Bates and National Disability Insurance Agency

[2021] AATA 3571

Bates and National Disability Insurance Agency [2021] AATA 3571 (7 October 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/5778

Re:Daniel Bates

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Smith

Date:7 October 2021

Place:Brisbane

Pursuant to paragraph 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 20 August 2021.

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

Member P Smith

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme Act 2013 (Cth) - application for review - no internal review decision made by the Respondent – no jurisdiction – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 42A(4)

National Disability Insurance Scheme Act 2013 (Cth), ss 33(2), 48(2), 48(5), 99, 103, 106

CASES

Napper and National Disability Insurance Agency [2021] AATA 2363

QDKH and National Disability Insurance Agency [2021] AATA 922

REASONS FOR DECISION

Member P Smith

7 October 2021

INTRODUCTION

1. Mr Daniel Bates (the Applicant) is a participant in the National Disability Insurance Scheme (the NDIS).  He has a diagnosis of Ehlers Danlos Syndrome, and secondary to this condition, he has depression, anxiety, and a history of alcohol abuse.

2. On 20 August 2021, the Applicant applied to the Tribunal for review.  In his application, the Applicant did not identify a decision that could be reviewed by the Tribunal.  Within the application for review, the Applicant referred to the date of 18 August 2021 as being the date of the decision he says was made by the National Disability Insurance Agency (the Respondent). The Tribunal has identified other decisions made by the Respondent, however for reasons given below, the Tribunal is satisfied that these decisions are not reviewable by the Tribunal.

3. An interlocutory hearing by telephone was held on 9 September 2021 to determine whether there was a reviewable decision that could be reviewed by the Tribunal.  The Applicant and a representative for the Respondent appeared at the hearing.  The Applicant participated for most of the hearing, although ended the call prior to the hearing concluding. In the circumstances, the Tribunal made a direction that the Applicant may file any further submissions within 14 days of the hearing, addressing the question of jurisdiction.  Further information has been provided by the Applicant but no submissions addressing the question of jurisdiction were received.

   THE ISSUE

4. The issue in this matter is whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

   RELEVANT CHRONOLOGY

5. In the period from 8 August 2019 to 13 March 2020, the Respondent approved several statements of participants supports for the Applicant pursuant to subsection 33(2) of the NDIS Act.

6. The statement of participant supports approved by the Respondent on 13 March 2020 had a scheduled review date of 13 March 2021 (Plan 1). The Respondent failed to complete the scheduled review of Plan 1 on or before 13 March 2021 as required by subsection 48(5) of the NDIS Act. As the Respondent did not complete the plan review by the scheduled date, the Respondent submitted that the plan was automatically extended and was formalised through a later statement of participant supports as outlined at paragraph [10] below.

7. On 8 June 2021, the Applicant’s former solicitor wrote to the Respondent and requested that they conduct an internal review of a decision he and the Applicant believed to have been made by the Respondent on 13 March 2021, being a decision not to conduct a scheduled plan review of Plan 1 pursuant to subsection 48(5) of the NDIS Act on or before 13 March 2021.

8. Also on 8 June 2021, the Applicant’s former solicitor made requests for additional supports, including a new power wheelchair, modifications to the Applicant’s home and funding to support the engagement of an occupational therapist to assess and prescribe suitable assistive technology with home modifications and funding in any further plan to be self-managed. 

9. The Respondent submitted that, as a failure to conduct a scheduled plan review is not a reviewable decision pursuant to section 99 of the NDIS Act, the Applicant’s request for an internal review on 8 June 2021 should be classified as a request for an unscheduled plan review under section 48(1) of the NDIS Act.

10. On 20 July 2021, after completing an unscheduled plan review of the plan approved on 13 March 2020, a statement of participant supports was approved, which had a review date of 20 March 2022 (Plan 2).  Interactions records provided by the Respondent indicate that this was agreed to by the Applicant. Plan 2 included a line item for a power wheelchair (quote required), funding for assessment and prescription of the wheelchair and funding to support assessment and prescription, and a builder’s quote, in relation to potential home modifications.

11. After the Applicant’s application to the Tribunal, the Respondent, on 26 August 2021, notified the Applicant via email that they had, in response to his request of 8 June 2021, approved a service booking for a power wheelchair. The email correspondence from the Respondent also notified the Applicant that as he had not provided further information about additional accessories for the power wheelchair, the Respondent did not consider them to be reasonable and necessary. This decision did not result in the Respondent approving a new statement of participant support under subsection 33(2) of the NDIS Act.

    LEGAL PRINCIPLES

12. The Tribunal has in a number of cases considered questions relating to its NDIS jurisdiction.  In Napper and National Disability Insurance Agency [2021] AATA 2363 (Napper), Deputy President Pascoe succinctly set out the principles relating to jurisdiction arising from the decision of Deputy President Constance in QDKH and National Disability Insurance Agency [2021] AATA 922. The principles arising from those cases, as summarised in Napper, are set out below:[1]

    [1] Napper, [14].

    (a)As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute, namely s 25(1) of the AAT Act, which relevantly provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment;

    (b)In every application that comes before it, the Tribunal must be satisfied that it has jurisdiction in accordance with the AAT Act. The parties cannot confer jurisdiction upon the Tribunal by consent;

    (c)Section 100(3) is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 100(3) provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act;

    (d)Section 100(6) of the NDIS Act provides that the reviewer, as soon as is reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision;

    (e)Section 99 of the NDIS Act provides an exhaustive list of reviewable decisions, that is, decisions that are reviewable by the reviewer. The decisions include “a decision under 33(2) to approve the statement of participant supports in a participant plan” (section 99, item (d));

    (f)It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:

    (i)A review by a reviewer;

    (ii)A review of the reviewer’s decision by the Tribunal;

    (g)The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;

    ……

    DISCUSSION

13. It is clear from the legal principles set out at paragraph [12] above that the role of the Tribunal is to review a decision that has been made by a reviewer of the NDIA under subsection 100(6) of the NDIS Act.

14. It is also clear from section 100 of the NDIS Act, that the Applicant is required to make a request either verbally or in writing to the Respondent to review a reviewable decision as listed in section 99 of the NDIS Act, and that the internal review must be carried out by a reviewer of the NDIA.[2]  

    [2] NDIS Act, s 100(5).

15. As the Applicant has not made an internal review request with respect to Plan 2, there is no decision that has been made by a reviewer under subsection 100(6) of the NDIS Act. Therefore, the Tribunal is satisfied that it does not have jurisdiction to review the various decisions outlined above, as enlivened by section 103 of the NDIS Act.

16. The request made on behalf of the Applicant by his former solicitor on 8 June 2021, in which they sought a review of a reviewable decision, namely this being a decision to not conduct a planned review on 13 March 2021, is in the view of the Tribunal misconceived because a reviewable decision had not been made within the terms of section 99 and subsection 100(2) of the NDIS Act.

17. The Tribunal does not accept the submission made by the Applicant at the hearing that he had indeed sought an internal review in approximately early February 2021 as there is no evidence to support this submission.

18. The Tribunal notes that it is open to the Applicant to seek an internal review of the decision of the Respondent dated 20 July 2021 to approve Plan 2. The Applicant has until 19 October 2021 to make his request to the NDIA for an internal review of that decision.[3]

    [3] NDIS Act, s 100(2).

    RELIEF

19. At the hearing, the Applicant sought injunctive relief from the Respondent under the Judiciary Act 1903 (Cth). As was explained to the Applicant at the hearing the Tribunal does not have this power.

    DECISION

20. For the reasons given above, the Tribunal dismisses the application for review pursuant to paragraph 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member P Smith.

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

Associate

Dated: 7 October 2021

Date of hearing:	9 September 2021
Date final submissions received:	27 September 2021
Applicant:	Self-represented
Representative for Respondent:	Ms A Botros, National Disability Insurance Scheme Agency