Deacon and National Disability Insurance Agency
[2022] AATA 3209
•6 October 2022
Deacon and National Disability Insurance Agency [2022] AATA 3209 (6 October 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/6860
Re:Dominic Deacon
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:6 October 2022
Place:Melbourne
Pursuant to s 31 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and for the reasons set out in the Reasons for Decision below, the Tribunal decides that Mr Dominic Deacon is not a person whose interests are affected by a decision made on 20 July 2022 by a “reviewer” of the NDIA under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) in relation to his brother’s statement of participant supports in his NDIS. The Tribunal decides that Dominic does not have standing under s 27(1) of the AAT Act. This application for review lodged with this Tribunal by Dominic is invalid.
There is no necessity for the Tribunal to address Dominic’s request for an extension of time to lodge this application, because there is no valid application before the Tribunal.
.............................[SGD]...........................................
Senior Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – Applicant is the brother, primary carer and medical decision-maker of an adult NDIS participant – participant requires 24/7 care – Victorian Civil and Administrative Tribunal (VCAT) appointed independent guardian and two joint administrators one year ago – no plan nominee appointed by the NDIA – guardian requested internal review under s 100 of the NDIS Act regarding decision to approve a statement of participant supports – “reviewer” did not accept that Applicant and his sister should be paid to provide personal care support to participant – guardian informed Applicant that she did not intend to seek further review by the Tribunal – whether Applicant has standing under s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to lodge an application in his own right – whether Applicant is a person whose interests are affected by the decision under review – consideration of the subject, scope and purpose of the NDIS Act – consideration of NDIS plan review processes under the NDIS Act – consideration of who is to be provided with notice under the NDIS Act of the original decision and internal review decision – consideration of internal review decision and reference to Applicant and his sister by name – internal review decision indirectly impacts, but does not directly affect the Applicant – Tribunal considers “ripple of affection” insufficient to constitute an affected interest under s 27(1) – decision that Applicant is not a person whose interests are affected by the internal review decision –Applicant does not have standing – no valid application before the Tribunal – not necessary to address request for extension of time for lodgement
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Guardianship and Administration Act 2019 (Vic)
Medical Treatment Planning and Decisions Act 2016 (Vic)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Nominees) Rules 2013
Cases
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250
Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157
Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67
Re McLaughlin and Minister for Infrastructure, Transport, Regional Development (2009) 111 ALD 678
Miller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 489
Re Steidler and Australian Prudential Regulation Authority (2019) 164 ALD 612
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
Supplementary Materials
Administrative Appeals Tribunal, Dennis Pearce, LexisNexis, 5th edition, Chapter 5NDIA Appeals Operational Guidelines published in January 2021 by the Department of Social Services: Application Guidelines Template (dss.gov.au)
Office of the Public Advocate publication entitled: “Guide to NDIS decision-making – When a decision can be made by, with, or for an adult with significant cognitive disability”, First edition, January 2018 - Guide to NDIS decision-making - Office of the Public Advocate
Operational Guidelines published by the NDIA: align="left">REASONS FOR DECISION
Senior Member K. Parker
6 October 2022
INTRODUCTION
On 18 August 2022, Mr Dominic Deacon[1] completed, signed, and lodged an “Administrative Appeals Tribunal Application for Review of Decision Form” (Form). It was lodged one day late, so he also requested an extension of time for lodgement.
[1] The Tribunal would usually refer to Mr Dominic Deacon as “Mr Deacon” in these Reasons for Decision, but it will refer to him as “Dominic” and will refer to his brother, Mr Patrick Deacon, as “Patrick”, to avoid any confusion as to which Mr Deacon the Tribunal is referring to.
On the Form, Dominic named himself as the Applicant. Dominic confirmed in his submissions to the Tribunal that he intended to be the Applicant in this proceeding.[2] The Tribunal accepts that he is the Applicant in this proceeding as this is what is stated on the Form. Dominic attached to the Form a decision dated 20 July 2022 made by a “reviewer” under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (Internal Review Decision). The Internal Review Decision confirmed an earlier decision made on 7 February 2022 by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) to approve a statement of participant supports (SOPS) in respect of Dominic’s brother, Mr Patrick Deacon (Original Decision). Patrick is an adult participant of the NDIS. The Original Decision did not include in it funding for assistive technology that was requested for Patrick (a Hi-Lo electric bed with side rails and a mattress to prevent against pressure sores) and did not include a provision allowing for Patrick’s family members, specifically, Dominic and his sister, Elvira, to be paid as an external support worker would, to provide personal care and assistance to Patrick.
[2] Refer Dominic’s Further Submission at page 3.
Dominic contends that he has standing to bring this application for review by the Tribunal under s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), in his own right. In Dominic’s Further Submission, he contends as follows:[3]
In summary, both AAT and NDIS Acts deem parties directly affected by a reviewable decision to be eligible to seek review. NDIS guidelines allow for family and carers to be included as eligible to apply for appeal. The AAT states that this interest need not be of a legal nature. The decision maker from NDIS who rejected the original request for plan review considered me to be directly affected as evidenced by her phone and email contact with me and references to me by name in her letter. All decisions related to Patrick’s care and services affect me as it is recognised by multiple professionals that Patrick relies on my specialised care, which I provide 7 days a week. My entire life is built around Patrick’s needs. Decisions that affect Patrick’s care affect my daily routine, my safety, relationships, health and wellbeing and ultimately my ability to effectively provide quality care to Patrick, the participant, whose needs must be placed front and centre of all decision making in this case.
The NDIS’s belief that my care of Patrick can be replaced by nursing supports would mean an entire restructuring of my life as they would be removing the very basis upon which I have built it.
[3] Ibid at page 10.
Further, in Dominic's Reply Submission he refers to the fact that the Victorian Civil and Administrative Tribunal (VCAT) had recognised Dominic as being Patrick's primary carer and medical decision-maker.[4] He refers the Tribunal to the definition of "primary carer" of a person in s 3 of the Medical Treatment Planning and Decisions Act 2016 (Vic) which defines this term as meaning an adult who “is in a care relationship with the person” and “has principal responsibility for their care”. Dominic contends as follows:[5]
I believe I have standing because my safety is affected, my ability to fulfil my role as Patrick's carer is affected and my ability to have choice in my own life is affected, as currently the only way that Patrick can be cared for is by my full time unpaid labour. This leaves me with few options for how I live my life. It is clearly unjust and much more than a financial issue.
[4] Refer Dominic’s Reply Submission at page 2.
[5] Refer Dominic’s Reply Submission at page 5.
The NDIA contends that Dominic does not have standing to bring this application and that “it would be a matter of public policy that as regards an individual person’s right to challenge a decision about their access to the NDIS or their plan of supports is their right alone. It would be contrary to public policy to allow another person to seek a review because of the very personal and private nature of the reviewable decision.”[6]
[6] Refer NDIA’s Further Submission at paragraph [15].
ISSUES
The Tribunal is required to decide pursuant to s 31 of the AAT Act, whether Dominic is a person whose interests are affected by the Internal Review Decision and therefore, whether he has standing under s 27(1) of the AAT Act to bring this application.
If the Tribunal so decides that Dominic has standing, it will be required to decide whether to grant his request for an extension of time to lodge this application. If not, it will not be necessary to address this request.
BACKGROUND
Hearing and lodgement of written submissions and further evidence
The issues of standing and Dominic’s request for an extension of time were addressed by the Tribunal at a hearing, by teleconference, on 20 September 2022. At the hearing, the Tribunal addressed the NDIA, Dominic, Patrick’s VCAT-appointed guardian and two administrators, about Patrick’s circumstances. In relation to the question of standing, the NDIA and Dominic were given advance notice that they would have an opportunity at the hearing to address the Tribunal in relation to the case authorities on standing in Administrative Appeals Tribunal proceedings, as referred to in Chapter 5 of the 5th edition of Administrative Appeals Tribunal, Dennis Pearce, LexisNexis.[7]
[7] Refer pages 70 to 79. At his request, Dominic was provided with a copy of those pages before the hearing.
Dominic was self-represented at the hearing. The NDIA was represented by an in-house lawyer, Mr Adam Hay. Patrick’s guardian and two administrators invited to attend by the Tribunal, were self-represented. They were able to provide helpful background information about Patrick’s circumstances.
Dominic lodged written submissions with the Tribunal on 17 September 2022 (Dominic’s Submission). The NDIA lodged written submissions with the Tribunal at 7.57am on the morning of the hearing (on 20 September 2022) (NDIA’s Submission). Given the late exchange of submissions and the matters raised at the hearing, the Tribunal considered it appropriate to provide a further opportunity to both parties (and Patrick’s guardian and two administrators should they wish to do so), to lodge any further evidence and submissions after the hearing. A timetable for lodgement was set. It was subsequently extended at the request of the NDIA, but all parties were provided with an opportunity to lodge detailed written submissions as detailed in the following paragraphs.
Dominic duly complied with the original timetable and lodged further written submissions on 23 September 2022 (Dominic’s Further Submission). He attached the following medical/clinical evidence:
(a)a medical report by treating physician, Dr Michael Sutherland, Respiratory Surgeon, dated 30 August 2022 (Dr Sutherland’s Report) who states that Patrick has “a history of spastic tetraparesis secondary to cerebral palsy” and “a history of seizures and reflux and recurrent aspiration pneumonia with asthma and chronic collapse of the left lung”;
(b)an occupational therapy plan review report by Ms Jenny Robson prepared in respect of Patrick’s 2022/2023 NDIS plan (OT’s Report); and
(c)an email from Ms Ann Henderson from the OPA dated 18 August 2022 providing a status update regarding a complaint Dominic had made in relation to Ms MacRae.
The OPA lodged a set of written submissions on 23 September 2022 prepared by the OPA’s Principal Solicitor (Guardian’s Submission). Attached to these submissions was a publication by the OPA issued in January 2018 entitled “Guide to NDIS decision-making – When a decision can be made by, with, or for an adult with significant cognitive disability”, First edition.[8]
[8] Guide to NDIS decision-making - Office of the Public Advocate
The NDIA lodged further written submissions on 30 September 2022 (NDIA’s Further Submission).
Dominic lodged submissions in reply on 4 October 2022 (Dominic’s Reply Submission).
Background circumstances and VCAT’s appointment of guardian and administrators for Patrick
Patrick has severe impairments arising from his condition of cerebral palsy. Dominic told the Tribunal that Patrick has quadriplegia, is non-verbal, has limited eyesight and is reliant upon the people around him.
Dominic says he cares for Patrick on a 24/7 basis, 365 days per year. He explained that he cares for Patrick from when he is awake up until he goes to bed. He said he is there for Patrick should he wake up during the night. Dominic said that Patrick lives with him, Dominic’s partner, Elvira, Elvira’s husband, and Elvira’s child. On the Form, Dominic states as follows:
I am not eligible for any payments from government for the work I do except through the NDIS which has provision for payments to family under exceptional circumstances such as ours. We meet all of the NDIS criteria for exceptional circumstances. As such we put in a request for a Plan Review. We wished for NDIS to consider that I be paid some compensation for the 60+ hours a week I work with my brother.
Dominic refers to a statement made by the delegate in the Internal Review Decision that it is more appropriate for Dominic to receive payment through Centrelink than the NDIS. Dominic states on the Form that he is not eligible for payments from Centrelink due to his brother’s assets. He states that he has not had a rest day since February 2020, is unable to seek paid employment due to the demands of this work, has no income and is reliant on the charity of friends and family. Dominic contends that the NDIA should “honour its responsibilities” as laid out in its Operational Guidelines.
The Operational Guidelines published on the NDIA website include a section entitled “Including Specific Types of Supports in Plans Operational Guideline – Sustaining informal supports”. An extract from this section is set out below (emphasis added):[9]
[9]
…
11.1 Does the NDIA fund family members to provide supports?
Funding a family member to provide supports to a participant can be detrimental to family relationships.
For example, the consequences of funding a family member to provide supports may include unintentionally creating an environment where a participant’s wishes in relation to their care arrangements or the delivery of their supports is diminished, or there is no or limited respite for the family worker taking on the role of support worker.
Generally, the NDIA will only fund family members to provide supports in exceptional circumstances. For example, when:
there is a risk of harm or neglect to the participant;
there are religious or cultural reasons for funding a family member to provide supports; or
the participant has strong personal views, for example in relation to their privacy or dignity.
The NDIA will consider the circumstances of each case, any wishes expressed by the participant and also take into account what is reasonable to expect others to provide.
The NDIA will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.
Note, if the funding for supports under a participant’s plan is managed by the NDIA, family members will only be able to be funded to provide supports if they are a registered provider of supports (see Registered Providers).
The Tribunal notes that the NDIA “reviewer”, when making the Internal Review Decision, considered, in detail, the issue about whether Dominic and Elvira should be paid to provide personal care support to their brother.[10] She named them both in the Internal Review Decision. The “reviewer” decided not to approve the request to approve funding for the Hi-Lo electric bed and mattress. The “reviewer” also decided that approved funding in Patrick’s plan should not be used to pay for “informal supports” (that is, Patrick’s family members) to provide personal care to Patrick for the reasons set out in her decision. Those reasons related, in part, to a concern for the wellbeing of Patrick’s family members if they were paid to provide support to Patrick.[11]
[10] Refer pages 4 to 6 of the Internal Review Decision.
[11] Refer page 4 of the Internal Review Decision.
The NDIA contends that the starting point for the Tribunal is to consider Dominic’s stated reasons for making this application as required by “s 29(7)(c)” of the AAT Act. Mr Hay contends that this is required by s 29(7)(c) of the AAT Act and he relies upon a Federal Court decision in Miller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 489 (Miller).[12] The Tribunal expects there was a typographical error in this section reference and that Mr Hay intended to refer to s 29(1)(c) of the AAT Act, being the provision which obligates an applicant to state the reasons for seeking a review application by the Tribunal in their application form. However, neither s 29(1)(c) of the AAT Act, nor the decision in Miller, stand for authority that the Tribunal in this matter must commence its consideration in making a decision under s 31 of the AAT Act with considering Dominic’s statement of reasons in his application. The Tribunal has of course considered those reasons as part of understanding the background of how this application has arisen and to seek to understand why Dominic considers his interests are affected by the Internal Review Decision, alongside the other detailed submissions Dominic has made to the Tribunal as to why this is the case.
[12] Refer NDIA’s Further Submission at paragraph [17].
In an earlier submission lodged by Dominic on 18 August 2022, he contends that, (emphasis added) “a key tenant of the NDIS is that no participant should be disadvantaged by its introduction”. He said he was paid for the care he provided to Patrick “pre NDIS” and no longer is paid. Dominic states in this submission, “[c]learly, I have been disadvantaged”. The Tribunal notes that Patrick, and not Dominic, is the participant under the NDIS to which this no disadvantage principle refers.
In Dominic’s Submission, he states that the “primary goal” for seeking the original request for (s 100) review in May 2022 was that Patrick’s family receive payment for the role they had served in caring for him on a 24/7 basis.[13]
[13] At page 1.
On 13 September 2021, VCAT issued orders (VCAT Order) under the Guardianship and Administration Act 2019 (Vic) (GA Act) appointing independent persons to act as Patrick’s guardian and administrators. Specifically, as Patrick’s guardian, VCAT appointed the Public Guardian of the Office of Public Advocate (OPA), who in turn delegated her authority to Ms Kate MacRae from the OPA to act as guardian for Patrick. The two administrators appointed are Ms Suzanne Lyttleton and Mr Patrick Lyttleton from Suzanne Lyttleton Lawyers. Patrick’s guardian and administrators were invited by the Tribunal to participate in the hearing and to make written submissions in relation to the standing issue.
At the hearing, Dominic explained the background of the making of the VCAT Order. He said a dispute had arisen between Dominic and his mother about whether Patrick should be vaccinated.[14] He said that VCAT decided it was appropriate for independent persons to be appointed as Patrick’s guardian and administrators because of this history of disputation.
[14] Dominic said he wanted Patrick to be vaccinated, but his mother did not.
Under the VCAT Order, Dominic is recorded as the “primary carer” for Patrick and is “available, willing and able to make medical treatment decisions” in respect of him. VCAT also states in these orders that it appears that under s 55 of the Medical Treatment Planning and Decisions Act 2016 (Vic), Dominic is the medical treatment decision-maker for Patrick.
In Dominic’s Submission and Dominic’s Reply Submission, he asserts Patrick’s guardian was only appointed to be Patrick’s guardian for a period of one year.[15] However, the Tribunal notes that the VCAT Order does not limit the period of the appointment of either the guardian or the two administrators. Instead, the VCAT Order refers to VCAT reassessing the guardianship order no later than 30 September 2022 and in the case of the administrators, no later than 30 September 2024. This does not mean the appointment of Patrick’s guardian and administrators will expire on those respective dates. The VCAT Order does not specify any expiry dates relating to the period of appointment. Dominic states that he does not expect Ms MacRae to remain Patrick’s guardian for long, and that it is “very likely” that she will not be his guardian if, and when, this application is heard by the Administrative Appeals Tribunal (AAT).[16]
[15] At page 1 of Dominic’s Submission and page 2 of Dominic’s Reply Submission.
[16] At page 2 of Dominic’s Submission.
In Dominic’s Submission he contends that he is a family member and primary carer of Patrick and is “directly affected” by the Internal Review Decision. He states he is mentioned by name in this decision (which is correct) and that the rejection of their request leaves him in a “very difficult financial position”, because he does not have the opportunity to seek employment due to his work with his brother.[17] In Dominic’s Further Submission and Dominic’s Reply Submission, he also refers to the safety risk that presents to him personally which he says arises if Patrick is not provided with the requested assistive technology, specifically, a Hi-Lo electric raising bed.[18] Dominic states that he is required to undertake the transfer of Patrick in and out of bed.[19] He says they have undertaken a trial of this equipment and it has been “very successful” and “makes manual handling of Patrick significantly easier and safer”[20]. This was corroborated by the statement of Ms Robson made in the OT’s Report.[21]
[17] At page 2 of Dominic’s Submission and page 1 of Dominic’s Reply Submission.
[18] At page 6.
[19] Refer Dominic’s Further Submission at page 6.
[20] Refer Dominic’s Reply Submission at page 1.
[21] Refer OT’s Report at page 2.
Patrick’s decision-making capacity and ability to communicate
There was no specific evidence from a neuropsychologist, or other suitably qualified specialist, before the Tribunal about Patrick’s cognitive function and/or decision-making capacity. However, in Dr Sutherland’s Report, he states as follows: “He does respond to family members but is unable to communicate via speech or writing” and “is completely dependent on 24-hour care for his care requirements”. In the OT’s Report, Ms Robson states that Patrick’s cognition is unable to be determined due to his communication difficulties. She states that he is able to “express his feelings to his family members” who, she states, are attuned to his needs. She also states that Patrick “is sometimes able to make a sound for a choice”, but she states, “this is unreliable”.
The NDIA, Dominic, Patrick’s guardian or his administrators did not put forward any contention that Patrick has the capacity to make decisions. Dominic described him at the hearing as being “non-verbal”. In Dominic’s Further Submission, he states that “Patrick cannot speak for himself and so I speak for him”.[22] Ms Robson also states in her report that Patrick is “non-verbal”. The VCAT Orders include the following statement:
VCAT makes this decision because it is satisfied that:
- due to a disability, Patrick Deacon does not have capacity to make decisions about the personal and financial matters listed in this order
- Patrick Deacon needs a guardian and administrator, considering the factors set out in section 31 of the [GA] Act, including their will and preferences (what’s important to them)
- this order will promote the personal and social wellbeing of Patrick Deacon
[22] On page 1.
Based on this information and the fact that VCAT has appointed a guardian and the two administrators for Patrick, it would seem apparent for present purposes that Patrick lacks decision-making capacity.
Position of Patrick’s guardian, Ms MacRae
There is no apparent dispute between Ms MacRae and Dominic that Patrick requires “24/7” care. Ms MacRae also said she accepted Patrick’s specialist’s advice and that:
(a)it was best for Patrick’s family members to care for him; and
(b)until the danger of COVID-19 had passed, Patrick should remain in his home.
Ms MacRae confirmed that she had made the request on behalf of Patrick for internal review of the Original Decision, under s 100 of the NDIS Act. However, Ms MacRae informed the Tribunal that she was not intending to make an application on behalf of Patrick to seek a review by the AAT of the Internal Review Decision, for reasons including:
(a)she said that one of the issues in dispute relating to assistive technology had been sorted out with the NDIA; and
(b)she had been in communication with the NDIA, who had informed her there was an active fraud investigation on foot. She said she was not provided with details about this investigation.
The Tribunal was informed at the hearing that a subsequent decision had been made by the NDIA to approve a new 12-month SOPS for Patrick dated 30 August 2022 and that it had included funding for assistive technology (namely, a wheelchair).
In Dominic’s Further Submission he said he was sent a copy of the Original Decision by a Local Area Coordinator (LAC).[23] LACs are employees of the NDIA. At the hearing, Dominic informed the Tribunal that he had not been given a copy of Patrick’s August 2022 Plan.
[23] Refer Dominic’s Further Submission on page 7.
Before the hearing, the Registry of the Tribunal wrote to the NDIA requesting confirmation as to whether a nominee had been appointed for Patrick. Mr Hay responded by email on 20 September 2022 (Mr Hay’s Email).[24] Mr Hay informed the Tribunal that, in effect, no plan or correspondence nominee had been appointed by the NDIA in respect of Patrick. Further, Mr Hay noted that there were no recent documents or interactions requesting to act on behalf of Patrick, except for an “interaction” on 19 September 2022, whereby Dominic had called the NDIA with a query “regarding plan nominee”. Mr Hay also stated in this email, “There is a record as to consent and it does show listed as a third parties”, Ms MacRae and the two administrators.
[24] Mr Hay’s Email was copied to Dominic and Patrick’s guardian and two administrators.
Powers of Patrick’s guardian and how that intersects with the role of a plan nominee
The VCAT Order specifies (and by doing so, limits) the powers of Patrick’s guardian to making decisions on behalf of Patrick in relation to the following “personal matters”:
- where Patrick Deacon lives
- whether any services are needed and if so which ones.
This power does not specifically refer to the “personal matter” of doing acts that Patrick may do under or for the purposes of the NDIS Act, however so described. Given Patrick has been granted access as a participant to the NDIS, such acts include the preparation of and periodic reassessment of Patrick’s NDIS plan. This may relate to where Patrick lives and what services he needs but it may also relate to other matters, such as what equipment should be funded for Patrick to purchase (which is not a “service”) and how the plan should be managed and what the notional duration of the plan should be. Another act that Patrick must carry out under the NDIS Act is to prepare a statement of goals and aspirations for inclusion in his plan. This is not necessarily related to where he will live and what services he needs and goes beyond what the guardian is empowered to do under the VCAT Order.
The Tribunal acknowledges that these processes are likely to be significantly informed by decisions made by the guardian about “whether any services are needed and if so which ones”, but the Tribunal considers that NDIS plan reviewing processes are more expansive than merely deciding whether any services are needed and if so which ones. The NDIS plan review processes will also encompass plan review meetings with NDIA planners, LACs, support coordinators, plan managers, treating medical and allied health professionals to obtain plan review progress reports and executing service contracts with NDIS service providers for the provision of support services or equipment to a participant. It may also involve requesting internal reviews of decisions to approve a SOPS, and/or bringing legal proceedings before the AAT on behalf of the Applicant relating to internal review decisions about Patrick’s NDIS plan. All of those things taken together, go beyond making decisions about personal matters which include “where Patrick Deacon lives” and “whether any services are needed and if so which ones”.
The Tribunal notes that in relation to the power of a guardian to issue legal proceedings, such as an application for review of a decision in the AAT, s 40 of the GA Act requires the guardian to return to VCAT to seek a further order under this provision before a guardian may do so. Specifically, subsection (1) provides as follows:[25]
40. Power for guardian to undertake legal proceedings
(1)VCAT may specify in a guardianship order that the guardian has power to bring and defend an action or other legal proceeding in the name, and on behalf, of the represented person if the action or other legal proceeding is in relation to a personal matter specified in the order.
[25] An equivalent provision may be found in s 51 of the GA Act in respect of the power of administrators to undertake legal proceedings.
Further, the right of a person to do acts that may be done by an adult participant under, or for the purposes of, the NDIS Act, is governed by the legislative provisions contained in Part 5 of Chapter 4 of the NDIS Act relating to Nominees, specifically s 78(1). The National Disability Insurance Scheme (Nominees) Rules 2013 (Nominee Rules) also deal with various aspects of the appointment and role of plan nominees. The NDIS is a Commonwealth legislative scheme. The provisions in a State- or Territory- based legislative scheme, such as the GA Act in this case, cannot override or replace the legislative system dictating who may act for an adult NDIS participant that has been comprehensively established under the Commonwealth legislative scheme.
The Tribunal considers that once a person enters this Commonwealth scheme, the NDIS, they are bound by the legislative requirements of that scheme. If any of the provisions within the Commonwealth scheme expressly refer to and adopt certain powers given to persons under State- or Territory- based legislation, such as under guardianship and administration orders made by VCAT under the GA Act, then that is a different matter. But if no such express provisions exist in the Commonwealth legislation (and they do not, in the case of the NDIS Act), the plan nominee provisions under the NDIS Act prevail and must be observed by all persons seeking to act on behalf of an adult NDIS participant under or for the purpose of the NDIS Act. This applies to family members, carers, or any independent guardians and/or administrators appointed by VCAT (and provided the specific powers of the guardian and administrators under the VCAT orders extend to doing acts that may be done by a participant under or for the purposes of the NDIS Act).
In the NDIA’s Further Submissions, the NDIA’s contended as follows[26]:
If a participant lacks legal capacity, a person who lodges an application on their behalf may be a parent of a (minor) child, a guardian or administrator appointed under an order of a court or tribunal, or a plan nominee. They are the Applicant’s Representative. The Respondent submits on this point, that there is often a hierarchy of decision makers, and in this case, pursuant to the extant VCAT order, the Applicant is out-ranked by the guardian and administrators in relation to standing to bring the application before the Tribunal.
[26] At paragraph [11].
Dominic challenged this contention, and the Tribunal considers that he was right to do so.
Subject to the matters set out in paragraph [51] and [52] below, the Tribunal does not accept that there is a certain “hierarchy” of decision-makers for Patrick. It is certainly correct that VCAT has given the appointed guardian exclusive power to make decisions about where Patrick shall live and the services he needs. But this is where their powers end. VCAT could have ordered that Patrick’s guardian be granted power to do all acts that may be done by Patrick under and for the purposes of the NDIS Act, however so described. But VCAT did not do so. In fact, as Dominic points out, VCAT acknowledged that Dominic is Patrick’s primary carer and medical decision-maker.
Further, in Dominic’s Reply Submission he states as follows:[27]
No explicit authority to make decisions regarding Patrick’s wishes for choice and control, equipment needs, consumables or daily care routines has been assigned by VCAT. Based on the definition above, it would seem logical that these responsibilities fall to the primary carer who has ‘principal responsibility for the person’s care’ which is me.
[27] At page 2.
The Tribunal considers that if such a “hierarchy”, as contended for by Mr Hay on behalf of the NDIA, was intended by Parliament when the NDIS Act was enacted, this hierarchy would have been enshrined into the provisions of the NDIS Act and/or the Nominee Rules. Instead, the NDIS Act makes clear who, other than an adult participant themselves, can do acts that may be done by the participant under or for the purposes of the NDIS Act. This is a plan nominee or nominees appointed under s 86 of the NDIS Act. The Nominee Rules do refer to guardians (or other persons whose responsibilities in relation to the participant are relevant to the duties of a nominee) in s 88(4) of the NDIS Act. This provision, however, does little more than require the NDIA to take into account whether there is a person who has guardianship of the participant (perhaps with a presumption that they might be appointed or be consulted) when deciding who to appoint as an adult participant’s plan nominee. The Tribunal will address this provision in more detail below in paragraphs [51] and [52].
Section 78(1) of the NDIS Act provides that any act that may be done by a participant under or for purposes of the NDIS Act relating to the preparation, variation, reassessment or replacement of their plan or the management of funding under the plan, may be done by the plan nominee (other than to the extent specified in the relevant instrument of appointment). Notably, s 78, or any other section, of the NDIS Act does not include any provisions that have the effect of automatically accepting or allowing for an appointed legal guardian or administrator (that has the requisite authority under the applicable guardianship or administration orders), to do any such acts, based solely upon their appointment as the adult participant’s guardian or administrator.
Parliament could have done so, like it did in case of child participants, where it enacted s 74(1) and subsection s 75(1) and (2) of the NDIS Act, that operate together to create an automatic right of persons who have “parental responsibility” in respect of the child participant, to do a thing that the child participant is required or permitted to do under the NDIS Act. Notably, subsection 75(2) provides that a person with guardianship of a child under a law of the Commonwealth, a State, or a Territory, is a person regarded under this provision as having “parental responsibility” for a child participant, thereby giving the guardian an automatic right to do a thing that the child participant is required or permitted to do under the NDIS Act.
By contrasting the respective provisions about plan nominees in respect of adult participants and child representatives in respect of child participants, the Tribunal does not consider that Parliament ever intended for appointed guardians or administrators of adult participants to automatically have the right to act as a plan nominee for the participant, without being appointed as such by the CEO of the NDIA. The appointed guardian or administrator is required, like anyone else seeking to do an act that Patrick may do under or for the purposes of the NDIS Act, to request to be appointed as Patrick’s plan nominee. The CEO may then appoint the guardian or administrator, or some other person as the participant’s plan nominee under s 86 of the NDIS Act, as she considers appropriate following a consideration of the statutory factors set out in s 88 of the NDIS Act.
Subsections 86(1) and (2) of the NDIS Act require that a plan nominee be appointed by the CEO in writing and such appointment may be made at the request of the participant; or (as relevant in Patrick’s case, given his virtual inability to communicate, apparent lack of decision-making capacity and absence of an NDIA-appointed plan nominee) “on the initiative of the CEO”. Section 86(6) of the NDIS Act allows for more than one person to be appointed as plan nominee.
Section 88(4) of the NDIS Act requires the CEO to have regard to whether the participant has been appointed a guardian or other person whose responsibilities in relation to the participant are relevant to the duties of a nominee. The Tribunal interprets this to mean that there might be a presumption that if the participant has been appointed a guardian or other person whose responsibilities in relation to the participant are relevant to the duties of a nominee, that they will be a person or persons who are appropriate to be appointed to be the participant’s plan nominee, or at least that they be consulted in the process of the appointment of a plan nominee. This interpretation is consistent with policy guidelines issued by the NDIA as referred to in the paragraph below.
The Tribunal notes the NDIA’s Operational Guidelines provide the following policy guidance about appointing plan nominees,[28] and “guardians and nominees”, including the following (underlining emphasis added):[29]
Guardianship Information
Guardianship is different from nominees. Guardianship is the authority to manage the legal and non-legal affairs of a person such as power of attorney or Centrelink nominations. Guardians are not nominees under the NDIS and there is no automatic process for guardians to be made nominees. Where it has been identified by the NDIA that the participant requires a nominee and there is a guardianship arrangement in place, the presumption is that the guardian will be appointed as the nominee.
Guardians being appointed as nominees.
As part of the appointment process for nominees the NDIA will have regard to whether the participant has a guardian, and will take the views of the guardian into consideration. There is a presumption that a guardian should be appointed nominee where their responsibilities are comparable to the duties of a nominee.
[28] Appointing a nominee | NDIS
[29] Guardians and nominees explained | NDIS
In Mr Hay’s Email, he responded to a question from the Tribunal querying why the appointment of a plan nominee for Patrick had not been made, to which he said that the NDIA submits that, “this is a matter for the administrators and guardian”. This position was maintained, and the Tribunal notes the statement made in the NDIA’s Further Submissions as follows:[30]
The Respondent does not consider it consistent with the objects of the Act, the Nominees Rules or good administrative practice, to intervene in all cases to appoint a nominee where a Participant lacks capacity, or a court or tribunal appoints a guardian or administer. This runs counter to the primacy of a Participant with the support of their family and carers to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
[30] At paragraph [57].
Based on s 86(2) of the NDIS Act, the Tribunal does not accept the proposition that the appointment of a plan nominee for Patrick was a matter for Patrick’s guardian and administrators. Nor does the Tribunal accept the propositions set out in paragraph [57] of the NDIA’s Further Submissions as set out above in paragraph [53]. While Patrick’s guardian, administrators, Dominic, or another person for that matter, may indicate their interest in, and agree to, becoming Patrick’s plan nominee, it is for the CEO, on her initiative, to exercise her discretion under s 86(2) whether to make that appointment and to decide which person or persons should be appointed.
In the NDIA’s Further Submission, the NDIA referred to the Nominee Rules and noted that Rules 3.12 and 3.13 provide for the appointment of a nominee at the request of a Participant, which the NDIA stated “is not practicable” in Patrick’s case. The NDIA referred then to Rule 3.14 which provides for the appointment of a nominee without any request from the participant.
Rule 3.14 of the Nominee Rules provides as follows:
3.14If the participant has not requested that a nominee be appointed, the CEO, when deciding whether to appoint a nominee, is to:
(a) consult with the participant; and
(b) have regard to the following:
(i)whether the participant would be able to participate effectively in the NDIS without having a nominee appointed;
(ii)the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards;
(iii) whether the participant has a court-appointed decision-maker or a participant-appointed decision-maker;
(iv) whether the participant has supportive relationships, friendships or connections with others that could be:
(A) relied on or strengthened to assist the participant to make their own decisions; or
(B) improved by appointment of an appropriate person as a nominee;
(v) any relevant views of:
(A) the participant; and
(B) any person (including a carer) who assists the participant to manage their day-to-day activities and make decisions; and
(C) any court-appointed decision-maker or participant-appointed decision-maker.
The NDIA contends (emphasis added):
54. Relevantly, the VCAT Order dated 13 September 2021 gives the guardian and administrators powers to make certain decisions, including as to the NDIS plan. The CEO of the Respondent would expect that the guardian and administrators are aware they need to take positive steps to manage the affairs of the Participant, including making arrangements for the appointment of a nominee.
55. The Respondent submits that Part 4 of these Rules outline the matters to take into account when deciding who to appoint as nominee, and the term of appointment of a nominee and part 5 of these Rules provide for how nominees are expected to act.
56. The Respondent submits that it would be by exception that the CEO would take positive steps to appoint a nominee, and likely only in a particular case where there was no guardian or administrator appointed by a court or tribunal. Rule 3.15 refers to such a case:
3.15 An example of a circumstance in which a nominee might be appointed without a request from the participant is where the CEO considers that the participant needs a nominee, but is unable to request appointment himself or herself, even with support. In such circumstances, the initiative might come from a carer or other person who offers to be the nominee.
The Tribunal has some concerns about the approach outlined by Mr Hay on behalf of the NDIA above. The Tribunal will return to a consideration of these rules and the contentions made by the NDIA about the role of the NDIA in appointing plan nominees, below under the heading “Non-Binding Observations”.
CONSIDERATION
Whether Dominic has standing to bring this application
In Dominic’s Further Submission, he states that “on a human level it is hard to conceive anyone could think that I do not have standing to speak for my brother’s needs”.[31] Dominic also states as follows:
I agree with Dr Sutherland’s assessment and believe funding should be provided so that his family can continue this life saving work. The NDIS review Outcome Letter advocates that I be replaced with nursing care against this medical advice. I have built my entire life around the care of my brother. I find it hard to understand how it is in question that I would be affected if I was replaced by nursing staff. It would upend my life utterly.
[31] On page 1.
In Dominic’s Further Submission he refers to the following extract from a publication issued in January 2021 by the Department of Social Services entitled “NDIS Appeals Operational Guidelines (emphasis added):[32]
5. Participants/clients/recipients/target group
A person who is directly affected by a reviewable decision by NDIA may request review by the AAT under s103 of the National Disability Insurance Scheme Act 2013.
The primary participant group for NDIS Appeals are people with disability, but applicants may also be guardians and nominees of people with disability and carers and family members of people with disability.
[32] Refer Application Guidelines Template (dss.gov.au)
The Tribunal is not bound to apply policy guidance if it is inconsistent with legislative provisions, such as in this case, s 27(1) of the AAT Act operating in conjunction with s 103 of the NDIS Act, as interpreted by the Tribunal as set out below in these Reasons for Decision. The statement in the second paragraph is correct and may apply if the guardians, carers, or family members referred to in that statement have been appointed as the adult participant’s plan nominee under s 86 of the NDIS Act. But if no such appointment has been made, based on the Tribunal’s interpretation of s 27(1) of the AAT Act operating in conjunction with s 103 of the NDIS Act (as set out below), the Tribunal considers this statement to be incorrect and for that reason, will not apply this policy guidance issued by the Department of Social Services in this case.
General principles arising from case authorities
There exist several Federal Court and High Court of Australia case authorities in relation to the general question of standing to bring an application for review in the AAT. The general principles to be distilled from those authorities include:
(a)a decision that affects interests of one person directly, may affect the interests of others indirectly and the “ripples of affection may widely extend”. A determination is to be made of “the point beyond which the affection of interests by a decision should be regarded as too remote for the purpose of s 27(1)”;[33]
(b)the character of the decision is relevant, and evidence to show that a person’s interests are in truth affected, may also be required;[34]
(c)the relevant affected interests are to be determined by reference to the terms of the particular decision that has been made, and the scope and purpose of the enactment under which it was made;[35]
(d)“whose interests are affected by the decision” denotes interests which a person has greater than a concerned member of the general public;[36]
(e)the “interest” need not be proprietary, or legal or equitable in nature or that the affectation be of a nature as understood in private law;[37]
(f)“[t]he interest of which s 27(1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the demand whatever the outcome of a review might be”;[38] and
(g)a mere general interest in the subject matter of a decision is insufficient to give a person standing to seek review of that decision by the AAT. The person’s interests must be affected in some way.
[33] Refer observations of Brennan J, as President of the AAT, in Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at page 70.
[34] Ibid.
[35] Re Steidler and Australian Prudential Regulation Authority (2019) 164 ALD 612 at paragraph [48]; Allan v Transurban City Link Ltd (2001) 208 CLR 167 at paragraph [15].
[36] Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at page 79.
[37] Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 at page 272.
[38] Refer observations of Brennan J, as President of the AAT, in Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at page 69.
In Allan v Transurban City Link Ltd (2001) 208 CLR 167 (Allan), the majority of the High Court delivered a joint judgment in which it was observed as follows (emphasis added):
[15]The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.[39]
[39] Citing Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at pages 624-32, paragraphs [88]-[107].
In Allan, it was noted that the statute in question in that case did not provide a person in the applicant’s position with a right to seek reconsideration of the decision. Likewise, in Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157 (Brisbane Airport v Wright) the Federal Court held that a person who owned property nearby an airport who might have been affected by the noise as a result of the use of an airport, did not have standing to seek review of a decision about an airport management plan. It was considered in that case that the relevant legislation did not intend for a person such as the applicant to have a right of review.
Taking the same approach as that taken by the Federal Court in Brisbane Airport v Wright, the Tribunal in this matter will consider the underpinning legislative regime that established and now governs the administration of the NDIS.
When deciding whether Dominic is a person “whose interests are affected by” the Internal Review Decision, the Tribunal will consider:
(a)the subject, scope, and purpose of the NDIS Act;
(b)NDIS plan review processes under the NDIS Act; and
(c)any requirements under the NDIS Act for particular persons to be notified of the Original Decision and/or Internal Review Decision under the NDIS Act.
Subject, scope, and purpose of NDIS Act
The Tribunal will start by considering the subject, scope and purpose of the NDIS Act. The objects of the NDIS Act are to be found in s 3 and the Tribunal will deal with each in turn:
(a)the first object is to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.[40] The focus in this objective is on persons with disability;[41]
(b)the second object is to provide for the NDIS in Australia. This object has a broad focus and returns to a consideration of the NDIS itself;[42]
(c)the third object is to support the independence and social and economic participation of people with disability. Again, the focus here is on persons with disability and their independence and participation;[43]
(d)the fourth object is to provide reasonable and necessary supports, including early intervention supports for participants in the NDIS. The focus here is on the provision of supports to the participant, and not on the provision of remuneration, or other things, to persons other than participants (such as family members);[44]
(e)the fifth object is to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. The focus here is on what the participant wants, and not about what others want for them on their behalf;[45]
(f)the sixth object is to facilitate the development of a nationally consistent approach in respect of the access to, and the planning and funding of, supports for people with disability. The focus here is on consistency across the scheme and not focused on any particular person or subset of persons;[46]
(g)the seventh object is to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. The focus here is on maximising the independence and inclusion of the person with disability and on the types of supports being provided to them to promote this outcome;[47]
(h)the eighth object is to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS. The focus here is the protection of persons with disability;[48]
(i)the ninth object is to raise community awareness of the issues that affect the social and economic participation of people with disability and facilitate greater community inclusion of people with disability. The focus here is on inclusion of and participation by persons with disability, by increasing community awareness;[49] and
(j)the tenth object is to give effect to certain obligations Australia has arising from a set of conventions as listed in s 3(1)(i) of the NDIS Act. The focus here is on individual human rights.
[40] Refer [2008] ATS 12.
[41] Refer 3(1)(a) of the NDIS Act.
[42] Refer 3(1)(b) of the NDIS Act.
[43] Refer 3(1)(c) of the NDIS Act.
[44] Refer 3(1)(d) of the NDIS Act.
[45] Refer s 3(1)(e) of the NDIS Act.
[46] Refer s 3(1)(f) of the NDIS Act.
[47] Refer s 3(1)(g) of the NDIS Act.
[48] Refer s 3(1)(ga) of the NDIS Act.
[49] Refer s 3(1)(h) of the NDIS Act.
Section 4 of the NDIS Act sets out a set of “general principles guiding action under the NDIS Act”. The principles contained in subsections (1), (2), (3), (4), (5), (6), (7), (8), (9), (9A), (10), (11), (14), (15) and (16) are focused on persons with disability. The principle contained in subsection (3) has a dual focus and is also concerned with the families and carers of persons with disability. It states that “[p]eople with disabilities and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime”. The principles in subsections (12) and (12A) also focus on the families and carers of persons with disabilities. They state as follows:
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(12A)The relationship between people with disability and their families and carers is to be recognised and respected.
The overwhelming focus in virtually all of these objects and general principles, except for the principles in subsections 4(3), (12), and (12A), when considered as a whole, is on persons with disabilities rather than other persons or subsets of persons. The Tribunal considers that the NDIS primarily establishes a scheme which is centrally focussed on the individual, being a person with a disability.
NDIS plan review processes under the NDIS Act
Section 31 contains a further set of principles relating to the preparation, variation, reassessment and replacement of a participant’s plan, and the management of funding. The principles in subsections (a), (b) (e), (g), (h), (i), (j) and (k) are focussed on persons with disabilities. The principles in subsections (a) and (ca) require, so far as reasonably practicable, the planning processes to consider and respect the role of family, carers and other persons who are significant in the life of the participant and to recognise and respect the relationship between participants and their families and carers. The principle in subsection (da) also requires, so far as reasonably practicable, that the planning process strengthen and build the capacity of families and carers to support the participant in adult life (if the participant and their carers agree).
The Tribunal notes that under s 33(5) of the NDIS Act, the CEO, in deciding whether to approve a statement of participant supports must have regard to six matters set out in subsections (a) to (f). Subsections (a), (b), (e) and (f) are focussed on the participant. Subsection (c) refers to the “reasonable and necessary supports” criteria in s 34(1). One of those criteria focuses on family members, specifically a consideration of what supports it is reasonable to expect family members will provide (on an informal or unpaid basis). Subsection (d) refers to the NDIS rules.
The Tribunal notes there are no provisions within Division 2 (Preparing participants’ plans) of Part 2 of Chapter 3 of the NDIS Act requiring the CEO to consult with, or seek agreement from, the participant or any other person (such as their family members) as to the matters (such as types of supports) to be included in the participant’s statement of participant supports. An exception is the obligation to include the participant’s statement of goals and aspirations specifying the goals, objectives and aspirations of the participant (notably not of any other person), and the environmental and personal context of their “living” – refer s 33(1) of the NDIS Act.
Decision notification requirements under the NDIS Act
The Tribunal will consider now the legislative requirements under the NDIS Act for particular persons to be notified of the Original Decision and/or Internal Review Decision under the NDIS Act.
A decision to approve a participant’s statement of participant supports is a “reviewable decision” under s 99 (item 4) of the NDIS Act. Section 100 of the NDIS Act provides that the decision-maker of a reviewable decision must give written notice of it and the reasons for it, “to each person directly affected by the reviewable decision” (emphasis added). Subsection (1A) provides that the notice must include a statement that “the person” may request a review of the reviewable decision under s 100, and that the person may seek further review under s 103.
The Tribunal notes that if a variation is made to a participant’s plan, under s 47A(11) of the NDIS Act, the NDIA must provide a copy of the varied plan to the participant within seven days of the variation taking effect. The Tribunal notes that if a participant’s plan is reassessed under s 48 of the NDIS Act, subsection (6) requires that the CEO must notify the participant of the decision to conduct the reassessment and the decision made under s 48(3)(a) or (b) of the NDIS Act.
Section 100(2) provides that a person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. Under s 100(6), the reviewer must then confirm, vary, or set aside in substitution for another decision, the reviewable decision. The NDIS Act does not specify who is to be provided with notice of a decision made under s 100(6).
Section 103(1) of the NDIS Act provides that applications may be made to the AAT for review of a decision made by a reviewer under subsection 100(6), with a notation that under the AAT Act, notice must be given to persons whose interests are affected by a decision of the reviewer.
At the hearing, the Tribunal sought to understand the background of whether, at a practical level, the Original Decision, Internal Review Decision or Patrick’s subsequent August 2022 SOPS and plan was given by the NDIA to Dominic. However, in making this decision the Tribunal was not influenced by those practical aspects of Dominic’s situation. This is because the Tribunal considers that a decision about whether a person such as Dominic has standing under s 27(1) of the AAT Act should not be determined by reference to whether an individual staff member at the NDIA has considered it appropriate on a specific occasion to give notice of decisions relating to Patrick’s NDIS plan to Dominic. The decisions by those staff members may vary from one case to the next and may vary from one NDIA staff member to the next. Indeed, in this case, it seems that the LAC considered it appropriate to provide Dominic with Patrick’s February 2022 NDIS plan but, at the stage of making the Internal Review Decision and approving the August 2022 SOPS and plan for Patrick, the relevant NDIA staff member decided that it was not appropriate to share those documents with Dominic. At some stage after VCAT appointed a guardian and administrators for Patrick, it seems that the NDIA has ceased sharing such documents relating to Patrick’s NDIS plans with Dominic.
Critically, the Tribunal considers that it must remain focussed on a detailed consideration of the matters set out in paragraph [66] and by considering the Internal Review Decision itself, in reaching the following conclusions.
Conclusions reached on the issue of standing
Primarily, the Tribunal is satisfied that the NDIS is a scheme established to benefit individual participants by providing them with a structured NDIS plan to facilitate the delivery to them of reasonable and necessary supports to maximise their inclusion and social and economic participation. While there are some provisions in the NDIS Act and its associated rules that relate to persons who provide supports to those participants (that is, NDIS service providers), they seek to regulate the quality and way those supports are provided to the participant, to ensure they do not harm the participant and that services are provided in accordance with certain standards to be established under the legislative scheme.
The Tribunal acknowledges that a few of the general principles in the NDIS Act, as referred to above, focus on the family and carers of the participant. Those principles, however, do not form part of the objects of the scheme, are non-specific and are aimed at protecting relationships between family members and the participants, for the purpose of protecting and enhancing the informal support base for the individual participant.
As set out above, in paragraphs [74] to [77], the NDIA is required to give notice of a decision under s 33 to approve a statement of participant supports for a participant, by reason of it being a reviewable decision under s 99 of the NDIS Act, to each person directly affected by the reviewable decision. The NDIA is obligated to give notice to the participant of any variation or reassessment of the participant’s plan. The NDIS Act does not specify who is to be provided with notice of a decision made under s 100(6). There is a notation at the base of s 103(1) of the NDIS Act about the requirement under the AAT Act for notice of an application to be made for review about the AAT of a decision made under s 100(6) of the NDIS Act to be given to persons whose interests are affected by that decision.
There is no provision in the NDIS Act for family members of adult participants (even if they live with, care and/or are the medical decision-maker for the participant), to be notified or consulted, or to provide their agreement, in relation to a decision to approve a SOPS that forms part of the individual participant’s plan. This suggests that the exercise of preparing, and periodically reviewing, an NDIS plan is one that is governed by the NDIA. In doing so, the NDIA must call for input from the participant (or their appointed plan nominee), in the form of the statement of goals and aspirations for the participant for inclusion in their SOPS. Formally, under the NDIS Act or the Support Rules, there is no express requirement for “family members” or “carers” to be notified of the approval of a SOPS or a subsequent decision by a reviewer under s 100(6) of the NDIS Act. The Tribunal considers that this supports a conclusion that it was not intended by the NDIS Act for “family members” or “carers” of participants to be treated as persons whose interests are affected by those decisions, unless and until they are appointed as plan nominee for an individual participant.
The appearance of the term “directly” before the word “affected” in s 100(2) strengthens the Tribunal’s view about this and is consistent with an intention that it is only those persons who are “directly affected” by a decision under s 33 to approve a statement of participant supports, that will be permitted to seek review by a reviewer under s 100(2). The Tribunal considers that in the case of adult participants of the NDIS, who acquire an individual plan directed at them personally under the NDIS, decisions about the participant’s plan may only ever impact the family members and carers indirectly as they are not a party to this plan.
The Tribunal acknowledges that indirectly, Dominic may be potentially impacted by the Internal Review Decision because it may have the practical effect that he will not be paid under Patrick’s NDIS plan, for providing a significant level of personal care and assistance to Patrick. Neither will his sister. The reference in the above sentence to “potentially” was deliberate because theoretically it is possible that Dominic (or his sister) may not provide this care to Patrick and instead, that formal supports may be engaged to provide care and assistance to Patrick. If this occurs, the practical impact of the Internal Review Decision on Dominic will not occur. Patrick will be free to pursue other employment. The Tribunal does not accept that he would be affected by missing out on the opportunity to work for Patrick in the capacity of a support worker because the NDIS is not intended to create and provide employment to a person or group of persons. This is not part of the design of the scheme. Instead, the scheme is primarily intended to support persons with disabilities.
The Tribunal was informed at the hearing that Patrick’s August 2022 SOPS contains approximately $119,000 of total funding for core supports over a notional plan duration of 12 months. Those funds are presently available to be used to pay for assistance for Patrick from external support workers if they were engaged to provide services to him instead of Dominic. The Tribunal accepts that if Dominic ceases to provide care for Patrick and support workers are engaged on a “24/7” basis, that those core supports funds would quickly be depleted and most likely, well before the reassessment date of Patrick’s plan.[50] However, if this occurs, Patrick may seek an unscheduled reassessment under s 48 of the NDIS Act to have this situation rectified and if the delegate considered it appropriate, seek to replace and thereby, replenish his plan.
[50] Dominic made contentions about the level of funding in Patrick’s planning being insufficient.
The Tribunal also acknowledges that the type of assistive technology provided to Patrick under his plan may also have an indirect practical impact on Dominic’s safety, if he decides to continue to undertake bed transfers for Patrick and Patrick’s plan does not provide for him to acquire a Hi-Lo electric bed. But once again, potentially, this impact may not occur if others are engaged to provide personal care and assistance to Patrick as elaborated upon above.
In other words, from the perspective of Patrick, who is the NDIS participant in this scenario, the funding which has been approved under his core supports budget is still able to be utilised by him to engage a person other than Dominic to provide such personal care and assistance to him. If he did so, there would be no lasting impact on Patrick. He may continue to support Patrick as he chooses to do so in an informal capacity as family members commonly do. In making the Tribunal’s decision about standing, it is not for the Tribunal to engage with the issues about why the engagement of external formal support workers is or is not appropriate or may be detrimental to Patrick. That would be to engage in a consideration of the possible outcome of the application were it to proceed, which the High Court has made it clear that the Tribunal should not do – see paragraph [62(f)] above in these Reasons for Decision referring to McHattan.
In the NDIA’s Further Submission, the NDIA contends as follows:[51]
The Respondent submits that in the case the Tribunal were to find that Mr [Dominic] Deacon has standing, then it is the case that the Tribunal is standing [in] the shoes of the decision maker. It is not the case that the review conducted by the Tribunal is limited to the issue of payment for informal supports to Mr [Dominic] Deacon. The Tribunal is making the decision de novo and could arrive at a different plan of supports for the Participant. As a matter of public policy, this factor weighs heavily against a finding that Mr Deacon is a person affected by the decision.
[51] At paragraph [31].
Due to the same principle referred to in McHattan at paragraph [62(f)] in these Reasons for Decision, the Tribunal has not been influenced in making its decision by taking into account these contentions by the NDIA set out in the above paragraph, because the contentions hinge upon a consideration of the possible outcome of this application were it to proceed.
The Tribunal concludes that the relevant “ripple of affection” in the circumstances of this matter is too remote to constitute Dominic having an affected interest within the meaning of s 27(1) of the AAT Act. Under the NDIS Act, the scheme is devised for the benefit of the individual NDIS participant. The outcome of a plan review process under the NDIS Act is to devise and periodically reassess SOPS and NDIS plans for an individual participant. The participant, or their plan nominee if they have one, are the relevant persons to be involved in the establishment and reassessment of the SOPS and NDIS plans and to facilitate the use of the approved funding to acquire the funded supports for or on behalf of the individual participant. The Tribunal acknowledges that Dominic is Patrick’s brother, and currently, his primary carer and medical decision-maker. However, Dominic is not Patrick’s plan nominee, nor he is entitled to make decisions about where Patrick will live, or what services he needs and should acquire, these both being the personal matters that only Patrick’s legal guardian, Ms MacRae, has the power, presently, to decide upon for Patrick.
Following a consideration of the subject, scope, and purpose of the NDIS Act as outlined above in paragraphs [67] to [69], the NDIS plan review processes under the NDIS Act as outlined in paragraphs [70] and [72], the NDIS decision notification processes under the NDIS Act as outlined in paragraphs [74] to [77], and a consideration of the Internal Review Decision itself at outlined in paragraphs [19] and [27], on balance, the Tribunal decides that that Dominic is not a person whose interests are affected by the Internal Review Decision.
Accordingly, the Tribunal concludes that Dominic does not have standing under s 27(1) of the AAT Act to bring this application for review, and for that reason, it is invalid.
Extension of time request
There is no necessity for the Tribunal to address Dominic’s request for an extension of time to lodge this application for review of a decision, because the Tribunal has concluded that this application is invalid because Dominic does not have standing to bring it pursuant to s 27(1) of the AAT Act.
CONCLUSION
Pursuant to s 31 of the AAT Act, and for the reasons set out in the Reasons for Decision below, the Tribunal decides that Dominic is not a person whose interests are affected by a decision made on 20 July 2022 by a “reviewer” of the NDIA under s 100(6) of the NDIS Act in relation to his brother’s statement of participant supports in his NDIS. The Tribunal decides that Dominic does not have standing under s 27(1) of the AAT Act. This application for review lodged with this Tribunal by Dominic is invalid.
There is no necessity for the Tribunal to address Dominic’s request for an extension of time to lodge this application, because there is no valid application before the Tribunal.
NON-BINDING OBSERVATIONs
By way of non-binding observations, the Tribunal considers that the present uncertainty about which person or persons should be making decisions in respect of Patrick’s NDIS planning preparation and periodic internal reassessment (and if required, external review) processes under the NDIS Act, has given rise to unnecessary tension between important persons in Patrick’s life. As mentioned above, the evidence before the Tribunal refers to Patrick’s virtual inability to communicate and his treating OT has referred to an inability to assess Patrick’s cognitive capacity. This is reflective of the VCAT having made the VCAT Order to appoint a guardian and administrators to act on Patrick’s behalf regarding certain matters.
In these circumstances, the Tribunal considers it prudent that the CEO consider whether it is appropriate to exercise her discretion under s 86 of the NDIS Act about whether to appoint a plan nominee for Patrick given his circumstances. This would make it clear to all persons concerned which person or persons have the right to do acts, on Patrick’s behalf, that he, as a participant, may do under and for the purposes of the NDIS Act.
The Tribunal acknowledges Mr Hay’s detailed submissions about preserving a participant’s “choice and control” consistent with the objectives and general principles under the NDIS Act. The Tribunal also appreciates that the NDIS legislative scheme, specifically, Rule 3.1 of the Nominee Rules, establishes a presumption that persons with a disability have the capacity to make decisions that affect their own lives and that “this is usually the case, and it will not be necessary to appoint a nominee where it is possible to support, and build the capacity of, participants to make their own decisions for the purposes of the NDIS Act”.
However, Rule 3.2 expressly recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant, and to act on behalf of, or make decisions on behalf of, a participant. Rule 3.3 provides that the appointment of a nominee is “justified only when it is not possible for participants to be assisted to make decisions for themselves”. Based on the evidence presented to the Tribunal, this appears to be the case in relation to Patrick due to his virtual inability to communicate or for any assessment to made about his current level of cognition. Rule 3.4 does not apply to Patrick’s circumstances, because he is not capable of making any request for a plan nominee to be appointed, even if this was his wish, due to his virtual inability to communicate. The absence of any such request by Patrick, it is not by reason of a conscious decision by him that he does not wish to have a plan nominee.
If the CEO moves to make a decision to appoint a plan nominee for Patrick, this opens up the opportunity for another person to challenge the appointment, should they wish to do so, because a decision by the CEO to appoint a plan nominee is a “reviewable decision” identified in s 99 of the NDIS Act.
Section 99 does not include in the definition of “reviewable decision”, a decision by the CEO not to appoint a plan nominee. So, if the CEO decides not to appoint a plan nominee in Patrick’s case, there is no option for a person (such as Dominic, Elvira or Patrick’s guardian or administrators) who is not happy with this situation, to seek a review of the CEO’s decision not to appoint a plan nominee by a “reviewer” under s 100 of the NDIS Act (or by the Tribunal under s 103 of the NDIS Act). The Tribunal envisages that this “stalemate” may inadvertently be adding to the tension apparent between Dominic and Patrick’s guardian.
The Tribunal makes these observations because it expects that ongoing confusion has arisen and exists due to the absence of the appointment of a plan nominee for Patrick, about who should be doing acts, on behalf of Patrick, that he, as participant, may do under the NDIS Act. In turn and given Patrick’s virtual inability to communicate, the Tribunal considers this is potentially deleterious to the interests of Patrick being supported in a way that promotes his chances of achieving his goals and aspirations under his plan.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
...............................[SGD].........................................
Associate
Dated: 6 October 2022
Date(s) of hearing: 20 September 2022 Date final submissions received: 4 October 2022 Applicant: By telephone Respondent: By telephone Solicitors for the Respondent: Mr Adam Hay, In-house Lawyer, National Disability Insurance Scheme
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