concerned with decisions to write off or waive a debt where the debt is owed to the Agency.[4]
[3] [2020] AATA 360.
[4] Ibid, [11]-[14].
The Tribunal also notes the further two Tribunal decisions referred to in the NDIA’s email dated 19 April 2024, namely, LinkAssist Pty Ltd and National Disability Insurance Agency [2023] AATA 2063 and Nganana Incorporated and National Disability Insurance Agency [2023] AATA 2906.
The Tribunal notes that none of the items specified under section 99(1) of the NDIS Act relate to a decision by the NDIA (or its CEO or authorised delegate) to refuse payment of outstanding invoices to a service provider in respect of services rendered to a NDIS participant. Section 99(2) provides that the NDIS rules may provide that a decision made under a specified provision of the rules is a “reviewable decision”.
Both parties were given an opportunity to identify an item under s 99, or under any rules made under s 99(2), that describes a reviewable decision within which the Payments Officer’s Decision might fall. Neither party identified a relevant item in s 99(1) or under any rules made under s 99(2). The Tribunal, itself, could not identify any reference under s 99, or any rules, that would support such a conclusion. For this reason, the Tribunal concludes that it does not have power arising under s 103 of the NDIS Act, operating in conjunction with s 25 of the AAT Act and ss 99 and 100 of the NDIS Act, to undertake a review under this application, because the Payments Officer’s Decision is not a “reviewable decision”. The Tribunal also notes for completeness, that Alaska has not at any stage requested a review of the Payments Officer’s Decision by a NDIA “reviewer” under s 100 of the NDIS Act.
CONCLUSION
The Tribunal considers that the Payments Officer’s Decision is not a type of decision listed as a “reviewable decision” within s 99(1) of the NDIS Act. Nor is it a “reviewable decision” by reason of any rules made under s 99(2). Even if it was, no decision has been made by a NDIA “reviewer” under s 100(6) of the NDIS Act, as no request was made by Alaska for this type of review.
For these reasons, the Tribunal is satisfied that the Payments Officer’s Decision is not reviewable by the Tribunal.
Accordingly, the Tribunal dismisses this application under s 42A(4) of the AAT Act.
The Tribunal and the NDIA’s lawyer encouraged Alaska to seek out legal advice in relation to any alterative options that might be available to seek recovery of the outstanding amounts. The NDIA’s lawyer also indicated that he would provide Alaska with a person from the NDIA who Alaska could contact after the hearing, to follow up about the payment enquiry. Further, the NDIA’s lawyer indicated that Alaska may wish to go back to the Payments Team to follow up the enquiry. The Tribunal suggested that when Alaska seeks out legal advice that he seek advice about the options that might be available for the Participant’s plan nominee to request additional funding, if they are so minded, while also mentioning that certain time limits apply in relation to this. At the hearing, Alaska explained that the Participant’s plan nominee is the Participant’s mother and that Alaska was no longer providing services to the Participant. The Tribunal acknowledged the assistance that Alaska was prepared to provide to the Participant in light of the reported dire circumstances they were in, back in April 2023.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
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Associate
Dated: 22 April 2024
Date of hearing: 22 April 2024 Advocate for the Applicant: Mr Abdifatah Ibrahim
Director, Alaska Care Pty LtdAdvocate for the Respondent: Mr Jack Bewsher, NDIA lawyer
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