Dyne and National Disability Insurance Agency

[2024] AATA 2719

Dyne and National Disability Insurance Agency [2024] AATA 2719 (2 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/4137

Re:Trisha Dyne  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member J Toohey  

Date of decision:               2 August 2024

Place:Brisbane

The Tribunal does not have jurisdiction to review the National Disability Insurance Agency planning decision made on 7 June 2024 as this decision has not been reviewed under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth).

.........................
Member J Toohey

Catchwords

National Disability Insurance Scheme – Jurisdiction Issue – Where no request for review made under subsection 100(3) – Where no review decision made under subsection 100(6) – Tribunal does not have jurisdiction under section 103

Legislation

National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

2 August 2024

PROCESS STEPS

1. On 17 June 2024, the Applicant applied to the Administrative Appeals Tribunal (AAT) to review a decision made by National Disability Insurance Agency (NDIA). This application was received by email. The application form attached to the email was signed by the Applicant’s representative on 11 June 2024 who indicated he held a power of attorney to submit this application on behalf of the Applicant.

2. In the application form the Applicant’s representative stated that the NDIA decision the Applicant seeks to review was made on 7 June 2024. Along with the form, the Applicant provided a copy of a letter from the NDIS and approved participant plan dated 7 June 2024.

3. On 23 June 2024, the AAT asked the NDIA to confirm whether an internal review had been conducted. On 25 June 2024, the NDIA advised the AAT that the Applicant had made a request for internal review to the NDIA on 11 June 2024 but that an internal review decision was still pending.

4. On 17 July 2024, an interlocutory hearing by phone was held by the Tribunal to determine whether the AAT had jurisdiction to consider the appeal. Earlier on the day of the interlocutory hearing, the NDIA provided more detailed submissions and a chronology in support of seeking dismissal of the matter. The Applicant’s representative attended the interlocutory hearing on behalf of the Applicant and advised that the Applicant was unable to attend as she was currently in hospital. Given these circumstances, the Applicant’s representative wanted some additional time to respond to the NDIA’s submissions. The Applicant’s representative advised he could respond by 19 July 2024, however the Tribunal considered it was fairer to allow the Applicant’s representative seven days to respond and directed that his response to be provided by 24 July 2024. The Tribunal also directed the Applicant’s representative to advise whether the matter would be withdrawn by the same date. This was on the basis of the Tribunal’s initial view communicated to the parties that a NDIA internal review needed to be completed, or deemed to have been completed, before the AAT could consider an appeal.   

5. On 23 July 2024, the Applicant’s representative provided submissions on behalf of the Applicant and advised that the application was not withdrawn. At the interlocutory hearing and in his submissions, the Applicant’s representative conceded that an internal review decision had not been made and that the timeframe in which this decision could be made was still open. the Applicant’s representative was concerned about delays in the NDIA decision-making. the Applicant’s representative also raises several concerns about the conduct of the NDIA including that, in his view, the NDIA was acting punitively, without consultation with the Applicant, and they were engaging in harassment and intimidation.             

6. As was indicated to the parties at the interlocutory hearing, the Applicant’s representative raised concerns about the NDIA’s processes and conduct are not what the AAT needs to consider when deciding whether the AAT has jurisdiction. Further concerns raised by the Applicant’s representative on 26 July 2024 also focused on the conduct of the NDIA.

   CONSIDERATION

7. Section 25 of the AAT Act sets out that the AAT may review decisions if another Act says it can. Section 103 of the NDIS Act says that the Tribunal can review a decision made by a reviewer under subsection 100(6) of the NDIS Act.

8. Subsection 100(6) of the NDIS Act says that a NDIA reviewer must make a decision either:

   (a)confirming the reviewable decision;

   (b)varying the reviewable decision; or

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

9. Section 99 of the NDIS Act says which decisions are ‘reviewable decisions’. A decision to approve a statement of participant supports in a participant's plan under subsection 33(2) of the NDIS Act is a reviewable decision. 

10. Subsection 100(6A) of the NDIS Act says the NDIA reviewer must complete their review within 90 days of receiving the request for review. Based on the information provided to the AAT, this 90-day period will conclude on 9 September 2024.    

11. The AAT cannot review the decision made by the NDIA to approve the statement of participant supports in the plan which commenced on 7 June 2024 until either:

    (a)A NDIA reviewer completes a review, or

    (b)A NDIA reviewer does not complete a review within 90 days from 7 June 2024.

12. If the Applicant is not satisfied with the outcome of the NDIA review, or the NDIA fails to make any decision within the required timeframe, the Applicant may then lodge an appeal with the AAT.

13. If the Applicant is not satisfied with the way that the NDIA has communicated with her or the Applicant’s representative or other aspects of the NDIA’s conduct, these concerns can be raised concerns as a complaint with the NDIA.[1] If the Applicant disagrees with the outcome of that complaint, she has further rights to raise her concerns with the Commonwealth Ombudsman.[2] 

    [1] >

    For these reasons, I find the Tribunal does not have jurisdiction to review the NDIA planning decision made on 7 June 2024 as this decision has not been reviewed under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth).

15.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member J Toohey

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Associate
Dated: 2 August 2024

Date of interlocutory hearing:

5 April 2024

Advocate for the Applicant

Lisa Fakaanga,
Bloom Support & Co

Solicitors for the Respondent:

Nathan Woolley and Amalin Nouvelle,

National Disability Insurance Agency