Australian Dual Diagnosis Recovery Network Inc and National Disability Insurance Agency

[2020] AATA 395

Australian Dual Diagnosis Recovery Network Inc and National Disability Insurance Agency [2020] AATA 395 (21 February 2020)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/0486

Re:Australian Dual Diagnosis Recovery Network Inc

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date of decision:                   21 February 2020

Date of written reasons:        4 March 2020

Place:Melbourne

The Tribunal is satisfied that the decision as described by Mr Frank Filardo, on behalf of the Applicant, is not reviewable by this Tribunal. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses this application.

[sgd]....................................................................

Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – Applicant is a registered provider under the National Disability Insurance Scheme Act 2013 – decision described as a refusal by the NDIA to make payments to the Applicant for the provision of specialist disability accommodation (SDA) to a NDIS participant at an enrolled dwelling – “Director” of the Applicant is the father of participant and also resides at the subject dwelling with two other members of their family – whether the Tribunal has jurisdiction to review the decision described by the Applicant – no internal review of a reviewable decision under s 99 identified – Tribunal does not have jurisdiction – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975, s 42A(4)
Associations Incorporation Reform Act 2012 (Vic)

National Disability Insurance Scheme Act 2013, s 99, 100, 103

REASONS FOR DECISION

Member K. Parker

4 March 2020

1. The Applicant, Australian Dual Diagnosis Recovery Network Inc (ADDRN) is an incorporated association under the Associations Incorporation Reform Act 2012 (Vic). Mr Frank Filardo who described himself as the “Director” of ADDRN, informed the Tribunal that ADDRN was a registered provider of supports under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and also registered to provide specialised disability accommodation (SDA) in Victoria as from 18 November 2017 at an enrolled dwelling located at [address omitted for privacy reasons] in Diamond Creek in Victoria (Dwelling). 

2. Mr Filardo is the father and appointed nominee of Mr Vincenzo Filardo (Vincenzo) who is a participant under the National Disability Insurance Scheme (NDIS).  Vincenzo resides at the Dwelling and has done so for many years.  Mr Filardo, his wife and their other son (Vincenzo’s brother), also reside at the property where the Dwelling is located. 

3. Vincenzo has sought funding under the NDIS for supports in the form of SDA to be provided to him by ADDRN.  The NDIA has made a decision about whether this support is a “reasonable and necessary” support under the NDIS Act. Vincenzo sought an internal review of this decision resulting in an internal review decision made by the NDIA on 28 August 2018. Vincenzo sought review of this internal review decision before the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (AAT) and it is listed for a hearing to take place from 3 to 5 March 2020 (Vincenzo’s application).[1]

   [1] Refer AAT application numbered 2018/5608.

4. In the present application numbered 2020/0486, ADDRN was prompted on the AAT “application for review” form to identify the decision sought to be reviewed.  Mr Filardo, on behalf of ADDRN, described the decision as follows on this form:

   Participant.  The NDIA refuses to provide the Participant with the SDA funding.  The Participant: - 1. Has rented the 2 bedrooms, 1 resident SDA like apartment since the year 2000.  3. The dwelling is SDA, NDIA registered, since the year 2017.  4. He decided he wants to keep on living here.  5.  He has being assessed as requiring very high support needs.

   Our organisation.  Our organisation has provided the NDIA approved participant with Specialist Disability Accommodation residency at our SDA, NDIA registered dwelling.  In may 2019, following an AAT directive for conciliation, two sessions, between the NDIA and the Participant, the NDIA decided against discussing the SDA funding but instead preferred to make an offer for the participant’s support services which was declined due to an imminent Plan Review.  The NDIA reply was that he was not intitled[sic] to SDA.  Pre-empting the imminent AAT review decision.  In view of this, our organisation decided to replace the Participant’s long-term residency by replacing it with Respite/Short-term.  The NDIA was made aware of the Participant’s new status (Respite care) and requested the NDIA to make his new necessary accommodation arrangements.  This happened in May 2019.  We requested payments for the Participant’s long-term accommodation 01/01/2017 to 10/05/2019 and Respite/Short-term payment from the 10/05/2019 up until the time the Participant is fully payed up.  Plus interest.

   Pls Note.  He is in 1-1 Respite and the two bedrooms, one resident apartment is un-occupied.

5. At the commencement of the jurisdictional hearing that took place on 21 February 2020, the Tribunal explained to Mr Filardo that the Tribunal’s authority to review decisions arose from the provisions of the legislation and that the Tribunal did not have an “open licence” to review all decisions made in the general sphere of the NDIS. The Tribunal explained to Mr Filardo that the Tribunal only had authority to review certain types of decisions. The Tribunal referred Mr Filardo to the list of reviewable decisions prescribed in s 99 of the NDIS Act. Mr Filardo informed the Tribunal he had not looked at that provision.

6. The NDIA Act provides, in effect, that this Tribunal may only review internal review decisions made by the NDIA of the specific “reviewable decisions” prescribed under s 99.[2]  

   [2] Refer s 103, in conjunction with s 100, of the NDIS Act.

7. The Tribunal asked Mr Filardo to identify, with precision, the decision that ADDRN sought to be reviewed by the Tribunal.  At the jurisdictional hearing, Mr Filardo responded as follows:

   The decision is about the NDIA, a refusal to talk about the SDA.  SDA has the [ADDRN] providing SDA residency to Mr Filardo, Vincenzo Filardo.  In the previous conciliation, on 10 May 2019, there was a decision by the respondent that said at 13.1, “The respondent remains unsatisfied with regard to Mr Filardo’s eligibility to offer SDA.”

   Now there is two matters here: one is the NDIA participant, Mr Vincenzo Filardo, who has this SDA review, but then we are the organisation that actually provides the SDA residency to Vincenzo Filardo.  So when it was said that the respondent remains unsatisfied with regard to Mr Filardo’s eligibility to offer SDA, that also implied that they would not paying the SDA funding to the [ADDRN], whereby in paragraph 13, what they say is, “In regard to the building environment, Mr Filardo is able to continue residing at this – at his current address,” which is our address.  Now on 13 they say yes, he will continue to reside there as he has been done for the last 20 years, and then on the next paragraph they said that they will not pay for SDA funding.

   The way we understand it is that there is two issues: one issue is about providing Mr Vincenzo Filardo with SDA funding, which is one matter.  The other matter is – that we have listed is that we as a registered SDA provider meet the criteria for the NDIA to pay for the - to pay for the residency, where it states that 4.11, if I can…

8. The Tribunal asked Mr Filardo to confirm whether ADDRN was a registered provider and he said that it was.  The Tribunal asked Mr Filardo whether he had an issue about the NDIA not being prepared to make payments to the ADDRN for the SDA that had been provided to Vincenzo at the Dwelling and Mr Filardo said this was correct.

9. The Tribunal put a proposition to Mr Filardo that it would seem, after considering each of the types of reviewable decisions listed in s 99 of the NDIS Act, that the closest they came to decisions affecting a registered service provider such as ADDRN, was a decision described in subsection 99(g) of the NDIS Act. A decision under subsection 99(g) is confined to a decision made by the NDIA to refuse to approve a person or entity as a registered provider of supports. Mr Filardo agreed that a decision had already been made to register ADDRN as a provider of supports.

10. In response, Mr Filardo sought to rely upon a “general principle guiding actions under this Act” as set out in subsection 4(11) of the NDIS Act. This provision establishes the following general principles:

    Reasonable and necessary supports for people with disability should:

    (a)support people with disability to pursue their goals and maximise their independence; and

    (b) support people with disability to live independently and to be included in the community as fully participating citizens; and

    (c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

11. The Tribunal noted those general principles and then returned the focus of the parties to s 99 of the NDIS Act from which, in conjunction with the provisions of ss 100 and 103, the Tribunal must reach its state of satisfaction that it has the necessary authority to undertake a review in this matter.

12. The Tribunal asked Mr Filardo whether ADDRN was able to get to where it was hoping to get to, by pursuing Vincenzo’s application seeking, in effect, approval of supports in the form of SDA provided by ADDRN for Vincenzo, and whether he “needed” the present “second” application.  Mr Filardo said “it’s two separate issues”.  The Tribunal considers that irrespective of whether there are two separate issues, it must be satisfied that there has been a decision made which it has jurisdiction to review.

13. In that regard, ADDRN did not provide a written decision by the NDIA that it was seeking to have reviewed as part of this application. Based on Mr Filardo’s description of the decision that ADDRN sought to have reviewed, both in the application for review form and as described by Mr Filardo orally at the hearing, the Tribunal is not satisfied that there has been any decision made by the NDIA affecting ADDRN that falls within the description of any of the subsections of s 99 of the NDIS Act; nor has there been any internal review decision of such a decision.

14. Accordingly, the Tribunal is not satisfied in this case that there has been an internal review decision made by the NDIA relating to a “reviewable decision” as defined by s 99 of the NDIA Act. The Tribunal concludes that the decision as described by Mr Filardo is not reviewable by this Tribunal.

15. For these reasons, pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses this application. 

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the written reasons for the decision herein of Member K. Parker

[sgd]..............................................................

Associate

Dated: 4 March 2020

Date of hearing:	21 February 2020
Applicant:	In person by telephone
Advocate for the Respondent:	Ms Catharine Thorpe, Senior Associate
Solicitors for the Respondent:	Maddocks