Dorrington and National Disability Insurance Agency - [2022] AATA 1714

Dorrington and National Disability Insurance Agency [2022] AATA 1714 (16 June 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/3150
Re:William Dorrington
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:16 June 2022
Place:Canberra

The Tribunal has jurisdiction to review the internal review decision made on 13 April 2021 under s 100(6) of the National Disability Insurance Scheme Act 2013 as varied by the reconsideration decision made on 8 November 2021 on remittal under s 42D of the Administrative Appeals Tribunal Act 1975.
……..…[sgd]………..
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – application for review of internal review decision to affirm approval of a statement of participant supports - remittal of decision under review for reconsideration – reconsideration procedure – reconsideration decision expressed in participant plan document – no reference made to materials on which findings are based – no reasons given – temporal considerations not expressly considered – reconsideration decision not expressed in terms consistent with legislation – deficiencies not sufficient to negate decision – decision under review taken to have been varied on reconsideration – jurisdiction to review internal review decision as varied by reconsideration decision
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42D
National Disability Insurance Scheme Act 2013, ss 33, 37, 48, 49, 99, 100, 103
National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Act 2022
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
QDKH v National Disability Insurance Agency [2021] FCAFC 189
RTRH and NDIA [2022] AATA 205
REASONS FOR DECISION
Mr S. Webb, Member
16 June 2022

William Dorrington is a participant in the National Disability Insurance Scheme (Scheme). The CEO of the National Disability Insurance Agency (Agency) approved a statement of participant supports (SPS) for Mr Dorrington. Mr Dorrington’s request for a lathe was not approved. This decision was confirmed on internal review of the CEO’s decision. Unhappy with this result, Mr Dorrington applied for review by the Tribunal.
In the course of the proceedings, the parties requested remittal of the decision under review to the CEO for reconsideration. The purpose of this was to ensure continuity of supports for Mr Dorrington during the Tribunal review. The Tribunal acceded to the request and issued an order of remittal under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). In response to the remittal order, the Agency issued a new plan for Mr Dorrington. Questions arose about the effect of the new plan on the proceedings and whether a decision had been made for the purposes of the remittal order and s 42D(2) of the AAT Act.
The parties were provided with opportunities to make written submissions addressing related jurisdictional issues and considerations, and each was heard at an interlocutory hearing. Subsequently, the National Disability Insurance Scheme Act 2013 (NDIS Act) was amended by the National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Act 2022 (Amendment Act). Questions arose about the effect of the amendments, if any, on the jurisdictional issues under consideration. Further time was allowed for the parties to make further submissions addressing this development.
These issues, alone, are the subject of this interlocutory decision.
The jurisdictional questions are:
(a)Was a reconsideration decision made pursuant to the Tribunal’s remittal order? (remittal issue)
(b)If so, what effect does the decision have on the Tribunal’s jurisdiction? (proceedings issue)
(c)What effect, if any, does the Amendment Act have on the Tribunal’s jurisdiction? (amendment issue)
In order to assist understanding, it is desirable to briefly set out the statutory framework under which these matters must be decided.
Statutory framework
The Tribunal’s jurisdiction in this case is conferred by s 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act):
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Under s 100(6) of the NDIS Act:
(6) The reviewer must 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.
The reviewable decision is the decision of the Agency CEO to approve the statement of participant supports in a participant’s plan under s 33(2) of that Act.
The making, review and replacement of a participant’s plan is a matter for the CEO and the participant under Part 2, Chapter 3 of the NDIS Act. The Tribunal has no jurisdiction to review a participant’s plan. Where the CEO reviews a participant’s plan under s 48, s 49 has the following mandatory effect:
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
As explained in Note 2, where a new plan is formulated following review under s 48, the decision to approve the SPS in the new plan is a reviewable decision. Such a decision is susceptible to review by the Tribunal only once it has been reviewed under s 100 and an actual or a deemed decision has been made under s 100(6).
Once an application is made to the Tribunal for review of a decision, in the course of the consequent proceedings the Tribunal has discretion under s 42D of the AAT Act to remit the decision to the person who made it for reconsideration. The section is in the following terms:
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for
the decision set aside.
Note: For time limits, see subsection (5).
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the
decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as
varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new
decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
Time limits
(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
As can be seen, a reconsideration decision made under paragraphs 42D(2)(b) or (c) is instrumental in the Tribunal proceedings. The application for review is taken to be an application for review of the decision as varied on reconsideration, or the new decision made in substitution for the remitted decision should it be set aside. Where the person (the reconsideration decision-maker) affirms the remitted decision, or the remitted decision is taken to be affirmed under s 42D(7), the Tribunal proceedings resume. The remitted decision is taken to be affirmed if the reconsideration decision-maker does not reconsider the remitted decision and do one of the things mentioned in paragraphs 42D(2)(a), (b) or (c) within the specified period. The word ‘and’ in s 42D(7) is important. It is not sufficient for the person to reconsider the remitted decision without doing one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). This threshold is synchronous with s 42D(5): the reconsideration decision-maker must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c) within 28 days or the period specified by the Tribunal in the remittal. The word ‘must’ is directive and it applies conjunctively to the reconsideration and the doing of one of the things mentioned in paragraphs 42D(2)(a), (b) or (c).
For reasons of certainty, and for the avoidance of any doubt about the effect of the reconsideration decision on the Tribunal proceedings, it is desirable for the reconsideration decision-maker to adopt the language of the legislation when doing one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). Where the reconsideration decision is unambiguous in its terms and properly capable of being construed to satisfy paragraph 42D(2) (b) or (c), then s 42D(3) or (4) may come into operation. Otherwise, s 42D(2)(a) or (7) will apply, whereupon s 42D(8) will operate and the Tribunal proceedings will resume with no change being made to the decision under review.
Where a decision-maker exercises power under s 42D(2)(b) and varies a remitted decision, subject to any applicable legislation, the decision-maker should specify when the variation has effect as there is little room for uncertainty of this kind when authorising the expenditure of public money.
Furthermore, in order to enable the applicant to make a properly informed decision about whether or not to proceed with the application for review by the Tribunal or to withdraw it, the reconsideration decision should be clearly expressed in terms that are sufficient for the applicant to understand the decision and the reasons for it. At a minimum, a reconsideration decision-maker should, however briefly, give reasons for the decision, setting out their findings on material questions of fact and referring to the evidence or other material on which those findings were based. Even though there is a question whether s 37(1) of the AAT Act applies to a reconsideration decision made on remittal under s 42D, for reasons of clarity at least, it would be good practice for a statement of the kind referred to in s 37(1)(a) to be given to the applicant and the Tribunal.
Setting out a reconsideration decision in a plan document template format may communicate the result, as it did in this matter, but it does not address the factual basis of the decision, the materials on which the facts were found, or the reasoning that was applied when deciding the result.
Procedural history
The procedural history in Mr Dorrington’s case is as follows.
On 5 November 2020, the Respondent approved an SPS under s 33(2) of the NDIS Act (primary decision) which was instrumental in the coming into effect of a plan under s 37(1) on that day (Plan A). By operation of s 37(3), Plan A replaced the previous plan (which ceased to have effect thenceforth) and, under the SPS, it was scheduled for review prior to 5 November 2021.
On 8 February 2021, Mr Dorrington requested internal review of the primary decision.
On 13 April 2021, a reviewer issued a decision under s 100(6) of the NDIS Act (IR decision), confirming the primary decision.
On 3 May 2021, under s 103 of the NDIS Act, Mr Dorrington applied to the Tribunal for review of the IR decision.
On 2 November 2021, in the course of the Tribunal proceedings, the parties requested remittal of the application for reconsideration under s 42D of the AAT Act for the following reasons:
(a)the need to ensure the Applicant has continued access to supports while his matter remains in the Tribunal;
(b)the Respondent’s obligation to conduct a review of the Applicant’s plan by 5 November 2021 (the review date); and
(c)the Respondent’s intention to recommend to a delegate that:
(i)the review date should be varied to 6 months after the day on which the delegate makes the reconsideration decision (the varied review date); and
(ii)the reasonable and necessary supports in the existing statement of participant supports dated 5 November 2020 should be replicated for the period from the date of reconsideration until the varied review date.[1]
[1] Parties request for remittal, 2 November 2021 at [3].
On 4 November 2021, under s 42D(1) of the AAT Act, the Tribunal remitted the IR decision for reconsideration on or before 9 November 2021.
On 8 November 2021, the Agency issued a new plan (new plan) for Mr Dorrington which:
(a)purportedly commenced on that day;
(b)included an approved SPS; and
(c)specified a review date of 9 May 2022;
On 10 November 2021, Mr Dorrington informed the Tribunal he intended to proceed with his application.
On 13 December 2021, directions were issued for the Respondent to provide written submissions addressing questions about the effects of the new plan upon the scope of the proceedings and the Tribunal’s powers, and for Mr Dorrington to inform the Tribunal if he intended to proceed and, if so, to specify the nature and extent of supports being sought (following QDKH v NDIA[2] (QDKH)).
[2] [2021] FCAFC 189.
In interlocutory hearings on 28 January 2022 and 11 March 2022, time was allowed for questions arising from the written submissions provided by the Respondent on 14 January 2022 to be addressed in further written submissions. Subsequently, additional materials were filed and each party has made further written submissions.
The remittal issue
Mr Dorrington’s solicitor, Mr Nakul Bhagwat, asserts a reconsideration decision was made pursuant to the Tribunal’s remittal order on 4 November 2021. In his submission, the decision was to vary the IR decision. The variation decision necessitated a fresh exercise of the power under s 33(2) of the NDIS Act and it resulted in the approval of the SOPS dated 8 November 2021,[3] including:
(i)the reasonable and necessary supports that will be funded (which replicated pro rata the reasonable and necessary supports specified in the SOPS dated 5 November 2020); and
(ii)the date by which the Respondent must review the plan under Division 4 is 9 May 2022.[4]
[3] Applicant’s written submissions, 9 March 2022 at [38].
[4] Ibid, at [39].
In the Respondent’s submission, a delegate of the CEO reconsidered the matters that must be included in the Applicant’s plan and determined to vary only one aspect of the internal review decision, namely, the duration of the plan.
There is substantial agreement between the parties on this point.
The issue for the Tribunal is whether the SPS in the new plan amounts to a decision under s 42D(2) of the AAT Act and, if so, whether s 42D(3) or (4) is engaged.
The Respondent has provided detailed submissions addressing the policies and decision-making procedures that were followed in respect of the Tribunal’s remittal order. On those materials, it appears that, before the remittal order was made, the parties agreed to terms which, if implemented, would extend the funding of supports for Mr Dorrington for a further 6 month period. The terms were crafted into a request for remittal of the IR decision which was approved by the Director of the AAT Case Management Branch of the Agency. Subsequently, the request for remittal was lodged with the Tribunal.
Mr Dorrington raised questions about the extent to which, if at all, a full plan review on 16 October 2021 was taken into account. He asserts additional materials were provided to the Agency, including a report from his Occupational Therapist which recommended the provision of additional supports.[5] I note on 22 November 2021 a report of Chris Byrnes, Mr Dorrington’s Occupational Therapist, was given to the Tribunal. Mr Byrnes’ report is dated 16 November 2021.
[5] Applicant’s email, 12 November 2021.
On 4 November 2021, the Tribunal decided it was appropriate to remit the IR decision for reconsideration on or before 9 November 2021 and so ordered.
On 5 November 2021, a case manager referred the remitted decision to the Service Delivery Response Alliance area of the Agency and stated:
An Order has been made by the [AAT], remitting the decision for reconsideration, pursuant to s 42D of the [AAT Act] – could I please request preparation of a remittal for the below Applicant – AAT Order is attached.
This 42D relates to DORRINGTON, William …
Order
-    Implement a pro-rata plan for 6 months whilst the AAT matter is progressed.
To ensure the Applicant continues to receive supports whilst the AAT matter is progressing, we are recommending that you make a decision to:
-    Change the review date of the plan to be 6 months after the date you approve the plan; and
-    Replicate all existing supports presently funded in the present plan on a pro-rata basis…
Although the decision is a matter for you, it is important to seek legal advice in the event you are uncertain about the intended effect of the agreement, or if you propose to make a decision that does not reflect the parties’ agreement. Please provide a copy of your decision to us in draft, so we can confirm whether it accords with the agreement.
Upon approval of the decision, would you please confirm the revised plan and the following note has been uploaded to CRM:
I will send confirmation through to you once I have reviewed. Once the Order is provided I will send this through with any comments I have on the remitted plan.
When approving the plan in the system, please do not generate any correspondence to the Applicant. I will send the planning document to the Applicant.[6]
[6] Respondent’s written submissions, 1 April 2022, Attachment F.
On 5 November 2021, the case manager’s request was allocated to a Support Officer (the delegate) with the instruction: Plan build for actioning.[7] The Respondent asserts the Support Officer holds appropriate delegations from the CEO.[8]
[7] Ibid, Attachment G.
[8] Ibid, at [10].
On 8 November 2021, the delegate sent an email to the case manager which included the following information:
The below plan has been entered into CRM, please see attached a print preview copy of the draft plan.
…
SDRA – Unscheduled plan review conducted in accordance with AAT Order 2021/3150
Previous Plan
Duration 12 months
Plan Management: Agency/Plan/Self
Core: Daily - $11,543.67 Social - $23,723.08 Transport - $1,784.00
Capacity Building: Choice & Control - $1,485.75 Daily - $5,567.72
Assistive Technology: $9,155.40
Total: $53,259.62
Plan Review Built
Duration: 6 months
Plan Management: Agency/Plan/Self
Core: $5,771.84 Social - $11,861.54 Transport $892.00
Capacity Building: Choice & Control - $859.05 Daily - $2,783.86
Assistive Technology: $15,337.15
Total: $37,505.44
…
Please confirm that the plan reflects the Orders and advise when you are happy for the plan to be approved[9]
[9] Ibid, Attachment H.
On 8 November 2021, the case manager informed the delegate he had reviewed the updated plan and stated:
It looks fine. Please implement and please provide me with a final copy of the plan which I will send to our lawyers to send to the Applicant.[10]
[10] Ibid, at [12].

Shortly thereafter, the delegate stated Participant now has an approved plan as of 8/11/2021 and provided a copy of the final plan to the case manager.[11] The final plan sets out a start date (8 November 2021) and a review due date (9 May 2022), and it specifies the following supports and funding:
[11] Ibid, Attachment J.
Total funded supports $23,921.44
Core supports:
Daily activities budget ($5,771.84)
…
Social and Community Participation budget ($11,861.54)
…
Transport   $892.00
Capacity Building Supports:
Improved Life Choices (CB Choice & Control)         $859.05
…
Improved Daily Living (CB Daily Activity)                 $2,783.86
Assistive Technology  $1,753.15
It is the Respondent’s submission that this approval is the administrative decision giving effect to the remittal decision.[12]
[12] Ibid, at [13].
The extent to which, if at all, the delegate reconsidered the IR decision is not clear on the available materials. The available materials suggest:
(a)the case manager issued an order to produce a 6-month plan in accordance with the request for remittal terms agreed with Mr Dorrington;
(b)the delegate responded to the order and built a new plan by entering details into the Agency’s CRM IT system;
(c)the delegate provided the case manager with a draft copy of the new plan to approve, which he duly did; and
(d)the delegate implemented the new plan.
The documents placed before the Tribunal, and the records of the delegate in particular, do not disclose that she engaged in a deliberative process in which relevant materials were considered, factual findings were made and cogent reasoning was applied when determining if the IR decision should be affirmed, varied or set aside and substituted with a new decision. If the delegate engaged in a deliberative process of reconsideration decision-making, the details of any such deliberations are not apparent on the present materials. It is not established the delegate had regard to or took into account matters raised and materials produced in the full plan review Mr Dorrington asserts took place on 16 October 2021. If that is correct, it raises further questions about the nature and the extent of the delegate’s reconsideration. That said, I note the report of Mr Byrnes given to the Tribunal is dated 16 November 2021, well after the new plan was issued on 8 November 2021.
When reconsidering the IR decision, the delegate was authorised to reconsider all matters there were before the person who made the IR decision which confirmed the primary decision under s 33(2) of the NDIS Act. More particularly, the delegate was authorised to reconsider all elements of the SPS approved in the primary decision. The delegate was authorised to consider these matters as at the date of the primary decision, 5 November 2020. She was also authorised, following QDKH, to consider all the supports and funding Mr Dorrington was seeking up to the present (to the date of reconsideration) and to decide if they were reasonable and necessary for the purposes of s 33 and s 34 of the NDIS Act. The materials do not disclose that additional supports Mr Dorrington was seeking prior to the remittal order, including a manual wheelchair and additional occupational therapy support for example, were assessed or considered by the delegate.
These considerations notwithstanding, it can be accepted a decision was made pursuant to the Tribunal’s remittal. There are a number of things to say about this.
Firstly, the remittal of a decision for reconsideration under s 42D(1) of the AAT Act authorises the making of a statutory reconsideration decision under s 42D(2). Essentially, reconsideration involves elements of merits review and deliberation in a statutory framework which allows progressive decision-making. It is not clear if the delegate assessed the supports Mr Dorrington was seeking under the statutory framework of the NDIS Act and engaged in a deliberative reconsideration decision-making process.
Secondly, even though it is possible the delegate did consider matters of the kind I have referred to above in a deliberative process of reconsideration decision-making, without documentary evidence of such deliberations, including the facts found and the materials on which the findings were based, it is not possible to understand the reasons for the decision expressed in the new plan issued on 8 November 2021. This does not assist Mr Dorrington to make an informed decision about whether or not to proceed with the application.
Furthermore, the new plan does not disclose if the delegate intended to vary the IR decision, or to set it aside and substitute a new decision for the purposes of s 42D(2) of the AAT Act. The population of fields in a plan document template in the Agency’s CRM system does not disclose or amount to a deliberative process of reconsideration decision-making for the purposes of s 42D(2) of the AAT Act.
Thirdly, the decision under review by the Tribunal is a decision to approve an SPS under s 33(2) of the NDIS Act which was confirmed in the IR decision. It is the IR decision that is remitted for reconsideration under s 42D(1) of the AAT Act. While the primary decision was instrumental in the coming into effect of Plan A, it does not amount to a plan as defined in s 9 of the NDIS Act:
plan, for a participant, means the participant’s plan that is in effect under section 37.
For the purposes of the NDIS Act, an SPS is not synonymous with a plan: each has different work to do and each is governed by different statutory provisions, giving rise to different review rights for participants. The phrase statement of participant supports is given meaning in s 33(2):
A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation
to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded
under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must
review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see
also Division 3); and
(e) the management of other aspects of the plan.
The language used in the documents provided by the Agency blurs these distinctions. The case manager refers, inaptly, to the remitted plan and asks the delegate to implement an updated plan. Presently, the Tribunal has no jurisdiction to review a participant’s plan or to remit a plan for reconsideration. While use of loose or inapt language may be considered insignificant, where the language used does not align with the language, purposes and provisions of the NDIS Act, at a minimum it is likely to result in confusion and uncertainty. This is exemplified by the jurisdictional issue that has arisen in these proceedings, where the purported implementation of a new plan is represented as a reconsideration decision to vary an SPS approval decision for the purposes of s 42D(3) of the AAT Act.
Lastly, doing the best with the information provided by the Agency, it appears the procedure for reconsideration of an SPS approval decision on remittal engages the Agency’s Standard Operating Procedure (Procedure). While only scant documentation of the applicable Procedure has been given to the Tribunal, it appears Procedure 3.1 was applied, namely:
3.1 Loading Planning orders for Action (by SDRA team)
1. Follow the link Processing an AAT order – new plan to arrange for the plan to be created and finalise the statement of participant supports.[13]
As can be seen, the procedure requires a new plan to be created and the SPS to be finalised. As an SPS is instrumental in the coming into effect of a plan under s 37(1) and (3) of the NDIS Act, approval of the SPS must precede the new plan coming into effect. That aside, there is no authority under the NDIS Act or s 42D of the AAT Act for a new plan to be created by order of the Tribunal.
[13] Ibid, Attachment D.
Considering the materials provided in this case and the submissions of the parties, the Agency’s procedures for review of an SPS approval decision, and for reconsideration of a review decision on remittal, are conducted within the parameters of its CRM IT system, which is oriented to the production of plan documents. If that is correct, it would be a matter of serious concern if Agency decision-makers are unable to express review or reconsideration decisions in a manner that complies with the legislation. These are matters for the CEO of the Agency, however, and not this Tribunal.
Curiously, and perhaps in further expression of the confusing and inapt language I have discussed, the delegate referred to the reconsideration process as an Unscheduled plan review conducted in accordance with AAT Order 2021/3150.[14] The Tribunal’s remittal order under s 42D does not amount to or authorise an unscheduled plan review under s 48 of the NDIS Act. The delegate did not refer to s 42D(2) of the AAT Act and the decision to approve a new plan does not align with the statutory language in s 42D(2) of the AAT Act.
[14] Ibid, Attachment H.
In response to these matters, the Respondent asserts the new plan approved by the delegate did not result from an unscheduled plan review under s 48 of the NDIS Act, and it did not come into effect under s 37(1) or replace Plan A under s 37(3) of that Act, rather it gave effect to the reconsideration decision of the delegate and it has legal effect by virtue of the operation of s 42D of the AAT Act.[15]
[15] Respondent’s written submissions, 25 February 2022, page 2.
I accept that the new plan had no effect under s 37 of the NDIS Act as it was not brought into existence under the procedures set out in s 48 and s 49 of that Act. Rather, it resulted from the Tribunal’s remittal order on 4 November 2021.
It may be accepted that some of the contents of the new plan approved by the delegate amount to approval of an SPS. These are the plan review date, the supports to be provided or funded, the amount of funding for such supports and the management arrangements for such funding.
There is no evidence the delegate set aside the IR decision and substituted a new decision in the form of the new plan. The better conclusion is that the delegate responded to the case manager’s order to extend the supports funded under Plan A by 6 months. Despite the lack of clarity and the confusing language, it can be accepted this is a variation of the IR decision and the primary decision it confirmed.
The delegate did not expressly determine that her variation decision had effect prior to the date on which it was made, namely 8 November 2021. Consequently, it can be accepted the variation of the IR decision had effect from that date.
This means the approved SPS in Plan A is varied in the terms of the SPS included in the new plan as of 8 November 2021.
I am satisfied that the reconsideration decision satisfies paragraph 42D(2)(b) of the AAT Act. The reconsideration decision was made within the period specified by the Tribunal in the remittal order on 4 November 2021. Consequently, s 42D(3) is engaged and the application is taken to be an application for review of the IR Decision as varied on 8 November 2021.
The proceedings issue
In submissions for Mr Dorrington, Mr Bhagwat argues the new plan has effect under s 37 of the NDIS Act. This, so the argument goes, is because it was prepared as part of the process of replacing Mr Dorrington’s plan under Division 4 of Part 2 in Chapter 3 of the NDIS Act.[16] In Mr Bhagwat’s submission, approval of SOPS on internal or Tribunal review will engage s 37(1) and (3) such that a new plan will come into effect and replace the participant’s existing plan.[17]
[16] Applicant’s written submissions, 9 March 2022, at [40]-[44].
[17] Ibid, at [46].
The Respondent asserts the new plan has no effect under s 37 of the NDIS Act.
On the materials provided to the Tribunal, it is not established a review of Plan A was undertaken for the purposes of s 48 of the NDIS Act. Rather, the materials establish a process of reconsideration of the IR decision was undertaken pursuant to the Tribunal’s remittal order on 4 November 2021. Without engaging the plan review provisions in Division 4, Part 2, Chapter 3 of the NDIS Act, the CEO had no authority to vary Plan A. The Tribunal’s remittal order authorised reconsideration of the SPS approved in the primary decision and confirmed on internal review.
While review decisions under s 100 of the NDIS Act and s 43 of the AAT Act may be said to exist in a continuum of administrative decision-making, and it is correct to assert a primary decision under s 33(2) of the NDIS Act is instrumental in the coming into effect of a participant’s plan under s 37, it does not follow that the IR decision or the reconsideration decision engage the plan review provisions in s 48 of the NDIS Act or cause a new plan to come into effect under s 37 of the NDIS Act.[18]
[18] RTRH and NDIA [2022] AATA 205 at [113]-[118].
As I comprehend the Respondent’s submissions, the new plan was issued to give effect to the delegate’s reconsideration decision pursuant to the Tribunal’s remittal order. That decision varied the approved SPS that was instrumental in the coming into effect of Plan A, but it does not replace Plan A. The new plan does not replace Plan A under s 37(3) of the NDIS Act as it was not the result of a plan review under Division 4, Part 2, Chapter 3 of the NDIS Act.
As the new plan has no legal effect under s 37 of the NDIS Act, it does not intersect with the Tribunal’s jurisdiction.
Mr Dorrington’s application is taken to be an application for review of the IR decision as varied on 8 November 2021.
The amendment issue
On 1 April 2022, the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act) received Royal Assent.
The parties agree, correctly, the Amendment Act does not currently affect the Tribunal’s jurisdiction in the circumstances of this case as the following amendments do not come into effect until 1 July 2022.
Item 23 of the Amendment Act inserts a new s 47A which provides the CEO with power to vary a participant’s plan in certain circumstances and in limited respects:
(1) The CEO may, in writing, vary a participant’s plan (except the participant’s
statement of goals and aspirations) if:
(a) the variation:
(i) is covered by subsection (1A); or
(ii) is a correction of a minor or technical error; and
(b) any conditions prescribed by the National Disability Insurance
Scheme rules are satisfied.
Each variation must be prepared with the participant.
(1A) For the purposes of subparagraph (1)(a)(i), the following variations of a
participant’s plan are covered:
(a) a variation to the reassessment date of the plan;
(b) a variation of the statement of participant supports included
in the plan in relation to the management of:
(i) the funding for supports under the plan; or
(ii) other aspects of the plan;
(c) a variation of the statement of participant supports included
in the plan if:
(i) the statement specifies that a support is to be provided
by a specified provider, or in a specified manner; and
(ii) the variation is to specify that the support is to be
provided by another provider, or in another manner, as
the case may be;
(d) a variation of the statement of participant supports included
in the plan, or of the funding of supports under the plan, if:
(i) the CEO is satisfied that the participant requires crisis
or emergency funding as a result of a significant change
to the participant’s support needs; or
(ii) after the participant’s plan comes into effect, the CEO
receives information in response to a request that had
been made under subsection 36(2) or 50(2) in relation to
the plan (other than a request made under
subsection 50(2) for the purposes of varying the plan on
the CEO’s own initiative), and the variation relates to that
information; or
(iii) the variation is made for the purposes of dealing with a
change to the reassessment date of the participant’s
plan; or
(iv) the variation is a minor variation that results in an
increase to the funding of supports under the participant’s
plan.
Note 1:       Information mentioned subparagraph (d)(ii) could relate to a support such as an item of assistive technology or a home modification.
Note 2:       A statement of participant supports in a participant’s plan must give effect to the plan management request of a participant except in certain circumstances (see subsection 43(2)).
Note 3:       In varying the participant’s plan in relation to the statement of participant supports, the CEO must have regard to the matters set out in subsection (3) of this section.
Variation on request of participant or CEO’s own initiative
(2) The CEO may vary the participant’s plan on request of the
participant or on the CEO’s own initiative.
Requirements of CEO
(3) In varying the participant’s plan in relation to the statement of
participant supports, the CEO must:
(a) have regard to the participant’s statement of goals and
aspirations; and
(b) have regard to relevant assessments conducted in relation
to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the
reasonable and necessary supports that will be funded and
the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any)
made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage
the participant’s plan to the extent that the participant wishes
to do so; and
(f) have regard to the operation and effectiveness of any
previous plans of the participant.
…
Item 24 repeals s 48 and s 49 and substitutes new ss 48, 49 and 49A. These new sections allow for reassessment of a participant’s plan within a period worked out under rules prescribed for that purpose. Under new s 48(1), the CEO may reassess a participant’s plan at any time. New ss 48(7) provides for the following outcomes of a reassessment (which are replicated in new s 49(1) as a requirement prior to the reassessment date of the participant’s plan):
(7) If the CEO conducts a reassessment under subsection (1) of a
participant’s plan, the CEO must:
(a) complete the reassessment; and
(b) either:
(i) vary, under subsection 47A(1), the participant’s plan as
a result of that reassessment; or
(ii) prepare a new plan with the participant in accordance
with Division 2 and approve, under subsection 33(2), the
statement of participant supports in the new plan.
Item 49 amends s 103 of the NDIS Act which confers jurisdiction on the Tribunal. New subsection (2) is in the following terms:
(2) If:
(a) an application is made to the Administrative Appeals Tribunal
for review of a decision made by a reviewer under
subsection 100(6); and
(b) the decision relates to a statement of participant supports in
a participant’s plan; and
(c) before a decision on the review is made and despite
subsection 26(1) of the Administrative Appeals Tribunal Act
1975:
(i) the CEO varies the plan under subsection 47A(1) of this
Act and the variation is a change to that statement; or
(ii) a new plan for the participant comes into effect under
section 37 of this Act;
then:
(d) if subparagraph (c)(i) applies—the application is also taken
to be an application for review of the decision to make the
variation covered by that subparagraph; or
(e) if subparagraph (c)(ii) applies—the application is also taken
to be an application for review of the decision to approve the
statement of participant supports in the new plan.
The words in s 103(2)(c) suggest that, where an application has been made to the Tribunal for review of a decision under s 100(6) of the NDIS Act in respect of an SPS approval decision under s 33(2), the CEO may vary the SPS under (new) s 47A(1) and (1A), whether under s 47A(2) or s 48(1) and (7), without first seeking approval of the Tribunal under s 26 of the AAT Act. Should this occur, the Tribunal’s jurisdiction would encompass the variation (or a newly approved statement of participant supports in a new plan that comes into effect under s 37 of the NDIS Act).

While, in the circumstances of any case, these amendments may bear upon the ambit of the Tribunal’s jurisdiction from 1 July 2022, they are not yet in effect and they do not presently impact upon the Tribunal’s jurisdiction in these proceedings, although that may change on 1 July 2022 in accordance with the saving and transition provisions set out in s 65 of the Amendment Act.
Finally on this point, it is appropriate to observe that, in anticipation of these changes, one might expect procedures to be prepared between the Agency and the Tribunal to ensure the orderly conduct of proceedings in the Tribunal, especially as the Tribunal retains control of its procedure under s 33 of the AAT Act. No such procedures have been brought to attention. Should there be a need for directions to ensure the orderly conduct of these proceedings, there is liberty to apply. I note that a preliminary conference is listed in this application on 4 July 2022.
Decision
The Tribunal has jurisdiction to review the IR decision made on 13 April 2021 under s 100(6) of the NDIS Act as varied by the reconsideration decision made on 8 November 2021 on remittal under s 42D of the AAT Act.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
……………………[sgd]………………….
Associate
Dated: 16 June 2022
Date of hearing:   11 March 2022
Representative for the Applicant:      Mr Nakul Bhagwat, Legal Aid NSW
Representative for the Respondent:   Mr Scott Moloney, Mills Oakley Lawyers