BKQQ and National Disability Insurance Agency

This matter concerned an interlocutory application before the Administrative Appeals Tribunal (AAT) by the National Disability Insurance Agency (NDIA) against a participant in the National Disability Insurance Scheme (NDIS), identified as BKQQ. The NDIA sought a direction compelling the 12-year-old applicant, who lives with an intellectual disability, to undergo a neuropsychological assessment. This assessment was intended to assist the Tribunal in determining whether the Arrowsmith Program, an educational support the applicant sought to have funded under his NDIS plan, was reasonable and necessary. The applicant, through his parents, refused to consent to the assessment.

The central legal issue before the Tribunal was whether it possessed the power, under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), to compel a participant to undertake a neuropsychological assessment when that participant had not consented to it. The NDIA contended that section 33 provided the necessary authority, particularly subsections 33(1)(c) and 33(2A)(a), which allow the Tribunal to inform itself as it thinks appropriate and to direct parties to provide further information.

The Tribunal considered its objective under section 2A of the AAT Act, which mandates that review mechanisms be fair, just, and proportionate. It noted that subsection 33(1AB) requires parties to use their best endeavours to assist the Tribunal in fulfilling this objective. Drawing on previous decisions, the Tribunal affirmed that while it has broad powers to gather evidence, any requests for information or evidence must be reasonable and proportionate to the complexity of the case. If such a request is unreasonably refused, the Tribunal may issue a direction. However, in this instance, the Tribunal determined that the proper exercise of its discretion was to refuse the NDIA's application.

Ultimately, the Tribunal refused the NDIA's interlocutory application for a direction compelling the applicant to participate in the neuropsychological assessment.