Brewjo and National Disability Insurance Agency
[2023] AATA 1506
•5 June 2023
Brewjo and National Disability Insurance Agency [2023] AATA 1506 (5 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/3061
Re:Ms Mary Brewjo
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member T Bubutievski
Date:5 June 2023
Place:Sydney
The Tribunal decided to dismiss the application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975.
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Member T Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – s 100 request of prior decision withdrawn – no s 100 decision – application dismissed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975Cases
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403
REASONS FOR DECISION
Member T Bubutievski
5 June 2023
The issue in this case is whether the Tribunal has jurisdiction to review the statement of participant supports in Ms Brewjo’s plan. Ms Brewjo’s nominee, Mr Michael Brewjo, made an application for review by this Tribunal on 3 May 2023, in relation to a statement of participant supports approved by the National Disability Insurance Agency (the Agency) on 2 May 2023.
Mr Brewjo’s position was that he had requested an internal review of a previous decision by the Agency to approve a statement of participant supports on 25 January 2023, but that the requested review had not been completed. The Agency’s position is that an internal review of that decision was requested, but that request was subsequently withdrawn on 20 March 2023 and replaced with a request for an unscheduled plan review. Mr Brewjo disputed the withdrawal of the request for internal review.
The matter came before the Tribunal for a directions hearing on 18 May 2023. Mr Brewjo argued for a speedy resolution, whereas the Respondent argued that a request for review was yet to be made, so the Tribunal did not have jurisdiction to hear the matter.
Only when an application has been made to the Tribunal do its powers arise. Such an application is considered valid only when an enactment provides for applications to be made to the Tribunal for review of certain decisions identified by that legislation. This is the effect of ss 25(1), (2) and (3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In this case, the enactment is the National Disability Insurance Scheme Act 2013 (NDIS Act). If an application is made for review of a decision which the NDIS Act does not identify as a decision in relation to which an application may be made, the Tribunal has no jurisdiction to consider that application.
Sections 99 and 100 of the NDIS Act set out the decisions which are ultimately reviewable by this Tribunal pursuant to s 103 of the NDIS Act. An original decision to approve a statement of participant supports is not one of the reviewable decisions, although those decisions themselves can be reviewed internally by the Agency pursuant to s 100 of the NDIS Act. Once the Agency has made a decision under s 100 of the NDIS Act, the Tribunal then has the jurisdiction to review that decision on the merits.
The Tribunal may also have jurisdiction to review a decision if the Agency has been requested to undertake a s 100 review and has not done so within 90 days, as then a “deemed decision” will be taken to have been made (s100(6A)).
The Tribunal must be confident that it has jurisdiction to consider an application. It must resolve any doubts before it embarks on dealing with substantive issues. Jurisdiction itself is not a matter that can be resolved by negotiation or agreement between the parties. As was said by the Full Court of the Federal Court in McLeish v Faure,[1] and it applies equally to the Tribunal:
“It is trite law that parties, by consent, cannot confer jurisdiction upon the court.”[2]
[1] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 per Sweeney, Evatt and Northrop JJ
[2] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 at [9]; 467; 409
If the Tribunal does not have jurisdiction the Tribunal cannot exercise any of its powers in relation to the decision.
SUBMISSIONS
On behalf of the Applicant, Mr Brewjo gave a history of the changes to her statement of participant supports, most particularly the change from supported independent living in her own home at a 1:1 care ratio to a 1:3 care ratio, most likely in some form of supported accommodation. Mr Brewjo spoke at length about the distress that this decision has caused himself and his sister and the fact that he had been trying to get it changed for a significant period of time, including making a previous application to this Tribunal in relation to a previously approved statement of participant supports. The previous application made to this Tribunal was withdrawn on the basis that Mr Brewjo was advised by the Agency that his sister’s plan could not be reviewed while there was a current matter progressing in the Tribunal.
Mr Brewjo said that the review of the plan ended up with the same result and he made an application for a s 100 review of the new plan. He said that the Agency had never completed that review and disputed the Agency’s position that the request for review had been withdrawn. Mr Brewjo was of the view that the Tribunal should expedite the matter and make a decision quickly in the interests of alleviating the distress and frustration being experienced.
Ms Kassidy Ure, Ms Brewjo’s current support coordinator, also attended the directions hearing. She stated that she was unaware that the request for the s 100 review had been withdrawn.
The Respondent submitted that the Tribunal does not have jurisdiction to review the matter and provided a chronology of events:
Date
Event
25 January 2023 Respondent approved a new NDIS plan under section 48 as part of an unscheduled plan review (Plan 1). 1 February 2023 Applicant submitted a request for an internal review of Plan 1 under section 100. 20 March 2023 Applicant withdrew request for an internal review of Plan 1. 31 March 2023 Respondent approved a new NDIS plan under section 48 as part of an unscheduled plan review (Plan 2). 2 May 2023
Respondent approved a new plan (Plan 3).
3 May 2023
AAT Application lodged.
ns
The Agency said that the person who had withdrawn the request for the s 100 review was Ms Brewjo’s former support coordinator, Jacqueline Lind, who had been authorised to do so, and that Mr Brewjo had been advised of the withdrawal on 23 March 2023. In law, if an application is withdrawn it is taken never to have been made. There was therefore no s 100 review of the decision of 25 January 2023, and the Tribunal does not have jurisdiction under s 103 of the NDIS Act.
The Respondent submits that no request for an internal review of Plan 3 has been made either and there has been no internal review decision made under section 100. Consequently, the Tribunal does not have jurisdiction to review this matter in circumstances where the Applicant has not requested internal review under s 100(2), and the Respondent has not made an internal review decision under s 100(6), in respect of the reviewable decision dated 2 May 2023.
The Respondent submitted that the Tribunal should dismiss the Application. The Respondent noted that the Applicant has until 1 August 2023 to seek a review of Plan 3.
FURTHER EVIDENCE
Given the disagreement between the parties as to whether or not the request for a review under s 100 of the NDIS Act had been withdrawn or a decision had not been made, the Tribunal requested the Respondent to provide all the interaction documents with Ms Brewjo’s representatives between 1 January 2023 and the date of the directions hearing. On 24 May 2023 the Respondent provided 73 pages of interaction documents.
The Tribunal could see that on 25 January 2023 a new statement of participant supports was approved for Ms Brewjo. Essentially, this approved the purchase of a new wheelchair and declined all the other supports requested.[3] On 2 February 2023 Ms Ure made a request for a s 100 of this decision and the Agency confirmed that request.[4]
[3] Interaction documents, p 70.
[4] Interaction documents, p 65.
There then followed a period of considerable communication with the Agency by Mr Brewjo, Ms Lind and Ms Ure, seeking a restoration of the 1:1 care ratio, transitional funding, and an outcome of the s 100 request. On 15 March 2023 the Agency confirmed that there was a current active s 100.[5]
[5] Interaction documents, p 50.
On 20 March 2023 it is recorded that: “s100 withdrawn and PRR created, as requested by the nominee Michael and SC Jacqueline, so the participant's current situation will be addressed holistically’.[6]
[6] Interaction documents, p 47.
This triggered an unscheduled plan review. A document of 23 March 2023 says: “…plan nominee and brother requesting progress of Plan Reassessment…”.[7] A further document of the same date was created as a result of a telephone call from Mr Brewjo, and states: “…Advised caller that S100 requested on 02.02.2023 has a status of Withdrawn by Affected Party…”.[8]
[7] Interaction documents, p 44.
[8] Interaction documents, p 43.
A document of 27 March 2023, again in relation to a telephone call from Mr Brewjo, includes the following: “…This is an ongoing situation since January. S100 was withdrawn without plan nominee's knowledge?...”.[9]
[9] Interaction documents p 38.
On 28 March 2023 the Agency has recorded that: “Mary is 47yrs with Cerebral Palsy and epilepsy. Streamed intensive. There have [sic] been an overlap of s100s, AAT requests, that have been withdrawn for s48 to be completed due to funding over utilisation. …”.[10]
[10] Interaction documents, p 31.
A document of 28 March 2023 records a call from Ms Ure, in which she is alleged to have been advised: “…Advised caller that the review of decision request was withdrawn and a request for plan review was created. Advised caller the review request was escalated and has been assigned to somebody….”.[11]
[11] Interaction documents, p 30.
CONSIDERATION
The Tribunal finds that on 2 February 2023 there was a request for a s100 review of the decision of 25 January 2023 to approve a statement of participant supports but that this request was withdrawn on 20 March 2023. This likely occurred in the context of trying to work out the best and fastest way to manage Ms Brewjo’s support needs in the context of her provider seeking to cease support if it could not be paid at a 1:1 care ratio. It was determined that it would be quicker to undertake a new unscheduled plan review. Ms Lind was authorised as a nominee who could withdraw the request. No doubt, Mr Brewjo was distressed and seeking a solution, so did not fully comprehend the mechanics of the withdrawal. Nonetheless, the Tribunal is satisfied that there was a withdrawal and that in law, there is taken to be no request for an s 100 review of the decision of 25 January 2023.
As the request was withdrawn, there is no capacity for the Tribunal to deem that the Agency made a decision on the basis that it did not make its s 100 decision within 90 days.
On 2 May 2023, the Respondent made a decision to approve the statement of participant supports in Plan 3 under s 33(2). This is a reviewable decision under s 99. The Tribunal agrees that if the Applicant seeks to have Plan 3 internally reviewed, they have until 1 August 2023 to request an internal review. At the hearing, the Respondent undertook to treat the application to the Tribunal as a request for a s 100 review of the decision of 2 May 2023 and to also fast track the review process.
If the Applicant is not satisfied with the decision outcome from the internal review, the Applicant can lodge a further application for review by this Tribunal.
In terms of this application, the Tribunal is satisfied that it does not have jurisdiction to review the decision and the application must be dismissed for want of jurisdiction pursuant to s 42A(4) of the Administrative Appeals tribunal Act 1975.
DECISION
The Tribunal decided to dismiss the application pursuant to s 42A(4) of the Administrative Appeals tribunal Act 1975.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski
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Associate
Dated: 5 June 2023
Date(s) of hearing: 18 May 2023 Advocate for the Applicant: Mr Michael Brewjo, brother and nominee
Ms Kassidy Ure, support coordinator, Essentially Your ChoiceSolicitors for the Respondent: Ms Lisa Nicholas of the National Disability Insurance Agency
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