DRXK and National Disability Insurance Agency
[2023] AATA 4093
•8 December 2023
DRXK and National Disability Insurance Agency [2023] AATA 4093 (8 December 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/0077
Re:DRXK
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:8 December 2023
Place:Adelaide
The Tribunal declines to make an order under section 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
...............[Sgnd]...............................
Member I Thompson
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – statement of participant supports – request for additional funding for allied health therapies and support worker hours - decision affirmed on internal review – application for review by the Tribunal – request under section 37(2) of the Administrative Appeals Tribunal Act 1975 to the Respondent to produce additional documents – order for production of documents not made
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
CASES
Cash World Gold Buyers Pty Ltd (Taxation) [2017] AATA 736
CONFIDENTIAL AND AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY [2005] AATA 1264
DRAKE V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1979) 24 ALR 577
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Radge and Commissioner of Taxation [2007] AATA 1317
Shi v Migration Agents Registration Authority [2008] HCA 31
Spicer Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77
REASONS FOR DECISION
Member I Thompson
8 December 2023
The Applicant, DRXK, is a participant in the National Disability Insurance Scheme (NDIS). He is 7 years old and resides with his parents and older brother. In his substantive application to the Tribunal, he claimed that the Agency’s reviewable decision did not provide for adequate funding for his reasonable and necessary requirements for maintaining a meaningful life and participation in the community. In particular, additional supports (including travel time) were requested for Applied Behavioural Analysis (ABA) therapy, speech therapy, occupational therapy, psychology, developmental educator sessions, and support worker hours.
The review proceeded in the Tribunal’s alternative dispute resolution process without resolution. Direction Hearings were convened subsequently to consider a request for the provision of additional material. The Applicant’s mother was supported by an Advocate, Mr Buckley, co-convenor of Autism Aspergers Advocacy Australia (A4). Ms Ginnane represented the Agency. Both parties provided oral submissions together with written submissions at two Directions Hearings. The Tribunal has made directions to set the matter for a hearing while reserving its decision on the request for additional information.
By email dated 7 August 2023, the Applicant’s mother wrote: –
“We are requesting the Tribunal to subpoena the following information to fully inform the Tribunal and assist it to come to a proper decision.
1. a proper (searchable and linked) and complete version of the NDIS Official Practice Guide – Early Childhood Planning
2. all the Applicant’s existing pre—planning documents including but not limited to:
a. information that the Respondent holds as “Participant Details”
b.copies of the completed and possibly annotated Applicant’s Early childhood approach booklet including scanned copies of the ”ecomap”
c. evidence of developmental delay form
d.all records of discussion, interaction and communication, that relate to the Applicant, his care, services and support with a) the Applicant’s parents, b) NDIS agents such as (but not limited to) intake officer, NDIS Partners, LACs and SCs, and c) service and support organisation personnel
e.records of any severity tool for similar used in relation to the Applicant, including but not limited to any PEDI-CAT assessment
f. any record of all information about the use of the NDIS Early childhood planning notepad
g.records of any and all planning conversation interactions relating to the Applicant, including but not limited to, communications about the Applicant goals
h.records of the Outcomes Questioning, the Family Questionnaire and the Risk Assessment, Guided Planning Questions, and Participant School Determination section
i.any Early childhood-declined supports and/or Intensive form records
3. all requests made and advice relating to the Applicant received by both the NDIS planner and internal reviewer from the NDIS advisory services, including but not limited to the Technical Advisory Branch
4. records showing the qualification, training and experience relevant to a level 3 autistic child of people who conducted NDIS Planning, the internal review, all provided advice or information in 2) and 3) above
5. information and records about DRXK Typical Support Package, including how it is determined and how it impacted on his NDIS Plans (Statements of Support) that the Tribunal is reviewing
6. information and records relating to the Respondent’s decisions for DRXK’s NDIS Plans a) to refuse/deny the Applicant’s request for recommended ABA therapies and b) include PBS instead. This should include the complete evidence base relevant to both these decisions for DRXK’s NDIS Plans that the Tribunal is reviewing.”
Following an unscheduled plan review, the Applicant’s NDIS plan commenced on 17 June 2022 with a review date 12 months later. The profile in the plan indicates that he attended a mainstream primary school where he has support from school services officers each morning. His NDIS plan goals included goals to communicate effectively, manage his emotions and behaviours, improve his cognitive skills and safety, develop his receptive and expressive communication skills, develop his social skills, and develop gross and fine motor skills. The total funded supports in the 12-month plan amounted to $66,060.88. The core support funding included funding for support to sustain his family and assist with his personal care to be used flexibly. The capacity building supports budget has a total of $54,945.02 with a focus on provision of early childhood intervention supports, working in home and community settings, using relevant disciplines within a key worker model which may include support such as psychology and physiotherapy.
A request for internal review of a decision of the NDIS plan was not successful. The internal review outcome was conveyed by letter from the Agency on 18 October 2022. The requested supports were all declined, and they were: –
· inclusion of 1,000 hours of Applied Behaviour Analysis
· inclusion of 40 hours of Occupational Therapy
· inclusion of 30 hours of Speech Therapy
· inclusion of 12 hours of psychology
· inclusion of 118 hours for improved relationships
· inclusion of coordination of supports
· inclusion of assistance with social and community participation in the core budget
· inclusion of out of school care in the core budget
The internal reviewer noted that the Applicant’s current plan has 273 hours costed at $52,959.27 in the capacity building budget which can be used flexibly for therapy supports including trial of ABA therapy, with flexibility to engage in multidisciplinary therapies.
SUBMISSIONS
The Agency submitted that the Tribunal should not exercise its powers under s 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to order production of documents in circumstances where the Agency has met the requirement under s 37(1)(b) of the AAT Act for the decision-maker to lodge material documents. The Agency had not confirmed whether the further documents requested by the Applicant actually exist and, if they do exist, whether they are in the possession or under the control of the Agency, adding: – “… The description of a number of the documents listed do not easily allow for them to be properly identified. (See, for example, the request for “information that the Respondent holds as “participant details”.) More relevantly, the Applicant has not explained why any of the documents requested, if they do exist and are in the Respondent’s possession or under its control, are relevant or potentially relevant to the Tribunal’s review.”[1]
[1] Respondent's Submissions dated 20 September 2023, at [8]-[9].
It was suggested on behalf of the Agency that the real motive for the Applicant was a desire to scrutinise the Agency’s “functions and internal procedure”.[2] The role of the Tribunal, it was submitted, is not to scrutinise the reviewable decision for errors.
[2] As above, at [15].
In written submissions, the Applicant’s mother asserted that all the requested documents are in the Agency’s possession, and they are directly relevant to the review as they could reasonably be expected to throw or shed light on “some of the issues in the substantive proceeding.” She discussed the role of the Tribunal and she referred to decisions of the High Court in Minister for Immigration and Border Protection v Makasa,[3] Shi v Migration Agents Registration Authority,[4] and Frugtniet v Australian Securities and Investments Commission.[5]
[3] [2021] HCA 1.
[4] [2008] HCA 31.
[5] [2019] HCA 16.
As examples, the Applicant’s mother specified three of the requested batches of documents and illustrated that they would variously “go directly to a matter of substance in this proceeding”, and “shed light on the efficacy and suitability of the Applicant’s supports and whether they meet the reasonable and necessary criteria.” In relation to requested document number 5, she wrote: – “it is well known (and publicly stated) by the Respondent that it uses Typical Support Packages to inform its decision-making on the NDIS support packages of participants. Given that the Tribunal is to approach its task as though it were performing the relevant function of the original decision-maker, and that the original decision-maker regularly uses Typical Support Packages for these decisions it follows that DRXK’s Typical Support Package will likely contain information of direct relevance to the Tribunal in making its own assessment.”
CONSIDERATION
The Applicant’s request for information was expressed as a request to the Tribunal to subpoena that information from the Agency. However, it is not usual for a summons to be issued to a party to a proceeding because the obligation to lodge material documents is specified in s 37 of the AAT Act. This was explained by the Tribunal (Deputy President Forgie) in Radge and Commissioner of Taxation:
“Finally, I would observe that, generally, I do not consider it appropriate to use the Tribunals’ power to summons documents to obtain documents from the parties themselves. It is a power that should generally be reserved to obtain documents from third parties. The documents will then be available to both parties as well as to the Tribunal. In the case of the decision-maker, relevant documents will generally be produced under s 37 of the AAT Act. If they are not or if it later appears that there are other documents that may be relevant to the review, the Tribunal has power to order their production under s 37(2). That section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents and so is a more extensive power than that available to the Tribunal under the summons power. In the case of a party who is not the decision-maker, there should also be a reluctance to issue a summons. The directions power is sufficient to require production of relevant documents by the parties.” [6]
[6] [2007] AATA 1317 at [78].
In this review, there is no reason for the exercise of the summons power to obtain documents from the parties themselves.
Section 37 of the AAT sets out requirements for lodging of material documents with the Tribunal. Section 37(1) of the AAT Act states:
(1) Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
The Agency maintained that it lodged documents in accordance with the requirements of s 37(1)(b) of the AAT Act. Numerous allied health reports were provided in the T-Documents, including: –
·Letter from Adelaide Paediatrics - Speech Pathologist - Applicant has a diagnosis of Autism Spectrum Disorder (ASD) and global developmental delay. His social communication deficits and restricted, repetitive behaviours are rated at severity level 3, with a severe language disorder associated with ASD and severe sensory differences associated with ASD. Recommendation for 20 hours per week of ABA therapy;
·Intake Assessment Report – AEIOU Foundation - 5 November 2021- Early intervention report or children with ASD; assessment of Applicant’s adaptive behaviour, thinking and reasoning, communication;
·Diagnostic assessment Report – Glenelg Allied Health Clinic, - 29 November 2021- report compiled by psychologist and speech pathologist; diagnosis of Applicant with ASD, severity level 3 for social communication deficits and for restricted, repetitive behaviours;
·NDIS exit report – AEIOU Foundation – 24 February 2022 - report by occupational therapist & allied health assistant; recommendations for therapeutic support including speech pathology, occupational therapy, behavioural therapy;
·
Occupational Therapy Report – Glenelg Allied Health Clinic - 10 April 2022- progress report regarding weekly 1:1 occupational therapy sessions; noted that the Applicant attends regular psychology, speech therapy; recommendations include ABA therapy 15 hours weekly;
·
Assessment Report – Early Start Australia - 22 April 2022 – report by program supervisor; recommendations for 50 weeks of ABA therapy;
·Assessment & Recommendations Report – Better Rehab - 27 April 2022 - senior behaviour support practitioner; confirms diagnosis of ASD level 3 and global developmental delay; recommendations for specialist behaviour intervention support and a behaviour management plan; other recommendations include assistive technology for communications skill development, continuing speech pathology and occupational therapy;
·
NDIS Progress Report – Adelaide Child Psychology – 30 April 2022 – progress report regarding 6 psychology sessions; recommendations targeted towards early intervention including ABA 20-25 hours weekly, continuing speech pathology, occupational therapy and psychology; and
·Autism SA School Inclusion Program – 7 October 2022 - Functional Needs Assessment recommendations include NDIS block funded support with an autism inclusion practitioner.
All but one of those reports were in the materials which were reviewed on internal review. The exception is the report by Autism SA Inclusion Program dated 7 October 2022 which is additional to the material considered by the internal reviewer.
Subsequent to the Directions Hearings, the Agency lodged its interaction records which comprise 65 pages of records of contacts and communications between the parties and internal interaction notes regarding the Agency’s processes and analyses. [7] They cover a period relating to a previous NDIS plan for the Applicant which commenced on 31 January 2022 and the subsequent NDIS plan which commenced on 17 June 2022. In fact, the interaction notes date back to 5 September 2019. The final interaction note is dated 24 July 2023. They include notes about a section 48 plan review and a section 100 plan review. They include references to PEDI-CAT assessments in January 2022 and June 2022. In summary, the interaction notes would appear to cover aspects of the Applicant’s request in 2(d), 2(e) and 2(g) of the email dated 7 August 2023.
[7] T-Documents, T18, Interaction Records.
The Applicant submitted that there was an underlying assumption in the Agency’s submission which was that simply because s 37(1)(b) of the AAT Act exists, the Agency has necessarily followed it by lodging the documents that it selected for lodgement. Beyond those documents, the Applicant’s submission is that there are other, additional documents which exist, that would have been available to the person making the original decision and they will assist the Tribunal in deciding the substantive application.
The Tribunal may require other documents to be lodged. Section 37(2) of the AAT Act provides:
“Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.”
In accordance with this provision, it is for the Tribunal to form the opinion about the documents and whether they may have relevance to the review of the decision by the Tribunal.
In Confidential and Australian Prudential Regulation Authority,[8] the Tribunal (President Downes) observed, “what is relevant in proceedings before a Tribunal conducting merits review of a decision is different to what is relevant in adversarial proceedings before a court.” That is because the review of the decision by this Tribunal requires determination “... whether the decision under review is the correct or preferable one on the material before the Tribunal...” (Drake v Minister for Immigration and Ethnic Affairs).[9]
[8] [2005] AATA 1264 at [21].
[9] [1979] 24 ALR 577, per Bowen CJ and Deane J at [589].
The Agency, as the primary decision maker, is not necessarily required to produce every document in its possession regarding the application for review. The requirement for disclosure under s 37(1)(b) of the AAT Act is that every document which is relevant to the Tribunal’s review decision must be lodged. In order to be relevant, the document must be “connected with or pertinent to, the review of the decision by the Tribunal.” [10] (Spicer Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77at [19], per Deputy President Forgie).
[10] [2005] AATA 77 at [19].
Further guidance was provided by the Tribunal (Senior Member Lazanas) in Cash World Gold Buyers Pty Ltd (Taxation) in this way:
“It is significant to note that s 37(2) is not a general discovery provision, nor does it authorise a “fishing expedition”: Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124 at [27], citing Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504. Furthermore, the words “may be relevant” in s 37(2) are to be interpreted to mean whether a document “could reasonably be expected to throw light on some of the issues in the principal proceedings” (see Cosco Holdings). The test is not satisfied where a document only bears some correlation with the subject matter of, or evidence or issues in, the review proceedings: Re EME Productions No 1 Pty Ltd and Screen Australia [2010] AATA 839 at [17]; and Re KLGL at [17]. On the other hand, the test of “may be relevant” should not be interpreted to mean “is relevant”. In other words, the Tribunal must engage in a limited forensic exercise to determine whether a document “may be relevant” to the issues in the proceedings before making a direction under s 37(2). It cannot simply accept bare and unsupported assertions about the relevance of documents.” [11]
[11] [2017] AATA 736 at [26].
The Agency submitted that the requests which the Applicant made for further documents is an attempt to “scrutinise” the Agency’s “functions and internal procedure, rather than the merits of the decision under review.” It seems to the Tribunal that the requested documents are likely to comprise some documents which are in the nature of templates, forms, booklets and questionnaires without a basis for suggesting that, if they actually exist, they were used and documented in the planning processes for the Applicant’s NDIS plans. Their relevance, if any, is obscure because it is doubly speculative – does material of this type exist and was it utilised in this matter.
Next, there is an implication in the request that there may be particular forms and documents which include some material regarding the Applicant. For example, request 2(a) asks for the Applicant’s “existing pre-planning documents” which hold “participant details”. Request 2(f) asks for a record of the “early childhood planning note pad”. Request 5 asks for information about the Applicant’s “Typical Support Package”. These requests provide less than unsupported assertions about the relevance of the material. They are more typical of enquiries which are suitably designated as fishing expeditions.
The Tribunal notes that request 4 queries the qualification, training and experience of Agency planners who conducted the internal review or provided any of the advice or information specified in the components of request 2. In view of the task which the Tribunal has to determine for itself, the correct or preferable decision, it is difficult to understand at this stage of the review how the requested information would assist the Tribunal. In the meantime, the Agency has provided the Applicant with extensive interaction notes which may provide some information about the planning and review processes and material. There is some reference in the interaction notes to best practice guidelines in early childhood intervention. That may lead to further discussion between the parties about that material. It is not clear at this stage whether the material is in the nature of Agency Operational Guidelines, which would be available in the normal course of reviews, whether they are best practice guidelines from other organisations or peak agencies and already available on the internet, or whether they are internal information tools.
The Tribunal has extensive information already as part of the review. That information is contained in the numerous allied health reports which were briefly summarised earlier. The Agency has lodged extensive interaction records which relate to some aspects of the Applicant’s requests for additional information. Although the bulk of the requests remain outstanding, the Tribunal is not satisfied that the requested details may be relevant and “could reasonably be expected to throw light on some of the issues in the principal proceedings.”
DECISION
The Tribunal declines to make an order under section 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
28. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
.............................[sgnd]..................................
Associate
Date of Decision: 8 December 2023
Advocate for the Applicant: Mr B Buckley
Autism Aspergers Advocacy Australia (A4)Solicitor for the Respondent: Ms V Ginnane
Moray & Agnew Lawyers
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