Branch and Chief Executive Officer, National Disability Insurance Agency

[2024] AATA 2778

Branch and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2778 (26 July 2024)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/9670
NATIONAL DISABILITY INSURANCE SCHEME DIVISION	)

Re: Robert Branch
Applicant

And: National Disability Insurance Agency
Respondent

DIRECTION

TRIBUNAL:   Member P French

DATE OF CORRIGENDUM: 7 August 2024

PLACE:         Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. The word “not” in line 3 of paragraph 62 is removed.

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

Member P French

Division:National Disability Insurance Scheme Division 

File Number(s):       2023/9670

Re: Robert Branch

APPLICANT

Chief Executive Officer, National Disability Insurance AgencyAnd  

RESPONDENT

DECISION

Tribunal:Member P French 

Date:26 July 2024

Place:Sydney

Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the Application is dismissed on the basis that it is misconceived in part and otherwise lacking in substance.

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

Member P French

CATCHWORDS

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – decision to approve the statement of participant supports in a participant’s plan – applicant seeks review of Agency’s record of diagnosis or impairment – diagnosis/impairment does not form part of a statement of participant supports – no jurisdiction – application misconceived – applicant seeks  assistance of NDIA to obtain compensation and redress for alleged mistreatment by State child protection and mental health authorities and fraud by Optus – application misconceived – applicant seeks to include subsistence and care costs of pet dog in statement of participant supports – dog not an assistance animal – no evidence as to how dog constitutes an impairment related support – no evidence that such subsistence and care costs are other than day-to-day living costs of a pet – request lacking in substance – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42A, 42B

National Disability Insurance Scheme Act 2013 (Cth), ss 32, 33, 34, 48, 99, 100, 103

CASES

Agar v Hyde (2000) 201 CLR 552

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
General Steel Industry v Commissioner for Railways (1964) 112 CLR 125

State Electricity Commission of Victoria v Rabel [1998] 1VR 102

REASONS FOR DECISION

Member P French

26 July 2024

1. This is an application by Robert Branch (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for administrative review of an internal review decision made under s 100(6) of that Act by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate, the CEO, the Agency, the reviewable decision) on 20 December 2023. By that decision the delegate affirmed the CEO’s original decision of 18 August 2023 which was to approve a statement of participant supports in the Applicant’s participant plan following a reassessment of that plan under s 48 of the Act. Subject to what I say following, this Tribunal has jurisdiction to review this decision pursuant to s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) it being designated a reviewable decision by s 99(1) (item 4) of the NDIS Act.. This application was made to the Tribunal on 20 December 2023 (the proceeding).

2. For reasons explained in greater detail following, I have decided to dismiss the proceeding under s 42B(1)(a) of the AAT Act because it is in part misconceived and otherwise lacking in substance.

3. It is misconceived insofar as the Applicant asks the Tribunal to review the disability and condition the Agency has recorded in its administrative system as the basis upon which he was granted access to the NDIS. A disability or condition does not form part of a statement of participant supports under s 33(2) of the Act. Any agency decision with respect to its record of a participant’s disability and condition is therefore not reviewable under s 99(1)(Item 4) of the Act, nor is it otherwise designated a reviewable decision by s 99(1).

4. The Tribunal does have jurisdiction under s 99(1)(Item 4) to review supports requested by a participant to determine if they are reasonable and necessary supports which are most appropriately funded by the NDIS. However, in this case, with one exception, the ‘support’ requested by the Applicant relates to matters that are entirely external to the NDIS. The exception is in relation to a pet dog which the Applicant sought to identify as a reasonable and necessary support in correspondence with the Agency and Tribunal just days before the final hearing. The Applicant had not previously requested support from the NDIS for his dog and he presented no evidence whatsoever as to how the dog constituted an impairment related support, or why the costs associated with its subsistence and care were other than day-to-day living expenses related to a pet. He did not contend that the dog was an assistance animal. Consequently, to the extent that the application for review did relate to reasonable and necessary supports it was lacking in substance.

   Procedural history

5. Following the filing of the application, the proceeding was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act. A Case Conference was scheduled and held with a Conference Registrar on 4 April 2024, but that did not progress the matter. The Applicant expressed dissatisfaction with the alternative dispute resolution process and requested the proceeding be listed for hearing.

6. Additional to that request, following the filing of his application for review, the Applicant had been in frequent email and telephone contact with the Adelaide Registry to canvas various issues of concern to him. His written correspondence was addressed not only to the AAT and the Agency but to various South Australian State and Commonwealth Parliamentarians and statutory office holders. Dealing with the quantity of those communications presented the Registry with significant challenges. Additionally, some of those communications were indicative that the Applicant was in a dysregulated mental state which involved a risk of self-harm. On one occasion Registry was sent photographs of the aftermath of an apparent incident of self-harm. The nature and content of the Applicant’s communications also raised a serious question about his capacity to meaningfully participate in alternative dispute resolution.

7. Having regard to these matters, and the Applicant’s expressed wish that the proceeding be constituted for hearing, a decision was taken on or about 29 April 2024 to terminate alternative dispute resolution and refer the proceeding for constitution to a Member of the Tribunal for hearing.  

8. I note that prior to termination of the alternative dispute resolution process, a Conference Registrar attempted to refer the Applicant to Legal Aid and a NDIS Disability Advocacy Service for advice and support in relation to the proceeding. However, he indicated that he did not want to receive such assistance.

9. On 6 May 2024, the Deputy President responsible for the AAT’s NDIS Division constituted the proceeding to me for hearing in accordance with the President’s Directions made under s 19A of the AAT Act.

10. On 21 May 2024 I convened a Telephone Directions Hearing for the purpose of programming the proceeding to final hearing on an expedited basis. Directions were given to the parties for the filing and exchange of the evidence and submissions they wished to rely on at the final hearing, and the hearing was fixed for 24 and 25 June 2024.

11. On 28 May 2024, the Agency’s legal representative filed an interlocutory application seeking (summary) dismissal of the proceeding on the asserted basis that the Tribunal did not have jurisdiction to entertain it (the dismissal application).

12. On 30 May 2024 I issued directions to the parties which indicated that the dismissal application would be dealt with as a preliminary issue to the substantive review. I made directions for the parties to file and exchange submissions in relation to the dismissal application and fixed the hearing of that application for 10am, 12 June 2024.

13. The hearing of the dismissal application proceeded on 12 June 2024. For reasons I will set out in detail following I could not be satisfied at that time that the Applicant’s case was so wholly untenable as to justify its summary dismissal either on the basis that the Tribunal did not have jurisdiction to deal with it, or on its merits. Accordingly, I refused the dismissal application and confirmed the substantive review hearing for 24 and 25 June 2024. I also made a further direction which provided the Applicant with another opportunity to give to the Tribunal and the Agency - any further evidence and submissions he intended to rely upon at that hearing by 19 June 2024.

    Evidence and hearing

14. I have considered the following material in reaching my determination:

    (i)T-documents filed by the Agency on 9 January 2024 (Exhibit 1),

    (ii)over 200 items of written communication sent by the Applicant to the Registry and the Agency (and various other persons) between 27 December 2023 and 24 June 2024 and their attachments (Exhibit 2). This included:

    i.an email to the Agency and the Tribunal dated 12 June 2024 in relation to support for a dog,

    ii.a further email to the Agency and the Tribunal dated 20 June 2024 in relation to support for a dog.

    (iii)The Agency’s submissions in relation to the dismissal application dated 28 May 2024,

    (iv)An email from the Agency’s legal representative to the Applicant and the Tribunal dated 11 June 2024 (Exhibit 3), and

    (v)The Agency’s Outline of submissions in relation to the substantive hearing dated 24 June 2024.

15. In relation to Exhibit 2 I note that the Applicant did not respond in any meaningful way to my directions for the filing and exchange of his evidence, but rather continued to submit emails to the Registry addressed to the Tribunal, the Agency, and various other public officials.

16. The hearing was conducted by video on the Microsoft Teams platform.

17. The Applicant was self-represented at the hearing. He gave evidence in his own cause under affirmation. He did not call any witness.

18. The Agency was represented at the hearing by Mr P Snell, Special Counsel, Moray & Agnew. The Agency did not call any witness.

19. The parties had the opportunity to make opening statements, present their evidence, ask questions, and make final submissions to the Tribunal.

    Material Facts

20. The Applicant is an existing participant in the National Disability Insurance Scheme.

21. By a NDIS Access Request Form dated 9 April 2021 the Applicant first requested access to the NDIS. Section 2 of the Access Request Form (which is required to be completed by a health professional) was completed by a General Practitioner, Dr Yong. At item 2.1 of the Form, Dr Yong reported the Applicant’s ‘primary disability’ as ‘Schizoaffective Disorder’.[1] On 1 June 2021, a Dr Black, who states his qualifications to be ‘Clinical Psychologist/Medical Practitioner’, completed an Access Request – Supporting Evidence Form in support of the Applicant’s Access Request. At Item 2.1 of the Form, Dr Black reported the Applicant’s ‘primary disability’ as “PTSD (complex) with psychotic features”.[2]

    [1] T-Documents, Tab T5, page 76.

    [2] T-Documents, Tab T6, page 83.

22. On a date between 2 June and 10 August 2021 a delegate of the CEO determined that the Applicant met the access requirements for the NDIS (being the age, residence, and disability requirements). The letter that communicated that decision to the Applicant is not in the T-Documents. Nothing turns on this. It is not in issue that the delegate determined that the Applicant met the disability requirements based on impairments that were attributable to a psychosocial impairment. That psychosocial impairment was identified in the Agency’s administrative system as “Psychosocial Impairment with Schizoaffective Disorder”.

23. In this respect the Agency maintains an electronic database which records information about a participant in the NDIS under an “account name”, being the name of the participant. One of the fields in the account is the person’s “Disabilities”. There is a drop down box in that field which records by a condition code “CON-[numeric identifier]” and “Reported Condition” the “disabilities” of the participant.[3]

    [3] See the attachment to Exhibit 3.

24. On 9 August 2021 a delegate of the CEO approved a participant plan for the Applicant in accordance with s 32, which included a statement of participant supports made in accordance with s 33(2) of the Act (the first participant plan). The start date for the plan was 9 August 2021 and its projected review date at that time was 7 August 2024. The Agency letter which notified the Applicant of his participant plan approval does not contain any reference to the impairment upon which he was given access to the NDIS.[4]

    [4] T-Documents, Tab T18, page 110.

25. The Applicant’s participant plan includes at page 4 a section headed “[a]bout me” which includes the following statements: “I am a very anxious person with depression” and “[m]y PTSD often prevents me from executing motivation on my own”. At page 5 of the plan is a section headed: “[m]y goals”. One of the stated goals includes a reference to “someone who can support my anxiety”. Page 7 of the plan outlines the “core supports” which have been approved as a component of the Applicant’s participant plan. This section includes this statement: “… supports will work collaboratively with my Allied Therapists to implement any learnt daily living strategies linked to my disability related needs …’ Page 9 of the plan outlines the “capacity building supports” that are included in the Applicant’s plan. This section includes the following statement: “[p]sychosocial recovery coaches will provide support …” Other than these statements, the Applicant’s participant plan does not include any reference to a diagnosis, impairment, or disability.

26. On repeated occasions before 28 July 2023 the Applicant communicated to the Agency and the Minister administering the NDIS dissatisfaction with his participant plan.[5] Various issues were canvassed in the Applicant’s complaints, but for present purposes it is sufficient to note that he expressed dissatisfaction with the plan because he apprehended that it had been developed in response to a diagnosis he did not accept, which was Schizoaffective Disorder. He wanted the plan to be responsive to what he considered to be his actual health condition, Post Traumatic Stress Disorder.

    [5] See for example, T-Documents, Tab T14, pages 102 – 103.

27. The Applicant’s communications were ultimately dealt with by the Agency as a request for reassessment of his participant plan under s 48 of the Act. A delegate of the CEO notified the Applicant of the Agency’s decision to conduct the reassessment by letter dated 28 July 2023.

28. Following the Agency’s decision to conduct a reassessment of his plan, the Planner Delegate of the CEO assigned to conduct the reassessment invited the Applicant to provide further information in relation to his diagnosis of Post Traumatic Stress Disorder and related issues. It appears the Applicant was not prepared to cooperate with those requests. He took the view that he had provided the Agency with all the information that he intended it should have in relation to those matters.

29. By letter dated 18 August 2023, the Planner Delegate notified the Applicant that she had approved a new participant plan, which was expressed to commence from that date and end on 16 August 2026 (the second participant plan). The second participant plan is substantially a replication of the first participant plan. It includes the same references to health conditions and disability as the first participant plan and no additional references. The only difference between the two plans is an increase in approved funding for core supports.[6]

    [6] T-Documents, Tab T19, pages 122 – 133.

30. The Applicant was dissatisfied with his second participant plan. On 31 October 2023, he contacted the Agency’s National Contact Centre to complain about the plan. The Applicant’s complaint continued to be that the plan had been developed in response to an incorrect diagnosis.[7]  

    [7] T-Documents, Tab T11, page 99.

31. The Agency decided to deal with the Applicant’s complaint by way of an internal review of its decision to approve the statement of participant supports contained in the second participant plan. On 9 November 2023 an Agency Participant Support Officer emailed the Applicant after being unable to reach him by telephone advising as follows:

    We have received your query regarding requesting a change to your diagnosis.

    …

    To enable us to assess your diagnosis, we require reports or evidence from your treating health professional.

    Could you please submit evidence to the NDIA via the email below.[8]

    [8] T-Documents, Tab T12, page 100.

32. The Applicant responded to that request on or about 21 November 2024 by telephone advising that he did not wish to provide further information.[9]

    [9] T-Documents, Tab T13, page 101.

33. On 13 December 2023 the Applicant was contacted by telephone by the delegate assigned to conduct the internal review. She took the following notes from that conversation:

    Introduced myself as review officer allocated to … request for an internal review and that I was calling for clarification of his requests to be reviewed.

    PPT said he thought it would be obvious.

    I explained that I can see he wants his PTSD diagnosis included, but was unsure if any further (sic)

    PPT replied that:

    …

    -    he is tired of dealing with unethical and illogical behaviours

    -    he has sent us a large number of literature regarding PTSD, and that he thought it would be sufficient

    -    he was happy to go to AAT if we were not willing to help him

    …

    -    I advised that it was certainly his right to exercise appeal rights with AAT

    -    I also explained that being an evidence based scheme, we require formal reports for consideration and that I have been unable to locate his formal diagnosis, and that given he had sent it to us, perhaps he could send it to me via email.

    At this point, the PPT said that:

    -    He wasn’t going to deal with this anymore,

    -    He wasn’t going to provide any further information

    -    He just wanted to go to the AAT to have this [and other issues] dealt with

    -    And that he was done talking to us

    I thanked the PPT for his time, and advised that I would finalise/complete the internal review appropriately …[10]

    [10] T-Documents, Tab T16, page 105.

34. By letter dated 20 December 2023, the Internal Review delegate notified the Applicant of the outcome of the internal review. The salient elements of that decision are extracted below:

    I am writing in response to your request for us to review our decision to approve the statement of participant supports in your plan that we made on 18 August 2023.

    The decision you have asked us to review is:

    1.    Include funding for supports relative to your diagnosis of Post traumatic Stress Disorder (PTSD)

    Outcome of review

    I have now reviewed your request under section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act). A decision has been made based on the facts and circumstances at the time of my decision.

    After careful consideration, I have confirmed the original decision is correct.

    You will find detailed reasons for my decision in the “Basis for Decision” section at the end of this letter.

    …

    Basis for decision

    …

    You have requested to include your Post Traumatic Stress Disorder (PTSD) diagnosis as a disability. This decision is not reviewable under an Internal Review request (s 100 of the NDIS Act 2013). The scope of an internal review within the Act is limited to review the statement of supports (Materials Reviewed, item 10) which have been provided in your plan. However, as per Our Guideline ‘Fair supports for your disability needs’, the statement of participant supports (therapy supports) relative to PTSD can be considered under section 100 of the NDIS Act 2013.

    1.    Include funding for supports relative to your diagnosis of Post Traumatic Stress Disorder (PTSD)

    NDIS Act section 34(1)(f) criteria: Responsibility of the NDIS to fund.

    All NDIS supports must be most appropriately provided through the NDIS and not other general service or support systems, such as the employment, education, health and family support services. These services are available to all Australians. We can’t fund a support if it’s the responsibility of another support system. I am not satisfied this support is the responsibility of the NDIS to fund.

    In considering your request for therapy supports related to PTSD, I have reviewed available evidence… and the information you provided during our phone call on 13 December 2023. I can also see evidence of the Agency attempting to obtain more information to assess your PTSD diagnosis on several occasions. However, no formal evidence has been received from your treating health professionals (psychologist, psychiatrist, etc). During our phone conversation on 13 December 2023, I also provided you with the opportunity to submit further supporting evidence, however, you confirmed no further evidence will be provided. Therefore, based on the information available at this time, I am unable to determine whether all treatments have been explored and/or completed, or that your impairment (PTSD) is likely to be permanent, and that your permanent impairment will affect your ability to work, study or take part in social life.  Therefore, I am not satisfied that it is a responsibility of the NDIS to fund your requested therapy supports …[11]

    [11] T-Documents, Tab T11, pages 37 – 41.

1. As noted above, the Applicant filed material with the Tribunal on or about 21 December 2023 seeking administrative review of the Agency’s internal review decision. He was unable to complete the online review application form. Consequently, he contacted a Registry Officer by telephone who completed the form on his instruction. In the section of the application form that asks the Applicant to explain the ‘reasons for the application’ the Applicant instructed the Registry Officer to write:

   The NDIA are going on a false diagnosis and the decision is fraudulent. The information provided was also fraudulent.[12]

   [12] T-Documents, Tab T1, page 2. The Registry Officer also notes the following on page 3 of the application form: “Applicant unable to fill in form due to accessibility issues. Form completed verbatim by the Tribunal on behalf of Mr Branch on 21 December 2023”.

2. On 11 June 2024 the Agency notified the Applicant and the Tribunal as follows:

   The issue we understand to be the basis of the application before the Tribunal is a request by the Applicant (Participant) for a Determination requiring the Agency to amend its records to change the description of the impairment for which the Participant continues to receive funding of supports under the NDIS.

   The Agency does not consider the Tribunal has jurisdiction to make the Determination which the Participant seeks. The Agency considers the description of the Participant’s impairment is an “administrative” function of the Agency in the sense that it is clerical in nature.

   We advise that in response to the Participant’s request, the Agency has made the following amendments to its records:

   1.    From 30 May 2024, the description of the Participant’s assessed impairment as “Schizoaffective Disorder” is no longer effective.

   2.    From 31 May 2024, the Participant’s assessed impairment for the purpose of their participation in the Scheme is “Other Psychosocial Disorder” and “Post Traumatic Stress Disorder”.

   We attach a “screen shot” of the Agency’s internal record of the description of the Participant’s assessed impairment, confirming these amendments.

   …

3. The screenshot of the Applicant’s account taken on 31 May 2024, enclosed with the email, reveals “CON-511617 Schizoaffective Disorder” as inactive, and “CON-1734095 Unspecified psychological disorders” and “CON-1734096” Post Traumatic Stress Disorder (PTSD) as both active.[13]

   [13] Attachment to Exhibit 3.

4. As noted above, Exhibit 2 comprises email communications the Applicant has sent the Registry and Agency, as well as various other parties, while this proceeding has been on foot. While these emails are not responsive in any meaningful way to the directions I made for the Applicant to file his evidence and submissions, I have taken the view that I should consider this material to ascertain its relevance, if any, in this review having regard to the fact that the Applicant is self-represented and that it is apparent that he is living with impairments that affect his ability to conduct his case before me.

5. Leaving aside the Applicant’s complaint that his participant plan has been developed in response to an incorrect diagnosis, the emails have five thematic concerns:

   i.a claim for monetary compensation and other redress from the State of South Australia in relation to alleged failures of child protection and other State agencies which resulted in his abuse and neglect as a child,

   ii.a claim for compensation and other redress from the State of South Australia in relation an alleged false diagnosis of a mental health condition, false imprisonment, and unlawful coercive (involuntary) treatment by the State’s mental health authorities,

   iii.alleged failures by various anti-corruption and complaints bodies to properly investigate the Applicant’s allegations of ‘corruption’, ‘fraud’ and unlawful conduct by Commonwealth and State public officials and agencies,

   iv.the alleged anti-social behaviour of a neighbouring tenant of the Applicant and the alleged failure of his social housing provider (landlord) and other authorities to act to prevent his exposure to this antisocial behaviour,

   v.a claim for monetary compensation from Optus in relation to alleged corruption and fraud it has perpetrated against the Applicant.

6. On 12 June 2024 the Applicant sent an email to the Tribunal and the Agency which included the following statement:

   This is a longstanding problem u wouldn’t have no insight or cognitive function to be a security officer and work along side law enforcement and it’s obvious systemic issues and I wouldn’t understand my full options for ptsd support one I can think of is a companion dog as I’ve got my dog unsupported to care for which is very beneficial to my mental health even my go has reconsidered her as an emotional support dog.

7. On 20 June 2024 the Applicant sent an email to the Tribunal and the Agency which comprised the following statement:

   My dog should be covered and a ongoing dog as it’s one of my greatest supports.

   Jurisdiction

8. Section 25(1) of the AAT Act provides, relevantly, that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. In this respect, s 103(1) of the NDIS Act provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) upon the review of a reviewable decision conducted in accordance with s 100. The Table to s 99(1) of the NDIS Act designates those decisions that are reviewable decisions under that Act. For present purposes it is only necessary to note that this includes in Item 4 of the Table a decision of the CEO to approve the statement of participant supports in a participant’s plan under subsection 33(2) of the NDIS Act.

   Applicable law

9. Part 2, Chapter 3 of the Act concerns participants’ plans.

10. Division 1 (s 31) sets out a series of principles relating to plans. It provides, relevantly to the present case:

    31       Principles relating to plans

    The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:

    (a)       be individualised; and

    (b)       be directed by the participant; and

    …

    (g)be underpinned by the right of the participant to exercise control over his or her own life; and

    …

    (i)        maximise the choice and independence of the participant; and

    (j)facilitate tailored and flexible responses to the individual goals and needs of the participant; …

11. Division 2 concerns the preparation of participants’ plans. In this respect, s 32 provides that if a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan, which must commence within 21 days of the person becoming a participant.

12. Section 33 sets out the matters that must be included in a participant’s plan. It provides, relevantly to the present case:

    33       Matters that must be included in a participant’s plan

    (1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

    (a)the goals, objectives and aspirations of the participant; and

    (b)the environmental and personal context of the participant’s living, including the participant’s:

    (i)living arrangements; and

    (ii)informal community supports and other community supports; and

    (iii)social and economic participation.

    (2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a)the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

    (c)the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and

    (d)the management of the funding for supports under the plan (see also Division 3); and

    (e)the management of other aspects of the plan.

    (3)The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

    …

    (5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

    (a)have regard to the participant’s statement of goals and aspirations; and

    (b)have regard to relevant assessments conducted in relation to the participant; and

    (c)be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d)apply the National Disability Insurance Scheme Rules (if any) made for the purposes of s 35; and

    (e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)have regard to the operation and effectiveness of any previous plans of the participant.

    …

    (7)A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.

    Note:   For example, a participant’s plan may include arrangements for ongoing contact with the Agency.

    (8)A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.

    …

13. Section 34 concerns reasonable and necessary supports that are to be included in participant plans by operation of s 33(2)(b). It provides:

    34       Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations including in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)as part of a universal service obligation; or

    (ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    (2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

14. Division 4 deals with the variation and replacement of participants’ plans.

15. Relevantly to the present case, s 48 provides for the reassessment of a participant’s plan:

    48Reassessment of participant’s plan on request of participant or CEO’s own initiative

    (1)The CEO may conduct a reassessment of a participant’s plan at any time.

    Reassessment on request of participant or CEO’s own initiative.

    (2)The CEO may do so on request of the participant or on the CEO’s own initiative.

    Decision on request

    (3)If the participant requests a reassessment of the participant’s plan, the CEO must before the end of the period of 21 days beginning on the day the CEO receives the request:

    …

    (b) make a decision that the plan needs to be reassessed; or

    …

    Note:   If the CEO decides the plan needs to be reassessed, see subsection (8) for the period for completing the reassessment.

    …

    Notification of decision

    (6)The CEO must notify the participant of the following:

    (a)a decision of the CEO to conduct a reassessment of the participant’s plan on the CEO’s own initiative;

    (b)a decision of the CEO under paragraph (3)(a) or (b).

    …

    Outcome of reassessment

    (7)If the CEO conducts a reassessment under subsection (1) of a participant’s plan, the CEO must:

    (a)complete the reassessment; and

    (b)       either:

    …

    (ii)prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33(2), the statement of participant supports in the new plan.

    …

16. Section 209 of the Act provides that the Minister administering the Act may, by legislative instrument, make rules governing the operation of the NDIS in accordance with that section. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (NDIS (Supports for Participants) Rules) are made pursuant to that section and are applicable in this review.

17. Part 5 of those Rules deals, relevantly, with supports that will not be funded or provided under the NDIS. Rule 5.1 is relevant in the circumstances of this case. It provides, relevantly:

    General criteria for supports

    5.1      A support will not be provided or funded under the NDIS if:

    …

    (b)       it is not related to the participant’s disability; or

    …

    (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

    Contentions

    Applicant

18. The Applicant’s contentions may be summarised as follows:

    i.his participant plan has been developed in relation to a false diagnosis, being Schizoaffective Disorder, and as a consequence it is, in various ways, invalid (fraudulent, corrupt, abusive, etc),

    ii.he requires support from the NDIS to obtain compensation and redress from South Australian State government agencies in relation to his alleged abuse and neglect as a child, his mistreatment within the mental health system, and his neighbour’s antisocial behaviour. His understanding in this respect is that the NDIS and State Government services are part of the same system and that the NDIS has the power and responsibility to obtain justice for him in relation to his treatment by State Government services. He also contends that the NDIS has the power and responsibility to obtain compensation and redress for him in relation to alleged fraudulent and corrupt conduct of Optus,

    iii.(subject to iv) he does not wish to change any aspect of his statement of participant supports to add any specific form of support in relation to PTSD which is not already in the plan, or to take out any form of support that relates only to Schizoaffective Disorder,

    iv.he would like support from the NDIS in relation to his dog, which is a Chihuahua named “Kitchie”. The support sought relates to Kitchie’s subsistence (food, veterinary care etc).

    Agency

19. The Agency’s primary contention is that the application for review is misconceived because the Tribunal does not have jurisdiction to review a decision of the Agency in relation to the record of the Applicant’s “disabilities” or conditions kept on their participant account (in this case a decision to refuse to amend that record). At the dismissal hearing, it submitted that the application for review should have been dismissed on this basis without proceeding to a review pursuant to s 42A(4) of the AAT Act. At the substantive hearing it submitted that the Application ought to be dismissed on this basis pursuant to s 42B(1)(a) of the AAT Act.

20. In the alternative to that submission, the Agency accepts that the Tribunal has jurisdiction pursuant to s 103(1), 100(6), and 99(1)(item 4) of the NDIS Act to review a decision of the CEO to approve a statement of participant supports in a participant plan and does so in this case. However, it submits that a description of health condition(s) to which the impairments that give rise to the need for reasonable and necessary supports are attributable forms no part of the statement of participant supports. Additionally, it is submitted that in this case the Applicant does not challenge any aspect of his statement of participant supports. That is, at least up until days before the final hearing, the Applicant had not identified any support that he wanted or needed that was not included in the statement of participant supports, and nor did he contest any support that was included. At the dismissal hearing the Agency submitted that the application ought to be dismissed on this basis, pursuant to s 42B(1)(b) of the AAT Act because it had no reasonable prospects of success.

21. With respect to the Applicant’s belated request in relation to his dog, made following the dismissal hearing, the Agency submits that this is a ‘bare’ request made without any evidence that the dog is a form of support in relation to the Applicant’s functional impairment. On the original grounds, and this additional ground, the Agency submitted at the substantive hearing that the application should be dismissed as lacking in substance pursuant to s 42B(1)(a) of the AAT Act.

    Consideration

22. The issue for determination at the dismissal hearing was whether the application was misconceived or so lacking in substance that it ought to be summarily dismissed.

23. It is well established law that an application ought not to be decided in a summary way other than in the clearest of cases and with exceptional caution. In considering an application for summary dismissal, the substantive applicant’s case must be taken at its highest. It falls to the summary dismissal applicant to establish that the substantive applicant’s case is so obviously untenable that it cannot succeed, is manifestly groundless, or discloses a case which the Tribunal is satisfied cannot proceed.[14] This general principle has particular resonance in this jurisdiction in which applicants are often self-represented and experience additional disadvantages in presenting their applications for review which arise from impairment and disability. I considered the dismissal application through that lens.

    [14] Agar v Hyde (2000) 201 CLR 552; General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

24. After hearing argument, I determined that the substantive application ought not be summarily dismissed because:

    i.there was no issue that the Tribunal had jurisdiction to review a decision of the CEO to approve a statement of participant supports. Nor was there any issue (save for the following) that the Applicant had validly invoked this jurisdiction (that is, the CEO had made an original and internal review decision, and the Applicant had sought review of the internal review decision as permitted by the AAT and NDIS Acts),

    ii.while I was satisfied that a health condition or diagnosis is not one of the matters required by s 33(2) of the NDIS Act to be specified in a statement of participant supports, and that Schizoaffective Disorder was not specified in the Applicant’s statement of participant supports in fact, there was, in principle, a logical connection between the impairments attributable to the health condition in relation to which the Applicant had obtained access to the NDIS and the supports that had been approved in relation to the reduction in functional capacity that resulted from those impairments. In other words, whether the supports specified in a statement of participant supports are responsive to a reduction in functional capacity that results from impairments attributable to a specific, correctly, or incorrectly, identified health condition of a participant may be a relevant consideration in the review of a decision made pursuant to s 33(2),

    iii.that is particularly the case having regard to the principles that are to be applied, so far as reasonably practicable, (relevantly to this case), in the reassessment of a participant plan; particularly those stated at s 31(a), (b), (g), (i) and (j) of the NDIS Act,

    iv.while the Applicant’s application for administrative review did not, in terms, indicate any dissatisfaction with the contents of his statement of participant supports per se, having regard to his repeated submissions at the hearing that the plan had been developed in relation to the wrong diagnosis I was of the view that he ought to be given the opportunity to explain why the statement of participant support was inappropriate or inapposite for that reason,

    v.in the above respects there were mixed questions of fact and law the elucidation of which required full consideration of the application for review on its merits, rather than in a summary way,

    vi.I also considered that this is an administrative review proceeding in which there is a public interest of ensuring that the Applicant’s needs are being met in accordance with the objects and machinery of the NDIS Act.

1. I have now had the opportunity to fully consider the Applicant’s case for administrative review on its merits, having provided him with two opportunities to file evidence and submissions.

2. The Applicant continues to press his request that the Tribunal somehow overturns the Agency’s decision to record Schizoaffective Disorder as his ‘disability’ and ‘condition’ on his participant account, even though that description has, as of 31 May 2024, been deactivated and replaced with what he considers the correct disability and condition, being PTSD (he makes no comment about the ‘unspecified psychosocial disorders” description).

3. If I understood him correctly, this remains an issue for him because he believes that a decision of the Tribunal in his favour will somehow cause the Agency to have this diagnosis expunged from his state-based mental health records and lead to some form of compensation or redress in relation to that allegedly false diagnosis and the involuntary treatment he has received from State-based mental health services in relation to it.

4. Section 33(2) prescribes those matters that a statement of participant supports must include. It is a closed list. That is, the statement of participant supports must contain the specified matters and not cannot contain anything else. The impairment and the health condition (diagnosis) to which the impairment is attributable, and in relation to which the Applicant met the disability requirement for access to the NDIS, is not one of the matters prescribed by s 33(2).

5. The participant plan issued to the Applicant on 18 August 2023 following reassessment does refer to ‘anxiety’ and ‘depression’ in the section headed ‘My profile’ and to ‘anxiety’ in the section headed ‘My goals’, but while these may be references to conditions or impairments, there is no reference of Schizoaffective Disorder. In any event these sections constitute components of the ‘participant’s statement of goals and aspirations’ developed pursuant to s 33(1). They are thus not a constituent element of the statement of participant supports developed pursuant to s 33(2). A decision concerning a participant’s statement of goals and aspirations is not designated a reviewable decision.

6. There is reference to ‘disability related needs’ and ‘psychosocial recovery services’ in the ‘core’ and capacity-building’ sections of the plan which do constitute components of the statement of participant supports, but neither constitutes a reference to Schizoaffective Disorder. And, as I understand it, the Applicant does not contend that psychosocial recovery services are an inappropriate support to be included in his plan – he accepts that such support is appropriate to assist with his reduced functional capacity that results from impairments attributable to PTSD.

7. The record of the Applicant’s disability and condition maintained by the Agency in its database is therefore wholly external to the statement of participant supports.  It follows from this analysis that the Tribunal does not have jurisdiction to review any decision of the Agency in relation to the record of disability or condition it maintains on its database in relation to a participant by operation of Item 4 in the Table to s 99(1). Nor is jurisdiction to do so conferred by any other Item in the Table to s 99(1). The application insofar as it seeks review of such a decision is therefore misconceived, in that it proceeds upon a fundamental misunderstanding of legal principle[15] (being that the Tribunal has jurisdiction to review such a decision).

   [15] State Electricity Commission of Victoria v Rabel [1998] 1VR 102 at [14]

8. The Tribunal does have jurisdiction to review a decision made under s 33(2) which results in disputed supports being included in a statement of participant supports or which did not approve the inclusion of supports requested by a participant.

9. However, in this case, as I have noted, the Applicant does not dispute the supports that are included in his statement of participant supports. He accepts that these are reasonable and necessary supports in relation to his reduced functional capacity that is attributable to PTSD.

10. The Applicant does seek the Agency’s assistance in relation to the matters set out at paragraph 39 above. But his belief that the Agency can provide such assistance is misconceived. The NDIS is external to State-based child protection, mental health, and social housing systems. The NDIS Act confers no power on the Agency to direct state agencies operating within those systems in the manner contemplated by the Applicant, or at all. Nor does the NDIS Act confer any power or function on the Agency in relation to Optus.

11. To the extent that the matters referred to in paragraph 39 should be understood in terms of a request by the applicant for ‘support’ to achieve compensation and redress in relation to perceived wrongs, that support is not most appropriately funded by the NDIS. Support to obtain legal redress is most appropriately obtained from, including funded by, the justice system. That is the case whether the Applicant has been able to obtain such assistance from legal and related services in relation to those matters or not, about which there is no evidence before me.

12. For the foregoing reasons the application for review insofar as its object is for the Tribunal to compel the Agency to act in relation to the matters referred to in paragraph 39 is misconceived.

13. What is left is the request made by the Applicant by his emails dated 12 and 20 June 2024 in relation to his dog. Although not entirely clear, I understand that the Applicant seeks support from the NDIS in relation to the dog’s subsistence costs, such as food and veterinary care.

14. I accept at the level of general principle that supports in relation to an animal are in specific circumstances capable of being a reasonable and necessary support within the meaning of s 34 and the applicable NDIS rules. The Agency does not contend otherwise.

15. The difficulty is that the Applicant has presented no evidence as to why that is so in this case. At no time prior to 12 June 2024 had the Applicant ever made a request to the Agency in relation to his dog. It follows from this that the Agency has no information relating to such a request, and there is nothing before me other than the bare request itself.  

16. While the Applicant refers in his email of 12 June 2024 to the dog being a recognised companion animal, he has submitted no corroborating evidence of that. In his oral evidence, in response to my question, he volunteered that the dog is not an assistance animal and has not undergone any form of training in connection with disability-related support for him.

17. It is clear from what the Applicant said about the dog at the hearing that she is treasured and provides him with companionship and comfort. But this is what a pet dog does for many people. To characterise the dog as a ‘pet’ is not to diminish her importance to the Applicant in any way. The issue is that there is no evidence before me that she plays any role beyond that in terms of the Applicant’s disability-related support. It follows from this that there is also no evidence that her subsistence costs are other than day-to-day living costs of the Applicant. For these reasons the dog is not a support that can be funded by the NDIS because of the NDIS (Supports for Participants) Rules, Rule 5.2(b) and (d).

18. For the foregoing reasons, to the extent that the application for review seeks as an outcome the inclusion of supports related to the dog in the Applicant’s statement of participant supports, it is lacking in substance.

    Conclusion

19. For the foregoing reasons the application for review will be dismissed pursuant to s 42B(1)(a) of the AAT Act on the basis that it is misconceived in part, and otherwise lacking in substance. I take this course rather than to affirm the decision under review pursuant to s 43(1)(a) because the primary outcomes sought by the Applicant lie outside the jurisdiction of the Tribunal and to the limited extent that this is not the case the Applicant has not established a proper basis for review of that decision.

I certify that the preceding 77 (seventy - seven) paragraphs are a true copy of the reasons for the decision herein of Member P French

........................................................................

Associate

Dated: 26 July 2024

Date(s) of hearing:	24 June 2024
Applicant:	In person
Counsel for the Respondent:	Mr P Snell, Moray & Agnew