Allan and National Disability Insurance Agency
[2023] AATA 1270
•19 May 2023
Allan and National Disability Insurance Agency [2023] AATA 1270 (19 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2023/3206
Re:Scott Allan
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:19 May 2023
Place:Brisbane
Pursuant to s 31 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and for the reasons set out in the Reasons for Decision, the Tribunal decides that Mr Scott Allan is not a person whose interests are affected by a decision made on 4 May 2023 by a “reviewer” of the National Disability Insurance Agency under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth). The decision under review relates to a statement of participant supports in the National Disability Insurance Scheme (NDIS) plan of Mr Mark Devlin, who is an adult NDIS participant, renting a house from Mr Allan and his wife, and who has been assisted by Mr Allan to date on a voluntary basis in relation to his personal and other care. Mr Allan would like to commence providing support worker assistance to Mr Devlin on a paid basis.
The Tribunal decides that Mr Allan does not have standing under s 27(1) of the AAT Act.
This application for review lodged by Mr Allan is invalid.
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Senior Member K. Parker
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – Applicant is party to a rooming accommodation agreement with an adult NDIS participant – participant’s disability arises from impairments attributable to psychiatric conditions – Applicant seeks payment for providing support worker assistance to participant – Applicant is not a NDIS-registered service provider – participant’s plan is Agency-managed restricting participant to engage only NDIS-registered service providers – Applicant lodged an application for review with the Tribunal under his own name – whether Tribunal has power to substitute Applicant for another person – whether Applicant has standing under s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to lodge the application in his own right – whether Applicant is a person whose interests are affected by the decision under review – internal review decision potentially impacts the Applicant, indirectly, but does not directly affect the Applicant – Tribunal considers “ripple of affection” insufficient to constitute an affected interest under s 27(1) – decision that Applicant is not a person whose interests are affected by the internal review decision – Applicant does not have standing – no valid application before the Tribunal – participant is at liberty to lodge an application for review with the Tribunal in his own name
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)CASES
Deacon and National Disability Insurance Agency [2022] AATA 3209
REASONS FOR DECISION
Senior Member K. Parker
19 May 2023
INTRODUCTION
The Applicant, Mr Scott Allan, informed the Tribunal that he and his wife are parties to a rooming accommodation agreement with an adult National Disability Insurance Scheme (NDIS) participant, Mr Mark Devlin (Participant). Mr Allan would like his business, MeWeUs, (owned by him and his wife) to be paid for providing support worker assistance to the Participant. The NDIA internal review decision sought to be reviewed relates to the issue of whether the funding under the Participant’s NDIS plan should be Agency-managed or plan-managed. If the funding remains Agency-managed, as specified in the Participant’s current statement of participant supports (SOPS) in his NDIS plan, this will require that the Participant only acquire services from NDIS-registered service providers. Neither MeWeUs, nor Mr Allan, is a NDIS-registered service provider and will be unable to provide services to the Participant on a paid basis, unless the participant’s NDIS plan is plan-managed or self-managed. The Tribunal must decide whether the Mr Allan has standing to bring this application for review.
For the reasons set out below, the Tribunal has decided that the Applicant does not have standing and that this application is invalid. The Participant has been informed by the Tribunal that he is at liberty to lodge an application for review in his own right, should he wish to pursue a review of the decision relating to how the funds in his NDIS plan should be managed. The Participant’s brother has indicated to the Tribunal that he will assist the NDIS Participant to do so. The Participant does not have a plan nominee or legal guardian, but he remains supported by his mother and brother.[1]
[1] The Participant and his brother have been sent the link on the Tribunal’s website to the online “Application for Review of a Decision” form and were also sent the link to the NDIS Appeals Program providing details of disability advocacy and legal services.
BACKGROUND
On 11 May 2023, Mr Allan completed, signed, and lodged with the Tribunal an “Administrative Appeals Tribunal Application for Review of Decision Form” (Form).
In the “Applicant details” section of the Form, Mr Allan inserted his own name.
In the “Decision details” section of the form, Mr Allan refers to and uploads a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) (that is, a “reviewer”) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 4 May 2023 in respect of the Participant (Internal Review Decision). The Internal Review Decision confirms a decision made on 10 March 2023 by a different delegate of the CEO to approve a SOPS for the Participant, specifying that the funding approved under the SOPS is to be Agency-managed.
In the “Reasons for the application” section on the Form, Mr Allan described himself as the support provider for the Participant[2] and that the Participant had authorised Mr Allan to make the application for review on his behalf. Mr Allan sets out that the Participant’s NDIS funds should be plan-managed, as this would allow the Participant to engage service providers, such as MeWeUs, who are not registered NDIS-service providers.
[2] Mr Allan clarified at the hearing before the Tribunal on 17 May 2023 that he is providing care services to the Participant on a voluntary basis.
Upon receipt of Mr Allan’s application for review, it was referred to a member of the Tribunal who requested that it be listed for a directions hearing and interlocutory hearing on 17 May 2023. The Tribunal requested certain information ahead of the hearing and advised that the Participant and his family member(s) were also to be invited to attend the hearing. These hearings took place by telephone, and were attended by Mr Allan, the Participant, the Participant’s mother and adult brother, and three representatives from the NDIA.
At the directions hearing, the Tribunal made enquiries of the attendees to gain an understanding of the background of this matter, and to ascertain the Participant’s wishes. The Tribunal was informed as follows:
(a)no plan or correspondence nominee has been appointed under the NDIS Act to act for the Participant;
(b)no orders have been made to appoint a legal guardian or administrator to act for the Participant;
(c)the Participant was able to converse with the Tribunal and was aware that Mr Allan had made this application on his behalf. The Participant was aware of the issue regarding how his NDIS funds are to be managed. The Participant expressed his preference to remain living in his current residence and to be supported by Mr Allan. The Participant’s mother also said she was supportive of Mr Allan’s involvement with the Participant and explained that if it were not for Mr Allan, the Participant would be in a “difficult situation”. The Participant’s mother said that Mr Allan had always been “above board” with the things he was doing for the Participant;
(d)Mr Allan said that he and his wife, Ms Dominique Allan, had entered into a rooming accommodation agreement with the Participant. The room is in a house which is a few houses away from where Mr and Ms Allan currently reside. A copy of the rooming accommodation agreement was lodged with the Tribunal shortly before the hearing. The Tribunal notes that this agreement has not (yet) been signed by any person. Mr Allan said the house in which the Participant is residing, is owned by Ms Allan’s self-managed superannuation fund;
(e)Mr Allan told the Tribunal that it was a special condition of the rooming accommodation agreement that the residents do not bring external support workers into the house. The Tribunal sets out these special terms below (emphasis added):
- As the property is a private rental with other private tenants, and as a result of adverse experiences in the past, you agree that it has been deemed inappropriate for support workers from outside agencies to do supports that are conducted by Meweus in areas of: Assistance with ADL’s, Access to the Community, Transport and Recovery Coaching Services unless agreed.
- Accommodation is offered to Plan Managed, Non Agency managed, NDIS Participants who exercise their choice to engage Meweus to carry out the supports listed above.
- Should The Participant not be satisfied with Supports provided by Meweus, that cannot be rectified, and which creates an empass [sic], the Participant may, in accordance with NDIS guidelines, exercise their rights to cease Supports with Meweus. You agree that this choice, freely available for you to make, indicates your decision to initiate 14 days notice for the termination of the lease unless otherwise agreed.
- Nothing in these Special Terms is intended to conflict with a NDIS Participant’s rights under NDIS guidelines to choose providers. Scott and Dominique Allan identify the potential for ‘Conflict of Interest’ and will conduct business in the roles of Landlord and Service Provider with fairness, integrity, honesty, transparency and open communication.
(f)Mr Allan described past adverse experiences when external support workers were allowed to enter the shared house, including that “money went missing”, and on another occasion, the presence of an external support worker had caused anxiety to a fellow resident who was suffering from paranoia. In the rooming accommodation agreement provided to the Tribunal, a special term is imposed requiring the tenant to only engage the services of MeWeUs. Mr Allan said he employed two support workers on a causal basis. He said that Ms Allan is “more of a silent partner” in the business, MeWeUs, and that she works elsewhere full time as a registered nurse. If a resident under the rooming accommodation agreement, which was prepared by Mr and Ms Allan, does not comply with this condition, the special terms provide that the resident is taken to have initiated the termination of the agreement within 14 days, unless otherwise agreed to by Mr and Ms Allan;
(g)the Participant said he has been living in this shared accommodation for the last six months. Mr Allan told the Tribunal that the Participant is renting the master bedroom and ensuite and is paying rent in the amount of $300 per week. Mr Allan informed the Tribunal that there are two other residents living in the house who are both “recovering mental health patients”. Mr Allan states in an email to the Tribunal that one of the residents is not eligible to gain access to the NDIS. Mr Allan states he has informed this other resident that he is welcome to stay living in the shared house for as long as he would like. Mr Allan states that the other resident is a NDIS participant and that Mr Allan provides services to this resident under this resident’s NDIS plan. At the hearing, Mr Allan informed the Tribunal that he also has another shared house next to the house where the Participant lives, and this house is occupied by two other NDIS participants and one other person, whom Mr Allan described as previously being “homeless”;
(h)Mr Allan provided the Tribunal with a copy of the MeWeUs service agreement. It has not been customised to the Participant, finalised, or signed by any person. Mr Allan told the Tribunal that until now he has been providing support worker assistance to the Participant on a voluntary basis; and
(i)Mr Allan asserts that this matter should be dealt with expeditiously because the Participant is at risk of homelessness. Mr Allan asserted the rooming accommodation agreement will be terminated if MeWeUs is unable to provide paid support worker assistance to him.
Whether the Tribunal can substitute the Applicant with another person
The Form completed and lodged by Mr Allan names “Scott Allan” as the Applicant. Mr Allan is not the Participant’s plan nominee or legal guardian and has no authority to do things or acts that the Participant has the power to do under the NDIS Act. The Tribunal does not consider that it has the power to substitute the Applicant in a review proceeding before the Tribunal with another person, because it is not expressly authorised by statute to do so. The Tribunal does not have any inherent powers and only arise under statute. The AAT Act and the Administrative Appeals Tribunal Regulation 2015 (Cth) do not contain any provisions empowering the Tribunal to substitute the named Applicant in an application for review with another person. Nor is there any provision in this legislation from which it could be implied that the Tribunal has this power or discretion. Further, the Tribunal does not consider that the general power of the Tribunal to make procedural directions pursuant to sub-ss 33(1) and (1A) of the AAT Act allows for such a substitution of the named Applicant to occur.
Accordingly, the Tribunal must consider whether Mr Allan has standing to bring this application in his own name.
ISSUE
The Tribunal is required to decide pursuant to s 31 of the AAT Act, whether Mr Allan is a person whose interests are affected by the Internal Review Decision and, therefore, whether he has standing under s 27(1) of the AAT Act to bring this application.
CONSIDERATION
The NDIA contends that if the Tribunal finds that the application is truly an application made by Mr Allan, that Mr Allan does not have standing to bring this application.[3] The NDIA contends as follows:[4]
[3] Refer NDIA’s Submissions dated 17 May 2023 at paragraphs [8] and [9].
[4] Refer NDIA’s Submissions dated 17 May 2023.
10. The Respondent relies on the Tribunal’s decision in Deacon and National Disability Insurance Agency [2022] AATA 3209 in which the Tribunal found that even the brother of a Participant did not have standing to seek review of a s100 decision in relation to the Participant’s plan. The Tribunal held (original emphasis):
84. The appearance of the term “directly” before the word “affected” in s 100(2) strengthens the Tribunal’s view about this and is consistent with an intention that it is only those persons who are “directly affected” by a decision under s 33 to approve a statement of participant supports, that will be permitted to seek review by a reviewer under s 100(2). The Tribunal considers that in the case of adult participants of the NDIS, who acquire an individual plan directed at them personally under the NDIS, decisions about the participant’s plan may only ever impact the family members and carers indirectly as they are not a party to this plan.
85. The Tribunal acknowledges that indirectly, Dominic may be potentially impacted by the Internal Review Decision because it may have the practical effect that he will not be paid under Patrick’s NDIS plan, for providing a significant level of personal care and assistance to Patrick. Neither will his sister. The reference in the above sentence to “potentially” was deliberate because theoretically it is possible that Dominic (or his sister) may not provide this care to Patrick and instead, that formal supports may be engaged to provide care and assistance to Patrick. If this occurs, the practical impact of the Internal Review Decision on Dominic will not occur. Patrick will be free to pursue other employment. The Tribunal does not accept that he would be affected by missing out on the opportunity to work for Patrick in the capacity of a support worker because the NDIS is not intended to create and provide employment to a person or group of persons. This is not part of the design of the scheme. Instead, the scheme is primarily intended to support persons with disabilities.
11. The Respondent submits that indirectly, the Applicant may be potentially impacted by the Internal Review Decision because it may have the practical effect that he will not be paid under the Participant’s NDIS plan. However, that is not sufficient to give the Applicant standing in this case.
12. The Respondent submits that the decision in Deacon remains good law and ought to be followed. Should the Tribunal consider that the Applicant may have standing, the Respondent would seek leave to make further written submissions.
In the decision in Deacon and National Disability Insurance Agency (Deacon),[5] as referred to by the NDIA, the Tribunal, as presently constituted, reviewed the general principles arising from case authorities in relation to the question of standing to bring an application for review in the Administrative Appeals Tribunal (see paragraph [62]), and the approach that has been taken when determining questions of standing (see paragraphs [63] to [66]. In Deacon, the Tribunal considered those principles and the approach to deciding whether a person has standing, in the context of the NDIS Act (see paragraphs [67] to [69]). Upon doing so, the Tribunal considers that the overwhelming focus in virtually all of the objects and general principles in the NDIS Act, except for the principles in subs-ss 4(3), (12), and (12A), when considered as a whole, is on persons with disabilities, rather than other persons or subsets of persons. The Tribunal considers that the NDIS primarily establishes a scheme which is centrally focussed on the individual, being the person with the disability.[6]
[5] [2022] AATA 3209.
[6] Refer Deacon at paragraph [69].
In Deacon, the Tribunal was not satisfied that the NDIS participant’s brother (also his primary carer) had sufficient standing to bring an application in relation to the participant’s NDIS plan. The Tribunal acknowledged the potential impacts the decision under review in Deacon had on the NDIS participant’s brother but considered that they fell short of directly affecting him, for the reasons set out in that decision and as reproduced above in paragraph [12].
In a similar vein in this application, the Tribunal acknowledges that the specification as to how the NDIS funding in the Participant’s NDIS plan is to be managed, has the potential to impact upon Mr Allan, because if the plan is not changed from Agency-managed to plan-managed or self-managed, it may result in the termination of the Participant’s rooming accommodation agreement with Mr Allan, in accordance with the special term referred to in paragraph [8(d)] above. If this occurs, and Mr and Ms Allan abstain from otherwise agreeing that the rooming accommodation agreement should not be terminated, Mr Allan (and his wife) will suffer a loss of revenue in the order of $300 per week.[7] Further, Mr Allan’s (and his wife’s) business, MeWeUs, would lose a potential opportunity to generate revenue from the anticipated support worker assistance services that MeWeUs proposes to deliver to the Participant. MeWeUs, (that is, Mr and Ms Allan) is prevented from delivering services to the Participant at the moment (on a paid basis) because they are not a registered NDIS-service provider.
[7] The Tribunal has characterised this impact as being potential because Mr Allan and his wife have the ultimate control over whether they decide to terminate the rooming accommodation agreement with the NDIS Participant, if the special terms are not complied with.
It is of course open to MeWeUs to apply for registration as a registered NDIS-service provider, so they make take up the opportunity of providing support worker assistance to the Participant as a registered NDIS-service provider. Further, it is also open to Mr and Ms Allan to facilitate the removal of the special terms from the rooming accommodation agreement, as reproduced above, thereby allowing for the Participant to use external registered NDIS-service providers without triggering the automatic termination of this agreement. This will result in the continuation of the rooming accommodation agreement and the payment of $300 per week rent to Mr and Ms Allan.
Primarily, the Tribunal is satisfied that the NDIS is a scheme established to benefit individual participants by providing them with a structured NDIS plan to facilitate the delivery to them of reasonable and necessary supports to maximise their inclusion and social and economic participation. While there are some provisions in the NDIS Act and the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) that relate to persons who provide supports to those participants (that is, NDIS service providers), they seek to regulate the quality and way those supports are provided to the participant, to ensure they do not harm the participant and that services are provided in accordance with certain standards to be established under the legislative scheme.
The Tribunal considers that it is only those persons who are “directly affected” by a decision under s 33 of the NDIS Act to approve a statement of participant supports, in this case the Participant (who is able to speak for himself), who will be permitted to seek review by a reviewer under s 100(2). The Tribunal considers that in the case of adult participants of the NDIS, who acquire an individual plan directed at them personally under the NDIS, decisions about their plans may only ever impact the carers, landlords, service providers (current or prospective) or family members indirectly, as none of them are an actual party to the plan. The situation would be different if they have been appointed the participant’s plan nominee and have the power to do things and acts the participant has the right to do under the NDIS Act.
CONCLUSION
In conclusion, the Tribunal acknowledges that, indirectly, Mr Allan and his wife, or WeMeUs, may be impacted by the Internal Review Decision as it presents an obstacle to them being paid for providing core supports to the Participant, be reason of WeMeUs not being a registered NDIS-service provider and the funding is specified in the NDIS plan as Agency-managed.[8]
[8] The Tribunal notes that Mr Allan has not indicated any intention that WeMeUs will apply to become a registered NDIS-service provider, even though it appears that his business is operating two separate premises occupied by a number of NDIS participants, in a manner akin to a supported independent living facility. The Tribunal notes that by imposing the special terms referred to above, Mr and Ms Allan have sought to restrict the freedom of choice of its residents as to which service provider they engage to provide support worker assistance under their NDIS plan.
The Tribunal also acknowledges that, indirectly, Mr and Ms Allan may be impacted by the Internal Review Decision by standing to lose future rental payments if they abstain from agreeing that the rooming accommodation agreement will not terminate upon the Participant not complying with the special term, if the Participant chooses to use external support workers.
Despite those acknowledged impacts upon Mr Allan, the Tribunal considers that the NDIS is not aimed at providing economic stimulus by ensuring ongoing revenue streams for small service providers or landlords offering disability-related support services or accommodation to NDIS participants. This is not part of the design of the scheme. Instead, the scheme is primarily intended to support the interests of persons with disabilities, such as the Participant in this instance.
Mr Allan is not the Participant’s plan or correspondence nominee, legal guardian, or administrator. At the moment, Mr Allan is the Participant’s landlord and informal carer, and prospective future service provider. In these circumstances and for the reasons set out above, the Tribunal concludes that the “ripple of affection” in the circumstances in this matter is too remote to constitute Mr Allan having an affected interest in the Internal Review Decision, within the meaning of s 27(1) of the AAT Act.
Pursuant to s 31 of the AAT Act, and for the reasons set out in these Reasons for Decision, the Tribunal decides that Mr Allan is not a person whose interests are affected by the Internal Review Decision. The Tribunal decides that Mr Allan does not have standing under s 27(1) of the AAT Act. This application for review lodged with this Tribunal by Mr Allan is invalid.
At the end of the hearings on 17 May 2023, Mr Allan informed the Tribunal that it was not his intention to cause any delay to the processes before the Tribunal and that he was prepared to step back. The Participant’s brother informed the Tribunal he is prepared to step in to assist the Participant to lodge an application for review with the Tribunal. The Tribunal has indicated that when an application for review is lodged by the Participant, the Tribunal will request that it be listed for a further directions hearing before the Tribunal on 25 May 2023, so an assessment can be made by the Tribunal as soon as possible as to whether any such application should proceed expeditiously.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
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Associate
Dated: 19 May 2023
Date of hearing:
17 May 2023 Applicant: By telephone Respondent: By telephone Solicitors for the Respondent: Mr James Vercoe, National Disability Insurance Agency
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