Boxell and National Disability Insurance Agency

[2022] AATA 2681

Boxell and National Disability Insurance Agency [2022] AATA 2681 (19 August 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/4676

Re:Luke Boxell

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member, P. Smith

Date of written reasons:        19 August 2022

Place:Sydney

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 7 June 2022.

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

Member, P. Smith

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME –  application for review – whether there is a reviewable decision for the Tribunal to review – whether the request for an internal review was withdrawn by the Applicant – internal review request reinstated by the Respondent – no reviewable decision for the Tribunal to review – application for review dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 42A(4), 43(2A).

National Disability Insurance Scheme Act 2013 (Cth), ss 33(2), 48, 48(2), 99, 100, 100(6)(a), 103.

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

INTRODUCTION

1. On 25 July 2022, the application for review filed on 7 June 2022 by Luke Boxell (the Applicant) was listed for an Interlocutory Hearing to determine whether there was a reviewable decision that could be reviewed by the Tribunal.  At the hearing, the Applicant’s mother appeared for her son and a representative appeared for the National Disability Insurance Agency (the Respondent).    

2. The Tribunal decided at the hearing to dismiss the Applicant’s application for review under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that there was no reviewable decision for the Tribunal to review.

3. On 26 July 2022, the Applicant’s mother made a written request to the Tribunal to give written reasons for its decision to dismiss her son’s application for review on 25 July 2022. The Tribunal has determined that the request made to the Tribunal on 26 July 2022 by the Applicant’s mother is a request for written reasons under subsection 43(2A) of the AAT Act.

4. As requested by the Applicant, the Tribunal has prepared written reasons for its decision to dismiss the Applicant’s application for review on 25 July 2022. A copy of these written reasons for decision have been given to the Applicant within the time prescribed as set out in subsection 43(2A) of the AAT Act. The Respondent has also been given a copy of these written reasons.

   RELEVANT CHRONOLOGY

5. The Applicant became a participant of the National Disability Insurance Scheme (the NDIS) in 2019. 

6. On 7 February 2022, following the completion of a scheduled review of the Applicant’s previous Plan, a delegate of the Chief Executive Officer (the CEO) of the Respondent approved a statement of participant supports in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a two year period commencing on 7 February 2022 and ending on 7 February 2024.  The Applicant received notification of the delegate’s decision in respect of the approval of his Plan on 7 February 2022.

7. On 31 March 2022, the Applicant requested that the Respondent conduct an internal review of the delegate’s decision under section 100 of the NDIS Act.

8. On 13 April 2022, the Applicant’s mother telephoned the Respondent and spoke with a staff member about the Applicant’s review options and the reports prepared by the Applicant’s Occupational Therapist that were not considered by the Respondent when preparing the Applicant’s statement of participant supports that was approved on 7 February 2022. 

9. The interaction records, copies of which the Respondent provided to the Applicant and the Tribunal ahead of the Interlocutory Hearing on 25 July 2022, record that the Applicant’s mother withdrew her son’s internal review request made on 31 March 2022 and agreed that the internal review request should be treated as an unscheduled review of the Applicant’s Plan under section 48 of the NDIS Act. This was because the reports provided by the Applicant’s Occupational Therapist was new evidence and needed to be assessed on the basis of whether there had been a change to the Applicant’s circumstances.

10. At the hearing, the Applicant’s mother submitted that she did not withdraw the request her son made to the Respondent on 31 March 2022 for an internal review.

11. On 27 April 2022, the Respondent decided under subsection 48(2) of the NDIS Act not to conduct an unscheduled review of the Applicant’s Plan because the Respondent was not satisfied that sufficient evidence of a change to the Applicant’s circumstances had been provided to justify the CEO conducting an unscheduled review of the Applicant’s Plan.  No internal review of that decision has been made by a reviewer of the Respondent.

12. On 7 June 2022, the Applicant, with the assistance of his mother, applied to the Tribunal for review.  In his application, the Applicant identified the decision he sought review of as the decision made by the Respondent on 27 April 2022 under section 48 of the NDIS Act not to conduct an unscheduled plan review of the Applicant’s Plan.  For the reasons given below, the Tribunal is satisfied that the decision of 27 April 2022 is not reviewable by the Tribunal.

    THE ISSUE

13. The sole issue for the Tribunal to determine 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 NDIS Act.

    PRINCIPLES

14. The Tribunal has in a number of cases considered questions relating to its NDIS jurisdiction. In Napper and  National Disability Insurance Agency[1] (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[2] . The principles arising from those cases, as summarised in Napper, are set out below[3]:

    [1] Napper and National Disability Insurance Agency [2021] AATA 2363.

    [2] National Disability Insurance Agency [2021] AATA 922.

    [3] Napper and National Disability Insurance Agency [2021] AATA 2363 at [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 103 is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 103provides 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

15. The Application filed with the Tribunal on 7 June 2022 seeks a review of the decision made by the Respondent on 27 April 2022 not to conduct an unscheduled review of the Applicant’s Plan under section 48 of the NDIS Act. It is not an internal review decision made by a reviewer of the Respondent under subsection 100(6) of the NDIS Act.   

16. In relation to the request the Applicant made to the Respondent on 31 March 2022 for an internal review in respect of the delegate’s decision to approve a statement of participants support on 7 February 2022, the Tribunal appreciates that the Applicant’s mother has a different account of whether her son’s internal review request was indeed withdrawn.  Irrespective of this, no internal review decision has been made by a reviewer in respect of the delegate’s decision the Applicant’s Plan on 7 February 2022.

17. As there has been no internal review decision made by a reviewer under subsection 100(6) of the NDIS Act in respect of either the decision of 7 February 2022 or 27 April 2022, the Tribunal does not have jurisdiction under section 103 of the NDIS Act.

18. At the hearing the Respondent agreed to reinstate the Applicant’s request for an internal review of the delegate’s decision made on 7 February 2022.  The Tribunal explained to the Applicant’s mother at the hearing that if the Applicant is dissatisfied with the outcome of the internal review decision that the Respondent has agreed to make, he may seek a review of that decision by making a fresh application to the Tribunal within 28 days from the date the Applicant receives notice of the decision. 

19. For the reasons given above, the Tribunal is satisfied that there is no reviewable decision for the Tribunal to review within the meaning of sections 99, 100 and 103 of the AAT Act. As there is no reviewable decision for the Tribunal to review, it is appropriate that the application for review filed on 7 June 2022 be dismissed pursuant to subsection 42A(4) of the AAT Act.

    DECISION

    20.Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application filed on 7 June 2022.

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:   25 July 2022

Date(s) of hearing:	25 July 2022
Advocate for the Applicant:	Ms G. Cash
Advocate for the Respondent:	Ms S. Minhas