Andrews and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Andrews for a stay of proceedings concerning his National Disability Insurance Scheme (NDIS) access request. The dispute arose when the National Disability Insurance Agency (NDIA) sought directions for Mr. Andrews to attend independent assessments with a bariatric surgeon and an occupational therapist, which Mr. Andrews opposed.

The primary legal issue before the Tribunal was whether it possessed the power to compel Mr. Andrews to attend these independent assessments and, if so, whether it should exercise that discretion. This involved considering the scope of the AAT's powers under section 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to inform itself and manage proceedings, as well as the provisions of the NDIS Act concerning access requests and the requirement for applicants to facilitate the provision of information. The Tribunal also had to balance the applicant's right to have their review heard in the ordinary course against the Agency's need for sufficient evidence to make a correct or preferable decision.

The Tribunal reasoned that section 33 of the AAT Act grants it broad powers to inform itself and manage proceedings, including directing parties to facilitate the provision of evidence, provided such requests are reasonable and proportionate. It applied the principles from previous decisions, such as *MDCT and National Disability Insurance Agency*, which established that an applicant has an obligation to accede to reasonable requests for information or evidence that assist in a fair and just review. The Tribunal found that the NDIA's request for assessments was reasonable and proportionate, given the existing evidence was insufficient to address key issues regarding Mr. Andrews' eligibility, particularly concerning his obesity and functional capacity. The Tribunal also noted that the proposed assessments were not treatment, that Mr. Andrews had not demonstrated they would cause harm, and that they could be conducted via videoconference if necessary.

The Tribunal ultimately granted the Agency's request and directed Mr. Andrews to attend the independent assessments with a bariatric surgeon and an occupational therapist. The Tribunal concluded that Mr. Andrews' refusal to participate was inconsistent with his obligation to assist the Tribunal and that the potential evidentiary benefit of the reports outweighed any detriment to him.