BWLK and National Disability Insurance Agency

[2021] AATA 1631

BWLK and National Disability Insurance Agency [2021] AATA 1631 (8 June 2021)

Division:National Disability Insurance Scheme Division

File Number(s):      2019/6406

Re:BWLK

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Rayment OAM QC

Date:8 June 2021

Place:Sydney

The Tribunal does not have jurisdiction to determine the applicant’s claims for supports that were not put before the National Disability Insurance Agency at the time of the reviewable decision.

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

Deputy President Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE - NATIONAL DISABILITY INSURANCE SCHEME – where applicant applied to Tribunal to review a decision not to approve certain supports – where the applicant requested the Tribunal consider additional supports – where additional supports not subject to internal review – jurisdiction of the Tribunal – Tribunal has no jurisdiction to consider additional supports

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Frugtniet v Australian Securities and Investments Commission [2019] HCA 1; (2019) 93 ALJR 629

QDKH and National Disability Insurance Agency [2021] AATA 922

Shi v the Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Deputy President Rayment OAM QC

8 June 2021

1. The applicant has sought to add to the reasonable and necessary supports claimed, notwithstanding that the supports claimed by her were not put before the National Disability Insurance Agency (NDIA) at the time of the reviewable decision.  It appears that the additional supports claimed were raised before the Conference Registrar.

2. This kind of problem frequently arises before the Tribunal in a variety of matters.  For example in Comcare matters it sometimes happens that an applicant for compensation desires to make a new claim for compensation in the Tribunal, notwithstanding that the claim was not agitated on internal review before Comcare.  That procedure is not available in the Tribunal.  Comcare will sometimes be able to allow the new claim to be fast-tracked, so that existing proceedings can be joined with fresh proceedings to review a new internal decision without a long delay.

3. The reason a new claim cannot be raised for the first time in the Tribunal is that the Tribunal’s function is not to act as an original decision-maker, but rather to review decisions made by agencies.  There is binding High Court authority to the effect that the role of the Tribunal is to stand in the shoes of the original decision maker, reviewing again the same decision as was before the agency.

4. The most recent of those High Court decisions is Frugtniet v Australian Securities and Investments Commission [2019] HCA 1; (2019) 93 ALJR 629, where the High Court emphasised the need

   in this Tribunal to decide, on review, the same questions as were before the decision-maker and no more. Kiefel CJ, Keane and Nettle JJ said at [15] (citations omitted, emphasis supplied):

   Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.

   Similarly, in the same case, Bell, Gageler, Gordon and Edelman JJ said at [51] (citations omitted, emphasis supplied):

   That is because, except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

5. Those statements reflect what was earlier decided by the High Court in Shi v the Migration Agents Registration Authority (2008) 235 CLR 286. In that appeal, Kiefel J with whom Crennan J agreed on this issue said at [142]:

   In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address[146]. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

   (emphasis added)

6. With particular reference to the review in this Tribunal of decisions taken by the National Disability Insurance Agency, the Tribunal recently decided QDKH and National Disability Insurance Agency [2021] AATA 922 (Deputy President Constance). In his reasons at [22] –[25] DP Constance said:

   It is clear from the provisions of the NDIS Act referred to above, that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:

   ·a review by a reviewer;

   ·a review of the reviewer’s decision by the Tribunal.

   The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by section 103 of the NDIS Act.

   In Fuad and Telstra Corporation Limited, the Tribunal President, Justice Downes, said:

   ... all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.[6]

   It is important to note that the President referred to “matters put before the decision-maker”. [Emphasis added]. These are the matters in respect of which the Tribunal has jurisdiction.

7. I respectfully entirely agree with the Deputy President on those matters.

8. The new claims for supports made by the applicant are therefore beyond the jurisdiction of the Tribunal on this review. That will not prevent agitation of the new matters before the NDIA, and further review if applied for.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment OAM QC

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

Associate

Dated: 8 June 2021

Date(s) of hearing:	8 June 2021
Applicant:	Self-represented
Advocate for the Applicant:	Ms R Turnham, People with Disability Australia
Counsel for the Respondent:	Ms R Francois, Level 22 Chambers
Solicitors for the Respondent:	Ms S Leembruggen, Sparke Helmore