DZNB and National Disability Insurance Agency - [2022] AATA 1326

DZNB and National Disability Insurance Agency [2022] AATA 1326 (20 May 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8628
Re:DZNB
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:20 May 2022
Place:Canberra

The Tribunal has jurisdiction to review the 30 November 2020 decision under s 100(6) of the National Disability Insurance Scheme Act 2013 as varied by the reconsideration decision made on 21 December 2021 on remittal under s 42D of the Administrative Appeals Tribunal Act 1975.
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – review of internal review decision to approve a statement of participant supports – serial participant plans – remittal of decision under review for reconsideration – participant plan issued – reconsideration decision not expressed in accordance with legislation – elements of administrative decision – reconsideration decision to vary decision under review – plan document gives effect to reconsideration decision under existing plan – jurisdiction to review decision as varied
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 (Supports for Participants) Rules 2015
Cases
RTRH and NDIA [2022] AATA 205
REASONS FOR DECISION
Mr S. Webb, Member
20 May 2022

DZNB is a child participant in the National Disability Insurance Scheme (Scheme). A delegate of the CEO of the National Disability Support Agency (Agency) approved a statement of participant supports (SPS) for DZNB. DZNB’s representative requested internal review of this decision. In the result, the reviewer decided to vary the approved supports. DZNB’s representative was not satisfied and lodged an application for review by the Tribunal.
In the course of the resulting proceedings the parties requested remittal of the decision under review to the Agency for reconsideration. This was done. Subsequently, an issue of the Tribunal’s jurisdiction has arisen.
It is this issue of jurisdiction, alone, that is the subject of this interlocutory decision.
Procedural history
In order to understand the issue, it is necessary to briefly set out some of the relevant procedural history.
On 18 September 2020, a delegate of the CEO decided to approve an SPS (primary decision) which was instrumental in the coming into effect on that day of a participant plan for DZNB (Plan A).[1]
[1] T21.
Plan A was slated for review by 18 September 2021[2] and it included approved supports totalling $14,730.98,[3] as follows:
(a)Core supports – plan managed  $200.00
(b)Capacity building supports:
(i)Improved life choices – NDIA managed  $1,485.75
(ii)Improved daily living - plan managed  $12.027.38
(c)Capital supports – plan managed  $1,017.85
[2] Ibid, folio 72.
[3] Ibid, folio 77-80.
DZNB’s representative requested internal review of the primary decision. The supports claimed were reported to be:
1. 22 hours of Physiotherapy ($193.99 x 22) = $4,267.78
2. 43 sessions of Hydrotherapy ($155.17 x 43) = $6,672.31
3. Group Sessions ($96.99 x 10) = $969.90
4. Report Writing 4 hours - $775.96

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 DZNB and National Disability Insurance Agency

Details

AGLC: DZNB and National Disability Insurance Agency [2022] AATA 1326
Case: [2022] AATA 1326
Decision Date: 20 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between DZNB, a participant in the National Disability Insurance Scheme, and the National Disability Insurance Agency (NDIA). The core of the dispute concerned the NDIA's decision to approve a statement of participant supports (SPS) which led to the commencement of a participant plan (Plan A). DZNB sought an internal review of this primary decision.

The Tribunal was required to determine whether it had jurisdiction to review the NDIA's internal review decision, particularly in light of the subsequent issuance of a new participant plan (Plan B). This involved considering whether the internal review decision, which did not explicitly state whether it varied or substituted the original decision, and the subsequent issuance of Plan B, affected the Tribunal's jurisdiction to review the decision as it stood after the internal review.

The Tribunal reasoned that the internal review decision, despite not being explicitly framed as a variation or substitution, effectively varied the original decision by approving specific supports. The subsequent issuance of Plan B, which incorporated the supports approved in the internal review decision, did not extinguish the Tribunal's jurisdiction to review the decision that had been made on internal review. The Tribunal applied principles of administrative law concerning the nature of decisions and the effect of subsequent actions on reviewable decisions.

The Tribunal found that it had jurisdiction to review the internal review decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 September 2020, a delegate of the CEO decided to approve an SPS (primary decision) which was instrumental in the coming into effect on that day of a participant plan for DZNB (Plan A).[1][1] T21. Plan A was slated for review by 18 September 2021[2] and it included approved supports totalling $14,730.98,[3] as follows:(a)Core supports – plan managed $200.00(b)Capacity building supports:(i)Improved life choices – NDIA managed $1,485.75(ii)Improved daily living - plan managed $12.027.38(c)Capital supports – plan managed $1,017.85[2] Ibid, folio 72.[3] Ibid, folio 77-80. DZNB’s representative requested internal review of the primary decision. The supports claimed were reported to be:1. 22 hours of Physiotherapy ($193.99 x 22) = $4,267.782. 43 sessions of Hydrotherapy ($155.17 x 43) = $6,672.313. Group Sessions ($96.99 x 10) = $969.904. Report Writing 4 hours - $775.965. Serial Casting - $5,023.846. Second pair of Orthoses - $1,017.257. Support Coordination - 5 hours per month8. Review with an Ophthalmologist[4][4] T1A, folio 9. On 30 November 2020, a reviewer[5] issued a decision under s 100(6) of the National Disability Insurance Scheme Act 2013 (NDIS Act) (internal review decision).[6] The reviewer did not expressly state if his decision was to vary the primary decision under s 100(6)(b) of the NDIS Act, or to set it aside and substitute a new decision under s 100(6)(c). Nevertheless, the reviewer decided to approve the following supports:1. 22 hours of Physiotherapy ($193.99 x 22) = $4,267.782. 43 sessions of Hydrotherapy ($155.17 x 43) = $6,672.313. Group Sessions ($96.99 x 10) = $969.904. Report Writing 4 hours - $775.965. Serial Casting - $5,023.846. Second pair of Orthoses - $1,017.257. Support Coordination - 5 hours per month[7][5] The decision-maker for the purposes of s 100(5) and (6) of the NDIS Act.[6] T2.[7] Ibid, folio 14. The internal review decision sets out the reviewer’s findings in respect of supports and the materials on which they are based, as well as reasons in reference to legislative provisions set out in s 34 of the NDIS Act, s 7.5(a) of the National Disability Insurance Scheme (Supports for Participants) Rules 2015 and in the Agency’s Planning Operational Guideline.[8][8] Ibid, folios 17-19. The reviewer stated [t]he scheduled review date has been changed and this date is on the new plan,[9] but did not specify the new review date or provide any explanation. No plan is attached to the internal review decision. The reviewer set out information about DZNB’s review rights, including:…If you are not satisfied with the decision, you may also apply to the Administrative Appeals Tribunal (AAT) for a further external review within 28 days.[10][9] Ibid, folio 14.[10] Ibid, folio 14. On 30 November 2020, the Agency issued a new plan for DZNB (Plan B).[11][11] T22. Plan B sets out the date by which it is to be reviewed (30 September 2021)[12] and sets out approved supports totalling $29,479.27,[13] as follows:(a)Core supports – plan managed $200.00(b)Capacity building supports:(i)Improved life choices – NDIA managed $1,276.85(ii)Improved daily living - plan managed $21,997.57(iii)Support coordination – plan managed $5,007.00(c)Capital supports – plan managed $1,017.85[12] Ibid, folio 84.[13] Ibid, folios 89-92.

Ratio Decidendi

Legal Principle Established

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