Andrews and National Disability Insurance Agency - [2021] AATA 5289

Andrews and National Disability Insurance Agency [2021] AATA 5289 (28 September 2021)
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:28 September 2021
Place:Adelaide

The Tribunal decides:
1.The Applicant is to attend appointments in person or via video conference with a bariatric surgeon and an occupational therapist for the purpose of independent assessments.
2.The Applicant’s request to issue a summons to the Chief Executive Officer of the National Disability Insurance Agency is declined.
3.The Applicant’s request to set aside the summonses to produce documents sought by the Respondent is declined.

...........................[Sgnd].............................................
Member I Thompson
PRACTICE AND PROCEDURE- National Disability Insurance Scheme Act 2013 (Cth)- interlocutory application for direction that Applicant undergo medical assessment and occupational therapy assessment – consideration of the Tribunal’s power to compel the applicant to participate in the assessments under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) - Applicant to attend assessments - summonses – opposition to summons being issued – Applicant’s request to issue summons declined – Applicant’s request to set aside summonses to produce documents sought by the Respondent declined.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Hughes v The Queen (2017) 263 CLR 338
MDCT and National Disability Insurance Agency [2020] AATA 6036
Liddle & National Disability Insurance Agency [2018] AATA 5071
Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432
REASONS FOR DECISION
Member I Thompson
28 September 2021
INTRODUCTION

The Applicant, Mr John Andrews, made an unsuccessful access request to become a participant under the National Disability Insurance Scheme (‘NDIS’). He has applied to the Tribunal for a review of that decision.
In his application to the Tribunal, Mr Andrews asserts that his request for access to the NDIS should have been granted.
The Respondent, the National Disability Insurance Agency (the ‘Agency’) seeks a direction that Mr Andrews attend appointments with a bariatric surgeon and an occupational therapist for the purpose of independent assessments and provision of reports. Mr Andrews contends that the direction should not be made.
Directions were sought with regard to other prehearing matters including the issuing of summonses and provision of outlines of evidence.
The matter was listed for an interlocutory hearing before the Tribunal on 10 September 2021 at which Mr Andrews was self-represented and the Agency was represented by Counsel, Mr Bird. The parties attended by telephone. Each party provided written submissions beforehand. A set of Tribunal (‘T’) documents, prepared by the Agency, were also before the Tribunal.
Background
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.”[1]
[1] T1, p 3.
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.
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.
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
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.
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.
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[2] 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.
[2] (2017) 263 CLR 338.
Legal principles
In MDCT and National Disability Insurance Agency[3] 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:
“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.”[4]
[3] [2020] AATA 6036.
[4] Ibid at [10].
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.
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 or not the prospective participant meets the access criteria; or
(b) make one or more requests under subsection 26(1).
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 or not 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.
In Liddle & National Disability Insurance Agency[5], Deputy President Constance considered the requirements for access to the scheme and noted:
“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.”[6]
[5] [2018] AATA 5071.
[6] Ibid, at [16]-[17].
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.”[7]
[7] [2020] AATA 6036 at [12].
Exercise of discretion
Each of the parties made written submissions which were supplemented by oral submissions at the interlocutory hearing.
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.
The Agency contends that the reports which are presently available do not adequately address the matters which the Tribunal must consider in its review. In particular 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.
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.
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.
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.
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.
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.
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.
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.
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.
There is a compelling need to acknowledge the personal concerns which an applicant expresses with regard to 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.
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.
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…’ “[8]
[8] [2018] AATA 5071 at [24].
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 make a decision. 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.

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 and 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.”[9]
[9] [2020] AATA 6036 at [19]
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.
The Tribunal considers that the Agency should be permitted to arrange assessments of the Applicant by a bariatric surgeon and by an occupational therapist.
SUMMONSES
Section 40A(1) of the AAT Act provides that the Tribunal has the power to summon a person to give evidence or produce documents:
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
The applicable principles are set out in numerous decisions of the Tribunal and the courts. The power which is conferred by s 40A is a discretionary power. The summons must have a legitimate forensic purpose in relation to the issues in the proceedings. There must be an apparent relevance to the issues in the substantive matter.
(a) Request by Mr Andrews to issue a summons
Mr Andrews requested that the Tribunal issue a summons to Mr Martin Hoffman, Chief Executive Officer of the National Disability Insurance Agency, to attend “all hearings current and future until a final decision is made by the Tribunal.” Included in the written reasons for the request are a number of assertions that conduct of counsel for the Agency has delayed proceedings unnecessarily and has embarked upon a fishing expedition which will be cured by the attendance of the Agency’s CEO at directions hearings and the substantive hearing. He goes on to assert that the CEO holds crucial information which will assist the Tribunal in circumstances where counsel cannot.
Mr Andrews’ written reasons for the request were supplemented by his oral submissions at the interlocutory hearing. The Agency objects to the issuing of the summons. The objection was made by email to the Tribunal and supplemented by oral submissions.
The Tribunal is satisfied that the attendance of the Agency’s CEO will not assist in determining the issues in the substantive application. It would be unnecessary, impractical and oppressive to require the Agency CEO to attend. The Tribunal declines to issue the summons which Mr Andrews has requested.
(b) Requests by the Agency for summonses to produce documents
Five summonses have been issued at the request of the Agency for the production of documents in the possession, custody and control of the Woy Woy Family Practice, the North Avoca Holistic Well-being Centre, Talking Therapies Clinical Psychology, all the Central Coast Local Health District (Gosford Hospital), and Your Family Doctors at Erina.
Mr Andrews applied to set aside each one of the five summonses. He provided written submissions prior to the interlocutory hearing and verbal submissions at that hearing. Mr Andrews asserted that the way in which the request for the summonses was expressed was misleading as it did not acknowledge that the internal review decision was a deemed decision. Mr Andrews is correct in highlighting that error, which was subsequently corrected by the Agency in an email dated 27 August 2021.
The courts have developed principles in relation to the setting aside of subpoenas. The authorities which establish those principles apply to the setting aside of summonses issued under the AAT Act. If an objection to a summons has merit, the Tribunal has the power to set aside the summons either wholly or in part. On the question of merit, Mr Andrews asserts that the Agency is seeking the reports on a fishing expedition.
The Tribunal considers that these summonses have a legitimate forensic purpose. They have relevance to the substantive issues and there is a real possibility that they may assist in the consideration of those issues. They “could reasonably be expected to throw light on some of the issues in the principal proceedings.”[10] There is a distinct likelihood that they will provide historical information which bears upon the evidence and illuminates it in relation to the existing evidentiary material about Mr Andrews’ impairments.
[10] Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432.
The Tribunal declines to exercise its discretion to set aside the summonses. The application to set aside each one of the summonses is dismissed.
EXPERT WITNESS STATEMENTS
The Agency seeks further directions that:
“On or before 15 October 2021, the Applicant is to provide a written outline of the evidence he intends to adduce from each witness he proposes to call at the final hearing of the matter”.
Mr Andrews confirmed at the directions hearing that he does not have reports or summaries of evidence by Dr Marchalleck and Dr Caska. They are specialists and Mr Andrews anticipates that they will provide concurrent, expert opinion evidence. They are not his treating doctors and he has not consulted them.
The Agency’s request that the written outline be provided by 15 October 2021 reflects an earlier stage in the pre-hearing processes with an anticipated hearing date which would be relatively soon thereafter. This request for a direction will be discussed further with the parties at the resumed directions hearing.
DIRECTIONS
The Tribunal makes the following directions:
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.
3.Pursuant to s 40A(2) of the AAT Act, the Applicant’s request to issue a summons to the Chief Executive Officer of the National Disability Insurance Agency for his attendance at all hearings in these proceedings, made on 30 August 2021, is declined.
4.The Applicant’s request to set aside the summonses to produce documents, dated 25 August 2021, is declined.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

………………[Sgnd]…………………

Administrative Assistant Legal

Dated: 28 September 2021

Date of hearing: 10 September 2021

Advocate for the Applicant: Self-represented

Advocate for the Respondent: John Bird, Counsel

Date of hearing:	10 September 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	John Bird, Counsel