DZNB and National Disability Insurance Agency

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
5. Serial Casting - $5,023.84
6. Second pair of Orthoses - $1,017.25
7. Support Coordination - 5 hours per month
8. 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) = $4,267.78
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
5. Serial Casting - $5,023.84
6. Second pair of Orthoses - $1,017.25
7. 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.
On 31 December 2020, DZNB’s representative applied to the Tribunal for review of the internal review decision.[14]
[14] T1.
On 4 August 2021, DZNB’s representative requested additional supports.[15]
[15] Applicant’s letter to the Agency, 4 August 2021, pages 1-4.
On 24 November 2021, by agreement, the parties requested remittal of the decision under review for reconsideration by the Agency.
On 25 November 2021, under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal remitted the internal review decision to the decision-maker for reconsideration by 23 December 2021.
The Agency did not provide the Tribunal with a reconsideration decision under s 42D(2) of the AAT Act by 23 December 2021.
On 13 January 2022, DZNB’s representative gave the Tribunal an unsigned letter from the Agency dated 21 December 2021 (21 December letter) and an attached plan (Plan C).
The 21 December 2021 Agency letter is headed [DZNB’s] NDIS plan approval. It includes the following information:
Please find a copy of [DZNB’s] approved National Disability Insurance Scheme (NDIS) plan attached to this letter. The plan started on 21 December 2021 and will be reviewed by 21 December 2022.
How we developed your plan
We recently received new information about [DZNB’s] disability related support needs.
This information assisted us to complete an unscheduled review [sic – of] [DZNB’s] plan. This is referred to as a section 48 review under the National Disability Insurance Scheme Act 2013 (NDIS Act).
As discussed with you, I reviewed [DZNB’s] plan to ensure they were receiving the right supports to meet their circumstances. Please note, as a result of the review, the duration and overall plan value may have changed.
…
You can request an internal; review of a decision about this plan within three months of receiving this notice. You can still use [DZNB’s] plan while it is being reviewed. Details on how to request a review are at the end of this letter.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for external; review by the Administrative Appeals Tribunal (AAT).
Plan C states the plan review date is 21 December 2022 and it sets out approved supports totalling $32,889.55, as follows:
(a)Core supports – plan managed  $2,600.00
(b)Capacity building supports:
(i)Improved life choices – NDIA managed  $1,485.75
(ii)Improved daily living - plan managed  $28,803.80
On 28 January 2022, following a telephone directions hearing, I issued directions for each party to provide written submissions in respect of the Tribunal’s jurisdiction.
On 16 March 2022, the Agency gave the Tribunal written submissions.
On 7 April 2022, I heard party submissions in an interlocutory hearing to determine the Tribunal’s jurisdiction and the manner in which the application should proceed. In the result, the interlocutory hearing was part heard and adjourned to 4 May 2022. The Agency was directed to put on further and better written submissions with supporting materials to address questions about the 21 December letter and reconsideration of the decision remitted on 25 November 2021.
On 21 April 2022, the Agency provided the Tribunal with further written submissions and supporting materials.
In these documents, the Agency provided interaction records and a further letter dated 21 December 2021 (21 December decision). No explanation has been given why this letter was not provided to the Tribunal earlier. It contains the following information:
We recently received requests for additional supports to meet [DZNB’s] disability support needs. This information assisted us to complete a review of [DZNB’s] plan.
I am pleased to confirm that [DZNB’s] plan has been approved.
You will find a copy attached to this letter. The plan started on 21/12/2021 and will be reviewed by 21/12/2022.
The supports in [DZNB’s] plan must meet the reasonable and necessary requirements in the NDIS Act and Part 5 of the NDIS (Supports for Participants) Rules 2013 (NDIS Rules).
All of [DZNB’s] supports were considered against the requirements of the NDIS Act and the NDIS Rules.
Some of these supports were approved for [DZNB] to use in this plan. However, some requested were unable to be approved and I have provided more information about this below:
…
The remaining parts of the letter set out findings in respect of supports claimed for DZNB which were not approved, namely:
Psychology and counselling service (12 x 1.5 hours)
Transport funding to transport the Application [sic – Applicant] interstate for appointments and surgeries
Support Coordinator 5 hours per month
BF ezi-step 2+2 electric two-wheeled modified bicycle fitted with adult stabilisers
The Agency’s interaction records from 21 December 2021 include the following:
Interaction Record · Tue Dec 21 2021 10:36:03 GMT+1100 (AUS Eastern Daylight Time)
 Planning->Plan Approved and ready for Im
Interaction #:Type:Category:Channel:
95353230Interaction RecordPathway->Planning->Plan Approved and ready for ImplementationInternal Notes
Interaction Notes
21.12.2021 10:20:55 JHB215
Plan reviewed as per request from AAT Case Manager and AAT Application for Remittal of Decision.
No PAM required
On 28 and 29 April 2022, each of the parties provided further information to the Tribunal and advised no further evidence or witnesses would be called, and there was no utility in resuming the interlocutory hearing on 4 May 2022 as neither party intended to make further submissions on the jurisdiction issues.
Jurisdiction
There are three jurisdictional questions to be decided:
(a)Does Plan B affect the Tribunal’s jurisdiction?
(b)Does the 21 December decision affect the Tribunal’s jurisdiction?
(c)Does Plan C affect the Tribunal’s jurisdiction?
Plan B
The Tribunal’s jurisdiction to review decisions under the NDIS Act arises under s 25(1) of the AAT Act and s 103 of the NDIS Act, which is in the following terms:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Subsection 100(6) is in the following terms:
(6) The reviewer must make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
Under s 99(1), the reviewable decision in this case is the internal review decision of the CEO’s primary decision to approve the statement of participant supports in a participant’s plan under s 33(2) of the NDIS Act.
The Tribunal has no jurisdiction to review a decision made under s 48 of the NDIS Act, or to review a participant’s plan. The review and replacement of a participant’s plan is a matter for the CEO and the participant under Division 4 in Part 2 of Chapter 3 of the NDIS Act. Where the CEO conducts a review of a participant’s plan under s 48, by operation of s 49, the CEO must facilitate the preparation of a new plan with the participant:
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
As can be seen, the making of a new plan involves approval of an SPS under s 33(2). A decision of this kind is included in the Table in s 99(1) as a reviewable decision for the purposes of s 100. Under s 100(6), a reviewer has power to confirm, vary or to set aside and substitute a new decision in place of the reviewable decision. An application may be made to the Tribunal for review of an actual or a deemed decision under s 100(6).
While an SPS approval decision under s 33(2) of the NDIS Act may be instrumental in the coming into effect of a participant’s plan under s 37(1), or in the replacement of a plan under s 37(3), the review of such a decision by a reviewer under s 100 or by the Tribunal pursuant to an application under s 103 occurs within the context of the plan framework, which remains in place. Even if the decision under review is varied or set aside and a new decision is substituted, the plan continues in effect until it is replaced under s 37(3).
It is important to maintain a steady eye of the power being exercised on review. Just as a reviewer has no power to review or to make a new plan, the Tribunal has no such power or jurisdiction. Moreover, where a participant has a plan in place, the CEO’s powers to make a new plan are subject to s 48 and s 49 of the NDIS Act.
Considering these aspects of the legislative scheme for the provision of disability support, the Agency’s practice of issuing plans where the provisions of s 48 and s 49 of the NDIS Act are not engaged, as occurred in this case, raises questions about compliance with the bar on varying a plan that is in effect under s 37(2). Matters of this kind were raised and discussed in RTRH and NDIA (RTRH).[16] I adhere to the conclusions reached in that decision insofar as they are presently relevant.
[16] [2022] AATA 205 at [94]-[120].
The key point is, for the purposes of s 37(3), a plan that is issued without engaging s 48 and s 49 does not replace an existing plan.
It is for this reason Plan B does not replace Plan A, and the issuing of Plan B does not trigger fresh review rights under s 100. To be clear, the internal review decision under s 100(6) is not a reviewable decision even though it involves the making of a fresh decision under s 33(2) for the purposes of review. Necessarily, the making of such a decision cannot be severed from the s 100 review function and the exercise of review powers conferred upon the reviewer.
The same applies to a reconsideration of the internal review decision by the decision-maker on remittal under s 42D(1) of the AAT Act. The decision-maker is required to reconsider the internal review decision and to decide to affirm, vary or set it aside and substitute a new decision, having regard to all the relevant materials at the time. The process of reconsideration of a decision on remittal under s 42D(1) cannot be disconnected from the exercise of the remittal power by the Tribunal and the power thus conferred on the decision-maker to reconsider the decision.
Remittal of the internal review decision under s 42D(1) is not a proper basis for the review of a DZNB’s plan under s 48 of the NDIS Act.
The answer to the first jurisdictional question is no. Plan B does not intersect with the Tribunal’s jurisdiction and it does not limit the temporal ambit of the matters to be decided by the Tribunal on review.
21 December decision
The issue in respect of the 21 December decision is whether it is a decision made for the purposes of s 42D of the AAT Act which satisfies the requirements of s 42D(2) and the Tribunal’s remittal order on 25 November 2021. The key question is whether it satisfies paragraphs 42D(2) (b) or (c) and engages s 42D(3) or (4). If it does not, s 42D(7) and (8) will apply.
Section 42D 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, if the 21 December decision is within the terms of paragraphs 42D(2)(b) or (c), it will be instrumental in the Tribunal proceedings. If the decision is a variation of the internal review decision for the purposes of s 42D(2)(b), the application before the Tribunal is taken to be an application for review of the decision as varied, whereas if the decision is to set the internal review decision aside and substitute a new decision, ss 42D(2)(c) and (4) will apply, whereupon the application is taken to be an application for review of the new decision.
The 21 December letter expressly refers to an unscheduled plan review under s 48 of the NDIS Act and the 21 December decision expressly refers to a review of DZNB’s plan. Both documents purported to attach Plan C.
Nowhere in the 21 December letter or in the 21 December decision is reference made to the Tribunal remittal of the internal review decision for reconsideration under s 42D of the AAT Act or any powers thus conferred, or to the terms of the Tribunal order on 25 November 2021. The 21 December decision is not expressed in terms that are consistent with s 100(6) of the NDIS Act or s 42D(2) of the AAT Act.

The Agency interaction notes contain one reference, albeit inapt, to the Tribunal remittal: Plan reviewed as per request from AAT Case Manager and AAT Application for Remittal of Decision.
The author of the 21 December letter clearly sets out DZNB’s review rights. These are in respect of internal review under s 100 of the NDIS Act, not in respect of Plan C attached to that letter. A reconsideration decision on remittal could not trigger such rights.
The Agency asserts the person who created the 21 December letter was in error: she erroneously used a standard letter which was not applicable. In the Agency’s submission, the references in that letter should not be taken to mean a s 48 plan review was undertaken.
I have carefully considered the Agency’s submissions in respect of the 21 December decision and the related materials it has provided. It is germane to set out the following submissions of the Agency:
15. The Respondent notes the interaction record made by the reviewer on 21 December 2021, and letter of the same date, regarding the Second Review [reconsideration on remittal] Decision. The Respondent has not identified any further record of the decision that is presented in the form of the First Review Decision made on 30 November 2020 under s 100 (T2) in respect of the Second Review Decision. The Respondent has not identified further information regarding the factual findings made, the material on which the findings were based, the reasons given for the decision, other than as set out in the plan and associated letter and interaction records dated 21 December 2021, which in the Respondent’s submission represent records of the Second Review Decision.
16. The Respondent understands that the Second Review Decision, specifically the plan, letter and cover letter dated 21 December 2021, were communicated to the Applicant on 21 December 2021.
Respondent’s procedures
17. The Respondent notes that the NDIA ICT system requires staff to input a plan review decision to give effect to a reconsideration decision consequent to a remittal order under s 42D of the AAT Act. The reviewer is required to create an interaction record and record the decision that will be represented in a plan document, and suppress a s 48 letter that is automatically generated by the system when a plan is issued. If this step does not occur, the participant may receive a cover letter in error.
18. The Respondent notes that the cover letter issued to the Applicant on 21 December 2021 was automatically generated by the NDIA ICT system, ought to have been suppressed pursuant to the Respondent’s procedures and was issued in error by the Respondent accordingly. The cover letter does not correctly reflect the legal effect of the Second Review Decision nor the review rights relating to that decision.
19. The Respondent notes that the reviewer made the Second Review Decision as a result of the remittal order under s 42D of the AAT Act made by the Tribunal on 25 November 2021.[17]
[17] Respondent’s written submissions, 21 April 2022 at [15]-[19].
As I understand this submission, under the Agency’s procedural requirements, a delegate making a reconsideration decision on remittal by the Tribunal is required to:
(a)create an interaction record;
(b)record the decision that will be represented in a plan document;
(c)input a plan review decision into the Agency’s ICT system;
(d)suppress a s 48 plan review letter that is automatically generated by the ICT system; and
(e)write a letter to the participant informing them of the decision.
I understand a plan document to be a document template which includes all the components of a participant’s plan. If this is correct and the reconsideration decision is required to be represented in a plan document, the decision will conform to the plan document template and it will have the appearance of a plan even though it addresses some but not all of the components of DZNB’s plan. As I understand the Agency’s submissions on this point, there is no option for the decision-maker to vary the terms of the remitted decision without creating a new plan document.
In such circumstances, as in DZNB’s case, it may be difficult to clearly identify the reconsideration decision.
The requirement to input a plan review decision is problematic as a reconsideration decision under s 42D(2) of the AAT Act (or an internal review decision under s 100 of the NDIS Act) does not involve review of a participant’s plan. Under s 42D(2) of the AAT Act (or s 100(6) of the NDIS Act) the decision-maker is required to affirm, vary or set aside the decision under review and substitute a new decision. In effect, the decision-maker is required to do over again the internal review of the primary decision, reviewing the merits of claimed supports at the time of the primary decision up to the time of the review or reconsideration decision.
This is not synonymous with the plan review procedure in Division 4 of Part 2 in Chapter 3 of the NDIS Act, under which all the elements of a participant’s plan are considered at the time of the review and a new plan is made prospectively for a period.
It appears the Agency’s ICT system is geared to the making and the review of plans, rather than the making and review of reviewable decisions. It is for this reason new plan documents are generated whenever a reviewer decides to vary or to set aside and substitute a new decision in place of a reviewable decision. There is a real question whether this conforms with the requirements of the legislation. Once a plan is in effect, it cannot be varied, but it can be replaced under Division 4, Part 2, Chapter 3 of the NDIS Act, following review under s 48 for example. The generation of serial plan documents may create uncertainty about when a plan comes into effect under s 37(1) and when a plan is replaced with another under s 37(3).
There is a substantive difference between the review of an administrative decision under s 100 of the NDIS Act and the review and replacement of a plan under s 48 and s 49 of that Act. The latter requires the CEO to facilitate the making of a new plan with the participant whereas the former requires a reviewer to undertake an administrative review on the merits and to make the correct or preferable decision on the relevant materials at the time. In so doing, the reviewer must address the same questions, exercise the same powers and is subject to the same constraints as the primary decision-maker.
Where a decision is remitted for reconsideration under s 42D(1) and the decision-maker reconsiders the decision and varies or sets aside and substitutes a new decision in place of the remitted decision, the application for review is taken to be an application for review of the decision as varied or the new decision. In order to enable the participant to decide to proceed with the application or to withdraw it, the reconsideration decision should be clearly expressed in terms setting out reasons that are sufficient for the participant to understand the decision and the reasons for it. At some level, albeit perhaps briefly in the context of the high volume of decisions being made every day under the Scheme, this requires a decision-maker to refer to relevant factual findings and the materials on which they are based, and to set out their reasoning when applying the relevant legislation and legal thresholds. Issuing a reconsideration decision in the form of a plan template may document the result, but it does not explain the factual basis or reasoning that was applied when deciding the result.
This may also lead to difficulty determining if the thresholds in s 42D(5) of the AAT Act are met.
If the 21 December letter and Plan C were the only records of the decision the Agency asserts was made pursuant to the Tribunal’s remittal under s 42D(1) of the AAT Act, they may not meet the minimum threshold for a reconsideration decision. When considered in the context of the 21 December 2021 interaction record, however, it can be accepted that the person who generated the 21 December letter and Plan C was not the person who made the 21 December decision.
While the text of the 21 December decision and the related interaction record do not refer to the contents of the primary decision, the internal review decision or the Tribunal’s remittal of the internal review decision for reconsideration, the decision-maker set out her findings and a process of reasoning in respect of the additional supports claimed for DZNB on 4 August 2021 which were not approved. No findings in respect of supports that were approved are set out in the 21 December decision, although reference is made to the plan attached to the decision, Plan C.
The Agency asserts the delegate who made the 21 December decision exercised power under s 100 of the NDIS Act and decided to vary the internal review decision.
This is not correct. The decision-maker’s power to reconsider and vary the decision under review in the Tribunal proceedings stems from s 42D of the AAT Act and the Tribunal’s remittal order on 25 November 2021. The task of reconsideration certainly involves reconsideration of the internal review decision under s 100(6) of the NDIS Act. Reconsideration in that context may involve the person doing over again the internal review of the primary decision, exercising the same powers and being subject to the same constraints as the original decision-maker. But the reconsideration cannot be severed from the remittal under which it is authorised.
There are three further difficulties with the 21 December decision. Firstly, as I have said, the decision sets out findings in respect of supports not approved but does not set out findings in respect of supports that were approved in addition to or in variation of the internal review decision. Secondly, the decision is not expressed in terms that are consistent with s 42D(2) of the AAT Act or s 100(6) of the NDIS Act. And thirdly, it was not given to the Tribunal within the period specified in the remittal order.
The task of reconsidering a decision under remittal from the Tribunal is unfettered: the remittal applies to the entire decision and it is for the decision-maker to determine whether the remitted decision should be affirmed, varied or set aside and a new decision substituted. In this case, in order to comprehend the reconsideration decision, it is necessary to refer to the 21 December decision document and Plan C. The contents of Plan C are not consistent with the interaction record, which reiterates the negative findings recorded in the 21 December decision.
The Agency asserts that Plan C is an expression of and gives effect to the 21 December decision. On the present materials, however, it is not possible to determine with any certainty the basis on which the contents of Plan C were decided or who made the decision.
The failure to properly document the decision-maker’s reconsideration of the internal review decision remitted for that purpose under s 42D of the AAT Act is a matter of concern. One would expect a reconsideration decision made on remittal by the Tribunal to include 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. While there is a question whether s 37(1) of the AAT Act applies to a decision made on remittal under s 42D, on which the parties have not been heard, it would be good practice for a statement of the kind referred to in s 37(1)(a) to be provided. This is especially so where s 42D(3) or (4) apply.
It is not clear on the present materials how the Plan C document came into existence. It was issued by a person other than the reconsideration decision-maker. No adequate explanation has been provided. I was informed the decision-maker communicated the contents of the plan to a person in the Agency’s planning team. This is partly supported by the rather cryptic interaction records on 21 December 2021. Nevertheless, the form in which the information was communicated, whether verbally or in written form, remains opaque. It is conceivable, even likely under the Agency’s administrative procedure, the decision-maker entered the decision in a plan document format and as a plan review decision into the Agency’s ICT system.
This notwithstanding, it is clear enough the decision-maker considered the supports requested for DZNB and it may be inferred she made a series of findings about these matters, albeit not documented in the 21 December decision. If this is correct, the SPS elements of Plan C may be taken to express the positive results of the decision-maker’s reconsideration. Although it is far from certain, I will proceed on that basis.
Even though the combined contents of the 21 December decision and the SPS elements in Plan C are not expressed in terms consistent with paragraphs 42D(2)(b) or (c) of the AAT Act, the total amount of approved supports in Plan C ($32,889.55) is greater than the total amount of approved supports in the internal review decision ($29,479.27), and the particular supports approved in Plan C and refused in the 21 December decision are somewhat different than those approved in the internal review decision.
To my mind, this amounts to a variation of the decision under review.
That being so, as the decision-maker reconsidered the remitted decision and decided, in effect, to vary it, I am satisfied the terms of s 42D(2)(b) are satisfied.
The final considerations are in respect of time. The decision-maker did not specify when her decision had effect and the composite decision, including the 21 December decision and the SPS elements of Plan C, were not given to the Tribunal within the period specified in the remittal.
With regard to the date of effect, where a decision-maker exercises power to vary a decision on remittal, the date of effect is to be determined by reference to the applicable legislation and the powers being exercised by the decision-maker.
As the reconsideration decision-maker was authorised to reconsider the internal review decision, and in so doing to exercise the powers available to the reviewer, subject to the same constraints, it was open to the decision-maker to reconsider all elements of the SPS approved in the primary decision, from the date that decision had effect.
Nevertheless, additional supports were claimed for DZNB on 4 August 2021, well after the internal review decision was made. Those supports could not have been decided by the reviewer or by the primary decision-maker. That being so, and accepting that the 21 December decision was made in response to the Tribunal’s 25 November 2021 remittal, I think the better view is the reconsideration decision has effect from the day it was decided: 21 December 2021.
With regard to the period specified in the Tribunal’s remittal order on 25 November 2021, paragraph 42D(5) of the AAT Act requires two things to be done within that period ending on 23 December 2021: the decision-maker must reconsider the remitted decision and must do one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). While it may be expected that the Tribunal would be notified of the outcome of its remittal within or soon after the period specified for the purposes of paragraph 42D(5), delay doing so may not be determinative of the effect on the proceedings. Where, as in this case, there is a delay notifying the Tribunal, it will be necessary to determine if the requirements of paragraph 42D(5) have been complied with. For this purpose, evidence is required to establish the remitted decision was reconsidered and a decision made to affirm, vary or set it aside and substitute a new decision within the specified period.
Despite deficiencies in the available materials, I am satisfied both elements of paragraph 42D(5) were satisfied within the period ending on 23 December 2021.
That being so, DZNB’s application is taken to be an application for review of the internal review decision as varied by the reconsideration decision made on 21 December 2021, as expressed in the 21 December decision and the SPS elements of Plan C.
Plan C
The remaining issue is whether Plan C affects the Tribunal’s jurisdiction.
Plan C, the Agency argues, simply gives effect to the delegate’s 21 December decision and it was not the result of a review under s 48 of the NDIS Act. Citing RTRH,[18] the Agency asserts DZNB’s previous plan did not cease to have effect.
[18] [2022] AATA 205 at [113]-[117].
I accept this is correct.
That being so, Plan C did not replace Plan A (or Plan B) and Plan A did not cease to have effect. Consequently, Plan C is not effective as a new plan for the purposes of the NDIS Act, rather it is a further expression of Plan A containing variations to the SPS that was originally approved in the primary decision.
Plan C does not intersect with the Tribunal’s jurisdiction other than to the extent the SPS elements within its terms are part of the variation decision made on 21 December 2021 pursuant to the Tribunal’s 25 November 2021 remittal order. The Tribunal’s jurisdiction is not temporally constrained by the issuing of Plan C.
Decision
The Tribunal has jurisdiction to review the Internal Review Decision as varied by the remittal decision on 21 December 2021.
I certify that the proceeding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
…………………….[sgd]………………..
Associate
Dated:  20 May 2022
Date of Hearing:  7 April 2022
Representative for the Applicant:   Legal Aid ACT, Mr Derek Schild
Representative for the Respondent:   NDIA, Mr Adrian Pascale

[2022] AATA 1326

20 May 2022

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