Andrew and National Disability Insurance Agency

[2019] AATA 249

Andrew and National Disability Insurance Agency [2019] AATA 249 (6 February 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/7294

Re:David Andrew

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:6 February 2019

Date of written reasons:        28 February 2019

Place:Sydney

For the reasons given orally during the hearing, the Tribunal is satisfied that there is no internal reviewable decision to ground the jurisdiction of the Tribunal. Pursuant to subsection 42A(4) of the Administrative Appeal Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Applicant’s request to become plan nominee and correspondence nominee refused – internal review not conducted - no internal reviewable decision before the Tribunal – application dismissed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 86, 87, 99, 100, 103

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

28 February 2019

1. On 22 February 2018, Mr Andrew’s daughter requested the National Disability Insurance Agency (the Agency) to appoint her father, Mr Andrew, to be her plan and correspondence nominee.  On the same day, an officer of the Agency wrote to Mr Andrew, requesting that he complete two enclosed copies of Nominee Agreement and return one to the Agency. The letter also advised Mr Andrew that he would be sent a letter advising him of the decision whether to appoint him as a nominee.

2. On 6 December 2018, an officer of the Agency sent Mr Andrew an email which both Mr Andrew and the Agency accepted was a refusal of the application.  The Agency advised the Tribunal that the decision had been made on 30 April 2018.  It did not explain why Mr Andrew was not notified until 6 December 2018.

3. On 6 December 2018, Mr Andrew applied to the Tribunal for review of the 6 December 2018 decision.

4. The Agency appointed Mr Andrew a plan nominee on 4 January 2019, although he had some issues in relation to that appointment. 

5. A decision to appoint a plan nominee is made pursuant to section 86 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). A decision to appoint a correspondence nominee is made pursuant to section 87 of the Act.

6. Accepting that the letter from the Agency dated 6 December 2018 was a decision, it is not a decision that this Tribunal can review for the following reasons.

7. Unfortunately, the language of the Act is confusing because it uses the same term “review” for review of decisions within the Agency (internal review) and reviews by this Tribunal (external reviews).

8. Sections 99 and 100 have the effect that decisions made under specific provisions of the Act may be the subject of internal review.  Section 103 of the Act confers power on this Tribunal to review internal review decisions.

9. The decision dated 6 December 2018 is not an internal review decision and is therefore not reviewable by the Tribunal.

10. The application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 28 February 2019

Date(s) of hearing:	6 February 2019
Applicant:	By telephone
Solicitors for the Respondent:	A Kearney, National Disability Insurance Agency