Bridgland and National Disability Insurance Agency

[2017] AATA 69

Bridgland and National Disability Insurance Agency [2017] AATA 69 (16 January 2017)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2016/6746

Re:James Bridgland

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey
Member D Connolly

Date:16 January 2017

Date of written reasons:        27 January 2017

Place:Sydney

The Tribunal does not have jurisdiction to determine the application for review lodged by the applicant on 12 December 2016.

............................[sgd].......................................

Senior Member J F Toohey

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – whether Tribunal has jurisdiction to review decision concerning the applicant’s plan – whether internal review – no jurisdiction

LEGISLATION

National Disability Insurance Scheme Act 2013 ss 32, 33, 48, 99, 100, 101, 103

REASONS FOR DECISION

Senior Member J F Toohey
Member D Connolly

27 January 2017

Background

1. On 12 December 2016, Mr Gerry Bridgland lodged an application with the Tribunal on behalf of his adult son, James Bridgland, who is a participant in the National Disability Insurance Scheme (NDIS).  To avoid confusion, I will refer to both Mr Bridglands by their full names.

2. At a hearing on 16 January 2017, the Tribunal decided it did not have jurisdiction to determine the application for review.  These written reasons reflect reasons given orally at the hearing and are provided at Gerry Bridgland’s request.    

3. James Bridgland has a serious disability.  He lives in supported accommodation.  Up until recently, the New South Wales state government was responsible for funding his disability supports.  Funding is now the responsibility of the NDIS and James Bridgland is in the process of relocating to a facility nearer to his father who is closely involved in all aspects of his care.  Arrangements for the transition, and details of funding, have been the subject of planning and negotiation between Gerry Bridgland and staff of the National Disability Insurance Agency (NDIA) which administers the NDIS and make decisions in accordance with the National Disability Insurance Scheme Act 2013 (the Act). As the current facility is to close shortly, there is now some urgency to ensuring that suitable arrangements are in place.

   Participants’ plans

4. Each participant in the NDIS has a participant’s plan prepared with the assistance of the CEO of the NDIA: s 32(1).  The plan comprises a statement of the participant’s goals and aspirations, and a statement of participant supports approved by the CEO which specifies matters including:

   ·the reasonable and necessary supports, if any, that will be funded under the NDIS: s 33(2)(b);

   ·the date by which, or the circumstances in which, the plan must be reviewed: s 33(2)(c); and

   ·the management of the funding for supports under the plan: s 33(2)(d).

   Review of decisions in participants’ plans

5. A decision to approve the statement of supports in a participant’s plan is a reviewable decision for the purposes of the Act: s 99(d).  The CEO must give written notice of a reviewable decision to each person directly affected by it.  The notice must include information about the person’s rights to have the decision reviewed by the NDIA and by the Tribunal: s 100(1).

6. A person affected by a reviewable decision may request the CEO to review the decision: s 100(2).  This is commonly referred to as a request for “internal review”.  The request may be made in writing, or orally in person by telephone or other means: s 100(3). 

7. If a person requests internal review, the CEO must cause the reviewable decision to be reviewed by a reviewer to whom the necessary powers and functions have been delegated: s 100(5).  The reviewer must make a decision confirming or varying the reviewable decision, or setting it aside and substituting a new decision: s 100(6). 

8. Section 101 provides:

   If:

   (a)a request is made for review of a reviewable decision; and 

   (b)before a decision on the review is made, the reviewable decision is varied;

   the request for review is taken to be for review of the reviewable decision as varied.

9. Applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6): s 103.

   James Bridgland’s plans

10. On 21 September 2016, the NDIA wrote to James Bridgland attaching an approved plan.  In accordance with s 33(2)(c), the letter advised that the plan started on 21 September 2016 and would be reviewed on 21 September 2017.  It stated:

    If you think a decision made by the NDIA about you is wrong, you can submit an application for internal review within three months of receiving this notice.

11. The letter was sent to an incorrect address and Gerry Bridgland did not receive it until 4 October 2016.  On 12 October 2016, he asked the NDIS for an internal review.  It appears, from the documents available to the Tribunal, that Gerry Bridgland conveyed his request for review orally.  As set out above, an oral request is sufficient for the purposes of the Act.

12. On 11 November 2016, the NDIA wrote to James Bridgland attaching a further plan and advising that the plan started on 11 November 2016 and would be reviewed on 13 November 2017.  The amount of funding for supports in the new plan remained the same but, whereas it was previously to be paid directly to the relevant service provider, funding for some supports was to be paid directly to Gerry Bridgland to manage on James Bridgland’s behalf. The letter advised in similar terms to the earlier letter:

    If you think a decision made by the NDIA about you is wrong, you can submit an application for internal review within three months of receiving this notice.

13. On 12 December 2016, Gerry Bridgland lodged the application for review with the Tribunal.  We understand he has no argument with the decision in the second plan concerning management of the funding, but he disputes the amounts approved for home improvements and transitional arrangements and wants them reviewed.      

14. Since lodging his application with the Tribunal, Gerry Bridgland and NDIA staff have continued to discuss funding and the arrangements for James Bridgland’s move to new accommodation.  For example, in an email dated 11 January 2017, the officer who approved the second plan on 11 November 2016 advised Gerry Bridgland that arrangements had been made about weekly payments to a service provider.  She also advised that participants in supported accommodation “are not eligible for home modifications … [but] are eligible for SDA, (specialist Disability Accommodation) instead”. 

15. On 11 January 2017, the same officer approved a further plan which was to start on 15 December 2016 and would be reviewed on 15 December 2017.  We understand that tis third plan is the subject of continuing discussions aimed at ensuring suitable arrangements are in place in time for James Bridgland’s move to his new accommodation.

    Is there a decision that the Tribunal can review?

16. Mr Bridgland’s application to the Tribunal seeks review of the statement of supports in the plan approved on 11 November 2016.  The question is whether that decision was a decision by a reviewer under s 100(6) which the Tribunal has power to review.  For the reasons that follow, we find it was not.

17. Gerry Bridgland’s request on 12 October 2016 for internal review was for review of the statement of supports in the plan approved on 21 September 2016.  As set out above, on receipt of that request, the CEO had to cause the decision to be reviewed by a reviewer who was not involved in making the decision, and the reviewer had to confirm or vary the decision, or set it aside and substitute a new decision.

18. Ms Dickinson, the solicitor representing the NDIA, has told the Tribunal that the officer who signed the letter dated 11 November 2016 has authority to act as a reviewer when required.  Further, she does not appear to have been involved in making the reviewable decision approving the statement of supports in the plan which Gerry Bridgland asked the NDIA to review.  It appears, therefore, that she met the description of a reviewer in s 100(5). 

19. However, we do not think the decision conveyed in the letter dated 11 November 2016 can properly be construed as a decision under s 100(6) which the Tribunal has power to review.  Nothing in the letter suggests that the officer approved the new plan in her capacity as a reviewer.  Moreover, although it might not be strictly necessary, she did not use the language of s 100(6).  Rather, she appears to have made a further reviewable decision approving the statement of supports in a new plan.  That conclusion is reinforced by the fact that the letter of 11 November 2016 conveyed a decision in virtually identical terms to that in the letter of 21 September 2016, including the advice that James Bridgland could seek internal review of (the statement of supports in) the new plan.  The letter on 11 January 2017 approving a new plan, in which funding for some supports was increased and quotes for another support were required, was in the same terms.

20. We do not intend any criticism of the officers involved in approving James Bridgland’s plans.  However, it appears that, in the course of discussions and negotiations between Gerry Bridgland and the NDIA, the lines between reviewable decisions, requests for internal review, and decisions by a reviewer, have become blurred, and Ms Dickinson acknowledged that there was some confusion in the agency about Gerry Bridgland’s request for review. 

21. For the reasons above, we find that a decision under s 100(6) in response to Gerry Bridgland’s request for internal review was not made.        

    Conclusion

22. As there has not been a decision by a reviewer made under s 100(6) of the Act to confirm, vary or set aside the statement of supports in the plan approved for James Bridgland on 11 November 2016, there is no decision which Tribunal has jurisdiction to review.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Member D Connolly

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Associate

Dated: 27 January 2017

Date of hearing:	16 January 2017
Advocate for the Applicant:	Mr G Bridgland
Solicitors for the Respondent:	Ms K Dickinson, National Disability Insurance Agency