BLZQ and National Disability Insurance Agency

[2023] AATA 2629

BLZQ and National Disability Insurance Agency [2023] AATA 2629 (17 August 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/1624

Re:BLZQ

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:17 August 2023

Place:Adelaide

For the reasons set out below, the Tribunal has determined:

Pursuant to s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal declares that the statement given to the Applicant under s 28(1) of the AAT Act does not contain adequate particulars of the reasons for the decision on internal review dated 8 March 2023 pursuant to s 100(6) of the NDIS Act confirming the decision dated 8 November 2022 pursuant to s 33(2) of the NDIS Act to approve the Applicant’s NDIS plan which includes funding of $29,583.40 for 152 hours in the Improved Daily Living budget for the Applicant’s Capacity Building Supports in his NDIS plan (8 November 2022 – 8 November 2023).

Pursuant to s 28(6) of the AAT Act, within 28 days, the Respondent must give the Applicant an additional statement containing further and better particulars of the reasons for the decision with specific reference to the reasons for assessing the amount of therapy supports at 152 hours and funding of $29,583.40 for Improved Daily Living in the Applicant’s Capacity Building Supports in his NDIS plan (8 November 2022 – 8 November 2023).

.............................[Sgnd]...........................................

Member I Thompson

CATCHWORDS

PRACTICE AND PROCEUDRE - National Disability Insurance Scheme – applicant requesting reasons for decision – adequacy of the reasons – request for declaration under s 28 (5) AAT Act granted – direction under s 28 (6) AAT Act that the respondent provide an additional statement containing further and better particulars

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Member I Thompson

17 August 2023

1. The Applicant, BLZQ, is a participant in the National Disability Insurance Scheme (NDIS) having been assessed with level 3 autism spectrum disorder and global developmental delay. He is 4 years old, and he resides with his parents. The substantive application concerns his request for increased funding for applied behavioural analysis (ABA) therapy.

2. A directions hearing was convened to address a request on behalf of BLZQ for an expedited hearing of the review and, secondly, a declaration and a direction under s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that the Respondent, the National Disability Insurance Agency (the Agency), provide adequate reasons for declining to fund BLZQ’s capacity building supports for an 18-hour weekly ABA therapy program.

3. The request for an expedited hearing related in part to arrangements for an independent medical examination. Discussions ensued between the parties which led to the withdrawal of that request. The sole, remaining issue for the Tribunal is the request for a declaration and direction pursuant to s 28(5) of the AAT Act.

   BACKGROUND

4. By letter dated 8 November 2022 the Agency wrote to BLZQ’s parents. Enclosed with the letter was a copy of his new NDIS plan which had a commencement date of 8 November 2022, a review date of 8 November 2023, and total funded supports of $31,869.23.[1] According to that letter the plan was developed on “review” under s 48 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) after new information was presented about his disability support needs.  The NDIS plan includes a statement of his goals and a breakdown of the funded supports into core supports (total $800) and capacity building supports (total $31,069.23).

   [1] T-Documents, T14, NDIS Plan Approval dated 8 November 2022, pages 128-141.

5. A written request was lodged on 9 February 2023 for an internal review of the original decision.[2] Within the documentation in the internal review request is a 5-page submission comprising a detailed analysis of BLZQ’s impairments, therapy and education assessments, details of allied health therapies including ABA therapy together with a request for an increase in funding for capacity building supports to $ 90,135.76 to cover the cost of an 18 hour per week ABA program. 

   [2] T-Documents, T10, Section 100 Request (for an internal review) dated 9 February 2023, pages 91-95.

6. The Agency wrote to BLZQ’s parents by letter dated 8 March 2023 with the outcome of the internal review.[3] The outcome was confirmation of the original decision. The request for funding of $ 90,135.76 for “early intensive behaviour intervention (EIBI)” was declined. The internal reviewer’s reasons for rejecting the request were explained in some detail.

   [3] T-Documents, T1A, Outcome of Internal Review Request dated 8 March 2023, pages 7-8.

7. Having received the Agency’s internal review outcome letter, a request was made promptly by BLZQ’s solicitor, by email dated 8 March 2023 to the internal reviewer, for a statement of reasons for the decision. The email gave notice of a request under s 28(1) of the AAT Act as follows:

   “Pursuant to section 28 (1) Administrative Appeals Tribunal Act 1975 (Cth), within 28 days, please provide a statement of reasons, noting that the Act requires the NDIA’s decision record to give adequate particulars of findings on material questions of fact; adequate reference to the evidence or other material on which those findings were based; and adequate particulars of the reasons for the decision (see s 28 (5)).

   The decision record you’ve provided does not meet this standard, but rather appears to comprise a set of generic (template) responses.“

8. In reply, the Agency’s internal reviewer wrote by letter dated 22 March 2023 to BLZQ’s parents and provided further details in explanation of its internal review decision.[4]

   [4] Your NDIS Internal Review Decision Explained dated 22 March 2023.

9. From the reports provided to the Tribunal, it appears that BLZQ was assessed by a speech pathologist and by psychologists in February and July 2022 at an agency named Change for Life regarding developmental delays in socialisation, motor skills, behaviour regulation, speech and communication and daily living.[5] Recommendations were made for intensive therapy and social skills training of up to 18 - 20 – 25 hours through early intervention such as ABA therapy. A quotation was provided on 2 November 2022 by Change for Life for 18 hours per week of behaviour therapy for 47 weeks which would also include components of parent training, attendance of a behaviour therapist at an early intervention clinic, and weekly program coordination, at a packaged fee of $90,135.76 on hourly rates based on the NDIS fee schedule for 2022.

   [5] T-Documents, T4, T7 and T12.

   SUBMISSIONS

10. The Tribunal received written submissions from the parties’ solicitors and heard oral submissions at the directions hearing. 

11. For BLZQ it was submitted that the original decision dated 8 November 2022 did not explain why the Agency determined that the improved daily living component of the capacity building supports should be funded at $29,583.48. The funding for these supports seems to be based on 152 hours of early intervention supports at an hourly rate of approximately $193.99 as being reasonable and necessary. The result would be funding for less than three hours per week.

12. It was submitted that the Agency’s subsequent correspondence failed to explain why that amount of funding was reasonable and necessary under ss 33 and 34 of the NDIS Act. The internal reviewer did not provide an actual calculation for the improved daily living component of the capacity building funding. It was submitted that the explanations comprise “glib template responses”, in parts “cherry picking” sections of the therapy reports, lacking analysis of the documentary evidence, and not providing any logical reasoning for the conclusion.

13. The Agency’s position is that the original decision contains the statement of participant supports in accordance with s 33 (2) of the NDIS Act. Further, the explanations for the decision on internal review contain sufficient particulars of the findings for the decision under review together with references to the materials that were relied upon by the internal reviewer. Those explanations are set out in the Agency’s two letters dated 8 March 2023 and 22 March 2023.

14. The Agency submitted that provision of further particulars of the reviewable decision will not assist the Tribunal in its review as the Tribunal will conduct a merits review and re-exercise the powers of the original decision maker.

15. The Agency submitted that the provision of further particulars will not be of any practical benefit to BLZQ. In that context, the purpose of s 28 of the AAT Act will not now be served by making a declaration under s 28 (5) of the AAT Act as the application for review has been lodged.

16. The Agency also noted that it filed a statement of issues prior to the commencement of the alternative dispute resolution process in the Tribunal and that statement should be of assistance in providing understanding of the reasons for the reviewable decision.

    CONSIDERATION

17. The Agency’s original decision is the decision dated 8 November 2022 pursuant to s 33 (2) of the NDIS Act to approve the statement of participant supports in BLZQ’s NDIS commencing on 8 November 2022. The funding for capacity building supports comprises $31,069.23 of which $29,583.48 is allocated for “improved daily living”with the explanation written in the plan that:

    “This funding is for capacity building - early childhood supports. To achieve the best outcomes it is important that these supports are delivered within the home and community by early childhood professionals. These professionals should have a Bachelors degree or higher and have registration or membership with relevant professional bodies, such as an occupational therapist, speech pathologist, physiotherapist, psychologist, social worker, early childhood teacher and developmental educator.

    Professionals should use a best practice model, all working together as a team with your family to pursue your goals for [BLZQ] and preferably using a key worker model. It is expected the supports are delivered in line with the NDIS Commissions NDIS Practice Standards and Quality Indicators for Early Childhood Supports, the NDIS Code of Conduct and the NDIS Pricing Arrangement and Price Limits.”[6]

    [6] T-Documents, T14, NDIS Plan Approval dated 8 November 2022, page 140.

18. Section 33 (3) of the NDIS Act states that the supports that will be funded or provided under the NDIS “may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise”. The description for the “improved daily living” component in BLZQ’s plan is a general description of the nature and purpose of the approved supports. The funding is for capacity building in early childhood supports with a general reference to the qualifications of the practitioners providing the support and a brief, broad description of the standards and model of practice to be applied. It does not purport to identify the particular supports with specificity, and it is not required to do so. The plan includes substantial details about BLZQ’s plan goals and supports which might be provided to him in pursuing and achieving those goals.

19. Section 28 (1) of the AAT Act states:

    “Request for statement of reasons

    Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement. “

20. The Agency wrote three letters regarding its decision. The first one is the letter dated 8 November 2022 which contains details of the original decision pursuant to s 33(2) of the NDIS Act. That decision is the decision to approve BLZQ’s NDIS plan commencing 8 November 2022.

21. The second letter from the Agency dated 8 March 2023 contains details of the outcome of the internal review pursuant to s 100(6) of the NDIS Act. The letter confirmed the original decision.

22. The email dated 8 March 2023 which BLZQ’s solicitor wrote to the Agency is written notice in accordance with s 28(1) of the AAT Act to the Agency requesting written reasons for the Agency’s decision. The decision is the decision which was made on 8 March 2023 after internal review.

23. Section 28(4) of the AAT Act provides that an applicant is not entitled to make a request under s 28(1) of the AAT Act if:

    “(a) the decision sets out the findings on material questions of fact, refers to the evidence or other material which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or

    (b) a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her.”

24. At the time of making the request for a statement of reasons, BLZQ’s parents had received two letters from the Agency about the decision to approve the NDIS plan. The second letter, dated 8 March 2023, which is the internal review outcome letter, is the one which has a greater degree of relevance to the question of the adequacy of the statement of reasons. It is the letter which provides reasons for the decision and purports to address the matters raised by the internal review request. For reasons which will become apparent later in this decision, the Tribunal considers that BLZQ had not been provided with a decision or with a statement which gave the reasons for the decision inclusive of funding for the improved daily living component of the capacity building supports in the sum of $29,583.48. In relation to s 28(4) of the AAT Act, the Tribunal considers that BLZQ was not prohibited from making the request under s 28(1) of the AAT Act.

25. Following receipt of the email request from BLZQ’s solicitor dated 8 March 2023 for a statement of reasons, the Agency’s internal reviewer wrote to BLZQ’s parents on 22 March 2023. The internal reviewer acknowledged that the Agency was writing in response to the request for an explanation of the internal review decision. The heading to the letter is “Your NDIS internal review decision explained.”  This is the third letter which the Agency wrote regarding its decision. The internal reviewer confirmed that consideration had been given to the supporting information which BLZQ’s parents had provided together with NDIS guidelines and materials which were listed. The letter went on to provide further detail about the reasons for making the internal review decision.

26. Consideration will be given to the criteria in s 28(5) & (6) of the AAT Act which state:

    “Inadequate statement of reasons

    (5) An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following:

    (a) adequate particulars of findings on material questions of fact;

    (b) an adequate reference to the evidence or other material on which those findings were based;

    (c) adequate particulars of the reasons for the decision.

    (6) If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration. “

27. Pursuant to BLZQ’s request pursuant to s 28(1) of the AAT Act, the Agency’s letter dated 22 March 2023 provides its statement of reasons, in the form of a further explanation and clarification of reasons which it set out in the previous letter dated 8 March 2023. The subsequent letter summarises the methodology which the internal reviewer employed in the internal review. The earlier letter, rather than the subsequent letter, provides the lengthy and more detailed analysis and findings on the assessment of the documentary material. The two letters are necessarily intertwined. As each one of them provide reasons for the internal review decision, the Tribunal will consider them individually and together in the context of whether the Agency provided an adequate statement of reasons. Both of them are written in explanation of the queries that arose out of the Agency’s letter dated 8 November 2022 which confirmed the NDIS plan approval. Hence the three letters come into focus in consideration of the adequacy of the Agency’s statement of reasons. Ultimately, however, the statement of reasons for the purposes of s 28(1) of the AAT Act is the subsequent, final letter dated 22 March 2023 which, in turn, draws upon and distils information from the internal review outcome letter of 8 March 2023.

    Section 28(5)(a) AAT Act Whether the statement of reasons contains adequate particulars of findings on material questions of fact

28. In the letter written on 22 March 2023, the internal reviewer explained that consideration was given to evidence regarding the criterion in s 34 (1) (c) of the NDIS Act about value for money. The reasoning included the Agency’s interpretation of BLZQ’s progress report in an early intensive behaviour intervention program at 9 hours per week. It suggested that the progress report did not provide evidence why an increase of intensive therapy from 9 hours per week to 18 hours per week is justified. The explanation included an interpretation of The Early Childhood Australia National Guidelines for Best Practice in Early Childhood Intervention (EIBI Report). The internal reviewer’s interpretation of the progress report expressed a concern about limitations in available information about the merits of funding increased therapy supports.

29. The internal reviewer considered material regarding the criteria in s 34 (1)(d) of the NDIS Act whether the support is or is likely to be effective and beneficial having regard to current good practice. This explanation included the internal reviewer’s interpretation of the EIBI Report having insufficient information to justify a higher level of therapy as effective and beneficial. It suggested there was limited information about certain aspects of the current therapeutic interventions. Reference was made to guidelines about the Early Childhood Approach for children under the age of 7, and current good practice regarding inclusion in mainstream and community settings.

30. The internal reviewer considered material regarding the criterion in s 34(1)(e) of the NDIS Act regarding reasonable expectations of families, carers, informal supports and the community. The explanation gave a broad, brief summary of the criteria and referred to some specific aspects of BLZQ’s circumstances regarding his age, involvement in therapy sessions and expectations about the role of his family.

31. The internal reviewer considered the criteria in s 34(1)(f) of the NDIS act regarding funding responsibilities of the NDIS. This brief explanation pointed to roles and potential responsibility for inclusion supports within the education system.

32. The Tribunal considers that the Agency’s internal reviewer set out adequate particulars of findings on material questions of fact.

    Section 28(5)(b) AAT Act whether the statement of reasons provides adequate reference to the evidence or other material on which those findings were based

1. The internal reviewer made numerous references to the materials which were relied upon to justify the findings. The internal reviewer listed the sixteen documents that were reviewed. Some of those documents are concerned with the Agency’s operational guidelines and pricing arrangements. Three of the documents relate to national guidelines for developmental, early childhood and inclusion support services for children. The reports of speech pathology and psychology assessments of BLZQ were included amongst the materials reviewed. Both of the internal reviewer’s letters dated 8 March 2023 and 22 March 2023 include specific references to those materials in explanation of particular aspects of the internal review decision

2. The Tribunal is satisfied that the statement of reasons includes adequate reference to the evidence and the material on which its findings were based.

   Section 28(5)(c) AAT Act whether the statement of reasons provides adequate particulars of the reasons for the decision

3. The explanations for the decision to affirm the amount of capacity building funding can be located in both of the letters written by the internal reviewer. In the letter dated 8 March 2023 the following explanation appears: –

   “While the NDIS is aware that [BLZQ] needs additional assistance to increase his ability, [BLZQ] capacity building budget has funding of 152 hours ($29,583.48) for developing multidisciplinary capacity that complies with the best practice key principles (listed under Materials Reviewed, item 6). This budget can be used for therapy supports that best assist [BLZQ] to achieve his goals at the NDIS pricing arrangements (listed under Materials Reviewed, item 7) which already takes into account of travel across [BLZQ’S] environments and is inclusive of parental training as well as to up skill carers and educators.

   [BLZQ’S] capacity building budget can be utilised for his therapists to continue liaising by providing strategies and recommendations to his educators to further support his inclusion at kindergarten, providing [BLZQ] with comparable opportunities for social participation with his peers. The funding in the capacity building budget is to be used across the full plan period. Therefore, you need to ensure you manage the budget and set a monthly amount against [BLZQ’S] capacity building budget, to provide him with the necessary support until the plan reassessment.”[7]

   [7] T-Documents, T1A, Outcome of Internal Review Request dated 8 March 2023, page 11.

4. In the letter dated 22 March 2023 an explanation is provided about the rationale for the approved funding. The letter includes this passage about value for money written by the internal reviewer: –

   “There is a material difference in cost for these supports. The support requested is $90,135.76 and the current support, where information given indicates [BLZQ] is making positive progress, is $29,583.48. The information available to me did not differentiate how the additional support will further develop [BLZQ’s] independence or substantially improve life stage outcomes in a way that was specific to [BLZQ].”[8]

   [8] Your NDIS Internal Review Decision Explained dated 22 March 2023, page 2.

5. The problem with these explanations is the lack of specific rationale for fixing the number of hours of therapy at 152. The explanations do not provide the clarity which should be available to enable an understanding of why the therapies and interventions are set and capped at 152 hours. The explanations identify materials which the internal reviewer relied upon. They address BLZQ’s personal circumstances, goals and progress, the involvement of his family, the involvement of other service systems, they identify a rationale for various best practice interventions applicable in early childhood supports and early behavioural interventions. They address criteria in s 34(1)(c), (d), (e), & (f) of the NDIS Act. Nowhere, however, do they indicate and explain why funding is allocated for 152 hours as opposed to, for example, 120 hours or 180 hours, or some other number of hours. The figure of 152 hours has no context and no explanation. BLZQ’s family is left none the wiser about the rationale for setting the maximum number of hours at 152. The rationale is not to be found in the correspondence. All that can be discerned is that the requested amount of 18 hours per week is considered excessive, and that the current amount of therapy at 9 hours per week is considered excessive. What cannot be discerned is the reasoning process to justify slightly less than 3 hours per week of therapeutic intervention. There is an assertion that funding for 152 hours accords with best practice key principles set out in National Guidelines, Best Practice in Early Childhood Intervention, ECIA National Guidelines-Best Practice in ECI by ECIA (listed by the internal reviewer under Materials Reviewed, item 6 ). Those guidelines provide “universal principles” about early childhood early intervention. They do not drill down into specific detail about specific hours for an individual child. The way in which the number of hours was calculated for BLZQ is highly material to understanding the reasons for the decision. Otherwise, those reasons are not intelligible.

6. While the Agency has provided detailed explanations for not agreeing to funding therapy supports to the higher, requested level, it has not provided adequate particulars for reasoning that funding for a lower level is a reasonable and necessary support, specifically 152 hours. For example, the Agency’s statement of reasons does not provide particulars of the justification for 152 hours of therapy, why those hours would be sufficient, how they might be used as part of a “step down approach” in the context of early childhood interventions, or why that number of hours are sufficient to demonstrate how BLZQ’s goals could be achieved.

7. The Tribunal is satisfied that the Agency’s statement of reasons provided under s 28(1) of the AAT Act does not contain adequate particulars of the reasons for the decision.

8. The Agency’s solicitors submitted that even if the Tribunal is satisfied that the Agency has not provided an adequate statement of reasons, the fact that the substantive application has been lodged with the Tribunal for review of the reviewable decision should mean that the purpose of s 28(1) of the AAT Act is no longer served by making a declaration under s 28 (5) of the AAT Act. That cannot be correct. The request was made promptly after delivery of the internal review decision. It was a request that can be made in accordance with s 28(1) of the AAT Act. The fact that a substantive application has been subsequently lodged does not bear upon the question of the adequacy of the statement of reasons for the reviewable decision.

9. Linked with that submission is the further submission that the Agency has now lodged a statement of issues with the Tribunal as a first step in the alternative dispute resolution process, which will assist in understanding the reviewable decision. Whether or not such assistance would be derived for BLZQ or indeed for the Tribunal from the statement of issues is open to conjecture. Indeed, having read the Agency’s statement of issues, the Tribunal does not consider that it provides further particulars of the reasons for the reviewable decision. Rather, in relation to the internal review decision, it tends to rely upon the points which the internal reviewer made in the  letters written on 8 March 2023 and 22 March 2023.

10. The Agency’s solicitor submitted that the provision of further and better particulars would neither assist the Tribunal in its review nor be of any practical benefit to BLZQ. There are two factors involved in this submission. With regard to the Tribunal, it was submitted correctly that the Tribunal conducts a full merits review based on the evidence before it. In that context, the absence of an adequate statement of reasons for the reviewable decision may not be a matter which deflects the Tribunal from reaching the correct or preferable decision in its review. The Tribunal’s role is not to determine whether there was a correct basis for the decision maker’s decision. However, that is a different consideration to the question of a so-called practical benefit accruing to BLZQ. The provisions of s 28 of the AAT Act are more properly construed as criteria about fairness and transparency for persons affected by reviewable decisions to assist them in their interpretation and understanding of those decisions. Undoubtedly there are practical benefits not only for persons affected by reviewable decisions, but also for administrative review processes as a whole, through requirements for decision makers to provide findings on material questions of fact, references to evidence on which those findings are based, and provision of adequate particulars of the reasons for the decision.

    SUMMARY

11. The Tribunal is satisfied that it should make a declaration that the Agency’s reasons for its decision do not contain adequate particulars, in contravention of s 28(5)(c) of the AAT Act.

12. Following that declaration and in accordance with the provisions in s 28(6) of the AAT Act, BLZQ ‘s parents must be provided with an additional statement containing further and better particulars.

    DECISION

13. Pursuant to s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal declares that the statement given to the Applicant under s 28(1) of the AAT Act does not contain adequate particulars of the reasons for the decision on internal review dated 8 March 2023 pursuant to s 100(6) of the NDIS Act confirming the decision dated 8 November 2022 pursuant to s 33(2) of the NDIS Act to approve the Applicant’s NDIS plan which includes funding of $29,583.40 for152 hours in the Improved Daily Living budget for the Applicant’s Capacity Building Supports in his NDIS plan (8 November 2022 – 8 November 2023).

14. Pursuant to s 28 (6) of the AAT Act, within 28 days, the Respondent must give the Applicant an additional statement containing further and better particulars of the reasons for the decision with specific reference to the reasons for assessing the amount of therapy supports at 152 hours and funding of $29,583.40 for Improved Daily Living in the Applicant’s Capacity Building Supports in his NDIS plan (8 November 2022 – 8 November 2023).

    I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

    .......................[Sgnd]..................................

    Associate

Date of Decision:	August 2023
Date of Hearing:	30 June 2023
Solicitor for the Applicant:	Ms Angela Cox Special Voices, Disability Law and Advocacy
Solicitor for the Respondent:	Ms Beata Chiew-Ling Moray & Agnew Lawyers