DXBG and National Disability Insurance Agency

[2017] AATA 1752

DXBG and National Disability Insurance Agency [2017] AATA 1752 (26 September 2017)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/5394

Re:DXBG

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:26 September 2017

Date of written reasons:        12 October 2017

Place:Sydney

The Tribunal does not have jurisdiction to review the decision of the National Disability Insurance Agency dated 8 September 2017.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - National Disability Insurance Scheme - jurisdiction - whether the National Disability Insurance Agency made a decision that the Tribunal has jurisdiction to review - whether an internal review must occur before a review by the Tribunal - no jurisdiction to review

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 99, 100(6), 103

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

12 October 2017

Background

1. On 8 September 2017, the Applicant lodged an application with the Tribunal on behalf of DXBG, who is a participant in the National Disability Insurance Scheme (NDIS). The application was for a review of a decision made by the National Disability Insurance Agency (NDIA) on 8 September 2017 not to review DXBG’s plan as requested under s 48(2) of the National Disability Insurance Scheme Act 2013 (the Act).

2. At the interlocutory hearing on 26 September 2017 the parties were to appear by telephone.  The Tribunal tried, unsuccessfully, to contact the Applicant’s representative four times.  On the third occasion the Tribunal left a message requesting the representative to telephone the hearing room number and advising that if he did not do so by 11:10am, the Tribunal would proceed to deal with the matter.  The Respondent’s representative did appear by telephone.  The matter proceeded at 11:10am.

   The Tribunal’s consideration

3. The Tribunal decided it did not have jurisdiction to determine the application for review. These written reasons reflect the submissions and reasons given orally at the interlocutory hearing in this matter.

4. The Respondent’s representative submitted that the Tribunal did not have jurisdiction to deal with the application because there had not been an internal review of the decision dated 8 September 2017 not to undertake a review of the Applicant’s plan.  She also pointed out that the letter notifying the Applicant of the decision provided information about how to request a review of the decision by the NDIA if dissatisfied with the decision.  She also advised that she had checked the Respondent’s online system which showed that there had been some discussions with the Applicant’s representative and the NDIA on 7 September 2017 about the representative seeking an internal review and seeking assistance with that process.  No application for an internal review had been made at the time of the interlocutory hearing.

5. The Tribunal considered the material before it and accepted that there had not been an internal review of the decision dated 8 September 2017.  Regrettably, the legislation is very confusing.

6. In this case there was a decision not to “review” a plan, which is a “reviewable decision” pursuant to s 99(f) of the Act.

7. Section 100 of the Act provides for the “review” of a “reviewable decision”. A person who is directly affected by a reviewable decision may, within three months after receiving notice of the decision, request the Chief Executive Officer of the NDIA to review a reviewable decision. The person conducting the review is a “reviewer”, who must make a decision under s 100(6) to either confirm, vary or set aside and substitute the “reviewable decision”.

8. The Tribunal has jurisdiction pursuant to s 103 of the Act only to review a decision made by a “reviewer” under s 100(6). In simpler terms, there has to be an internal review within the NDIA by a “reviewer” of the decision not to review a participant’s plan before this Tribunal has jurisdiction.

9. Consequently, the Tribunal does not have jurisdiction to review the decision of the National Disability Insurance Agency dated 8 September 2017.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 12 October 2017

Date of hearing:	26 September 2017
Solicitors for the Respondent:	Ms S Leembruggen,