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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dorrington and National Disability Insurance Agency

Details

AGLC: Dorrington and National Disability Insurance Agency [2022] AATA 1714
Case: [2022] AATA 1714
Decision Date: 16 June 2022

CaseChat Overview and Summary

This matter concerned an application for review of an internal review decision made by the National Disability Insurance Agency (NDIA) concerning a participant's statement of supports. The Administrative Appeals Tribunal (AAT) had remitted the NDIA's decision for reconsideration. The dispute arose because the reconsideration decision, which was expressed within a participant plan document, lacked explicit reasons, did not reference the materials upon which its findings were based, and did not expressly consider temporal factors.

The primary legal issue before the Tribunal was whether the deficiencies in the NDIA's reconsideration decision were sufficient to negate the decision itself, and consequently, whether the Tribunal retained jurisdiction to review the original internal review decision as it was purportedly varied by the reconsideration. This involved an interpretation of section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), which governs the Tribunal's power to remit decisions for reconsideration.

The Tribunal reasoned that while section 42D(7) requires a decision-maker to both reconsider a decision and take one of the actions specified in section 42D(2) within the prescribed period, the word "and" in section 42D(7) is crucial. It mandates a conjunctive requirement: reconsideration must occur, and one of the specified actions must be taken. The Tribunal found that the deficiencies identified in the NDIA's reconsideration decision, although noted, did not prevent the decision from being taken to have been varied. Therefore, the application for review was taken to be an application for review of the decision as varied by the reconsideration, and the Tribunal retained jurisdiction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.