BSLR and National Disability Insurance Agency

[2018] AATA 1282

BSLR and National Disability Insurance Agency [2018] AATA 1282 (11 May 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/7432

Re:BSLR

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2017/7433           

Re:HKDG  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:11 May 2018

Place:Melbourne

The Tribunal decides that it has jurisdiction to hear the applications for review of the decisions dated 20 November 2017 (2017/7432) and 15 November 2017 (2017/7433), those decisions being appropriately characterised as decisions made under s 100(6)(a) of the National Disability Insurance Scheme Act 2013 to confirm the reviewable decisions of 7 August 2017 (2017/7432) and 5 September 2017 (2017/7433) approving the statement of participant supports in the Applicants’ plans under s 33(2) of the National Disability Insurance Scheme Act 2013.

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

Senior Member

PRACTICE AND PROCEDURE – jurisdiction – characterisation of decisions under review – whether decisions under review are decisions to not review the Applicants’ plans – whether decisions under review are decisions confirming the approval of the statement of participant supports in the Applicants’ plans – reviewable decisions were decisions to approve statements of participant supports – internal review was sought of those decisions – internal review decisions purport to be decisions refusing to review plan – substance over form – decisions under review properly construed as decision confirming the reviewable decisions approving the statements of participant supports

LEGISLATION

Administrative Appeals Tribunal Act 1975; s 25

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

CASES

Re ZKTN v National Disability Insurance Agency (2017) 72 AAR 234

REASONS FOR DECISION

R. Cameron, Senior Member

11 May 2018

INTRODUCTION

1. There are two applications[1] before the Tribunal seeking to review decisions made by a “reviewer” under the relevant provisions of the National Disability Insurance Scheme Act 2013 (“the Act”).

   [1] The applications are number 2017/7432 in which "BSLR" is the applicant and number 2017/7433 in which "HKDG" is the applicant.

2. In the first application “BSLR” seeks a review of the decision made on 20 November 2017 following an apparent request for a review of a plan on 7 November 2017.

3. In the second application “HKDG” also seeks a review of a decision made on 15 November 2017 following a request for a review of a plan made on 7 November 2017.

4. As will be apparent from the facts below, the Tribunal was concerned with determining whether it had jurisdiction to deal with each of the applications for review. Interlinked with this issue was the matter of how the Tribunal should characterise the decisions of 15 and 20 December 2017. The Tribunal invited submissions from the parties in each application which have now been provided (together with additional documentation which has been of considerable assistance to the Tribunal in dealing with this matter) and will proceed to determine accordingly.

5. Both the Applicants in each case and the Respondent have submitted that the Tribunal has jurisdiction to entertain each of the applications filed.[2] Although the parties are in agreement on this matter, the Tribunal cannot assume jurisdiction by consent and accordingly turns its mind to the jurisdiction and characterisation issues.

   BACKGROUND

   [2] The Applicants have filed written submissions on 19 February 2018 and 1 March 2018 to this effect. The Respondent has filed written submissions that the Tribunal has the requisite jurisdiction on 19 February 2018.

   The Application by BSLR

6. On 7 August 2017 a Delegate of the Chief Executive Officer of the National Disability Insurance Agency[3] approved a plan for BSLR under the National Disability Insurance Scheme.[4] The plan was to commence from 4 August 2017.

   [3] Hereinafter referred to as the "NDIA".

   [4] Hereinafter referred to as the “NDIS".

7. The letter accompanying the plan for BSLR and the plan itself do not identify under what section of the Act the plan was created. However, an examination of the plan itself leaves the reader in no doubt that it is indeed a statement of participant supports in a participant’s plan within the meaning of section 33(2) of the Act.

8. An “Application for a review of a reviewable decision” was completed and served upon the NDIA on 7 November 2017 on behalf of BLSR seeking a review of the plan for BLSR (“the BLSR request for review”).

9. Following receipt of the BLSR request for review it was apparently considered and in a letter dated 20 November 2017 from a Delegate of the Chief Executive Officer a decision was made under section 48(2) of the Act not to review the plan for BSLR.[5]

   [5] The letter of 20 November 2017 from the Delegate of the Chief Executive Officer is referred to in its entirety for its full force and effect. However the critical words contained in the letter from the Delegate are: "I have decided not to review the plan." This is clear and unequivocal language on the part of the Delegate.

10. The letter of 20 November 2017 from the Delegate of the Chief Executive Officer advised the recipient of their right in the event that they disagreed with the decision to seek further review by making an application to this Tribunal.

11. An application to this Tribunal was made on 15 December 2017 seeking a review of the decision made not to review the plan for BLSR contained in the letter of 20 November 2017 from the Delegate of the Chief Executive Officer of the NDIA.

    The Application by HKDG

12. The factual geometry concerning this application is essentially the same for HKDG as for BSLR.

13. On 5 September 2017 a Delegate of the Chief Executive Officer of the NDIA approved a plan for HKDG under the NDIS. The plan was to commence from 4 September 2017.

14. In similar terms to that of BSLR, the letter accompanying the plan for HKDG and the plan itself did not identify under what section of the Act the plan was created. However, an examination of the plan itself also leaves the reader in no doubt that it is indeed a statement of participant supports in a participant’s plan within the meaning of section 33(2) of the Act.

15. An Application for a review of a reviewable decision was completed and served upon the NDIA on 7 November 2017 on behalf of HKDG seeking a review of the plan for HKDG (“the HKDG request for review”).

16. Following receipt of the HKDG request for review it was apparently considered and in a letter dated 15 November 2017 from a Delegate of the Chief Executive Officer a decision was made under section 48(2) of the Act not to review the plan for HKDG.[6]

    [6] The letter of 15 November 2017 from the Delegate of the Chief Executive Officer is referred to in its entirety for its full force and effect. However critical words contained in the letter from the Delegate are: "I have decided not to review the plan." This is clear and unequivocal language on the part of the Delegate.

17. The letter of 15 November 2017 from the Delegate of the Chief Executive Officer of the Respondent advised the recipient of their right, in the event that they disagreed with the decision, to seek further review by making an application to this Tribunal.

18. Similarly, an application to this Tribunal was made on 15 December 2017 seeking a review of the decision not to review the plan for HKDG contained in the letter of 15 November 2017 from the Delegate of the Chief Executive Officer of the NDIA.

    RELEVANT LEGISLATION

19. If a person becomes a participant in the NDIS (as BSLR and HKDG have), the CEO must facilitate the preparation of the participant’s plan (s 32(1) of the Act). Section 33 of the Act sets out the matters that must be included in a participant’s plan. Those matters include, inter alia, a statement of participant supports approved by the CEO (s 33(2) of the Act). The statement of participant supports should specify:

    (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 review 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.

    Section 33(5) of the Act also sets out a number of matters that the CEO must have regard to, be satisfied of, or apply (as the case may be) in deciding whether or not to approve a statement of participant supports. The submissions for the Applicants quite rightly pointed out that section 33(5)(c) is of particular relevance here, requiring the CEO to be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and general supports that will be provided.

20. If a participant is not satisfied with their statement of participant supports, they can seek an internal review of the section 33(2) decision to approve the statement of participant supports. That is so by virtue of section 99(d) of the Act, which provides that decisions under section 33(2) are reviewable decisions. Upon receiving notice of their internal review rights for any reviewable decision, a participant will have three months in which to make a request for internal review of the reviewable decision (s 100(2) of the Act). If that request is made, the CEO must cause the reviewable decision to be reviewed. The internal review decision can confirm the reviewable decision, vary the reviewable decision, or set aside and substitute the reviewable decision and substitute a new decision (s 100(6) of the Act).

21. In addition to the right of internal review of decisions made under s 33(2), a participant may, at any time, also request a review of their plan as a whole (s 48(1) of the Act). Under section 48(2) of the Act, the CEO must decide whether or not to conduct a review within 14 days of receiving the request. Relevantly, a decision by the CEO not to conduct a review under section 48(2) will be a reviewable decision under s 99(f) of the Act.

22. Under section 25(1)(a) of the Administrative Appeals Tribunal Act 1975, an enactment may provide that application may be made to the Tribunal for review of decision made in the exercise of powers conferred by that enactment. The Act is such an enactment and relevantly provides at section 103 that:

    Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)

    CONSIDERATION

23. There has been a most useful consideration of the approach to adopt when jurisdiction questions of this type are encountered by the Tribunal in applications under the Act by Deputy President Dr McDermott in Re ZKTN and National Disability Insurance Agency.[7]

    [7] (2017) 72 AAR 234.

24. There was no suggestion to the contrary, and indeed the Tribunal has inferred, that the parties agree the decisions made on 15 November and 20 November 2017 not to review either the plans of BSLR or HKDG were made by a person to whom the Chief Executive Officer’s powers and functions were delegated as required by section 100(5)(c) of the Act.

25. As noted above an examination of the relevant plan in each application[8] reveals that it contains a “statement of participant supports” in a participant’s plan within the meaning of section 33(2) of the Act; it contains a statement specifying the necessary ingredients prescribed by that section including the following:

    (a)General supports that will be provided to or in relation to the participant;

    (b)Reasonable and necessary supports, including the necessary supports’ budgets;

    (c)The date by which, or the circumstances in which, the agency must review the plan;

    (d)The management of the funding for supports under the plan; and

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

    [8] Each plan for BLSR and HKDG are referred to in their entirety for their full force and effect. The language used and the matters referred to in the documents address precisely the requirements of section 33(2) of the Act. For instance, in the case of BSLR, the plan identifies general supports as coming from a Special School, his Psychiatrist and a place of meeting. The reasonable and necessary supports are identified as being in the following areas which are funded under the NDIS: “Improved daily living”, “Improved relationships”, “Support coordination” and “Core supports”. The date by which the agency must review the plan is specified to be by 1 June 2018. A separate part of the plan is entitled “Managing your NDIS Funding Package”, it addresses the management of the funding for supports under the plan as required by section 33(2)(d) of the Act.

26. The Application for a review of a reviewable decision lodged with the Respondent in each instance specifically requested a review of the funded supports contained in each Applicant’s plan. It was asserted in each plan that inadequate or insufficient funding had been provided for with respect to the specific needs of each Applicant. The “outcomes” sought in each application for review was additional funding for specific programs to benefit each Applicant

27. In this context it is conceded by the Respondent that the reviewer has, in the course of conducting each review of the respective plans, turned his or her mind to the current funding in each plan[9] and in deciding not to make any changes to such funding, as was sought on the Application for a review of a reviewable decision, has made a decision to approve the statement of participant supports in each plan.

    [9] See the penultimate paragraph of the Respondent’s submission by email of 19 February 2018.

28. As is candidly acknowledged by the Respondent, in each of the letters of 15 November and 20 November 2017 from the Delegate of the Chief Executive Officer there is no specific reference to section 33(2) of the Act. However, as was observed by Deputy President McDermott in Re ZKTN, “there is no requirement that the decision-maker expressly refer to the statutory provision in any decision.”[10] The issue of characterising the decision under review is ultimately resolved through the lens of substance over form in all the surrounding circumstances.

    [10] (2017) 72 AAR 234 at 238.

29. As noted above in the letters of 15 November and 20 November 2017 advising of the outcome of the internal review by the Delegate of the Chief Executive Officer, the exact same words were used by the author of the letter, namely: “I have decided not to review the plan.” On a true and proper construction of these words and applying them to the wording contained in section 100(6)(a) of the Act they can be properly construed as “confirming the reviewable decision” (as noted previously confirming the statement of participant supports). The reviewable decisions are, as mentioned previously, decisions to approve statements of participant supports. Further strengthening this conclusion is the fact that the two decisions each consider, albeit briefly, whether the supports are reasonable and necessary under s 34 (as mentioned in s 33(5)(c)).

30. Having so made the decision to confirm the statement of participant supports and make no changes to it, the Tribunal’s jurisdiction is enlivened and an affected party may make an application for it to conduct a review of the decision under section 103 of the Act.

    CONCLUSION

31. Therefore, being decisions properly made by the Respondent under section 100(6)(a) of the Act, the decisions before the Tribunal properly provide the foundation for an application to be made to the Tribunal for review in each case. The Tribunal has jurisdiction to review the decision made on 15 November 2017 with respect to HKDG and the decision made on 20 November 2017 with respect to BLSR. Those decisions are appropriately characterised as decisions confirming reviewable decisions to approve statements of participant supports in the Applicants’ plans.

32. Finally, the Tribunal wishes to record its gratitude to the legal practitioners for the parties concerned and assistance provided to it in the course of determining this question.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

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

Associate

Dated: 11 May 2018

Date of hearing:	20 February 2018
Date final submissions received:	1 March 2018
Advocate for the Applicant:	Mr Graham Wells
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	National Disability Insurance Agency