BKQQ and National Disability Insurance Agency

[2021] AATA 732

BKQQ and National Disability Insurance Agency [2021] AATA 732 (31 March 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/5279

Re:BKQQ

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Buxton

Date:31 March 2021  

Place:Brisbane

The Tribunal refuses the Respondent’s application for a direction compelling the Applicant to participate in a neuropsychological assessment with Ms Stargatt.

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

Member Buxton

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision to approve statement of supports in participant plan – interlocutory application for direction that Applicant undertake neuropsychological assessment – whether Tribunal has power to compel Applicant to undertake neuropsychological assessment under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth): ss 2A and 33.

National Disability Insurance Scheme Act 2013 (Cth): ss 20, 26, 33, 34 and 36.

Cases

Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534.
Liddle and National Disability Insurance Agency [2018] AATA 507.
MDCT and National Disability Insurance Agency [2020] AATA 6036.
MDCT and National Disability Insurance Agency [2021] AATA 580.

PKVC and Minister for Home Affairs [2018] AATA 4045.

REASONS FOR DECISION

Member Buxton

31 March 2021

1. On 27 August 2020, BKQQ (“the Applicant”) applied to the Tribunal for review of a decision of the National Disability Insurance Agency (“the Respondent”) dated 5 August 2020.

2. The Respondent requested that the Applicant attend an in-person cognitive assessment by a neuropsychologist, to be funded and arranged by the Respondent. The Applicant refused the request. The Respondent has applied, on an interlocutory basis, for a direction to be made compelling the Applicant’s participation in the assessment. On 5 March 2021 a telephone directions hearing took place at which the parties made oral submissions with respect to the direction sought by the Respondent. The parties have each made written submissions and provided material upon which they rely with respect to the application. The parties have each agreed that the application be considered on the papers without the need for a full oral hearing.

   BACKGROUND

3. The Applicant is a 12-year old boy who lives with an intellectual disability. On 31 March 2020 he became a participant in the National Disability Insurance Scheme (“NDIS”) administered by the Respondent. On 31 March 2020 the Respondent approved a statement of supports for the Applicant’s participant plan. The approved supports did not include funding for his participation in the Arrowsmith Program, which is a school-based cognitive development program in which the Applicant is currently enrolled. The Applicant (through his parents) sought internal review of that decision under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”) and the Respondent affirmed the decision. It is from that decision that the Applicant has applied to the Tribunal for review. The question before the Tribunal in the substantive review application is whether the cost of the Arrowsmith Program ought to be funded through inclusion in the Applicant’s Statement of Participant Supports.

4. The Respondent wishes to commission a cognitive assessment by a neuropsychologist with a view to assisting the Tribunal to determine whether the support sought by the Applicant is reasonable and necessary. The Respondent selected Ms Stargatt, neuropsychologist, to conduct the cognitive assessment. The Applicant, through his parents, does not consent to participating in the assessment. The Respondent seeks a direction to compel the Applicant’s participation.

   CONSIDERATION

   Compellability

5. The effect of the direction sought by the Respondent in this case is to require, or compel, participation in gathering of expert evidence which the Respondent submits is likely to assist the Tribunal in the determination of the substantive review application. Specifically, the Respondent seeks that the Applicant participate in an in-person cognitive assessment by Ms Stargatt, neuropsychologist, which will be funded and arranged by the Respondent. Given the nature of the direction sought, it is first necessary for the Tribunal to consider the Tribunal’s power to issue such a direction.

6. The Applicant submitted that the Tribunal lacks the power to make the direction sought by the Respondent.[1]

   [1] Applicant’s Submissions dated 4 March 2021 at [23] and [32].

7. The Respondent submitted that section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) is the source of the Tribunal’s power to compel the Applicant to participate in the examination.[2] Section 33 relevantly provides that:

   [2] Respondent’s Submissions filed 22 March 2021 at [38].

   (1)In a proceeding before the Tribunal:

   …

   (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

   …

   Types of directions

   (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

   (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding;

   …

8. In MDCT and National Disability Insurance Agency (“MDCT”),[3] the Tribunal considered an application for a direction that the applicant (for review of a decision about reasonable and necessary supports in their participant’s plan) provide access to their home for inspection by an occupational therapist. In making the direction, the Tribunal summarised the statutory basis for the power to make evidence-gathering directions:[4]

   Section 2A of the AAT Act sets out the objective which the Tribunal must pursue in carrying out its functions. Expressly, that objective speaks to the mechanism of review, and the section mandates that mechanism to be, amongst other things, fair, just and proportionate to the importance and complexity of the matter and which promotes public trust and confidence in the decision-making of the Tribunal. Section 33 of the AAT Act details the way in which the Tribunal may control its process. Relevantly, subsection 33(1AB) of the AAT Act 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 it 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.

   [3] [2020] AATA 6036 (24 December 2020).

   [4] Ibid at [10].

9. The Tribunal’s power to make directions with respect to evidence-gathering was also considered in PKVC and Minister for Home Affairs (“PKVC”)[5] where Deputy President Rayment followed the reasoning of the Full Federal Court in Commissioner of Taxation v Cancer and Bowel Research Association.[6] In both MDCT and PKVC, the Tribunal determined that section 33 of the AAT Act conferred upon the Tribunal broad power to make directions consistent with the Tribunal’s statutory objectives identified in section 2A of the AAT Act.

   [5] [2018] AATA 4045 at [3].

   [6] [2013] FCAFC 140; (2013) 305 ALR 534.

10. The Applicant submitted that neither the generic directions-making power in section 33 of the AAT, nor any power conferred on the CEO of the Respondent (and exercisable by the Tribunal on review) was sufficient to empower the Tribunal to compel a party to participate in a physical examination.[7]

    [7] Applicant’s Submissions dated 4 March 2021 at [19] and [30]

11. When the CEO is determining an application for access to the NDIS under sections 20 and 21 of the NDIS Act, section 26 of the NDIS Act prescribes the powers exercisable by the CEO, including the power to request (but not require) that a person seeking access to the NDIS undergo one or both of an assessment of the prospective participant and a medical, psychiatric, psychological or other examination. The consequence of non-compliance with a request is deemed withdrawal of the request to access the NDIS.[8] Therefore, there is no need for a mechanism to expressly compel compliance with the request to undertake an assessment, as refusal in those circumstances leads to a constructive end to the request for access to the scheme. This approach is in contrast with the CEO’s powers under section 36 of the NDIS Act to gather information for the purpose of preparing and approving the plan of an existing participant, but without any correlating powers to limit the rights of the Applicant should the request be refused. The operation of section 36 of the NDIS Act was considered in MDCT and National Disability Insurance Agency (No 2) (“MDCT (No 2)”)[9] where the Tribunal stated:[10]

    “A request under section 36 of the NDIS Act is made for the purpose of gathering information about matters to be included in the participant’s plan. An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence.”

    [8] National Disability Insurance Scheme Act 2013 (Cth), s 26(3).

    [9] [2021] AATA 580 (18 March 2021).

    [10] Ibid at [25].

12. Once an applicant has sought review of a decision it is the Tribunal that must ensure that the review is undertaken pursuant to a mechanism of review that is fair and just, and the Tribunal has been provided with statutory powers to control that process. Section 33 of the AAT Act is, necessarily, broad and whilst examples of the directions that could be issued by the Tribunal under that section are provided in subsection 33(2A) of the AAT Act, the power granted by that section is expressly not limited by those examples. Therefore, the Tribunal does not accept that the omission of an express power to compel, by direction, the attendance of a party at a medical examination, either under the NDIA Act or the AAT Act, is indicative of legislative intent to preclude the making of such a direction.

13. The Respondent submitted that “a party to litigation is entitled to obtain its own expert opinions”.[11] The Tribunal notes that the parties are not engaged in civil litigation but, rather, in a process of administrative review. As a result, the powers of the Tribunal are defined by relevant statutory provisions, and the rights and obligations of the parties are curated in the same manner. The Respondent is free to engage its own experts to review existing material and provide opinion evidence to assist the Tribunal. However, where an applicant is opposed to participating in certain evidence-gathering activities there is no automatic entitlement to compel that participation without proper regard to the basis for that opposition. The Tribunal observes, as reflected in the passage from MDCT set out above, that the possible consequence of an applicant’s refusal to participate is that an applicant may proceed to review without sufficient evidence to enable the Tribunal to determine that the supports sought should be included in the participant’s plan. That forensic risk would, presumably, be weighed by an applicant against other factors relevant to their participation in the assessment as requested by the Respondent.

    [11] Respondent’s Submissions filed on 22 March 2021 at [25].

14. Therefore, the Tribunal concludes that there exists power for the Tribunal to make necessary directions for the gathering of relevant evidence, but no automatic entitlement to such a direction. I am satisfied that the directions-making power in section 33 of the AAT Act is sufficiently broad to allow for the Tribunal to make a direction such as that sought by the Respondent to facilitate the adducing of neuropsychological evidence in this case. The question whether the Tribunal ought to do so is to be answered by the proper exercise of its discretion having regard to the particular circumstances of this case. Each case will turn on its unique facts.

    Exercise of Discretion

15. The effect of the Applicant’s submissions was that the discretion to make the direction should not be exercised because the proposed direction lacked utility, because of a real and not fanciful risk of harm to the Applicant, not sufficiently mitigated by the proposed manner of assessment, and because the Applicant’s participation in the assessment, against the wishes of his parents, was inconsistent with the statutory scheme.

16. Firstly, the Applicant submitted that, regardless of the Applicant’s Wechsler Intelligence Scale for Children (“WISC-V”) and/or their level of current academic skills, the information received is likely to be of very limited assistance to the Tribunal in determining whether the requested support is reasonable and necessary within the meaning of section 34 of the NDIS Act.[12] The Applicant’s father has provided a sworn statement to the Tribunal containing information relevant to the Applicant’s position with respect to a further neuropsychological assessment. The Applicant’s father stated that his son has already been assessed by psychologists during various assessments that took place in 2016, 2017 and 2018 and, earlier, by a neuropsychologist. The reports are available to the Tribunal and the Respondent. The Applicant has been diagnosed with a particular level of intellectual impairment. He changed schools at the beginning of the 2019 academic year and has, since then, been enrolled as a participant in the Arrowsmith program which is delivered at his school. The basis of the substantive review application is that the Applicant’s parents seek to have all, or at least some, of the cost of that program funded from supports that are currently allocated to the Applicant for various allied health supports such as speech therapy.

    [12] Applicant’s Submissions dated 22 March 2021 at [12] to [15].

17. The Respondent submitted that the purpose of requesting the direction that the Applicant undertake an assessment with a neuropsychologist was so that the resulting assessment would inform the Tribunal as to the Applicant’s current level of impairment.[13] The Respondent further submitted that the assessment was required to assist the Tribunal to determine the appropriateness of the Arrowsmith Program as a reasonable and necessary support relative to the Applicant’s impairment.[14] However, this submission is not compelling in circumstances where the Respondent does not indicate how the “Applicant’s current level of impairment” would assist the Tribunal in determining whether the Applicant’s participation in the Arrowsmith program was, and is, a reasonable and necessary support as those words in the NDIS Act are properly to be interpreted. The Tribunal is not satisfied based on the information provided by the Respondent that evidence arising from the proposed assessment would have significant utility in the determination of the substantive application.

    [13] Respondent’s Submissions filed on 22 March 2021 at [16].

    [14] Respondent’s Submissions filed on 22 March 2021 at [16].

18. Secondly, the Applicant submitted that the benefit of obtaining any further assessment and the subsequent report ‘does not outweigh the risk of harm’ to the Applicant.[15] The Applicant’s father provided an affidavit outlining his concerns with the Applicant completing the assessment in which he detailed observations that he had made regarding the negative impacts previously experienced by the Applicant as a result of the undertaking of similar assessments.[16] The Applicant submitted that the Tribunal should decline to exercise any discretion to make the direction on the basis that the Applicant’s best interests should be the paramount consideration.[17]

    [15] Applicant’s Submissions dated 22 March 2021.

    [16] Affidavit by [name redacted, hereinafter referred to as “Applicant’s Father”] dated 18 March 2021.

    [17] Applicant’s Submissions dated 22 March 2021 at [2].

19. In the decision of the Tribunal in Liddle and National Disability Insurance Agency[18], Deputy President Constance made an interlocutory decision refusing to direct that the applicant participate in an assessment by an occupational therapist in circumstances where she had already provided one such report to the Respondent and to the Tribunal. The Tribunal was satisfied that the applicant was at a real risk of suffering physical injury if she were to undergo a second assessment. Deputy President Constance noted that:[19]

    In considering these reasons it should be clearly understood that the outcomes of applications such as the present depend on the particular facts and circumstances of the cases in which they arise. I do not intend to suggest, and should not be taken as suggesting, that the Tribunal will never direct an applicant to undergo a second occupational assessment.

    [18] [2018] AATA 5071.

    [19] Ibid at [7].

20. Without setting out the information in detail, the Tribunal accepts that the sworn statement from the Applicant’s father included significant evidence about triggering of anxiety in the Applicant each time he is subjected to testing or assessment, and that this reaction can occur in a variety of settings, even when familiar. The evidence indicates, and the Tribunal accepts, that the Applicant can be affected for many months afterwards physically, mentally, and emotionally. The Applicant submits that forcing the child participant in this case to undertake a further neuropsychological assessment would not be in the best interests of the child at this stage.[20] The Applicant’s father has indicated that the parents accept it is likely that further assessment will be required in late 2022 and the parents urge the Tribunal not to compel a further assessment now.[21]

    [20] Applicant’s Submissions dated 22 March 2021 at [8].

    [21] Ibid.

21. The Respondent submitted that the inability to obtain its own evidence from experts of their choice would be contrary to the requirements of procedural fairness.[22] The Respondent referred to observations of the Tribunal in MDCT[23] and submitted that:[24]

    '…the Respondent is not obliged to identify all the shortcomings in the available evidence so long as the request made is reasonable in the circumstances. To unreasonably refuse the Respondent's request for an assessment which will reveal the level of impairment may lead to a genuine risk that the Respondent will not be provided an opportunity to present its own case and that the hearing may proceed on evidence that, in some respects, will necessarily remain untested.'

    [22] Respondent’s Submissions dated 22 March 2021 at [25] to [29].

    [23] MDCT at [20].

    [24] Respondent’s Submissions dated 22 March 2021 at [29].

1. The facts in MDCT differ significantly from this case. In MDCT, the applicant had gathered their own evidence about property modifications sought to be funded through the applicant’s participant’s plan but would not provide access to their property to allow further evidence to be gathered by the Respondent about those modifications. The evidentiary value to the Tribunal of that further evidence was clear, and no real risk to the applicant was established. Here, the Applicant has been assessed prior to entry into the Arrowsmith program in 2019. It is not clear how evidence resulting from a further assessment of him now could assist in understanding the necessity or reasonableness of that program at the beginning of his participant’s plan in March 2020, given that the Applicant is now well into his third year of the program.

2. In any event, the Respondent’s submission as to procedural fairness carries less weight in circumstances where substantial evidence from neuropsychologists and psychologists is available and the Respondent has not made clear either the relevance, or the use to be made, of further evidence from a neuropsychologist as to the Applicant’s current condition. Further, the Respondent is at liberty to obtain evidence from Ms Stargatt in relation to the Arrowsmith program itself, as they have indicated they may wish to do,[25] without a physical or neurological assessment of the Applicant.

   [25] Respondent’s submissions filed on 22 March 2021 at [17].

3. The Respondent sought the opportunity to make submissions as to “mitigation” of the risks of harm to the Applicant during the proposed assessment so as to ameliorate such potential harm. During the telephone directions hearing on 5 March 2021 some suggestion was made by the Applicant’s representative of an assessment taking place in a location familiar to the Applicant, such as his school. The Respondent has subsequently produced a letter from Ms Stargatt which makes clear that any proposed assessment would take place in her rooms in a reasonably conventional format. There is no reason to imagine that Ms Stargatt would approach the assessment in anything other than a professional and empathetic manner. However, that would not address the parents’ concerns. It is the fact of an assessment, and the anxiety and loss of confidence that brings, rather than the mechanism, from which the Applicant’s parents seeks to protect him. The Applicant’s parents accept that, when the need arises in late 2022, the Applicant is likely to require a further assessment. Presumably, they take the view that, at that future point in time, the utility in the assessment may outweigh the risk of harm to their son.

4. However, that tipping point is not reached in the application before me. I am satisfied that there exists a real risk that the 12 year-old Applicant in this case may suffer exacerbated anxiety and loss of confidence if he is now compelled to attend an assessment at the offices of Mr Stargatt, as proposed by the Respondent. Further, I am not satisfied that any perceived benefit in such as assessment is sufficient to outweigh that risk.

5. Finally, I note the submission of the Applicant that various principles in the NDIS Act limit the manner in which the Tribunal’s directions-making powers are to be exercised.[26] In particular, the Principle of Choice and Control was cited as a basis upon which the parents should decide what evidence may be adduced and, indeed, what supports the Applicant should access.  In MDCT No 2  the Tribunal considered the interplay between the Tribunal’s control of its own process and a submission that an applicant in a review under the NDIS Act maintains choice and control through the principles of that legislative scheme. In considering an application for a non-disclosure order under section 35 of the AAT Act, the Tribunal did not accept the submission that a review under the NDIS Act led to an applicant’s entitlement to exercise choice and control at large:[27]

   “One aspect of the Applicant’s submissions is that they are a participant in the National Disability Insurance Scheme (“NDIS”) and therefore entitled to exercise choice and control over not only their participant’s plan but also all aspects of their review application… The application of those provisions in the interlocutory decision has led to a requirement that the Applicant’s premises should be made available for inspection by OT for the purpose of preparing a report to be used in the review application. There is nothing unusual about the making of a direction that the Applicant provide access to their property for the purpose of the preparation of a report, and nothing in that decision that would make it appropriate to suppress publication of the interlocutory decision.”

   [26] Applicant’s Submissions dated 22 March 2021.

   [27] MDCT (No 2) at [44].

6. The Tribunal does not consider that the Principles of the enabling legislation supplant or replace the Tribunal’s power, and obligation, to control its own process in order to meet its statutory objectives and provide a fair and just review.

7. In this case, the proper exercise of the Tribunal’s discretion is to refuse the Respondent’s interlocutory application for a direction compelling the Applicant to participate in a neuropsychological assessment with Ms Stargatt.

   INTERLOCUTORY DECISION

8. For the reasons outlined above, the Tribunal refuses the application of the Respondent that the Tribunal make a direction compelling the Applicant to participate in a neuropsychological assessment with Ms Stargatt.

30.     I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

………………[SGD]…………………..

Associate

Dated: 31 March 2021

Final Submissions Received: 22 March 2021

Representative for the Applicant: Ms Rehana Chowdhry, Victoria Legal Aid

Representative for the Respondent: Ms Cassandra Polese, MinterEllison