Collins and National Disability Insurance Agency - [2021] AATA 3245

Collins and National Disability Insurance Agency [2021] AATA 3245 (3 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2481
Re:Christopher Collins
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:3 September 2021
Place:Adelaide

The Tribunal does not have jurisdiction to determine the Applicant’s claim for supports other than support co-ordination and psychology.
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Member I Thompson
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - internal review decision - additional supports not considered within internal review decision - whether Tribunal has jurisdiction – Tribunal does not have jurisdiction to consider additional supports.
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Cases
QDKH and National Disability Insurance Agency [2021] AATA 922
BWLK and National Disability Insurance Agency [2021] AATA 1631
National Disability Insurance Agency and Napper [2021] AATA 2363
Young and National Disability Insurance Agency [2021] AATA 1555
Dunstan and National Disability Insurance Agency [2021] AATA 2406
VXVL and National Disability Insurance Agency [2021] AATA 1709
CRWR and National Disability Insurance Agency [2021] AATA 2514
REASONS FOR DECISION
Member I Thompson
3 September 2021

Mr Collins is a participant in the National Disability Insurance Scheme (NDIS) which was established by the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The NDIS is administered by the National Disability Insurance Agency (“NDIA”).
The initial question concerns the Tribunal’s jurisdiction to consider requests for reasonable and necessary supports if they were not put before the NDIA at the time of the reviewable decision. This necessitates an examination as to whether each one of the supports was before the delegate of the Agency’s CEO at the time of the internal review decision.
An interlocutory hearing was convened on 8 July 2021 to consider this issue.
The parties provided written submissions prior to the interlocutory hearing and oral submissions at the interlocutory hearing, conducted by telephone. Mr Collins was represented by Mr Crowe and Ms Harwood represented the NDIA.
Application to the Tribunal
In his application to the Tribunal, Mr Collins described the internal review decision as an “incorrect plan forced on [him] after [he] declined it”. He wrote that he was “promised a chance” to renegotiate his NDIS plan prior to 6 April 2021, but that the internal reviewer:
“ignored that and forced [him] into a plan without consultation – and it was based on the wrong plan. He listened to nothing [Mr Collins] said and was completely unprofessional… this is the 3rd failed attempt to resolve [his] needs with the NDIA. [He] would like the AAT to take over”[1]
[1] T1, p 2.
Under s 103 of the NDIS Act, the Tribunal has jurisdiction to review the internal review decision as it was a decision made on internal review pursuant to s 100(6) of the NDIS Act.
The NDIA contended that the Tribunal has jurisdiction only in relation to supports for which there is a reviewable decision, and in this application the only supports that were put before the internal review delegate were requests for a plan of three years, not one year, with funding for additional support coordination and additional psychology supports.
On behalf of Mr Collins it was contended that the following supports are in issue in the application:
i.supports for services by a clinical psychologist, Dr Bullus, and a social worker/support coordinator at Autism SA, Ms Studders - $77,000 over 3 years
ii.support coordination - 288 hours over 3 years
iii.core supports – $45,000, inclusive of attendance at Autism SA conferences, over 3 years
iv.music therapy – $9360 over 3 years
v.social inclusion – $4200 over 3 years
vi.3 hours of one-off occupational therapy support
Both parties provided written submissions prior to the interlocutory hearing. Tribunal (‘T’) documents prepared by the Respondent were also before the Tribunal.
Legal Principles
Decisions of the Tribunal in QDKH and National Disability Insurance Agency[2], constituted by Deputy President Constance, BWLK and National Disability Insurance Agency[3] constituted by Deputy President Rayment, and in National Disability Insurance Agency and Napper[4], constituted by Deputy President Pascoe, confirm that the Tribunal does not have jurisdiction to determine an applicant’s claim for supports if they were not put before the NDIA at the time of the reviewable decision.
[2] [2021] AATA 922.
[3] [2021] AATA 1631.
[4] [2021] AATA 2363.
The principle was stated by Deputy President Rayment in BWLK:
“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.” [5]
[5] [2021] AATA 1631, at [3].
Sections 99 to 103 of the NDIS Act set out the provisions regarding reviewable decisions under the Act. In summary, as Deputy President Pascoe noted in Napper:
“…(f) It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:
(i) A review by a reviewer;
(ii) A review of the reviewer’s decision by the Tribunal;
(g) The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;” [6]
[6] [2021] AATA 2363, at [14].
In Young and National Disability Insurance Agency[7], the Tribunal comprising Senior Member Puplick applied the principle enunciated in QDKH, BWLK and Napper.
[7] [2021] AATA 1555.
The Tribunal notes other decisions about the principles for review of reviewable decisions. For example in Dunstan and National Disability Insurance Agency[8], Senior Member O’Donovan described the Tribunal’s jurisdiction as “broad and flexible” and expressed agreement with a decision of the Tribunal comprising Member Buxton in VXVL and National Disability Insurance Agency[9], which determined at that:
“There is no basis to conclude that the Tribunals’ jurisdiction to review a decision under sub-section 33(2) of the NDIS Act would be limited by virtue of the fact that a participant failed to identify all aspects of the decision with which they disagreed, or particular supports that should have been included, when initiating an internal review under section 100 of the NDIS Act.” [10]
[8] [2021] AATA 2406.
[9] [2021] AATA 1709.
[10] Ibid, at [26].
In this review, the principle stated in the decisions in QDKH, BWLK, Napper and Young is applied .If it were otherwise, and the Tribunal sought to consider matters that were not the subject of the review or the internal review decision, then the Tribunal on its review:
“… would clearly be outside powers conferred upon it by section 25 and section 43 of the AAT Act and would be tantamount to taking upon itself powers which are conferred on a first instance decision- maker under the NDIS Act.” [11]
[11] CRWR and National Disability Insurance Agency [2021] AATA 2514 per Deputy President Pascoe, at [33].
Discussion
Mr Collins’ NDIS participant plan dates back to 7 June 2019. That plan had a review date of 6 June 2020. It appears to have been replaced by a new plan commencing on 11 November 2019 with a review date of 10 November 2020. Subsequently a plan dated 30 November 2020 commenced with a review date on 30 November 2021.
A letter dated 11 December 2020 written by Ms Bulluss, a clinical psychologist, supported a request by Mr Collins for a plan with a duration of 3 years. Various factors were recorded in that correspondence in support of the proposal for a three-year plan. In short it was considered that therapeutic progress and specific supports would be enhanced through certainty of funding over a 3 year period.[12] Previously, a report dated 1 September 2020 written by Ms Studders, a senior social worker and support coordinator at Autism SA, recommended a 2 to 3 year plan with the same funding extended on a pro rata footing.[13]
[12] T7B.
[13] T4.
Another letter written by Ms Studders on 4 December 2020 reiterated the recommendation for “an extended plan of up to 36 months with no changes expected to occur” in Mr Collins’ circumstances. At that time, it was noted that previous concerns about alternative housing options were now “no longer a worry”. Ms Studders wrote:
“It must be noted that Chris has relied heavily on Support Coordination services across the previous plan. Chris exhausted the full budget of 40 hours, as well as having to access an additional support coordination budget of 20 hours from his core budget. It is clear that the support provided through the 2019/2020 plan was vital to his continued care as it was entirely exhausted. This service has mainly been accessed for points of crisis and support in managing and navigating the NDIS and it is not expected that this level of support will decrease across the next plan. Indeed, it is anticipated that Chris’ needs may actually increase if he is forced to endure further stress and anxiety.” [14]
[14] T7A, p 37.
Mr Collins general medical practitioner, Dr Massolino, wrote on 29 December 2020 in support of a rollover of the NDIS plan for a period of three years, as follows:
“As Mr Collins general practitioner I have read supporting letters provided by Dr Erin Bulluss (clinical psychologist) and Ms Lisa Studders (senior social worker at Autism SA) and I fully support their recommendation to rollover Mr Collins 2020 NDIS plan for a further 3 years.” [15]
[15] T8, p 41.
Mr Collins’s participant plan, which commenced on 30 November 2020 with a review date on 30 November 2021, was followed by a request for internal review.
According to NDIA interaction records the request for internal review of the decision to approve the November 2020 to November 2021 Plan was received on 18 December 2020. It seems that the request was made by Mr Collins’ Local Area Coordinator. The interaction notes are as follows:
“Participant would like a 36-month plan and not the 12-month plan that was approved.” [16]
[16] T6.
The NDIA interaction notes at that time do not refer to any other supports, concerns, or requests.
The Tribunal was provided with excerpts from the Agency’s case records which include notes of telephone conversations with Mr Collins between 29 March 2021 and 16 April 2021. Mr Collins’ advocate provided copies of emails and notes which covered that period, also including a case note which Ms Studders made of conversations which she and Mr Collins had with the Agency’s internal reviewer. A considerable portion of those records relates to concerns which Mr Collins expressed about the way in which the review was proceeding.
Mr Collins wrote to the Agency on 1 April 2021 by email about renegotiating his NDIS plan.[17] Two specific topics are referred to in that email. They are access to a psychologist and increased access to support coordination. In particular, Mr Collins wrote:
“So what I want is to renegotiate my plan because since I started seeing my current psychologist there are a few tweaks to the plan that I need, such as more hours for support coordination… There are some psychological areas that require specialists that my current psychologist does not cover as well, so a few more hours in which ever section that one is called (capacity building?) will be required urgently.”
[17] T11, p 45.
In an interaction note dated 7 April 2021, the internal reviewer recorded:
“Participant disputed the decision and said that it did not reflect what he sought in his review, and I had not considered what he needed in his plan. Explained to participant that based on the request, there is enough funding for participant to access his CB budget. Participant indicated he did not want core and wanted more support coordination.”
The documentary material does not indicate that claims for additional core supports, funding for attendances at Autism SA conferences, music therapy, social inclusion and occupational therapy were put before the internal reviewer for consideration. The Tribunal is not satisfied that those additional supports were requested as part of the internal review.
For Mr Collins it was submitted that the Tribunal should apply the decision in VXVL because a participant should not be made responsible for making or outlining a case to the internal reviewer. If it were otherwise then the NDIS participant, as the applicant in this matter, would be disadvantaged. The Tribunal recognises that there may be misunderstanding about the implications of conversations between an internal reviewer and a participant about the scope and purpose of an internal review. Uncertainty might be heightened by an absence of documentary evidence which could otherwise provide some clarification. However, these problems are, perhaps, more likely to occur when review conversations take place by telephone and those difficulties of interpretation are not necessarily resolved even when supplemented by emails. Conversations between participant and reviewer inevitably occur in the context of the NDIS participant plan and its various components. A participant might be aggrieved by all elements of the plan and specify that the internal review request is for a review of them all. Equally, and more likely, the focus of the conversations in the overall context of the plan will be in relation to the sufficiency of identified, specific supports as it appears to have been in this case.
It does not follow from any of these considerations that a participant is necessarily disadvantaged by the requirement that the Tribunal’s jurisdiction on review is confined to the matters on internal review which themselves are prescribed by matters clearly put before the internal reviewer. The two-tiered, defined approach for reviews pursuant to section 100 of the NDIS Act generally result either in no change to the operative decision, and hence the NDIS participant plan, or a variation or setting aside of the reviewable decision with an increase in funding for increased supports in the plan. However, if it is correct that the Tribunal is authorised by legislation to conduct a review which is wide-ranging and not circumscribed by identified requests, the decision on review and resulting plan may depart materially from the reviewable decision and the plan under review. An unrestricted, flexible, review might lead paradoxically to a reconfiguration or even a reduction of funded supports as an unfortunate, unforeseen but not inconceivable result. This could amount to a significant risk to an NDIS participant.
The Agency wrote to Mr Collins on 6 April 2021 detailing the outcome of the internal review request.[18] The request that the Agency accepted was the change from a one-year plan to a three-year plan. The letter does not refer to support coordination and psychology supports. However it can be reasonably inferred from the notes and records provided by both parties, that issues about psychology and support coordination were discussed in the context of the budget and, in particular, in relation to the component of the budget related to capacity building supports. The important point in this regard is the absence of any suggestion from the notes and records of any requests for an increase of core supports inclusive of attendance at Autism SA conferences, music therapy, social inclusion and occupational therapy supports.
[18] T1A.
Decision
The Tribunal does not have jurisdiction to determine the Applicant’s claim for supports other than support co-ordination and psychology. The other requested supports are additional supports that are not within the Tribunal’s jurisdiction and will not be considered as part of this review. Mr Collins is not precluded from requesting the Agency to consider those matters by other processes.

I certify that the preceding 30 [thirty] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

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Administrative Assistant Legal
Dated: 3 September 2021
Dates of hearing:  8 July 2021
Applicant’s Representative:  Adrian Crowe, ADVOCACY FOR DISABILITY ACESS AND INCLUSION INC.
Respondent’s Representative:  Zoe Harwood, NDIA