Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency
[2020] AATA 360
•27 February 2020
Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360 (27 February 2020)
Division:GENERAL DIVISION
File Number: 2019/6786 and 2019/7763
Re:Complete Nursing and Home Care Pty Ltd
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 27 February 2020
Place:Melbourne
The Tribunal decides that it does not have jurisdiction to review the respondent’s decision refusing to pay invoices submitted by the applicant seeking payment for services it provided to two participants under the National Disability Insurance Scheme.
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Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – where services provided when NDIS plan funding insufficient – whether service provider may seek review of respondent’s decision to refuse to pay service provider’s unpaid invoices – decision not reviewable within legislative scheme – tribunal has no jurisdiction
Legislation
National Disability Insurance Agency Act 2013 s 9; s 99; s 100(6); s 103
REASONS FOR DECISION
Deputy President S A Forgie
Complete Nursing and Home Care Pty Ltd (CNHC) is a registered NDIS provider under the National Disability Insurance Agency Act 2013 (NDIS Act). The National Disability Insurance Agency (Agency) has refused to pay its invoices regarding two participants under the National Disability Insurance Scheme (NDIS). I will call one “XY”.[1] CNHC has claimed $2,639.28 from the Agency for services it provided to XY within the service agreement dates and a further $4,363.44 for services provided to XY beyond the approved budget but which CNHC and XY’s responsible parent, his father, and NDIS support coordinator considered reasonable, urgent and inevitable at the time. The other participant I will call “BC”.[2] His mother is his responsible parent and, at her request, CNHC presented its invoices to the Agency’s portal for payment. Both BC’s mother and his NDIS support coordinator would tell CNHC that he had more money in his plan than appeared to be the case to CNHC from the Agency’s portal. It was CNHC’s experience that the Agency would approve CNHC’s invoices when it provided additional services at the mother’s request and when she was in need of protection from her son’s behaviour.
[1] No. 2019/7763
[2] No. 2019/6786
The Agency has advised the CNHC that it will not pay its invoices in respect of either participant. CNHC has applied to the Tribunal for review of the Agency’s refusal. I have decided that the Tribunal does not have jurisdiction to review the Agency’s decision and now set out my reasons for reaching that conclusion.
I recognise that CNHC is in an invidious position. It has provided services in response to cries for help from XY’s and BC’s parents but it has done so either knowing or at least doubting whether sufficient funds remained in XY and BC’s plans to pay for the services. Whether CNHC can afford to continue to extend its assistance in future in this way is a matter for it to contemplate. Kindness is meritorious but participants’ plans are funded on the basis of purchasing services from those who earn their income in providing them. Whether XY and BC’s parents are, or should, seek review of the statement of participant supports in their sons’ plans is a matter for them. The Agency too is in a difficult position. Apart from any particular responsibilities it may have for managing the funding for supports in a particular plan, it has general responsibility for a scheme that must be operated within the parameters of the NDIS Act. The Agency must have systems that ensure that it is complying with that legislation and ensuring that those who should be paid are paid and that those who should not be paid are not.
BACKGROUND
Between 26 June 2017 and 26 June 2018, CNHC provided services to XY. CNHC claims that it has been unable to receive payment for services it provided to XY in the period from 8 August 2017 to 18 October 2017. It had lodged invoices for those services on the portal operated by the Agency but its invoices were rejected on the basis of its using incorrect codes even though CNHC understood that it was using the codes given to it by the Agency. Later, CNHC claims that the service booking funding was reduced by the Agency. That led to CNHC’s not being able to claim the invoices. In total, CNHC claims that it provided services to XY within the service agreement plan for available funds of $2,639.28, for which it has not been paid.
CNHC has also claimed a further amount of $4,363.44 for services it delivered to XY. It had delivered those services on the basis of assurances by XY’s responsible parent, who is his father, and his NDIS support coordinator. It had acted on those assurances even though there were issues with the flow of funds for XY. CNHC’s position is that it delivered the services on the basis that its past experience with the Agency was that it would be paid for them when it had these assurances. It regards itself as having entered a contract with XY and his representatives for services delivered in good faith and on the understanding that they would be paid.
CNHC’s invoices in relation to BC relate to the period 1 January 2018 to 1 October 2018. BC’s mother and an NDIS support coordinator managed his plan. CNHC maintained contact with them regarding the state of the budget remaining in BC’s plan. It would cease to provide services when BC had no remaining budget. His mother, however, would consistently ask CNHC to provide services promising that it would be paid by the Agency. It was CNHC’s experience that it would eventually be paid by the Agency for these services although an explanation of why the services were provided beyond the budget would be required.
CONSIDERATION
Does the Tribunal does have jurisdiction to review Agency’s refusal to pay CNHC?
In enacting legislation such as the NDIS Act, the Parliament has established a scheme that is intended to benefit those with disability by giving them, for example, choice and control in the pursuit of their goals and the planning and delivery of their supports, to maximise their independent lifestyles and enable them to have full inclusion in the community.[3] At the same time, the NDIS Act sets boundaries within which the scheme operates. Some of those boundaries are set in the NDIS Act by the fact that it is an insurance scheme and the need to maintain its financial sustainability.[4] Others are found in the general budgetary context of the Commonwealth within which the Agency must maintain that financial sustainability.
[3] NDIS Act; s 3(1)(e) and (g)
[4] NDIS Act; s 3(2) and (3)
It is in this context that the NDIS Act provides for review of a range of decisions made under it. Provision for review is made of some decisions and not of others. Determining whether the Tribunal has jurisdiction or power to review a particular decision is a matter of statutory interpretation. The starting point must always be the provision that gives the Tribunal power interpreted in the context of the relevant enactment having regard to the particular words used by Parliament and having regard to the object and underlying policy of the enactment. Parliament has chosen those decisions which should be reviewed and those which should not. It is not for the Tribunal to attempt to stretch the boundaries of the scheme of review established by the Parliament in an endeavour to make the Agency accountable for its expenditure and administration. Parliament will have had that in mind when it selected the decisions that the Tribunal might be asked to review just as it will have had in mind other means to ensure that the Agency is accountable for its administration of the NDIS. Those other means will include the Commonwealth Ombudsman and the Auditor General as well as, through the responsible Minister, Parliament.
The starting point: a decision made under section 103 of the NDIS Act
Section 103 provides that:
“Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note:Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.”
When has a decision been made by a reviewer under section 100(6)?
A decision made by a reviewer under s 100(6) is a decision reviewing a reviewable decision at the request of a person directly affected by that reviewable decision.[5] A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision under s 100(2) of the NDIS Act. The person must make the request within three months of receiving a notice from the person who made that reviewable decision.[6]
[5] Section 100(6) requires the reviewer to make a decision, as soon as reasonably practicable, to make a decision confirming the reviewable decision, varying it or setting it aside and substituting a new decision.
[6] NDIS Act; s 100(1) and (1A)
When has a reviewable decision been made?
The expression “reviewable decision” is defined in s 9 to have the meaning given by ss 99(1) and (2) of the NDIS Act. Section 99(1) sets out a table with 33 items. Each item sets out a decision made under provisions of the NDIS Act specified by a decision-maker in the item. In general terms, the first six items specify decisions that are made in respect of a person’s entitlement to be a participant in the NDIS and decisions that affect the content of a participant’s plan. The next ten items are concerned with registered provider of supports. Decisions relating to matters such as the approval, or refusal to approve a person or entity as a registered provider, the imposition of conditions on registration and decisions to revoke registration are examples of decisions specified as reviewable decisions in those ten items. None is concerned with payment to a service provider.
Items 17 to 19 are concerned with decisions relating to determinations made by the Chief Executive Officer of the Agency (CEO) regarding a person who may do acts or things required or permitted to be done by the NDIS Act in relation to a child. Items 20 to 22 specify as reviewable decisions certain decisions made in relation to the appointment, suspension or cancellation of a plan nominee or a correspondence nominee. Again, none of the decisions specified in these items relates to payment to a service provider.
The same is true of items 23 to 28, which relate to decisions made under Chapter 5 of the NDIS Act. Chapter 5 is concerned with decisions relating to compensation and with decisions such as the CEO’s decision to recover compensation in respect of a participant’s, or prospective participant’s, personal injury, to take over the conduct of a claim for compensation or a decision not to treat the whole or part of a compensation payment as having not been made.
None of items 1 to 28 relates in any way to a registered NDIS provider’s recovering money from the Agency. Items 29 to 33 do not do so either. Each is concerned with decisions to write off or waive a debt where the debt is owed to the Agency. None is concerned with amounts owed to a registered NDIS provider.
Section 99(2) provides that the National Disability Insurance Scheme rules may provide that a decision made under a specified provision of the rules is a reviewable decision. If they do so, they may also specify the decision-maker in respect of the reviewable decision. I have searched the National Disability Insurance Scheme rules but have not found any rule specifying a decision as a reviewable decision.
Working the process forward
In the preceding paragraphs, I have started with the Tribunal’s power to review a decision and worked backwards to show that the Tribunal cannot review CNHC’s claim to be paid for services it has provided as a registered service provider. The Agency’s decision does not fit within any of the decisions that the NDIS states may be reviewed. None is identified in ss 99(1) or (2). As none is identified, CNHC had no entitlement to ask for a review of the decision under s 100(2). Any request that CNHC did make to the Agency for review of its refusal to pay it, did not come within the terms of s 100(6). Any decision that the Agency did make was not a decision under s 100(6). As no decision was made under s 100(6), the Tribunal does not have power to review it under s 103.
| I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
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Associate
Date of decision: 27 February 2020
Heard: Date of last submission: | 13 January 2020 3 February 2020 |
| Applicant: | Self-represented |
| Respondents: | Mr Chris Herscovitch National Disability Insurance Agency |
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