CRWR and National Disability Insurance Agency

[2021] AATA 2514

CRWR and National Disability Insurance Agency [2021] AATA 2514 (26 July 2021)

Division:General Division

File Number(s):      2019/0328

Re:CRWR

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:26 July 2021

Place:Sydney

The correct or preferable decision is to dismiss the application for want of jurisdiction pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

...........................[SGD].............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – National disability insurance scheme – Dismissal application – Jurisdiction – s 42A(4) of the Administrative Appeals Tribunal Act 1975 – Where parties reached agreement in respect of reasonable and necessary supports – Where Applicant requested travel costs to enable reasonable and necessary supports to be provided to the Applicant in his home – Where travel costs were not subject to an internal review decision – Whether Tribunal has jurisdiction to review the request for travel costs – No jurisdiction found – Application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42A

National Disability Insurance Scheme Act 2013 (Cth), ss 32, 33, 99, 100, 103

CASES

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

National Disability Insurance Agency v WRMF (2020) 276 FCR 415

QDKH and National Disability Insurance Agency [2021] AATA 922

Shi v Migration Agents RegistrationAuthority [2008] HCA 31; 235 CLR 286

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

26 July 2021

BACKGROUND

1. This matter has a lengthy history with a large number of documents filed. It is not necessary to go into all of the details of previous filings and the matter can be summarised as follows.

2. The Applicant in this matter is 13 years of age and was born in February 2008. He became a participant in the National Disability Insurance Scheme (NDIS) on 1 August 2016. A number of plans have previously been approved for the Applicant, each of which contained a statement of participant supports. The dates of each respective plan are set out below:

   (a)19 October 2016;

   (b)7 November 2016;

   (c)13 February 2017;

   (d)14 February 2018;

   (e)25 October 2018;

   (f)20 November 2018; and

   (g)20 December 2018.

3. Since filing his current application for review, there have been various extensions of the Applicant’s existing plan. There have also been two requests for internal review resulting in two internal review decisions, namely:

   (a)a decision of 22 October 2018 which dealt with a range of requested supports, including music therapy; and

   (b)an internal review dated 20 December 2018 in relation to a request about plan management on 7 December 2018.

4. I note that on 20 December 2018, the date of the second internal review decision, the Applicant’s father made a formal complaint in which he expressed concern about the availability to him and to his son of music therapy as a form of support.

5. The Applicant’s father lodged an application for review in this Tribunal on 18 January 2019. In his application, he described the decision under review as follows:

   Internal review was completed which didn’t include plan management or music therapy. A light review was done of the decision which added the plan management but still not music therapy.

6. In relation to a question as to why the decision was said to be wrong, the following paragraph was written:

   It is believed that the decision is wrong to reject music therapy from [redacted] NDIS plan. [Redacted] benefits would benefit [sic] greatly from having music therapy included in his current plan.

7. It is noted that the decision of 20 December 2018 did not deal with music therapy, but it was considered in the decision of 22 October 2018.

8. After a number of proceedings in the Tribunal, the Applicant’s plan was extended for a period of six months from 21 January 2020, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), so that the Applicant could continue to receive the benefit of the supports being provided whilst his applications before the Tribunal were all being progressed.

9. The Applicant then sought a further range of supports as follows:

   (a)Speech pathology;

   (b)Physiotherapy;

   (c)Occupational Therapy;

   (d)Psychology;

   (e)Music Therapy;

   (f)Consumables Budget;

   (g)Transport Funding; and

   (h)Specialist Support Coordination.

10. The Tribunal made orders on 29 June 2020, pursuant to section 42D of the AAT Act, which remitted the decision to the Respondent after the Respondent determined that the supports identified were both reasonable and necessary.

11. The matter remains current, however, as the Applicant’s father claimed that the Respondent should pay for the costs of travel to enable the various supports the Respondent agreed were reasonable and necessary to be provided to the Applicant in his home. The Respondent agreed to pay for travel costs only in respect of occupational therapy services based on the recommendations of that provider.

12. The Respondent now contends that the application should be dismissed by the Tribunal on the basis that the supports covered by the initial application have been approved and the Tribunal has no jurisdiction in relation to the support of travel costs.

    ISSUE

13. The issue for determination is whether the Tribunal has jurisdiction to review whether the support of travel costs is a reasonable and necessary support for the purposes of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

    LEGAL FRAMEWORK

14. Section 25(1) of the AAT Act provides:

    Enactment may provide for applications for review of decisions

    (1) An enactment may provide that applications may be made to the Tribunal:

    (a) for review of decisions made in the exercise of powers conferred by that enactment; or

    (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

15. Accordingly, the scope of the jurisdiction to review a decision made under the NDIS Act must be found in the conferral of review powers in the NDIS Act.

16. Part 6 of Chapter 4 of the NDIS Act provides for Review of Decisions. By s 99, the Act sets out a list of the decisions made under the Act that are reviewable decisions. For the purpose of this case, the relevant review power is that set out in s 99(1) item 4: ‘a decision to approve the statement of participant supports in a participant’s plan’: s 33(2), a decision that is made by the CEO of the Agency (or delegate).

17. Once an applicant becomes a participant in the NDIS, the CEO is required to facilitate the preparation of the participant’s plan pursuant to s 32 of the NDIS Act. That plan is made under Division 2 of Part 2 of Chapter 3 of the Act and comes into effect under s 37.

18. By s 33(2), a participant’s plan must include a ‘statement of participant supports’ and is required to 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.

19. Section 33(5) provides that in determining whether or not to approve a statement of participant supports under subsection (2), the CEO must:

    (a)have regard to the participant’s statement of goals and aspirations; and

    (b)have regard to relevant assessments conducted in relation to the participant; and

    (c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)have regard to the operation and effectiveness of any previous plans of the participant.

20. As set out in the Respondent’s Statement of Facts, Issues and Contentions, that makes the matters set out in s 34(1) and any rules made for the purpose of s 35 mandatory relevant considerations.

21. The scheme of ss 32 and 33 make it clear that the statement of participant supports does not exist independently of the plan: the statement of participant supports is contained in, and required to be contained in, the participant’s plan. It is the decision to approve the statement of participant supports as contained in the plan that is identified as the reviewable decision in s 99.

22. Section 37 deals with the coming into effect of a participant’s plan as follows:

    37 When plan is in effect (emphasis added)

    (1) A participant’s plan comes into effect when the CEO has:

    (a) received the participant’s statement of goals and aspirations from the participant; and

    (b) approved the statement of participant supports.

    (2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4. (emphasis added)

    Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.

    (3) A participant’s plan ceases to be in effect at the earlier of the following times:

    (a) when it is replaced by another plan under Division 4;

    (b) when the participant ceases to be a participant.

23. Division 4 permits a participant to request that the CEO conduct a review of their plan at any time under s 48(1). If the CEO decides to conduct a review, the CEO must facilitate the preparation of a new plan in accordance with Division 2 of Part 2 of Chapter 3 – the process set out above. For the purpose of conducting that review, the CEO may obtain further information pursuant to s 50.

24. That process is designed to deal with the situation where new circumstances arise after a plan is approved, but before the nominated review date. An applicant seeking to have new circumstances taken into account, or who is seeking a different form of support, may request a review pursuant to s 48, which would permit the plan and the statement of participant supports to be changed and replaced to include those new supports which had not been previously the subject of consideration by the CEO. Once a new plan (including a new statement of participant supports) has been approved – whether after a review pursuant to s 48 or via the original process – that decision to approve the statement of participant supports in a plan is a reviewable decision pursuant to s 99 (item 4) of the NDIS Act. A decision made under s 48(1) is not identified as a reviewable decision in s 99, but a decision under s 48(2) not to reassess a participant’s plan is reviewable: see s 99 (item 6).

25. Section 100(6) of the NDIS Act provides as follows:

    The reviewer must, as soon as reasonably practicable, make a decision:

    (a) confirming the reviewable decision; or

    (b) varying the reviewable decision; or

    (c) setting aside the reviewable decision and substituting a new decision.

26. However, it is apparent from the text of s 37(2) of the NDIS Act that a statement of participant supports in a plan cannot be varied, it can only be replaced. Thus, unless the decision is confirmed on internal review, the outcome of a successful review under s 100(6) is that a new plan that includes a new statement of participant supports will be approved.

27. Once the reviewer has made a decision under s 100(6), the NDIS Act makes provision for review by this Tribunal in s 103 which provides as follows:

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

28. The jurisdictional precondition for a decision to be reviewable by this Tribunal is that a decision has been made by a reviewer under s 100(6), and that in turn is a review of a primary decision that is identified as a reviewable decision by s 99.

    DISCUSSION

29. The role of the Tribunal is to review a decision which has been made by a reviewer under subsection 100(6) of the Act. The role of the Tribunal was summarised by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF (2020) 276 FCR 415:

    The decision of the CEO by way of approval of a plan under s 33(2) of the Act is a reviewable decision (s 99 of the Act), and so reviewable by the Tribunal in accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

30. The Tribunal has no general power to look at matters outside of the jurisdiction it has been given. This was made clear by the High Court in Shi v Migration Agents RegistrationAuthority [2008] HCA 31; 235 CLR 286 and more recently in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 where, subsequent to explaining that the role of the Tribunal was to stand in the role of the original decision-maker, the Court said as follows:

    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.

31. It will depend upon the circumstances of each case as to whether the Tribunal can take into account various matters as at the time of review or whether it is limited to those factors which existed at the time the original decision was made (see Shi at [34]).

    
    

    The Tribunal must identify the primary decision which is under review as it is that decision which will determine the limits of the Tribunal’s review powers. In the case of a section 100 review, it is the scope of that review which will determine the scope of the Tribunal‘s jurisdiction, given that its statutory role is outlined quite clearly in section 103 as undertaking a review of the decision made by a reviewer under subsection 100(6).

32. In the current matter, there was a reviewable decision in relation to music therapy, however that was based on the October internal review decision. Importantly, the matter was not the subject of the December internal review decision. The Applicant did not seek review in the Tribunal within 28 days as required by subsection 29(2) of the Act and would need to seek an extension of time if he wanted to progress the matter in relation to that support.

33. Music therapy is the only matter in respect of which there is a reviewable decision. In particular, there is no internal review decision or reviewable decision in relation to travel costs. Further, given that the Respondent accepted that music therapy and travel costs for the occupational therapist were reasonable and necessary, the only outstanding matter relates to the Applicant’s costs of travel to his home for other therapy providers. That matter has never been the subject of either a review or an internal review decision. For the Tribunal to seek to review those matters would clearly be outside of the 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.

34. It is also relevant that transport is normally a parental responsibility, and as such, one would expect a claim for any such support to be in the Applicant’s father’s application, which is also currently on foot before the Tribunal.

35. The limitations on the powers of the Tribunal were considered by Deputy President Constance in QDKH and National Disability Insurance Agency [2021] AATA 922. In that case, the Deputy President said as follows:

    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 102 of the NDIS Act.

36. With respect, I agree with the reasoning in that case. Accordingly, the Tribunal has no power to review the Applicant’s request for transport costs and the application should be dismissed.

    DECISION

37. The correct or preferable decision is to dismiss the application for want of jurisdiction, pursuant to s 42A(4) of the AAT Act.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................

Associate

Dated: 26 July 2021

Date(s) of hearing:	8 June 2021
Date final submissions received:	8 June 2021
Applicant:	In person (by telephone)
Counsel for the Respondent:	R Graycar