DFHV and National Disability Insurance Agency

[2018] AATA 5140

DFHV and National Disability Insurance Agency [2018] AATA 5140 (2 May 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/0749

Re:DFHV

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:2 May 2018

Date of written reasons:        4 April 2019

Place:Sydney

The Tribunal has jurisdiction to review those supports included in the Applicant’s plan and in respect of which the Applicant requested an internal review.

.........................[sgd]...............................................

Deputy President J W Constance

CATCHWORDS

PRACTICE AND PROCEDURE - JURISDICTION - application for review of decision to approve statement of participant supports - where request made for internal review of decision - where subsequent statement of participant supports approved following internal review request - where approval of subsequent statement of participant supports said to follow review of plan - whether approval of subsequent statement of participant supports constitutes internal review decision - Approval of subsequent statement of participant supports reviewable by Tribunal

PRACTICE AND PROCEDURE - JURISDICTION - application for review of decision to approve statement of participant supports - where internal review decision does not address all matters put before reviewer - whether review by Tribunal confined to those matters addressed by reviewer - Tribunal has jurisdiction to review all matters put before reviewer

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Fuad v Telstra Corporation Limited [2004] AATA 1182; (2004) 39 AAR 496

REASONS FOR INTERLOCUTORY DECISION ON JURISDICTION

DEPUTY PRESIDENT J W CONSTANCE

4 April 2019

INTRODUCTION

1. In February 2018, the Applicant, by his nominee and father Mr S., applied to the Tribunal for review of a decision made by the National Disability Insurance Agency on 29 January 2018.

2. The application referred to a decision of 12 February 2018, but as the matter progressed it became clear that the decision to be reviewed was that of 29 January 2018. Nothing turns on this discrepancy.

3. During the dispute resolution phase of the Tribunal’s review process, the Agency contended that the Tribunal did not have jurisdiction to review the decision as the Agency had not completed an internal review as required by the National Disability Insurance Scheme Act 2013 (Cth).

4. At the interlocutory hearing on 2 May 2018, I determined that the Tribunal did have jurisdiction to review the decision for reasons which I gave orally at the conclusion of the hearing.

5. I now provide my reasons in writing.

   THE REQUIREMENTS OF THE NATIONAL DISABILITY INSURANCE SCHEME ACT

6. Section 32 of the Act requires the Chief Executive Officer of the Agency to facilitate the preparation of a plan for a participant in the Scheme. A plan must include a statement of the participant’s supports prepared with the participant and approved by the CEO: subsection 33(2).

7. For a plan to come into effect, the CEO must approve the participant’s statement of goals and aspirations as well as the statement of participant supports: s 37. Once a plan comes into effect it cannot be varied, but it can be replaced with a new plan.

8. The decision of the CEO to approve a statement of participant supports under subsection 33(2) is a reviewable decision, as defined by s 99.

9. A person who is directly affected by a reviewable decision may request the CEO to review that decision: subsection 100(2). Once a request is made, the CEO must cause the reviewable decision to be reviewed by a reviewer. The reviewer must be a person to whom the CEO has delegated powers and functions and who was not involved in making the reviewable decision: subsection 100(5).

10. Subsection 100(6) provides:

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

    (a) confirming the reviewable decision; or

    (b) varying the reviewable decision; or

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

11. Section 102 provides:

    102 Withdrawal of request for review

    (1) A request for review of a reviewable decision may be withdrawn by:

    (a) sending or delivering a written notice to the decision‑maker; or

    (b) contacting the decision‑maker and withdrawing the request orally, whether in person, by telephone or by other means.

    (2) If a request is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

12. In addition to a review requested by a person, subsection 48(4) provides that the CEO “may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.”

    THE AGENCY’S DECISION-MAKING PROCESS IN THIS MATTER

13. On 17 December 2017, Mr S. met with a representative of the Agency to discuss a review of the Applicant’s plan in place at that time. As a result of this meeting a new plan was put in place, which began on 11 January 2018 (January 11 plan).

14. On 18 January 2018, Mr S. applied for a review of the January 11 plan on behalf of his son. This request was made in accordance with subsection 100(3) of the Act, and submitted on an NDIS form headed Application for a review of a reviewable decision.

15. The application for internal review was set out as follows:

    [The Applicant’s] current NDIA plan does not fully reflect [the Applicant’s] complex needs. I request that the following issues be reconsidered:

    Community Access

    [text omitted]

    Short Term Accommodation

    [text omitted]

    Domestic Assistance

    [text omitted]

    Coordination of Support

    [text omitted]

    Under each of the above headings Mr S. set out the particular reasons for the request for review. It is relevant that the request included a review of the support for short-term accommodation.

16. By letter of 30 January 2018, the Agency advised Mr S. that the Applicant’s plan had been approved with effect from 29 January 2018. A copy of the plan (January 29 plan) was attached.

17. The January 29 plan provided for increases in funding for most of the supports included in the January 11 plan, including an increase of approximately $3600 in the budget for core supports. Core supports in both plans included the provision of short-term accommodation.

18. By letter of 5 February 2018, the Agency wrote to Mr S., in part:

    I am pleased to let you know that [the Applicant’s] National Disability Insurance Scheme (NDIS) plan has been approved. I have attached a copy of the plan to this letter, which starts on 02 February 2018.

    I will refer to this plan as the February 2 plan.

19. The February 2 plan increased the budget for assistive technology to cover a specific piece of equipment. The budgets for the other supports were the same as those in the January 29 plan.

20. At the time of interlocutory hearing in respect of the Tribunal’s jurisdiction, the February 2 plan remained in force.

    THE ISSUE

21. The issue for determination is whether the decision to issue the January 29 plan was a decision under s 100 of the Act and therefore a decision reviewable by the Tribunal.

    DISCUSSION

22. It was argued by the Agency that, as at the date of the hearing (2 May 2018), the Agency had not finalised the internal review requested by Mr S. on 18 January 2018.

23. I have come to the conclusion that in view of the request for review made on 18 January 2018, the decision to issue the January 29 plan was a decision made under s 100 of the Act and was reviewable by the Tribunal.

24. The letter of 30 January 2018, which enclosed the January 29 plan, read in part:

    How we developed [the Applicant’s] plan

    As you may know, I reviewed [the Applicant’s] plan to ensure [the Applicant] was receiving the right supports to meet [his] circumstances. Following the review I am pleased to say that a new plan has been approved. Please note that as a result of [the Applicant’s] new plan, the duration or overall plan value may have changed. You can find [the Applicant’s] new plan attached. [Emphasis added]

    The letter was signed by a person other than the person who advised of the making of the January 11 plan, and who described herself as:

    Delegate of the Chief Executive Officer

    National Disability Insurance Agency.

25. The letter did not refer to the section of the Act under which the delegate purported to make the decision. However, the delegate stated that she had reviewed the Applicant’s plan. Taking into account that on 18 January 2018 Mr S. had requested review of the plan, the only reasonable interpretation to be given to the delegate’s action is that she had reviewed the plan as requested in accordance with s 100. As a result, the delegate’s decision to put in place the January 29 plan is reviewable by the Tribunal under s 103.

26. In reaching this conclusion I have taken into account that the request for review included a specific request for review of the funding for the Applicant’s short-term accommodation. This was considered and an adjustment to the funding was made in the January 29 plan. This adds weight to the conclusion that the delegate was responding to the request for review rather than exercising the power given to the CEO to review a plan on the CEO’s own initiative under s 48.

27. I have considered that in her letter of 30 January 2018, the delegate advised Mr S. that if he disagreed with the approval of the January 29 plan he could request a review by the Agency, rather than by making an application to the Tribunal. This is not determinative of the Tribunal’s jurisdiction. In view of the other factors indicating that the internal review had in fact been completed by the approval of the January 29 plan, this advice as to review rights was not correct.

28. Although this matter did not proceed to a final hearing, it should be noted that the Tribunal could have reviewed all the supports referred to in the request for review. This is the case even though the delegate did not alter the budgets of all of the supports. The fact that the requests were before the delegate is sufficient to enliven the Tribunal’s jurisdiction: see Fuad v Telstra Corporation Limited.[1]

    [1] [2004] AATA 1182; (2004) 39 AAR 496 at 498 [4]-[5].

    CONCLUSION

29. The Tribunal has jurisdiction to review those supports included in the Applicant’s plan and in respect of which an internal review was requested on 18 January 2018 on behalf of the Applicant.

30.     I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

........................................................................

Associate

Dated: 4 April 2019

Date of hearing:	2 May 2018
Advocate for the Applicant:	By telephone
Respondent:	By telephone