Darmanin and National Disability Insurance Agency

[2024] AATA 1202

Darmanin and National Disability Insurance Agency [2024] AATA 1202 (17 May 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/5694

Re:Scott Darmanin

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member J Toohey

Date:17 May 2024

Place:Brisbane

The Tribunal’s jurisdiction to specify which, if any, supports are funded in the Applicant’s statement of participant supports is not limited to those supports which were purchased after 4 May 2023.

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

Member J Toohey

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – reimbursement – supports purchased prior to reviewable decision – supports purchased while further information being exchanged – home modifications – tune review and participant service guarantee –jurisdiction not limited by reimbursement issue

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Judiciary Act 1903 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)

Cases
Australian Securities and Investments Commission v Andrew William Donald [2003] FCAFC 318
FDFF and National Disability Insurance Agency [2020] AATA 3385
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Palin and National Disability Insurance Agency [2023] AATA 94
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
PBZB and National Disability Insurance Agency [2023] AATA 3385
Rogers and National Disability Insurance Agency [2022] AATA 280
RTRH and National Disability Insurance Agency [2022] AATA 205
Williamson and National Disability Insurance Agency [2019] AATA 2944
QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
XXWC and National Disability Insurance Agency [2020] AATA 923

Secondary Materials
Review of the National Disability Insurance Scheme Act 2013
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed,

2020)

REASONS FOR DECISION

Member J Toohey

Summary

1. The Tribunal is reviewing a decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (Agency) on 3 July 2023 under section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Tribunal is given jurisdiction to review this decision by section 103 of the NDIS Act and section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

2. The Agency asserts that the Tribunal does not have jurisdiction to consider some supports for which Mr Scott Darmanin (Applicant) has sought funding. If the Agency is correct, the scope of the Tribunal’s review would be greatly reduced, from seven supports being within scope, to one support needing to be considered. This would also greatly reduce the evidence and witnesses required for the hearing. At a case management directions hearing by telephone held on 11 March 2024, the Agency and Applicant agreed that it is more economical for the Tribunal to determine this jurisdiction issue as a discrete question ahead of the substantive hearing.

3. For the reasons given below, I am satisfied that all seven supports can be considered by the Tribunal. I am not satisfied that the Tribunal’s jurisdiction is limited in the way that the Agency submits.

   Background and process steps

   Steps prior to the Appeal

4. The Applicant is a 44-year-old man with a spinal cord injury who became a participant of the National Disability Insurance Scheme (NDIS) on 22 March 2018. The Applicant was issued a plan on 3 November 2021 with a reassessment date of 3 November 2023 (November 2021 plan). This plan was created following an unscheduled plan review under section 48 of the NDIS Act. The first short-term goal in the November 2021 plan was ‘I would like to build a home that is fully accessible for me to maintain and increase my independence’. The plan included a mower modification as a capital support item related to this goal. No other supports were included in the plan which related to this goal.

5. On 24 April 2022, the Applicant’s occupational therapist submitted a request for complex home modifications. The Applicant’s home is on the Logan River, South of Brisbane, and was subject to severe flooding in 2017 and at the start of 2022. The Applicant was planning to rebuild at an elevation above the flood peak. The Applicant’s home modifications request related to components of the rebuild that he says are required due to his disability.

6. On 29 July 2022, the Agency requested further information about the home modifications. Between 17 June 2022 and 2 May 2023, the parties continued to exchange information and views in relation to this request. From around January 2023 the Applicant began paying for the requested modifications out of his own funds.

7. On 2 May 2023, the Agency commenced an agency-initiated reassessment of the November 2021 plan. On 4 May 2023, the Agency decided to approve a new statement of participant supports and the Applicant was issued with a new plan (May 2023 plan). The May 2023 plan also included the same short-term goal to build an accessible home. The only support that was included in the plan relating to this goal was for minor repairs for assistive technology. The Applicant immediately requested a review of this decision.

8. On 3 July 2023, the Agency made a review decision which varied the original decision. This review decision included funding for some of the requested supports, namely laundry modifications, sliding track doors, accessible wardrobe railings, bathroom rails, and a toilet suite. The Applicant was issued with another plan (July 2023 plan). The July 2023 plan repeated the short-term goal to build an accessible home. The supports which were related to this goal were added as capital supports under the heading home modifications.

   Steps during the Appeal

9. The Applicant lodged an Appeal with the Tribunal on 4 August 2023 and the Tribunal held a first case conference by telephone on 10 October 2023. On 17 November 2023, the Agency requested an interlocutory hearing about the jurisdiction issue and, on 4 January 2024, the Tribunal advised the parties that the interlocutory application was refused. On 22 January 2024, the Tribunal held a second case conference and put in place directions for the matter to proceed to hearing.   

10. On 14 February 2024, the matter was constituted to me, and I requested that the parties provide hearing certificates by 8 March 2024 so that hearing dates could be set. However, on 8 March 2024, the Agency advised their view that the matter was not ready to proceed to hearing and made a further request for an interlocutory hearing on the jurisdiction issue.

11. On 11 March 2024, at a case management directions hearing, the Applicant advised that they agreed the jurisdiction issue should be dealt with first as this would change the evidence they put forward, witnesses called, and duration of the hearing. The Agency advised that they were also intending to seek an expert opinion on any modifications which were within the Tribunal’s jurisdiction. I directed the parties to provide written submissions.

12. On 27 March 2024, I held a non-compliance directions hearing as the Agency had not provided their submissions by 22 March 2024 as directed. The Agency provided their submissions on 25 March 2024.     

13. On 2 April 2024, I invited the Agency to clarify their views on the application of amendments introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (PSG Amendments). On 10 April 2024, the Agency provided the further submissions as requested and on 16 April 2024, the Applicant provided their submissions.

14. On 30 April 2024, the Applicant confirmed they were agreeable to the jurisdiction issue being decided on-the-papers and that the Applicant did not need to make any further submissions.

15. On 1 May 2024, the Agency confirmed they were also agreeable to decision being made on-the-papers subject to being able to provide submissions in reply by 10 May 2024, which they then provided.

    Jurisdiction issue

16. The jurisdiction issue raised by the Agency is whether the Tribunal can decide that supports are to be funded in a statement of participant supports if those supports were purchased prior to reassessment decision on 4 May 2023.

17. If the Agency is correct, then the Tribunal would not have jurisdiction to consider the following supports which they say were obtained prior to 4 May 2024:

    (a)kitchen modifications

    (b)ensuite bathroom modifications

    (c)ensuite shower gates

    (d)home automation

    (e)a lift, and  

    (f)ovens

18. On the Agency’s view, only one of the requested supports (an automatic garage door) would remain within the Tribunal’s jurisdiction.

    Summary of submissions

19. The Agency submits the Tribunal’s power does not extend to including supports which were obtained prior to the reassessment decision on 4 May 2023. The Agency says that the decision to approve a statement of participant supports (SPS) in the November 2021 plan is not before the Tribunal as there was no request for internal review under section 100 of the NDIS Act in relation to that decision. The Agency refers to QDKH[1] and Frugtniet[2] for the well-established proposition that the Tribunal ‘stands in the shoes of’ the decision-maker in merits review. 

    [1] QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

    [2] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.

20. Relying on Palin[3] and PBZB[4] the Agency says that planning decisions under the NDIS are prospective, and that reimbursement cannot be provided for a support purchased and provided prior to the primary review decision. The Agency accepts that reimbursement for supports which were provided under an earlier plan is available under a plan which has subsequently been replaced, citing Williamson,[5] FDFF,[6] RTRH,[7] and Rogers.[8] However, the Agency submits that reimbursement is only available where the earlier plan is also before the Tribunal.

    [3] Palin and National Disability Insurance Agency [2023] AATA 94.

    [4] PBZB and National Disability Insurance Agency [2023] AATA 3385.

    [5] Williamson and National Disability Insurance Agency [2019] AATA 2944.

    [6] FDFF and National Disability Insurance Agency [2020] AATA 3385.

    [7] RTRH and National Disability Insurance Agency [2022] AATA 205.

    [8] Rogers and National Disability Insurance Agency [2022] AATA 2809.

21. Following the request for clarification from the Tribunal, the Agency confirmed that section 47A, introduced in the PSG Amendments, could apply to the Applicant’s November 2021 plan as this plan was in effect on 30 June 2022. However, the Agency further submitted that section 47A would not assist as section 47A(10) means that a variation under this section can only take effect prospectively. The Agency refers to the decision in Pavlakis[9] in support of the prospective nature of this decision-making.

    [9] Pavlakis and National Disability Insurance Agency [2023] AATA 2485.

22. The Agency also says that the variation option provided by section 47A would not be available to the Tribunal as the Agency has proceeded with a section 48 reassessment. In support of this, the Agency submitted that the reviewable decisions outlined in section 99 are highly specific and that the provisions by which a decision-maker selects a 47A variation pathway, or a section 48 reassessment pathway, are not reviewable decisions. Therefore, the Agency says that the intermediate election in section 48(7) as to which pathway to follow is not part of the decision under section 33(2), is not capable of review, and could not be disturbed by a reviewer.

23. The Applicant, in his submissions, appeared to be willing to concede that the Tribunal would not be able to approve supports that were obtained prior to 4 May 2023. However, the Applicant says that the lift and part of the home automation support requested had not actually been obtained until after 4 May 2023. The Applicant says that, on 4 May 2023, the decision-maker had the power to prospectively decide whether or not to fund the lift and the part of the payment for home automation which had not been paid prior to that date.

24. The Applicant also raises concerns with the conduct of the Agency both during the Agency’s decisions-making and review processes, as a model litigant at the Tribunal. The Applicant says that Agency’s reliance on this jurisdiction issue produces a harsh outcome which was not raised during the exchanges of information relating to the home modifications which the Agency knew were progressing.

25. In reply, the Agency submitted that the correct approach is to focus on when a support is provided, rather than when payment for a support has been made. The Agency also made submissions about the Applicant’s evidence in relation to the payments made. The Agency noted improvements to Agency processes that now permitted unclaimed amounts under a previous plan to be paid up to 90 days after a new plan was approved. The Agency was concerned that an approach that allowed for past supports to be funded would not place a proper limit on the supports which could be funded in any one plan. Such an approach, according to the Agency, would fundamentally shift the prospective nature of the task of approving a SPS.

    Consideration

26. In my view, the concession the Applicant appears willing to make is not necessary. I think this question is more straight-forward than is contemplated by the Agency.

27. I agree with the Agency that the correct starting point is that the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2). The original decision-maker at the Agency decided not to include the home modifications in the SPS. The Agency reviewer decided that some of the home modifications requested should be funded in the SPS and some should not. Just as the Agency decision-makers were able to decide that none, some, or all of the modifications should be funded, so too can the Tribunal.

28. I do not agree that this scope is limited by payments for supports that may have been made before the Agency finalised their decision. If this were true, then it would have been important for the Agency to enquire about whether payments for the approved modifications had already been made. If these payments had been made, then (applying the Agency’s reasoning) the Agency would not have been able to consider these modifications. By extension, if the Agency did not make these enquiries and later discovered that payments had been made for supports prior to their approval, then these payments may have been charged to the Agency incorrectly. The Agency might then need to consider steps to recover such payments.  

29. I have read each of the decisions referred to in the Agency’s submissions but do not consider these to be authorities for the position put forward by the Agency. Broadly, these decisions are dealing with plans that the PSG Amendments do not apply to. These decisions are also mostly focussed on the impact of subsequent planning decisions that have occurred after an appeal has been lodged. I won’t deal with each of the decisions in detail. In my view, extra care needs to be taken when considering authorities that relate to the NDIS Act prior to the PSG Amendments. For example, Williamson was focussed on whether terms agreed to by the parties were best given effect by means of section 26, 42C, or 42D of the AAT Act. The reason that section 26 was not preferred in Williamson was that, under the NDIS Act at that time, the Agency did not have any power to vary a decision under section 33(2) to approve a statement of participant supports. Following the PSG Amendments, the Agency does now have the flexibility to vary a statement of participant supports under section 47A. The conclusions reached in Williamson may have been quite different if the PSG Amendments has been in force at that time.

30. I would also note that Tribunal decisions are not binding statements of law. Tribunal decisions are intended to have a normative effect on Agency decision-makers. Consistency in administrative decision-making, both at the Tribunal and the Agency, is important.[10] It is also important to recognise that Tribunal decisions are administrative decisions that apply the law, at a particular point in time, to a specific set of facts and circumstances. With this in mind, careful consideration needs to be given to the law, facts and circumstances in which a Tribunal decision has been made before a finding is applied to other circumstances. The Agency’s submissions on the decision in Palin illustrate this issue. As was observed in the Applicant’s submissions, the decision in Palin related to reimbursement for payments made prior to a participant’s entry into the NDIS. This is not the Applicant’s situation in the current matter.

    [10] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020), see parts 17.4 and 17.5.

31. This was also not the situation in PBZB in which the Tribunal was considering the impact of subsequent plan extensions. In PBZB, the Tribunal did in fact find that some supports were reasonable and necessary and would be able to be reimbursed. This was despite the subsequent plans created through a ‘rollover’ of funds. The consequence of these findings is discussed at paragraph 37:

    Although the Tribunal cannot order reimbursement, as appears understood and acknowledged by the parties, the Tribunal does have power to determine that a support is reasonable and necessary in any SOPS it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the Act, the Agency must comply with the SOPS in a plan. Accordingly, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant.^[39] What evidence the Agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors.^[40] (notes in the original)

32. Notes 39 and 40 in the above paragraph cite RTRH and XXWC[11] respectively. Overall, I agree with these conclusions. However, it is important not to conflate the lack of a power to order reimbursement with an assessment of the Tribunal’s substantive jurisdiction. These are two different things. In this matter, the Tribunal has jurisdiction to consider whether the requested home modifications should be funded in the Applicant’s SPS under subsection 33(2) of the NDIS Act. If the Tribunal finds that any of the home modifications requested should be funded, it is a separate matter for the Agency to properly process and acquit this funding.

    [11] XXWC and National Disability Insurance Agency [2020] AATA 923.

33. I note the Agency’s concern in their submissions in reply that there should properly be a limit on how far back in time a past support can be approved for funding. I tend to agree, in-principle, that there will be a point-in-time in which a participant can no longer seek reimbursement for expenditure on a support which has not been approved. Section 51 of the NDIS Act requires participants to notify the Agency of certain changes in their circumstances. The Agency could be prejudiced in a situation where a participant has not notified the Agency of a change but has proceeded to purchase supports. This prejudice might arise particularly if there has been a long time between the purchase of a support and notice to the Agency. However, there may also be urgent circumstances in which a support needs to be purchased prior to notification to the Agency and these circumstances will often not have been anticipated by a participant in a way which will permit notifying and seeking approval prior to obtaining a support.

1. Again, this is not the situation in this matter. The Agency was made aware of the requested home modifications prior to the start of building works. In these circumstances, it would seem clear to me that the supports in dispute could be approved as being reasonable and necessary from a point-in-time running from at least 24 April 2022, when the Applicant submitted their request for complex home modifications. I say ‘at least’ because I am also of the view that the November 2021 plan is the context in which the home modifications request was made. There could have been circumstances, such as the major flooding experienced by the Applicant, that required them to make emergency modifications prior to making a request to the Agency. While this is a hypothetical situation, I would be concerned to reach a conclusion that meant that participants were prevented from having supports funded which they urgently acquired prior to notifying to the Agency. My view is that, the plan which is in effect when the request for a variation or reassessment is made, provides the container in which the funding of the requested supports can be approved. This provides an appropriate limit on the Agency’s decision-making without fundamentally shifting the nature of the decision-making. The Applicant’s November 2021 plan (and earlier plans) were clear in stating that the Applicant’s goal was to build a fully accessible home. The Agency cannot have been surprised by this request or prejudiced by the way in which this request was made.         

2. In reaching this conclusion I am also applying legal principles established by the courts. It remains important when doing so to still consider the context in which these principles have been provided. For example, the wording in the consent judgment in QDKH was provided in the context of whether supports that were not put before an Agency decision-maker could later be raised and considered by the Tribunal on review. The Federal Court’s conclusion was that such supports could be considered because the decision is about what supports should be funded in a SPS and is not restricted to what was raised during the Agency’s decision-making and internal review processes. When this context is understood, I do not see that applying QDKH limits the Tribunal’s jurisdiction in the way that the Agency submits in this matter. QDKH is a useful reminder that the focus of the decision-making process in section 33(2) is the preparation of the SPS. This is a collaborative process facilitated by the Agency with the participant.

3. I have found the Federal Court’s guidance on how to approach the process of interpretation of the NDIS Act very helpful. For example, in WRMF[12] Justices Flick, Mortimer and Banks-Smith said:[13]

   … the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision …

   [12] National Disability Insurance Agency v WRMF [2020] FCAFC 79.

   [13] At paragraph 138.

4. In considering this jurisdiction question I have been assisted by a number of the NDIS Act objects, principles and provisions, including that:

   (i)people with disability have the same right as other Australians to pursue any grievance,[14]

   (ii)people with disability should have certainty that they will receive the support they need,[15]

   (iii)people with disability should be supported to receive reasonable and necessary supports,[16]

   (iv)people with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised,[17]

   (v)people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports,[18]

   (vi)the CEO must have regard to the participant’s statement of goals and aspirations,[19] and

   (vii)the need to ensure financial sustainability of the scheme.[20]

   [14] Subsection 4(7).

   [15] Subsection 4(3).

   [16] Subsection 4(5).

   [17] Subsections 3(e), 4(9) and17A(2).

   [18] Subsection 4(4).

   [19] Subsection 33(5)(a).

   [20] Subsections 3(3)(b) and 4(17).

5. I have also taken into account the Tribunal’s objectives as set out in section 2A of the AAT Act and the requirement in section 33 that the Tribunal is to conduct proceedings with as little technicality, and as much expedition, as a proper consideration of the matter permits.

6. Finally, in the clarification request I made on 2 April 2024, I raised whether the Agency reviewer or Tribunal could vary the decision using section 47A, rather than create a new plan following a reassessment under section 48. I do not need to make a finding on this issue now. However, I would note the useful discussion in Professor Pearce’s book[21] at 6.12. The Full Federal Court decision in ASIC v Donald[22] would seem to indicate that careful consideration needs to be given to the power being exercised and that this is not necessarily limited by the provision being specified as a reviewable decision.

   [21] See note 10.

   [22] Australian Securities and Investments Commission v Andrew William Donald [2003] FCAFC 318.

   Conduct of the Agency

7. For completeness, I will also briefly address the Applicant’s concerns regarding the conduct of the Agency. Whether the Agency has or hasn’t complied with their obligations as a model litigant is a matter for the Attorney-General. Subsection 55ZG(3) of the Judiciary Act 1903 is clear that the issue of non-compliance with the Legal Services Direction may not be raised in a proceeding except by the Commonwealth.

8. I do however agree that, if the Agency’s submission in this matter were accepted, it would have produced a harsh outcome. Such an approach could also have harsh outcomes for other participants in the planning processes. The planning process is intended to be collaborative one which is facilitated by the Agency. As part of the planning process, the Agency will at times seek further information from participants or others involved with the participant. This information gathering may take some time and there will be circumstances in which participants need to proceed with purchasing supports or equipment while information is still be exchanged. These circumstances may often be urgent and participant safety and wellbeing can be at risk. If participants do proceed with purchasing supports that have not yet been approved, they are taking a risk that these supports might not be funded by the Agency. The participant would therefore be out-of-pocket for these costs. It would be a very surprising result if a support that is approved could not be funded by the Agency because it had already been purchased.

9. The PSG Amendments increased flexibility to the planning process in response to significant frustrations conveyed by participants during the Tune Review.[23] These amendments present an opportunity for participants, the Agency, and the Tribunal to approach the planning process with a greater degree of flexibility than was previously available. I would encourage the Agency to consider whether their approach in this matter takes up this opportunity.

   [23] Review of the National Disability Insurance Scheme Act 2013 Chapter 8, see paragraph 8.26.

10. I would also observe that, while it is important for the Agency to draw potential jurisdiction issues to the attention of the Tribunal, it is also important that these matters are dealt with quickly so as not to delay the proceeding. The Agency was advised in January that their interlocutory application was refused. In my view, this probably should have been the end of the issue. The Agency continuing the press the issue and not progressing with other steps, such as providing hearing certificates, has caused delay. In doing so, the Agency has not assisted the Tribunal to review matters in a way which is economical and quick. I am looking forward to the Agency moving the matter forward more quickly from here.    

    Conclusion

11. The Tribunal has jurisdiction to specify what reasonable and necessary supports should be included in the Applicant’s statement of participant supports. The supports which can be specified are not limited to those which were purchased after 4 May 2023.

    I certify that the preceding 44 paragraphs are a true copy of the reasons for decision of Member Toohey.

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

    Associate

    Dated: 17 May 2024

    Solicitor for the Applicant:                  Mr Craig DoRozario, Potts Lawyers

    Solicitor for the Respondent:             Mr James Vercoe, NDIA