Andrews and National Disability Insurance Agency

[2022] AATA 1532

Andrews and National Disability Insurance Agency [2022] AATA 1532 (9 June 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/6194

Re:John Andrews

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:9 June 2022

Place:Adelaide

The Tribunal decides that:

(a) the application for a stay be granted.

(a) the proceedings not be listed for final hearing unless the applicant voluntarily attends appointments in person or via videoconference in accordance with prevailing COVID-19 restrictions with a bariatric surgeon and with an occupational therapist for the purpose of independent assessments; and

(c) the parties have liberty to apply on three days’ notice.

...........................[Sgnd]..................................

Member I Thompson

Catchwords

PRACTICE AND PROCEDURE - National Disability Insurance Scheme Act 2013 (Cth) – application for stay of proceedings pending applicant’s attendance at independent assessments – considerations relevant to determining application for stay – application granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Bushell v Repatriation Commission (1992) 175 CLR 408

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Huang & Guo AAT Migration & Refugee Division case no.1800925

Leung (Migration) [2021] AATA 5335

LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563

Luck and Department of Human Services [2010] AATA 6

MDCT and National Disability Insurance Agency (MDCT) [2020] AATA 6036

McMahon v Gould (1982) 7 ACLR 202

Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142

Mulligan v NDIA [2015] FCA 544

Nursing and Midwifery Board of Australia v HSK

Pomeroy & NDIA [2018] AATA 387 [2019] QCA 144

Re Bywater Investments Limited and Ors and Commissioner of Taxation [2018] AATA 5028

Re Control Investments Pty Limited and Australian Broadcasting Tribunal [1981] AATA 11

Re Sogo Duty Free Pty Ltd and Commissioner of Taxation (Cth); Re Trade World Enterprises Pty Ltd and Commissioner of Taxation (Cth) [2005] AATA 1298

Re the Applicant and Australian Prudential Regulation Authority [2005] AATA 529

Schwass & NDIA [2019] AATA 28

VMQD v Federal Commissioner of Taxation [2017] AATA 1430

12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation [2017] AATA 1091

REASONS FOR DECISION

Member I Thompson

9 June 2022

INTRODUCTION

1. The substantive application concerns a request by Mr Andrews to become a participant under the National Disability Insurance Scheme (NDIS).

2. At a directions hearing on 8 February 2022 counsel for the National Disability Insurance Agency (the Agency) requested the Tribunal to stay the proceedings by directing that the substantive application should not be listed for final hearing until Mr Andrews voluntarily attends a medical assessment and an occupational therapy assessment (independent assessments). Mr Andrews opposed the Agency’s request and sought other orders.

3. Previously, the Tribunal has directed Mr Andrews to attend an assessment conducted by a bariatric surgeon and an assessment conducted by an occupational therapist. The directions were made pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in the exercise of the Tribunal’s discretion. The statutory basis for the exercise of that power was confirmed by a tribunal comprised of three members in MDCT and National Disability Insurance Agency (MDCT).[1]

   [1] [2020] AATA 6036

4. Subsequently, the Federal Court in LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2] ruled that the power in s 33 of the AAT Act does not include a power to compel an applicant to participate in a medical assessment

   [2] [2021] FCA 1563

5. In accordance with the Federal Court decision the Tribunal set aside the orders which it had made for Mr Andrews to attend the independent assessments. The Tribunal considered written and oral submissions by both parties concerning the Agency’s request for a stay of the substantive proceedings and reserved its decision on that question. The decision and the reasons for it are now set out.

   Background

6. A directions hearing took place by telephone on 10 September 2021, at which Mr Andrews was self-represented. The Agency was represented by counsel, Mr Bird. The interlocutory hearing had been convened to consider directions which the Agency sought for Mr Andrews to attend appointments with a bariatric surgeon and with an occupational therapist for the purpose of independent assessments and provision of reports. Mr Andrews opposed the request for the directions. Each party provided written submissions prior to the directions hearing at which oral submissions were also made. The Tribunal reserved its ruling.

7. On 28 September 2021 the parties attended the reconvened directions hearing by telephone. The Tribunal made the following directions in relation to the independent assessments:

   1.  The applicant is to attend an appointment in person or via video conference in accordance with prevailing Covid 19 restrictions with a bariatric surgeon for the purpose of an independent assessment.

   2.  The applicant is to attend an appointment in person or via video conference in accordance with prevailing Covid 19 restrictions with an occupational therapist for the purpose of an independent assessment.

8. Mr Andrews stated that he would not comply with the directions and that he would not attend the independent assessments. His attention was drawn to the provisions of s 42A(5) of the AAT Act concerning failure within a reasonable time to comply with a direction by the Tribunal. He told the Tribunal that he was aware of those provisions.

9. The Tribunal provided written reasons for making the directions for independent assessments. Those written reasons included a discussion about the legal principles and an application of the decision of the Tribunal (President Thomas, Deputy President Meagher, and Member Buxton) in MDCT.

10. In MDCT the Tribunal decided that s 33 of the AAT Act permits the Tribunal to direct an applicant to meet a request by the respondent to facilitate the provision of information or evidence provided that the request is reasonable and proportionate to the complexity of the case. If an applicant refuses to meet such a request it is open to the Tribunal to make directions and control the review process consistent with the objective of giving each party appropriate opportunity to present their case and to enable the review to be conducted fairly and justly.

11. A directions hearing was scheduled for 1 December 2021 to consider a request by the Agency for Mr Andrews to provide a written outline of evidence that he intended to adduce from witnesses whom he proposed to call at the final hearing.

12. The Agency gave notice of an interlocutory application for the substantive application to be dismissed as Mr Andrews had not attended the appointments directed by the Tribunal and arranged by the Agency. On 30 November 2021, that is, on the day before the directions hearing, Mr Andrews submitted a written application for recusal of the presiding member.

13. At the directions hearing on 1 December 2021 the Tribunal directed each party to lodge written submissions on the question of recusal. Consideration of the Agency’s request for dismissal of the substantive application was deferred pending consideration of the request for recusal. Mr Andrews lodged further documentation with the Tribunal regarding recusal and the Agency lodged its written submissions. At a directions hearing by telephone each party spoke to the written submissions. The Tribunal provided its ruling together with reasons on 19 January 2022 declining the request for recusal and reconstitution of the Tribunal.

14. In the meantime, the parties became aware of the Federal Court decision in LPSP. The decision which was under review in that case was the refusal to grant an application for a protection visa under s 36(1C) of the Migration Act 1958 (Cth). In his judgement dated 15 December 2021, Bromberg J considered the text and context of s 33 of the AAT Act in relation to a direction which the Tribunal made that the applicant attend and participate in a consultation with a forensic consultant psychiatrist for the purpose of an independent expert report.

15. In LPSP the applicant had provided a psychiatric report together with a supplementary psychiatric report and the Minister sought to arrange a psychiatric assessment and obtain a report. The applicant did not consent to participation in the psychiatric assessment. The Minister asked the Tribunal to make a direction under s 33 of the AAT Act to compel the applicant to attend the psychiatric consultation which the Minister would organise. The Federal Court held that the Tribunal’s power to issue directions under s 33 of the AAT Act is limited to directions which are procedural in nature and “a direction that compels interference with the liberty of a party to the proceeding is not readily characterised as a procedural direction.”[3]

    [3] LPSP at [22]

16. In LPSP, Bromberg J considered that an order by the Tribunal compelling a party to attend and participate in a medical examination would breach “a fundamental common law right not to disclose personal and private information.”[4] Bromberg J stated that:

    generally, specific statutory authority is required to support an order of a court or tribunal which would interfere with a fundamental right such as the right to liberty or the right to privacy.[5]

    [4] Ibid at [12]

    [5] Ibid at [12]

17. In reference to s 33(2A)(a) of the AAT Act, which provides that the Tribunal may require a party to the proceeding to provide information in relation to the proceedings, Bromberg J stated that:

    to require a person to provide information to a second person for assessment and evaluation by that person for an opinion to be provided to the Tribunal is not naturally accommodated by the language utilised. In any event the language is not sufficiently specific to confer a particular power to compel a party to attend a compulsory medical examination.[6]

    [6] Ibid at [23]

18. At a telephone directions hearing on 8 February 2022, the Agency’s counsel referred to LPSP and submitted that the directions which this Tribunal made on 28 September 2021 for independent assessments could no longer stand. He submitted that the directions hearing should be adjourned briefly to enable Mr Andrews to consider whether he would voluntarily agree to participate in the independent assessments. Mr Andrews stated that he would not consent to participating in the assessments for reasons that he had previously given, and which had not changed. Directions were made for written submissions to be provided and a further directions hearing took place on 31 March 2022. Both parties provided written submissions.

19. Counsel for the Agency submitted that the Tribunal should stay the proceeding by declining to make orders listing the matter for final hearing until Mr Andrews voluntarily attends the independent assessments. Mr Andrews submitted that the Tribunal does not have power to stay the proceedings and the directions which the Tribunal made on 28 September 2021 to participate in independent assessments were an unlawful exercise of power in contravention of s 33 of the AAT Act.

20. The parties agreed that the Tribunal must apply the law as determined by the Federal Court in LPSP. The Tribunal in MDCT was constituted by the President of the Tribunal, who is a Federal Court Judge, together with 2 other members. The decision in MDCT is inconsistent with the decision in LPSP about the interpretation of s 33 of the AAT Act. The Tribunal exercises executive power, not judicial power. It follows that the Tribunal in this case must apply the law set out in LPSP. The consequence is that the directions which the Tribunal made on 28 September 2021 for Mr Andrews to attend independent assessments cannot stand.

21. LPSP is under appeal. Counsel for the Agency did not press its application under s 42A of the AAT Act for dismissal of the substantive application. However, the Agency submitted that the proceedings should be stayed until Mr Andrews voluntarily attends the two independent assessments.

    Whether the Tribunal has the power to stay its own proceedings, under s 33 of the AAT Act or otherwise

22. Mr Andrews contended that the Tribunal does not have the power to stay the proceedings. He referred to s 41 of the AAT Act. He submitted that the Tribunal does not have the power “to adduce evidence to assist the respondent in developing its defence”.[7] He referred to the provisions of s 2A of the AAT Act regarding the Tribunal’s objective to provide 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
    

    [7] Applicant’s submissions in reply, 11 March 2022, paragraph 18

    (d) promotes public trust and confidence in the decision-making of the Tribunal

23. Section 41(2) of the AAT Act refers to the power of the Tribunal to stay a decision, not proceedings. The Tribunal, in making such an order, must consider the interests of any persons who may be affected by the review (s 41(2)) and provide the party who made the decision with a reasonable opportunity to make a submission to the Tribunal (s 41(4)(a)). In any event, s 41 does not bear on the power of the Tribunal to stay its own proceedings.

24. Counsel for the Agency relied on the decision and reasoning of the Tribunal in Luck and Department of Human Services [2010] AATA 6 at [21]–[26] which considered whether it had the power to stay its own proceedings.

25. Luck involved the review of decisions made under freedom of information legislation. The applicant in that case submitted that the Tribunal should stay the review pending the determination of proceedings which she had commenced in the High Court. Although Deputy President Forgie declined to grant the stay in the circumstances of the case, she considered that the Tribunal has the power to stay its proceedings, noting in particular:

    There is no provision in the AAT Act that specifically gives the Tribunal power to stay its proceedings but it seems to me that the power is implicit in the provisions of the AAT Act and the function that Parliament requires the Tribunal to perform. Section 25 (1) (a) provides that “an enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment.” Once there is such an enactment, a person who is a person permitted by the enactment to make an application has a right or privilege to make that application… Implicit in its power to review decisions must be the power to decide whether it indeed has that power in any given situation.

    Also implicit in the power expressly given to the Tribunal to review a decision must be the power to take the steps that will enable it to do so in accordance with all the provisions of the AAT Act and of the enactment conferring power and the common law requirements that it act with procedural fairness. As Dawson J said in Grassby v The Queen, “… notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise …”

    In a civil proceeding in a court, “prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court”. It is no different in the Tribunal. Both parties are entitled to have the decision reviewed in the ordinary course of the procedure and business of the Tribunal. Procedurally, there are several steps that the parties must take. As the Tribunal has a considerable number of applications at any one time, the Tribunal itself must take certain steps to ensure that all are considered and resolved in an orderly and fair fashion according to its resources and the applications themselves. Among the steps that the Tribunal must take is the step to hear the application and review the decision. It must decide when to take that step and when not to.

    It seems to me that the Tribunal’s power to control its procedure is a source of the Tribunal’s power to stay a proceeding. It is a power that can be used to manage the course of the application having regard to its needs and to the needs of the parties who must gather probative material, locate witnesses and the like and who must prepare for an alternative dispute resolution process or for hearing. It is a power that can be used to manage the proceeding more broadly having regard to the impact of other proceedings instituted in other courts or tribunals.

    Another possible source of power is s 33(1)(a) of the AAT Act. That is the provision that provides that the procedure of the Tribunal is within its discretion. Section 33(2A) gives examples of the types of directions that the Tribunal may give.

    Those examples focus on requiring a party or parties to the proceeding to take certain steps such as providing further information or providing a statement of the matters or contentions upon which reliance would be placed at the hearing. They do not, of course, limit the power given by s 33(1). It seems to me, though, that the power to give “directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal” may extend to a power to direct that an application is not listed for hearing.

26. The Tribunal has acknowledged the power to grant a stay of its own proceedings in a variety of legal and procedural contexts and factual situations.

27. For example, in a review of a decision to refuse access to documents sought under freedom of information, the Tribunal comprising Deputy President McCabe and Deputy President Rayment in 12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation[8] acknowledged the power of the Tribunal to stay its own proceedings until an appeal in the Full Federal Court was determined. The Tribunal stated:

    in principle such an order or direction is within the discretion of the Tribunal under s33 (1) (a) of the Administrative Appeals Tribunal Act 1975 (Cth).

    [8] [2017] AATA 1091

28. In Re the Applicant and Australian Prudential Regulation Authority,[9] the applicant sought a stay of proceedings in the Tribunal while criminal charges were pending. The Tribunal held that there is no automatic right to a stay of the proceedings because of the concurrent criminal proceedings. However, the Tribunal held that it was appropriate to grant a stay of proceedings for a limited time. Subsequently, a further stay could be considered in the context of the progress of the criminal proceedings. There was no suggestion that the Tribunal did not have the authority to grant a stay of its proceedings.

    [9] [2005] AATA 529

29. In Re Sogo Duty Free Pty Ltd and Commissioner of Taxation (Cth); Re Trade World Enterprises Pty Ltd and Commissioner of Taxation (Cth)[10] the applicants sought a stay of proceedings pending the finalisation of criminal proceedings against their director. One of the grounds for seeking the stay of the Tribunal proceedings relied on the power that the Tribunal has under s 33(1)(a) of the AAT Act. The Tribunal considered that it has a discretion under s 33(1)(a) to grant a stay of its proceedings and in the circumstances of the case it was appropriate to exercise that discretion, while noting that:

    protracted delays in the determination of an application are arguably inconsistent with the Tribunal’s objective under s2A of the AAT Act to provide a review mechanism which is, inter alia, quick, but at the same time the Tribunal does not consider it would be fair or just to insist that the matter proceed in circumstances which might prejudice the rights of an individual at a forthcoming criminal trial.

    [10] [2005] AATA 1298

1. More recently, in Re Bywater Investments Limited and Ors and Commissioner of Taxation,[11] the Tribunal, compromising Deputy President Mellick, granted a stay of the proceedings before it until the conclusion of a trial in the criminal court involving the applicant’s former accountant.

   [11] [2018] AATA 5028

2. In reviews of decisions made under the Migration Act 1958 the Tribunal has considered requests to stay its proceedings until a judicial review is finalised. For example, in Leung (Migration)[12] the Tribunal considered a request to stay its proceedings until a judicial review was completed in the Federal Circuit and Family Court. It appears to have been accepted without demur by the parties and by the Tribunal that the Tribunal has power to stay its proceedings. In that case the Tribunal exercised a discretion not to stay the proceedings or to delay making its decision until the Court finalised the judicial review application.

   [12] [2021] AATA 5335

3. In Huang & Guo[13] the Tribunal reviewed a decision of a delegate of the Minister for Immigration under s 65 of the Migration Act 1958. A request was made to stay the proceedings in the Tribunal pending the outcome of a matter in the Federal Circuit Court. It was not suggested by the parties that the Tribunal did not have the power to order a stay of its own proceedings. In consideration of the circumstances of the case the Tribunal determined not to exercise its discretion to stay the proceedings and it proceeded to decide.

   [13] AAT Migration & Refugee Division case no.1800925

4. In VMQD v Federal Commissioner of Taxation[14] the applicant sought a stay of the proceedings pending judicial review by the Federal Court of an order by the Tribunal dismissing a request to direct the respondent to provide certain additional documents. The Tribunal acknowledged the power which it has to order a stay of its own proceedings and acknowledged that the applicant would be entitled to a stay of those proceedings if the respondent sought to proceed to a hearing before the determination of the judicial review application by the Federal Court. In the exercise of its discretion the Tribunal did not consider that a stay was warranted at the preliminary stage of the proceedings before it.

   [14] [2017] AATA 1430

5. The Tribunal considers that it has the power to grant a stay of its own proceedings. That is consistent with several cases in which the Tribunal has acknowledged the power and proceeded to determine whether to exercise its discretion to implement a stay. In addition, Deputy President Forgie explained cogently the rationale for the existence of the power (Luck).

6. Accordingly, the next question is whether the Tribunal should exercise its discretion to stay these proceedings pursuant to the request which the Agency has made. Before doing so it will be helpful to recount relevant parts of the Tribunal’s decision on 28 September 2021 concerning the medical evidence, allied health evidence and matters relating to the request for independent assessments.

   Excerpts of Tribunal decision, 28 September 2021

   Background

   6. In his application to the Tribunal for review of the Agency’s decision, Mr Andrews listed details of his disability and assistance required as being: – “Multiple. Physically disabled, wheelchair, cane and other walking aids.”

   7. In his Statement of Facts, Issues and Contentions dated 3 September 2021 Mr Andrews set out his primary disabilities as:

   (i) osteoarthritis of the spine, both hips, both knees and right hand;

   (ii) chronic pain and stiffness of the spine, both hips, both knees and right hand;

   (iii) chronic shaking of the legs;

   (iv) extremely severe range 3 – clinical depression, anxiety, and stress.

   8. In the same document, he listed his secondary disabilities as including cardiovascular disease, severe deformity in the right foot, plantar fasciitis of the right foot, morbid obesity, swelling of ankles and feet, with substantial reduction of mobility and reduced functional capacity in aspects of self-care together with other significant impacts.

   9. The Agency’s Statement of Facts, Issues and Contentions dated 12 August 2021 indicates that the issues in contest include a consideration of each subsection of s 24(1) of the National Disability Insurance Scheme Act 2013 (the ‘NDIA Act’), other than s 24(1)(d). The Agency accepts that Mr Andrews meets the criteria in s 24(1)(a) in respect of osteoarthritis and not in relation to other diagnoses. The Agency does not presently accept that Mr Andrews meets the requirements of s 24(1)(b) in relation to his osteoarthritis, namely that the impairment is, or is likely to be, permanent.

   Independent assessments

   10. In seeking a direction that Mr Andrews attend appointments with a bariatric surgeon and an occupational therapist, the Agency suggests that the appointments may be conducted in person or by videoconference depending on prevailing COVID 19 restrictions.

   11. In written submissions for the Agency it was contended that there was insufficient information in the proceedings from Mr Andrews’ medical and allied health practitioners about his impairments.

   12. In a written submission dated 8 September 2021, Mr Andrews stated that he does not consent to participate in any independent assessments which the Agency seeks. He submitted that the NDIS Act does not provide the Tribunal with the power to compel an applicant or a current participant in the scheme to undergo independent assessments. He submitted that the Tribunal does not have authority under s 33 of the Administrative Appeals Tribunal Act 1975 (the ‘AAT Act’) to direct him to attend the proposed assessments. He referred to the decision of the High Court in Hughes v The Queen] regarding s 97(1)(b) of the Evidence Act 1995 (NSW) in support of his proposition that the evidence from the assessments would not be admissible and would lack significant probative value. He referred also to proposed legislative changes about independent assessments, noting that those proposals have been put on hold.

   Legal principles

   13. In MDCT and National Disability Insurance Agency[15] the Tribunal, which comprised President Thomas, Deputy President Meagher and Member Buxton, described the statutory basis under s 33 of the AAT Act to make directions for the gathering of evidence:

   [15] [2020] AATA 6036 (24 December 2020)

   “Section 33 of the AAT act details the way in which the Tribunal may control its process. Relevantly, subsection 33(1AB) requires the parties to a review application, and any person representing such a party, to use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT act. The effect of that provision upon the respondent’s obligations when requesting an applicant to facilitate the provision of information or evidence, is that the requests must be reasonable and proportionate to the complexity of his or her case. The effect of that provision upon the response to a reasonable and proportionate request is to require an applicant to accede to such a request where it is made for the purpose of facilitating a review process that is fair and just. If a reasonable and proportionate request is made, and unreasonably refused, it is open to the Tribunal to control the review process by directing that an applicant meet such a request. To do so is consistent with the Tribunal’s objective to ensure that each party is given the opportunity to present their case, and that the review is conducted fairly and justly.”[16]

   [16] At [10]

   14. Section 2A of the AAT Act sets out the objective which the Tribunal must pursue in the mechanism of review and includes the objective of being, fair, just, economical, informal, and quick, proportionate to the importance and complexity of the matter and consistent with promoting public trust and confidence in the Tribunal’s decision-making.

   15. Provisions of the NDIS Act set out the requirements for becoming a participant in the Scheme. Relevantly, s 20 provides:

   If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request:

   (a) decide whether the prospective participant meets the access criteria; or

   (b) make one or more requests under subsection 26(1).

   16. Section 26 of the NDIS Act provides:

   (1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows:

   (a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;

   (b) that the prospective participant do either or both of the following:

   (I) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

   (j) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

   (2) If:

   (a) information or one or more reports are requested under subsection (1); and

   (b) the information and each such report are received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested.

   the CEO must, within 14 days after the last information or report is received:

   (c) decide whether the prospective participant meets the access criteria; or

   (d) make a further request under subsection (1).

   (3) If:

   (a) information or one or more reports are requested under subsection (1); and

   (b) the information and each such report are not received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested.

   the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.

   17. In Liddle & National Disability Insurance Agency,[17] Deputy President Constance considered the requirements for access to the scheme and noted:

   [17] [2018] AATA 5071

   “Sections 20 and 26 make clear the intention of Parliament that requests for access to the Scheme be dealt with quickly. The Chief Executive Officer is given only 21 days to decide whether to request that an applicant undergo an assessment. Similarly, applicants are subject to strict time restraints; if they are not met, an access request is taken to have been withdrawn... While there may be circumstances in which the Tribunal would make the direction sought for the purposes of the proceeding before it, the starting point should be that a request that an applicant undergo an assessment be made in accordance with s 20. The Agency should always be required to show good reason why an applicant should be directed to undergo an assessment after the 21 day period has expired.”[18]

   [18] At [17]

   18. In summary, the Tribunal in MDCT stated:

   “We are satisfied that the directions-making power in section 33 of the AAT Act provides the Tribunal with power to make a direction such as the one sought by the Respondent to facilitate the adducing of relevant evidence in this case. Whether the Tribunal ought to do so involves an exercise of its discretion having regard to the particular circumstances of the case before it.”[19]

   [19] At [12]

   Exercise of discretion

   19. Each of the parties made written submissions which were supplemented by oral submissions at the interlocutory hearing.

   20. In his written submissions, Mr Andrews referred to the ‘Australian Charter of Healthcare Rights – Informed Consent’ in support of his position. He submitted that informed consent by a patient is required before a practitioner may provide medical treatment. He submitted that the Tribunal should not exercise a discretionary power to direct an Applicant to attend an assessment, but rather the Tribunal should inform itself on the current available evidence and information before it.

   21. The Agency contends that the reports which are presently available do not adequately address the matters which the Tribunal must consider in its review. The Agency submits that:

   ·there is no medical evidence provided by Mr Andrews which establishes that his obesity is an impairment for the purposes of s 24(1)(a) of the NDIA Act;

   ·there is no specialist evidence about bariatric or other weight loss interventions;

   ·the report by an occupational therapist, Ms McCoy, is almost 4 years old and is a pro forma document which is insufficient to provide satisfactory evidence about loss of functional capacity as it does not contain comprehensive analysis and reason;

   ·assessments and reports from a bariatric surgeon in relation to the claim for impairment from obesity and a current assessment and report from an occupational therapist are relevant and will assist the Tribunal to determine the correct or preferable decision regarding Mr Andrews’ eligibility to access the scheme;

   ·undertaking these assessments will not impose an onerous burden or prejudice to Mr Andrews and there is no evidence of any specific risk of harm should he participate in the assessments;

   ·the Agency will pay the costs of the assessments and the reports;

   ·the assessments can be facilitated by video conference if the COVID 19 pandemic restrictions necessitate it;

   ·     Mr Andrews’ refusal to participate in assessments is not consistent with his obligation to use his best endeavours to assist the Tribunal;

   ·     the assessments can proceed swiftly.

   22. The Applicant has indicated, in a Hearing Certificate filed with the Tribunal, that his proposed witnesses are general practitioner Dr Kristen Gibbes, orthopaedic surgeon Dr Marchalleck, bariatric surgeon Dr Caska and clinical psychologist Dr De Toffol.

   23. The medical and allied health evidence includes:

   ·Three reports by Dr Gibbes dated 4 July 2016, 21 April 2021 and 24 June 2021. Dr Gibbes is Mr Andrews’ general medical practitioner who is well acquainted with him having been his GP for several years. In the report dated 21 April 2021, Dr Gibbes refers to Mr Andrews’ conditions as having deteriorated substantially since the previous report written in July 2016.

   ·A report by Ms Gay, psychologist, dated 1 May 2016, together with a report from Dr De Toffol, clinical psychologist, dated 10 June 2016.

   ·A report by Ms McCoy, occupational therapist, dated 25 October 2017.

   ·A report by Dr Touma, a cardiology advanced trainee, dated 6 November 2017.

   24. Mr Andrews confirmed at the interlocutory hearing that neither Dr Marchalleck nor Dr Caska have provided written reports or summaries of evidence in support of Mr Andrews in his application before the Tribunal. They are specialists and Mr Andrews indicated they will provide expert opinion evidence.

   25. The Tribunal places importance upon the fact that Mr Andrews has not been previously subjected to examinations at the request of the Agency. Mr Andrews has not submitted that harm would be caused to him by the assessments. There is no evidence that he would suffer a potential detriment which would outweigh the evidentiary benefit in obtaining the reports.

   26. In that context the question of potential delay also arises. The Agency submits that the assessments can be arranged without undue delay with provision for the possibility of assessments by videoconferencing. Mr Andrews considers that the progress with his application has been unduly slow in any event.

   27. In relation to the proposed bariatric report, the Agency contends that it will assist in relation to evidence about obesity with particular emphasis on interventions for losing weight, dietary interventions, and remedies. The evidence which Mr Andrews has provided comprises reports from his general medical practitioner, Dr Gibbes, whom he describes as having, in effect, specialist expertise.

   28. The report by occupational therapist Ms McCoy dated 25 October 2017 provides the results of an assessment with a focus on the criteria in s 24(1)(c) of the NDIS Act. It is important evidence which will assist the Tribunal in conjunction with consideration of all the other evidence. It is a report which follows a prescribed format. Nonetheless the assertion by the Agency’s solicitor that the report does not include a comprehensive analysis or reasoning is reasonable. The format of the pro forma document does not lend itself to comprehensive analysis and the absence of that type of reasoning is not a criticism of the substance or the style of the report. It is a report which was compiled in that way for the particular purpose at that time. In the present circumstances, however, it is appropriate that consideration be given to evidentiary assistance which could be derived from a comprehensive, contemporaneous assessment by an occupational therapist which addresses the issues which the Tribunal must consider.

   29. Taken together, the Agency’s submission postulates the possibility that assessments by a bariatric surgeon and an occupational therapist may assist to narrow and possibly resolve one or more of the issues which are presently in contention.

   30. There is a compelling need to acknowledge the personal concerns which an applicant expresses about participation in an independent assessment by a medical practitioner or allied health practitioner. Mr Andrews has expressed his concern by reference to external criteria and although they do not coincide precisely with his circumstances, his concern can be taken as one that is genuine about his rights and well-being.

   31. Mr Andrews refers, in his written submission, to the importance of healthcare services and treatment meeting the needs of the patient in accordance with requirements for informed consent. The proposed assessments by a bariatric surgeon and an occupational therapist are in fact assessments, not treatment. They will be supplemented by written reports which will be available both to Mr Andrews and the Tribunal as part of the evidentiary material in the review. Mr Andrews will have the opportunity to ask questions and to make submissions about those reports and about the conduct of the assessments.

   32. The request which the Agency makes in this case must be one which is carefully considered and made properly in the expectation of enhancing the mechanisms for review of Mr Andrews’ application. In the absence of an Agency Operational Guideline about requests for assessments in the context of access requests to the scheme, the Tribunal in Liddle made the following observations (per Deputy President Constance):

   “... The Planning Operational Guideline at [8.3], insofar as it relates to the making of requests for assessments in preparing and approving participants plans, is indicative of the approach which should be adopted:

   ‘...The NDIA will only request further information or require a participant to undergo an assessment or examination where it is reasonably necessary to prepare, or decide whether to approve a statement of participant supports... Also, before requesting further information or requiring that a participant undergo an assessment or examination, the NDIA will review existing information. Where existing information is inadequate or inconsistent, for example where older assessments do not accurately reflect the participant’s current support needs, the NDIA will consider making one of the requests outlined above.

   The power to request information or to require a participant to undergo an assessment or examination must be exercised carefully and in accordance with the objects and general principles in the NDIS Act...’ “[20]

   33. In adopting that approach in relation to Mr Andrews’ request for access to the scheme and noting the stage which the proceedings have reached, the Tribunal is particularly mindful of the necessity to exercise its discretion carefully and in a way which is reasonable and proportionate. The Tribunal is persuaded that considerations which are relevant include the fact that Mr Andrews has not been subjected to previous physical examinations which have led to adequate evidence upon which the Tribunal can decide. The Tribunal is not persuaded that the potential detriment to Mr Andrews by the proposed examinations are likely to outweigh the forensic benefits in obtaining the reports.

   34. The need for procedural fairness weighs in favour of the Agency’s request. In MDCT, it was stated:

   “we accept that it will not be every case in which it is proper to exercise the available discretion to compel an applicant to participate in an evidence-gathering process. However, in circumstances where one party has had the opportunity to provide evidence that another party appropriately wishes to test, gathering further evidence of the same nature may provide assistance to the Tribunal, and is therefore justified.”

   35. The Tribunal considers that the probative value of obtaining the reports from the assessments should assist the Tribunal in its review to determine the correct or preferable decision in the review. Application of the principles in MDCT leads to the conclusion that the Agency’s request for assessments and reports are reasonable and proportionate to the circumstances of the case. Mr Andrews refusal to agree to the request is not reasonable and consistent with his obligation to assist the Tribunal to fulfil its objectives.

   36. The Tribunal considers that the Agency should be permitted to arrange assessments of the Applicant by a bariatric surgeon and by an occupational therapist.

   [20] At [24]

   CONSIDERATION

1. Those excerpts from the previous decision illustrate the way in which the Tribunal had applied an interpretation of s 33 of the AAT Act in accordance with the decision of the three-member Tribunal in MDCT. They also provide detail about the issues which had arisen regarding the medical and allied health evidence. As stated previously, however, the subsequent decision in LPSP negates the basis for the Tribunal’s directions that Mr Andrews attend assessments by a bariatric surgeon and by an occupational therapist. Although those directions have now been set aside, that is not the end of the matter.

2. Counsel for the Agency submitted that the Tribunal should exercise its discretion to direct a stay of the proceedings until Mr Andrews voluntarily attends the assessments. In LPSP, the Federal Court left open the prospect of a stay of the proceedings until the applicant voluntarily attended a psychiatric assessment arranged by the Minister. Although it was not the question before the court, Bromberg J referred to the Tribunal’s obligation to afford procedural fairness to the parties, commenting that:

   The Tribunal may have a power under s 33 to direct that a proceeding be stayed until the applicant voluntarily submits to a medical examination, if doing so is an appropriate means of ensuring procedural fairness between the parties.[21]

   [21] [2021] FCA 1563 at [22]

3. In LPSP, Bromberg J referred to other means that might also be available to the Tribunal to ensure that justice between the parties is achieved in those circumstances, noting that:

   the Tribunal could determine not to receive the second report unless the applicant voluntarily attends the medical examination. Alternatively, it could afford the second report less weight on the basis that it had not been tested by opposing opinion. Whichever of these available means is best utilised to achieve justice between the parties is a matter for the Tribunal. The point here sought to be made is that despite not having a power to direct a party to attend a medical examination, the Tribunal is not denied the capacity to provide procedural fairness.[22]

   [22] Ibid at [24]

4. Mr Andrews contended that the Agency is not entitled to procedural fairness. His submission was expressed in this way:[23]

   The Tribunal is not bound by the rules of evidence under s33 of the AAT Act. Procedural fairness is a rule of evidence; therefore, effectively the very section of the Act the Respondent seeks relief, that being s33 of the AAT Act denies the Respondent the right to procedural fairness.

   [23] Applicant’s submissions in reply, paragraph 32(b)

5. Counsel for the Agency submitted that a respondent is entitled on a merits review to gather evidence which enables it to test an applicant’s claims. Central to this submission is that procedural fairness would be denied if the Agency is prevented from obtaining relevant evidence. A denial of procedural fairness would therefore hinder the Tribunal in conducting the review process and meeting its statutory objectives.

6. In Minister for Immigration & Multicultural Affairs v SZFDE[24] the Federal Court (per French J) commented on the importance of procedural fairness in this way:

   Procedural fairness lies at the heart of administrative justice. It is a long-standing requirement of the common law and reflects, in this country as in other common law jurisdictions, ordinary concepts of justice. It is often regarded as an implication, albeit judge-made, in the grant of statutory power to make decisions affecting the interests of individuals, unless excluded expressly or by contrary implication. Where the requirement applies its breach can amount to jurisdictional error.

   [24] [2006] FCAFC 142 at [76]

7. In support of his contention that the Agency is not entitled to procedural fairness in these proceedings Mr Andrews, in his oral submissions, referred to a journal article by Ms K Stern.[25] However, his interpretation misconstrues the contextual focus of the article, which discusses procedural fairness in administrative decision-making. The article does not state or infer that only parties subject to an original decision are to be afforded procedural fairness. Such a proposition, if it were accepted, would raise considerations about bias by the Tribunal. As the Tribunal is in the position of decision-maker it follows that both applicants and respondents alike are properly entitled to the same degree of procedural fairness in proceedings.

   [25] Procedural fairness -its scope and practical application, Kristina Stern, October 2007

8. It is important to be clear about the administrative function of the Tribunal which the Federal Court explained in Drake v Minister for Immigration and Ethnic Affairs (per Bowen CJ and Deane J):[26]

   the question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

   [26] (1979) 24 ALR 577 at 591

9. Section 43(1) of the AAT Act describes the Tribunal’s function in reviewing a decision and its scope:

   For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...

10. The then president of the Tribunal, Davies J, in Re Control Investments Pty Limited and Australian Broadcasting Tribunal stated that this provision is:

    not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.[27]

    [27] [1981] AATA 11

11. In relation to s 33 of the AAT Act the Tribunal may inform itself on any matter in such manner as it thinks appropriate and, as Davies J stated:

    The Tribunal has a wide jurisdiction and a course of action which may appear appropriate in one case may not be appropriate in another. The Tribunal is directed to proceed with as little formality and technicality and with as much expedition as a proper consideration of the matter before the Tribunal permits. The manner in which a particular review proceeds must depend upon particular circumstances of that review.[28]

    [28] As above

12. The Tribunal does not agree with Mr Andrews’ submission. Procedural fairness is not narrowly restricted to a rule of evidence. Section 33(1)(c) of the AAT Act provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. The statutory freedom from being bound by the rules of evidence empowers the Tribunal, rather than restricts it, to assist itself in the conduct of proceedings, to ultimately make the “correct or preferable decision”.[29]

    [29] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 (per Bowen CJ and Deane J)

    Balancing considerations

13. In 12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation the Tribunal pointed out that consideration of the exercise of the Tribunal’s discretion to order a stay must have regard to:

    a. the dictates of s2A of the AAT Act, and to the prima facie right of the applicants to have their review applications heard in the ordinary course…[30]

    [30] [2017] AATA 1091

14. The Tribunal in that case added that, on occasions, case management directions short of making a stay could be sufficient. Together with other reasons why the decision of the Tribunal in the circumstances of the case should be given earlier rather than later, the Tribunal concluded that “the interests of justice” did not require the grant of the stay which the Commissioner requested.

15. In considering whether the Tribunal should exercise its power to stay a proceeding, Deputy President Forgie commented in Luck that the power to stay a proceeding is:

    an exceptional power and should only be exercised in exceptional circumstances.[31]

    [31] [2010] AATA 6 at [51]

16. McMahon v Gould is a decision of the Supreme Court of New South Wales, in which Wooten J discussed the discretion which a court has to stay its proceedings and identified a series of matters to be considered if a stay of civil proceedings should be granted when criminal proceedings were pending. They include:

    (a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd. at p. 19);

    (b)It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid.);

    (c)The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with (Jefferson Ltd. v Bhetcha at p. 905);

    (d)Neither an accused (ibid.) nor the Crown (Rochfort v John Fairfax & Sons Ltd. at p. 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

    (e)The Court’s task is one of “the balancing of justice between the parties” (Jefferson Ltd. v Bhetcha at p. 904), taking account of all relevant factors (ibid. p. 905);

    (f)Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid. p. 905);…[32]

    [32] (1982) 7 ACLR 202

17. The principles concerning the discretion to order a stay can be ascertained from the decisions of courts and tribunals as summarised above. In this review the Tribunal proceeds on the basis that granting a stay would be an exceptional exercise of power which can only be justified if the circumstances are sufficiently unique and compelling to justify it.

18. Adopting the words of Wooten J in McMahon, Mr Andrews would have a reasonable expectation that a review should be carried out “in the ordinary course of the procedure and business” of the Tribunal and it would be “a grave matter to interfere with this entitlement by a stay of proceedings.” There must be proper grounds for a stay. Consideration must be given to case management directions short of a stay that might be sufficient to address the challenges. The circumstances of each case will be different, and each case must be assessed on its own particular merits. The effects on both parties must be carefully considered in weighing up the competing considerations for or against ordering a stay. It is imperative that the review is carried out in pursuit of the Tribunal’s objective in the provision of its mechanism of review in accordance with s 2A of the AAT Act.[33]

    [33] See paragraph 17 of these Reasons for Decision

19. Mr Andrews contended that the Tribunal will not derive any assistance from evidence arising out of the independent assessments. Mr Andrews submitted that the Agency “has never submitted any evidence or any intelligible causal connection to define how the medical assessments would assist the tribunal.”[34]

    [34] Applicant’s written submissions, 11 March 2022, paragraph 30

20. In relation to this submission, it is important to understand the scope of this review and the responsibility which the Tribunal has in the conduct of it. The review must be both comprehensive and precise in the analysis of the criteria for disability requirements pursuant to s 24 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) and the early intervention requirements pursuant to s 25 of the NDIS Act. The requirements are extensive. The evidence needs to cover a wide span, from the attribution of disability, to the permanency of impairment, the reduction of functional capacity in one or more of six broadly described activities of daily living, and the effects of impairment on a person’s social and economic participation. With all those matters considered, there remains a further question, namely whether the support which is required is likely to be lifetime support and whether it is support that is required under the NDIS.

21. In Mulligan v NDIA, the Federal Court (per Mortimer J) emphasised the importance of a thorough functional assessment:

    the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.[35]

    [35] [2015] FCA 544 at [56]

22. It is necessary therefore to understand the scope of the task which the decision-maker has in deciding whether the criteria for access to the NDIS are met.

23. The criteria for the disability requirements to become a participant in the NDIS are set out in s 24 of the NDIS Act, which provides that:

    (1) A person meets the disability requirements if:

    (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or to one or more impairments attributable to a psychiatric condition; and

    (b)the impairment or impairments are, or are likely to be, permanent; and

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    i.communication;

    ii.social interaction;

    iii.learning;

    iv.mobility;

    v.self-care;

    vi.self-management; and

    (d)the impairment or impairments affect the person's capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

    (2) For the purposes of subs (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

24. Section 25(1) of the NDIS Act provides that a person meets the early intervention requirements if:

    (a)  the person:

    (i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)is a child who has developmental delay; and

    (b)  the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

    (c)   the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

    Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

25. Section 25(3) provides that even if a person meets the requirements in s 25(1), he or she will not meet the early intervention requirements if:

    the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme and is more appropriately funded or provided through other general systems of service delivery or support service.

26. The provision of supporting or expert evidence in the process of assessment is central to the review. In many cases that supporting evidence will comprise medical reports and allied health reports about the applicant’s disability, the permanency or likelihood of permanency in an impairment and the effects on the applicant’s functional capacity and ability to participate in the community. Such evidence is crucial in many respects. It is central to the question of permanency and to the subsequent question of a reduction, which must be substantial, in functional capacity. Mortimer J stated in Mulligan:

    Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence.[36]

    [36] Mulligan v NDIA [2015] FCA 544 at [55]

27. In relation to the permanency of impairments, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Rules) set out the following matters which must guide the decision-maker:

    5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known available, and appropriate evidence-based clinical, medical or other treatments, that would be likely to remedy the impairment.

    5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

    5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition

28. Permanency is in issue in this review. The evidence about osteoarthritis and obesity is critical to the findings that will have to be made about the permanency of the impairment and the relationship if any between the condition of osteoarthritis and the condition, or impairment, to obesity. Evidence from a bariatric surgeon could assist the Tribunal in this part of the review. The importance of this type of evidence in similar factual situations has been noted by the Tribunal in other reviews. For example, in Schwass & NDIA,[37] Deputy President Humphreys considered whether the applicant’s osteoarthritis and obesity are impairments for the purposes of s 24(1)(a) of the NDIS Act. In disagreement with the Tribunal in an earlier case, Deputy President Humphreys stated:

    If it is accepted, then, that impairment generally implies a loss of, or damage to, a physical, sensory or mental function, how is morbid obesity to be assessed in this context? There is no evidence that a diagnosis of morbid obesity necessarily entails a loss of, or damage to, a physical, sensory or mental function. Such a diagnosis is made when an individual’s weight falls within a particular range. This of itself is not reflective of any loss of or damage to the body’s function; it is simply a term that is used to describe a particular state of the body, a state which may be temporary. Morbid obesity could itself be a symptom of an impairment, but there is no evidence in Mr Schwass’s case that his obesity is caused by some other condition which might be described as an impairment. The obesity results in a disability within paragraph (a), but is not itself an impairment, nor is it caused by an impairment.[38]

    [37] [2019] AATA 28

    [38] At [37]

1. It is reasonable to anticipate that a bariatric surgeon who has experience in assessing and treating a person with obesity, osteoarthritis and other comorbidities may provide important evidence about the conditions and their association with other conditions. Medical evidence about those conditions, and possible treatment will be critical to the first parts of the review under s 24 (1)(a) and (b) of the NDIS Act. It is important that evidence of this kind should be current and relevant to Mr Andrews’ present circumstances with particular reference to his weight, his comorbidities and the interrelated questions about orthopaedic surgery and bariatric surgery. The reports presently available seem to suggest that medical investigations took place between 2015 and 2017. Correspondence in April 2020 or April 2021[39] from Mr Andrews’ general medical practitioner, Dr Gibbes, provides a glimpse of the results of some old investigations without providing evidence that would assist the Tribunal to make findings about permanency. It would be helpful and seemingly essential to have current, expert evidence about the advisability of surgery, problems and obstacles about surgery, together with evidence about other avenues for treatment, including allied health interventions.

   [39] The letter includes date as 21/04/2020 and also as 21/04/2021

2. Section 24(1)(c) of the NDIS Act requires consideration of evidence about the reduction in an applicant’s functional capacity, which must be substantial. In Mulligan, Mortimer J reiterated the importance of reviewing the Agency decision by reference to each of the factors set out in paragraph (c) and noted that a “detailed consideration of each factor”[40] is required by the statute. The Tribunal does not have detailed evidence before it in this review. The reports which Mr Andrews provided appear to fall considerably short of material that could be described as providing a “detailed consideration of each factor.”

   [40] Mulligan v NDIA [2015] FCA 544 at [57]

3. The criteria in s 24(1) of the NDIS Act (including s 24(1)(c)), read with Rule 5.8 of the NDIS Rules were described by the Federal Court (Mortimer J) in Mulligan as “key jurisdictional preconditions for participation in the NDIS.”[41] In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, the decision-maker must have regard to Rule 5.8 which provides that:

   5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

   (a)   the person is unable to participate effectively or completely in the NDIS Activity, or to perform tasks or actions required to undertake or participate effectively or completely in the NDIS Activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

   (b)   the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the NDIS Activity or to perform tasks or actions required to undertake or participate in the NDIS Activity; or

   (c)   the person is unable to participate in the NDIS Activity or to perform tasks or actions required to undertake or participate in the NDIS Activity, even with assistive technology, equipment, home modifications or assistance from another person.

   [41] Ibid at [57]

4. Rule 5.8 has a deeming effect which must be considered. It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity:

   If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.[42]

   [42] Ibid at [67]

5. The CEO of the NDIA has made an Operational Guideline for staff in exercising their functions under the NDIS Act. Unless there is good reason not to do so, the Operational Guideline represents government policy and should be applied by the Tribunal.[43] The Operational Guideline – Access to the NDIS includes details and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9). In s 8.3.1 of the Operational Guideline the following passage appears in relation to considering when an impairment results in substantially reduced functional capacity:

   By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bathmats, bathroom grab rails, stair rails, age-appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

   In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) using specialist disability aids and/or equipment.

   Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist, or speech therapist.

   When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.

   A person will be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

   When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.[44]

   [43] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634

   [44] Exhibit F, T12, Operational Guideline – Access to the NDIS, pp 98–99

6. Section 8.3 of the Operational Guideline provides a definition of the activities of daily living which are specified in s 24(1)(c)(i)–(vi) and about which evidence is required. Section 8.3[45] refers to:

   ·     communication: “includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age”

   ·     social interaction: “includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context”

   ·     learning: “includes understanding and remembering information, learning new things, practising, and using new skills”

   ·     mobility: “this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community, and performing other tasks requiring the use of limbs”

   ·     self-care: “means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs”

   ·     self-management: “means the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem-solving and managing finances”

   [45] T8 p 57

7. Mr Andrews’ submission to the effect that the requested medical and clinical assessments would not assist the Tribunal in its task is not correct. On the contrary, it is highly probable that evidence from the assessments would assist the Tribunal to assess whether Mr Andrews meets the disability requirements or the early intervention requirements. It can be expected that a thorough assessment by an occupational therapist would provide detailed information about the numerous functional considerations which must be assessed in accordance with the criteria in the NDIS Act, in the NDIS Rules and in the Operational Guideline, as set out above. The criteria are multi-faceted and intricate. They must be addressed by evidence about an applicant’s current circumstances. Typically, the evidence about disability and impairment is, by necessity and not surprisingly, both historical and contemporaneous. The evidence about functional capacity and its effects will be cogent if it has a predominant and thorough focus on an applicant’s present difficulties with activities of day to day living and problems participating in the community.

8. Clearly, as Mortimer J emphasised in Mulligan:

   The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.[46]

   [46] Mulligan v NDIA [2015] FCA 544 at [55]

9. It is customary for an assessment by an occupational therapist to be functional and focused. It would normally involve a comprehensive, professional assessment and report in relation to each one of the various criteria which must be addressed. Typically, it would include an assessment about the applicant’s level of function in each one of the specified daily activities. It would be expected that findings would include an applicant’s self-assessment together with the occupational therapist’s analysis and explanation of each capability and the level and type of assistance that an applicant might require, both at home and in the community. The assessment would generally include indicative testing of cognitive capacity, together with assessment and analysis of measures of a person’s independence and areas of dependency. Mobility devices, equipment and home modifications are but a few of the practical matters that an occupational therapy assessment would address, with recommendations, in relation to the type and level of assistance that an individual seeks and may require.

10. Counsel for the Agency submitted that it is a matter of procedural fairness for the Agency to be able to gather evidence through independent assessments. The evidence from the independent assessments enables the Agency to assess an applicant’s claims together with the supporting evidence which the applicant has provided. The evidence would assist in narrowing outstanding issues, clarifying them, or even resolving them. It should not be overlooked that the clarification may assist an applicant’s case.

11. In addition, it is submitted that the Tribunal would derive assistance from the reports from the independent assessments. This is an important factor when considering the adequacy of the material currently before the Tribunal. That material which Mr Andrews has submitted includes relevantly:

    ·     a quote dated 12 December 2014 for “Canadian Crutches” costed at $176 with a delivery fee of $15

    ·     a one-page letter to Mr Andrews’ general medical practitioner from a psychologist, Ms Kelly Gay, on 1 May 2016, following six sessions of counselling for management of Mr Andrews’ “mental state”. This letter is slightly more than six years old

    ·     a two-page letter to Centrelink from a clinical psychologist, Dr Esthel De Toffol, dated 10 June 2016 in support of Mr Andrews’ application for a disability support pension regarding the management of Mr Andrews’ “depression and chronic pain’. This letter is almost six years old

    ·     a letter of one page and three paragraphs to Centrelink from Mr Andrews’ general medical practitioner, Dr Kristen Gibbes, dated 4 July 2016, in support of his application for the disability support pension with brief reference in summary form to diagnoses of morbid obesity, osteoarthritis, type 2 diabetes, depression, planter fasciitis right foot and hypertension. This letter is almost six years old

    · a four-page pro forma document to the Agency compiled by an occupational therapist from NSW Health, Ms Shirley McCoy, dated 25 October 2017, which addresses only in summary form the criteria regarding functional capacity in s 24(1)(c) of the NDIS Act. This report is from more than four-and-a-half years ago

    ·     a one paragraph letter comprising nine lines to Housing NSW from a cardiology advanced trainee with NSW Central Coast Local Health District, Dr Ferris Touma, dated 6 November 2017, in support of a request apparently for funding for fencing a courtyard at Mr Andrews’ home to provide security for “a number of machines” which are possibly types of exercise machines. This letter is over four years old

    ·     a sickness certificate written by Dr Kristen Gibbes, dated 15 February 2018, confirming that Mr Andrews was unwell with pneumonia between 12 January 2018 and 15 February 2018

    ·     a two-page letter to the Agency from Dr Kristen Gibbes, double dated 21 April 2020 and 21 April 2021, in support of his NDIS application. This letter is written in response to the Agency’s request for further information regarding Mr Andrews’ impairments and treatment

    ·     a one-page letter (10 lines) from Dr Kristen Gibbes dated 24 June 2021, in which she comments that Mr Andrews’ disability, osteoarthritis, is permanent and stable

    ·     a one-page letter to the Agency from Mr Andrews, regarding self-assessment details together with a self-assessment functional impact, dated 30 July 2020, signed by Mr Andrews with the notation “Cited (sic) by treating Doctor (stamp)”.

12. This evidence is not adequate to enable the Tribunal to undertake its review. In the High Court decision in Bushell v Repatriation Commission,[47] concerning a review of a decision of the Veterans’ Review Board by the Administrative Appeals Tribunal, Brennan J commented upon the dilemma for the Tribunal when it is presented with inadequate evidence:

    Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.[48]

    [47] (1992) 175 CLR 408,424–425

    [48] Referring to the Repatriation Commission and a Veterans’ Review Board

13. The Tribunal, in applying LPSP, does not have power to direct Mr Andrews to attend the independent assessments. However, there can be little doubt that the reports from those assessments would provide evidence which would throw extra light on the issues. Unlike the bulk of the medical and allied health material presently before the Tribunal, the independent assessments and reports would provide contemporaneous material with the likelihood that the reports would focus on the numerous and important criteria which the Tribunal must consider in its review. Those criteria must be assessed carefully in the clarification of issues that are presently in contention. Those issues are critical to the review. As explained previously, they concern the permanency of impairments (s 24(1)(b)) in relation to which an assessment by a bariatric surgeon is likely to provide relevant and cogent evidence. Secondly, they relate to the issue of reduction of functional capacity (s 24(1)(C)). In that regard the proposed assessment by an occupational therapist is likely to provide significant evidence about the impact of the impairments on Mr Andrews’ functional capacity.

14. There will also be evidentiary issues in relation to s 24(1)(d) (social or economic participation) and s 24(1)(e) (lifetime support under the NDIS) which will need consideration. However, the key questions that independent assessments would address are the criteria in ss 24(1)(b) and (c) of the NDIS Act, and the criteria summarised above in the NDIS Rules and in the Operational Guideline.

15. The Tribunal determined at the previous directions hearing that the request for the assessments was reasonable and proportionate. Nothing has changed in that regard. The Tribunal considers that the requests continue to be reasonable and proportionate. They are requests for assessments which, if necessary, do not need to take place in person, in Mr Andrews’ home. They can take place by video conferencing, although the assessment by an occupational therapist would in all probability be undertaken most effectively in person at home.

16. It was submitted on behalf of the Agency that Mr Andrews has a statutory obligation to assist the Tribunal and, as he has not provided a basis for refusal to cooperate, his refusal is unreasonable. In support of that submission, it is said that Mr Andrews has not suggested that harm or prejudice would occur in his participation in the independent assessments. At the previous directions hearing Mr Andrews did not suggest that he would suffer harm or prejudice. He has not changed that position and he has not asserted that he would suffer a detriment which outweighs the evidentiary benefit of obtaining the reports. The point which he has made previously is that a direction which requires his participation in the assessments is contrary to the Australian Charter of Healthcare Rights – Informed Consent. The Tribunal commented on that proposition in the written reasons provided at the previous directions hearing, as quoted earlier.

17. In LPSP, Bromberg J referred to the decision of the Court of Appeal of Queensland in Nursing and Midwifery Board of Australia v HSK,[49] which concerned the power which the Queensland Civil and Administrative Tribunal has to give directions for a party to undergo a medical assessment with a psychiatrist. That power is analogous to the power under s 33 of the AAT Act. The Court stated:

    [31] Dismissal of a proceeding for non-compliance with a direction involves the exercise of a power necessary for the speedy and fair conduct of the proceeding. Staying a proceeding until compliance with a direction similarly involves the exercise of a power in that context. Such directions are classically procedural in nature. They may be contrasted against a direction compelling the involuntary attendance of a registered practitioner for a health assessment. Compliance with that type of direction involves an interference with the liberty of an individual litigant.

    [32] A power to compel an interference with the liberty of an individual litigant is not generally considered a direction necessary for the speedy and fair conduct of a proceeding. Other directions, procedural in nature, can address what is necessary for the speedy and fair conduct of a proceeding. For example, if a registered practitioner refused to voluntarily consent to a further health assessment, procedural directions could include staying the proceeding until the registered practitioner voluntarily attended upon a health assessment.

    [33] As Widgery LJ observed in Edmeades v Thames Board Mills Ltd:

    “I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants.”¹⁰

    [49] [2019] QCA 144

1. In the exercise of its discretion, the Tribunal considers that a stay of the proceeding until Mr Andrews voluntarily submits to an assessment by a bariatric surgeon and an assessment by an occupational therapist is appropriate. In this way, there will be procedural fairness between the parties. In addition, the results of the assessments will enable the Tribunal to undertake the review with the high degree of precision which is required by the provisions of the NDIS Act, the NDIS Rules and Operational Guideline. In view of the paucity of the medical and allied health evidence which has been provided to the Tribunal, the requisite degree of precision cannot be achieved. It is not sufficiently contemporaneous, and it is largely insufficient to enable the Tribunal to address the range of legislative and operational criteria.

2. Mr Andrews submitted that a stay of the Tribunal’s own proceedings is incompatible with the requirements of s 2A of the AAT Act.[50] Insofar as it relates to the objective of a mechanism of review that is quick, the order of a stay of the Tribunal’s own proceedings might lead to an inference that the review is not proceeding quickly. However, the duration of stay will be largely influenced by the length of time that Mr Andrews takes in deciding whether to participate in the assessments. His submission appears to include a proposition that the Agency and its solicitors have acted unreasonably, and their conduct has “severely protracted” the proceedings. The Tribunal does not accept that proposition.

   [50] Applicant’s submissions in reply, paragraph 17

3. Although the case management was not straightforward, progress towards a hearing on the substantive application was occurring and by the time each party had filed their statements of facts, issues and contentions, it was anticipated that fixing a suitable hearing date would be the next step. Of the various directions made by the Tribunal, previously constituted, there was only one request for a direction that remained outstanding. It was a direction which the Agency sought for Mr Andrews to provide further evidence that he intended to rely on.[51] However, other contested interlocutory issues intervened. Those interlocutory matters included a request by Mr Andrews for a summons to be issued to the Chief Executive Officer of the Agency to attend all hearings current and future until a final decision is made by the Tribunal, a request by Mr Andrews to set aside five summonses which were sought by the Agency, and an application which Mr Andrews made for recusal of the Tribunal member presently constituted to the review. Each of those interlocutory matters has been considered and directions made, together with reasons for those directions. While all of those matters necessarily have taken time, they have not diverted the attention of the Tribunal from the need to ensure that it meets its objective in s 2A of the AAT Act.

   [51] Tribunal direction 1 dated 1 July 2021, Tribunal direction 1 dated 19 July 2021

4. It has now transpired that the one procedural matter that was outstanding is no longer outstanding. Mr Andrews had consistently indicated that two of his expert witnesses would be an orthopaedic surgeon, Dr Marchalleck, and a bariatric surgeon, Dr Caska. They had not provided written reports. They are specialists whom Mr Andrews had indicated would provide concurrent evidence. The Agency had sought a direction that a written outline of their evidence be provided, and the Tribunal had held that matter over for further consideration.

5. This issue took on a different complexion at the last directions hearing, however, when Mr Andrews changed course by indicating that he was no longer proposing to call Dr Marchalleck and Dr Caska. He provided that indication following the Tribunal’s direction, delivered orally, setting aside the directions that he attend the independent assessments. The strategy and tactics which parties engage are primarily matters for them. The likely consequence, however, of Mr Andrews’ latest decision not to call evidence from Dr Marchalleck and Dr Caska is that expert evidence that was foreshadowed and might have thrown extra light on the issues is no longer forthcoming. This confirms that the state of the evidence now is as deficient as it was when the Tribunal ordered the independent assessments. It confirms also that the need for independent assessments is even more pressing.

6. Mr Andrews also submitted that the Minister who has responsibility for the NDIS “announced that all voluntary assessments ceased effective 31 May 2021”.[52] The Tribunal takes this to be a reference to external discussions which were widely publicised and debated about possible changes to the assessment processes regarding eligibility for participation in the NDIS. Those discussions are not relevant to the current review as they were, and potentially continue to be, matters in the political realm. If those discussions or any other discussions had led to amendments to the legislation, the NDIS Rules, or the Operational Guideline the Tribunal would have been empowered and required to consider those amendments. However, that is not presently the case. It is understood, nonetheless, that the underlying point in this part of Mr Andrews’ submission relates to his concern, and concerns which others have expressed, about third party assessments.

   [52] Applicant’s submissions in reply, para 25

7. The Tribunal considers that the circumstances which have led to the request for a stay are exceptional. They are unique to this case. They are sufficiently exceptional to warrant a stay of the proceedings until such time as Mr Andrews agrees to participate in independent assessments with a bariatric surgeon and an occupational therapist. The parties will be given liberty to apply so that a further directions hearing can be convened at short notice to consider requests, if any, for orders arising out of or related to this decision.

8. In his written submission[53] regarding the stay, Mr Andrews also sought orders as follows:

   that the respondent be “cautioned” for non-compliance with the model litigant policy and directions be made for the respondent to cease from deliberately causing delay on a point of technicalities in the proceedings.

   that the applicant’s request to issue a summons to the Chief Executive Officer of the NDIA be reinstated and that the CEO attend the hearing.

   [53] Applicant’s submissions in reply

9. There is no basis for making those orders. The Tribunal does not consider that the Agency’s solicitors have caused or contributed to delay. Mr Andrews’ request for a summons to be issued to the Agency’s CEO was first made some time ago. The Tribunal declined the request in its decision made and provided in writing on 28 September 2021. Nothing of relevance has been brought to the Tribunal’s attention to indicate that the Tribunal should accede to a “reinstated” request to issue the summons. Other orders which Mr Andrews requested are negated by the order for the stay of proceedings.

   DECISION

10. The Tribunal decides that:

    (a) the application for a stay be granted.

    (a) the proceedings not be listed for final hearing unless the applicant voluntarily attends appointments in person or via videoconference in accordance with prevailing COVID-19 restrictions with a bariatric surgeon and with an occupational therapist for the purpose of independent assessments; and

    (c) the parties have liberty to apply on three days’ notice.

    -----------------------------------------------------------------

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

 …………[Sgnd]………………

 Legal Associate

 Dated: 9 June 2022

Date of hearing:	31 March 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr John Bird, Counsel