Bates and National Disability Insurance Agency

[2023] AATA 2977

Bates and National Disability Insurance Agency [2023] AATA 2977 (15 September 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/4390

Re:Daniel Bates

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:  15 September 2023

Place:Brisbane

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 19 June 2023.

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

Senior Member K Buxton

Catchwords

PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – no reviewable decision – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s.42A

National Disability Insurance Scheme Act 2013 (Cth), s.33(2), s.99, s.100, s.103

REASONS FOR DECISION

Senior Member K Buxton

15 September 2023

INTRODUCTION

1. The Applicant, Mr Daniel Bates, is a participant of the National Disability Insurance Scheme (“NDIS”). That scheme is administered under the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”). On 19 June 2023, Ms Bates lodged with the Administrative Appeals Tribunal (“AAT”) an application for review of various decisions said to have been made by the National Disability Insurance Agency (“NDIA”) in relation to the funding of the reasonable and necessary supports included in his participant plan under the NDIS.

2. In the application, Mr Bates nominated 19 June 2023 as the date on which he received the decision and attached an email from a complaints officer within the NDIA that was sent to Mr Bates on that date. In his application, Mr Bates also provided the following information about why the decision was wrong:

   It does not follow the NDIS system or NDIS Act 2013...reasonable and necessary supports are not being paid for...services purposefully sabotaged to get me to talk to the NDIS. The complaint has been going on since 2020. I do not even know if I have a current plan manager and have had so many I cannot keep up with the constant changes.

   1. NDIS will not pay for a wheelchair…I had to pay for to get one because my OT reports are ignored.

   2. I do not have a contactable plan manager and have not for two years.

   3. I do not know who is my NDIS plan manager or if I even have one anymore. I have had multiple plans, NDIS plan managers at least 5 and terrible support from the NDIS.

   4. NDIS will not pay for the Architect report ($1200, I paid for), which shows enough evidence to progress my ‘home modifications’ to the next stage. Home modifications - HM are not progressing, are avoided and I am not getting my money back for necessary services used to progress to the next step because the NDIS avoid HM. The top of the HM form has $1500 paid without NDIS approval.

   5. The last complaint I made through a solicitor and the NDIS just played legal games so it cost me $26,000 not to get to court. This is necessary to be paid by the NDIS as it helps secure necessary supports.

   6. Plumbing services I used to do around the home and no longer can, I have to pay for as it is not reasonable or necessary to have a working toilet or taps in the home.

   7. I recently put in a grab rail ($54.00), NDIS will not pay for this either. A grab rail is to help stop a fall and is a necessary item for disabled people such as myself.

   8. The NDIS did not pay me back for the services I paid for (maintenance $1200 and cleaning $1200).

   9. I was told by an disability advocate…the NDIS cut my services so I spoke to them.

   10. The NDIS have not answered my complaint, and have only responded with advice not fit for a disabled person. The NDIS at the TOP in Bill Shortens’ team are not following the NDIS Act, forms or the system designed to protect people like me.

3. The review application may proceed only if the Tribunal is satisfied that a decision has been made that is reviewable by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act. The Tribunal has therefore looked beyond the complaint decision identified by Mr Bates to determine if there is any basis upon which the Tribunal may proceed with the review application.

4. Having regard to the history of the complaint, disclosed in the attachments of the application lodged on 19 June 2023, the various conduct and decisions of the NDIA that are identified in the supporting material can be summarised as the following four decisions:

   (a)A decision of the Agency to grant access to the Scheme;

   (b)Refusal to pay for legal costs associated with engaging with the Agency;

   (c)Agency responses to complaints made by the Applicant; and

   (d)Decisions regarding specific supports in various Statements of Participant Supports.

5. The Tribunal has jurisdiction to review only decisions of the kind identified in section 99 of the NDIS Act, and only where the process for internal review, by the NDIA, of such a decision has been met. There is also a time limit, of 28 days after the Applicant has been notified of such a decision, within which an application for review must be lodged with the AAT. No application to extend this time period in relation to any of the identified decisions is before me for consideration.

6. Section 99 of the NDIS Act provides that an Applicant may review a decision that ‘a person does not meet the access criteria’. Mr Bates has been granted access to the scheme. He has not identified a decision that would fall into this category of decision. There is no basis to seek reconsideration of the grant of access and no need to do so. Once access is granted, the participant is able to access reasonable and necessary supports that relate to their disability and otherwise meet the relevant statutory criteria for supports. This first decision is not reviewable.

7. Section 99 of the NDIS Act does not make provision for a participant in the scheme to review a decision related to the payment, or refusal to pay, legal costs, or for the consideration of general complaints made by the participant to, or about, the conduct of the NDIA. There may be other avenues through which complaints can be pursued, however the Tribunal does not possess a general supervisory jurisdiction to re-entertain complaints or seek to resolve them. The second and third decisions are not reviewable.

8. Section 99 of the NDIS Act provides that a participant in the NDIS may review a decision ‘to approve the statement of participant supports in a participant’s plan’. This would cover aspects including funded supports, management of funds and date of reassessment. In order to do so, the participant must have sought review of the initial decision, made by the CEO under section 33(2) of the NDIS Act, to approve the Statement of Participant Supports (“SPS”). The Applicant would have been notified of this decision when he received his plan containing the SPS. From that date, the participant has a period of three months within which to seek internal review of the decision and, if the participant remains dissatisfied, within 28 days of notification of that internal review decision, the participant may lodge an application for review with the AAT.

9. In this case, the Applicant has not followed this course in relation to any of the decisions to approve a SPS in his various plans and, therefore, the Tribunal does not have jurisdiction to proceed with any review. Mr Bates has expressed concern and frustration; he has lodged complaints and he has asked the NDIA for various information and explanations about aspects of his plan. However, the Tribunal is a statutory body, and its review jurisdiction arises only in the way described above. The Tribunal is not empowered to supervise the NDIA or to resolve complaints of participants and is empowered only to conduct a review or particular decisions, where the application to review complies with the relevant provisions of the NDIS Act. Mr Bates relied, in his written submissions, upon a decision made by a “Bryony C” and communicated to him on 19 June 2023, which is the day on which his review application was lodged. He submitted that this was an “internal review” decision following his request that an earlier decision, made by a “Pippa E” on 11 April 2023, be reviewed. However, a plain reading of those communications (and particularly the nature of the complaints set out in Mr Bates email to the NDIS board dated 7 April 2023) makes clear that they were part of a complaints management process and not part of a review of a reviewable decision about Mr Bates SPS, following the process set out in paragraph 8 above. I note that, in her communication date 19 June 2023, the complaints officer unhelpfully used the word “review” when she was describing the way she had addressed the various requests made and issues raised by Mr Bates. It is undesirable to engage such language in the management of a complaint and may, perfectly understandably, have contributed to the confusion and frustration on the part of Mr Bates in this case.

10. The NDIS Act is beneficial legislation and, as noted in the decision of Tribunal in Rogers and NDIA, due to:

    the beneficial nature of the scheme, and the general principle guiding the Respondent to support persons with disability in communications with the Agency, a beneficial approach is to be taken in the interpretation of communications from persons affected by reviewable decisions within that three-month period.[1]

    [1] [2022] AATA 2809 (26 August 2022).

11. With this in mind, the NDIA was directed to provide submissions in relation to whether any request by Mr Bates was currently being considered by the NDIA as an internal review request. Despite the request by Mr Bates that I ignore the NDIA’s submission in response to this direction because they were lodged electronically a few minutes after 5pm of the day required for lodgement, I have determined that it is appropriate to consider these submissions, together with Mr Bates’ information and responses, up to and including the documents provided on 26 July 2023.

12. I am satisfied that there is no extant request for internal review that could be deemed to be a reviewable decision under section 100 of the NDIS Act. The Tribunal has not been able to identify any reviewable decision made by the NDIA where internal review has been sought (and either provided, or not provided within the required time frame) and where the Applicant has then applied to the Tribunal for review as required. The latest decision made by the NDIA, to approve a SPS under section 33(2) of the NDIS Act, was made on 17 March 2022. There is no evidence from which the Tribunal could reach the requisite level of satisfaction that the Applicant sought internal review of this decision, from the NDIA, within the required three-month period. The fourth decision is not reviewable. In any event, even if there was additional information to demonstrate that an internal review of the 17 March 2022 decision was made within three months, and a deemed refusal has occurred due to the time that has passed without the Respondent making a decision under section 100 of the NDIS Act, any application to the Tribunal would be outside the 28 day time frame and has not been accompanied by a written request to extend that time as required at the time of lodgement. The additional material provided on 19 July 2023 relates to complaints handling which falls outside the scope of what is reviewable by the Tribunal.

13. In paragraph 8 above, I have set out the process a participant is to follow if they receive a plan, containing an approved SPS with which they are dissatisfied and where they wish to proceed with internal review by the NDIA and, potentially, with an external review to the AAT in relation to any aspect of that SPS. When a further decision is made by the NDIA in relation to the SPS for Mr Bates, he may proceed to take those steps. If he is dissatisfied with the internal review decision and lodges an application for review within 28 days of notification of such a decision, the Tribunal will have jurisdiction to hear and determine that application.

14. For the reasons set out above, the Tribunal is not satisfied that any of the conduct of the NDIA, or decisions identified by Mr Bates, in the application lodged on 19 June 2023 gives rise to a reviewable decision by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

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

Associate

Dated: 15 September 2023