BSLR and National Disability Insurance Agency

This matter concerned applications by BSLR and HKDG for review of decisions made by the National Disability Insurance Agency (NDIA) not to review their respective participant plans. The applications were heard by Senior Member R. Cameron of the Administrative Appeals Tribunal. The core dispute arose from the NDIA's refusal to conduct a review of the participants' plans, despite the participants having lodged requests for such reviews, asserting that the funding provided was inadequate for their specific needs.

The Tribunal was required to determine whether it had jurisdiction to entertain the applications for review. Specifically, the Tribunal needed to consider whether the decisions to refuse a review of the participant plans were reviewable decisions under the relevant legislation, and whether the applications for review were validly made to the Tribunal. The parties agreed that the Tribunal had jurisdiction, but the Tribunal was obliged to satisfy itself on this point independently.

The Tribunal reasoned that under section 25(1)(a) of the Administrative Appeals Tribunal Act 1975, an enactment may confer jurisdiction on the Tribunal. The National Disability Insurance Scheme Act was such an enactment, providing at section 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6). The Tribunal found that the participant plans for both BSLR and HKDG contained the necessary elements of a "statement of participant supports" as defined by section 33(2) of the Act. Crucially, the NDIA's letters of 20 November 2017 (for BSLR) and 15 November 2017 (for HKDG) clearly stated a decision "not to review the plan," which advised the recipients of their right to seek further review by applying to the Tribunal. The Tribunal inferred that these decisions were made by a delegate of the Chief Executive Officer, as required by section 100(5)(c) of the Act.

The Tribunal concluded that it had jurisdiction to hear the applications. The decisions to refuse to review the plans were reviewable decisions, and the applications to the Tribunal were made within the prescribed timeframes. The Tribunal therefore found that it had the requisite jurisdiction to entertain the applications for review of the decisions not to review the participant plans.