Eccles and National Disability Insurance Agency
[2017] AATA 1457
•13 September 2017
Eccles and National Disability Insurance Agency [2017] AATA 1457 (13 September 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/3181
Re:David Eccles
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Ms S Taglieri, Member
Date:13 September 2017
Place:Hobart
The Tribunal has jurisdiction to review the deemed decision made by the Respondent, in respect of the request for review dated 23 September 2016.
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Ms S Taglieri, Member
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – Requests for plan review, s 48 – Deemed decision and deemed review by CEO – Whether there is a reviewable decision for the purposes of s 103 – Distinction between plan review request and request to CEO to review decision about supports included in a participant plan – The Tribunal has jurisdiction to review deemed decision in relation to request for plan review.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss 48, 49, 99, 100, 103
Administrative Appeals Tribunal Act 1975 (Cth), s 29
CASES
QQNH and National Disability Insurance Agency [2016] AATA 220
ZKTN and National Disability Insurance Agency [2017] AATA 744REASONS FOR DECISION
Ms S Taglieri, Member
13 September 2017
INTRODUCTION AND BACKGROUND
The Applicant is the father of Thomas Eccles (Thomas). Thomas suffers from disability and was accepted as a participant in the National Disability Insurance Scheme from 13 January 2016.
For present purposes it is not necessary to detail the nature of Thomas’ disabilities because the Tribunal has been called upon to determine a preliminary point, namely whether the Tribunal has jurisdiction to conduct a review pursuant to the provisions of s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
The Respondent contends that only decisions of the nature set out in s 99 and which have been the subject of a review by the CEO the National Disability Insurance Agency (the NDIA) pursuant to s 100 are capable of being reviewed by this Tribunal. It contends that no review by the CEO has been conducted for the purposes of s 100.
A hearing was convened in the Tribunal to determine the jurisdictional issue raised by the Respondent. Both parties were heard in respect of the jurisdictional issue on 17 July 2017. Directions were made for additional information to be provided by the parties. The final information that was the subject of the Tribunal’s direction was provided on 2 August 2017.
JURISDICTION – RELEVANT PROVISIONS AND PRINCIPLES
This Tribunal’s jurisdiction and power to review a decision arises from the NDIS Act. Section 103 of the NDIS Act provides that ‘[a]pplications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).’
The plain interpretation of the words provided in s 103 mean that this Tribunal is only empowered to review a decision made by the Respondent after it has first been internally reviewed within s 100 of the NDIS Act.
The ultimate issue for determination of the jurisdictional question therefore distils into whether:
(a)any of the requests that were made by, or on behalf of Thomas, can be construed as a request made for the purposes of s 100(3) of the NDIS Act; and
(b)the facts establish that a decision was made by the CEO in respect of reviewable decision for the purposes of s 100(6) of the NDIS Act.
If the questions in (a) and (b) above are answered in the affirmative, the application to this Tribunal would have jurisdiction.
THE RELEVANT FACTUAL HISTORY OF EVENTS
Considering the further materials submitted upon the Tribunal’s direction of 17 July, it appears that there is no dispute in relation to the factual background of events prior to the filing of the application in this Tribunal. Those facts are set out in paragraphs 2-9 under the heading ‘Background’ of the Respondent’s submissions dated 2 August 2017.
On 29 March 2016, a Participant Plan was approved for Thomas (the first plan). It continued to operate until 23 September 2016, when a request for a plan review pursuant to s 48(1) of the NDIS Act was made on behalf of Thomas by Rick Baxter.[1] A copy of this request for plan review was provided by the Respondent with its submission of 2 August 2017. It identifies that the Respondent was being asked to review what supports had been included in Thomas’ first plan. Additional provision was sought for various expenses including attending day programs, psychologist and psychiatric assessments, independent and social living skills, and vocational and training work readiness.
[1] Co-ordinator of supports and accepted as a person authorised to make the request.
CONSIDERATION
By virtue of the provisions of s 48(2) of the NDIS Act, the CEO of the NDIA was required to conduct a review of the plan following receipt of the request for a plan review by no later than 10 or 11 October 2016.[2] There is no evidence before the Tribunal that the CEO made a decision whether or not to conduct a review and by virtue of this and the express wording of s 48(2), there is a statutorily deemed decision not to conduct a review. This deemed decision is itself a reviewable decision within s 99(f) of the NDIS Act.
[2] The 14 day period within which the CEO must decide whether to conduct a plan review.
By virtue of s 100(1) of the NDIS Act, the CEO of the Respondent was obliged to give written notice of the deemed decision. This requirement might be considered impractical and impossible to comply with if the CEO or a delegate of the CEO has not appreciated that a deemed decision under s 48 is taken to have been made. Despite this, by virtue of s 100(1)(a)(ii) the deemed decision is taken to have been automatically reviewed.
It therefore follows that at a time after 10 or 11 October 2016, in respect of the request for plan review of 23 September 2016, the Tribunal has jurisdiction to conduct a review by virtue of the automatic deeming provisions referred to above.
No application was made to this Tribunal subsequent to about 10 October 2016 but instead, other events intervened. In particular, a further request for a plan review was made on behalf of Thomas on 25 January 2017. This request was triggered by events which led to Thomas’ hospitalisation for acute treatment and care. Despite this, the subject matter of this request seems to partly overlap with the subject matter of the request for review dated 23 September 2016. This is apparent from comparison of the two requests, being Annexures A and C of the Respondent’s submission dated 2 August 2017.
The second request for a plan review was properly actioned as required by s 48 of the NDIS Act and as a consequence, a review meeting took place on 31 January 2017. The Applicant attended the review meeting. Notes made on behalf of the Respondent at this meeting reveal that it involved subjects raised in the review request of 25 January 2017, which partly overlapped with the subject matter of the earlier review request.
After the meeting referred to in paragraph 15 above, a new Participant Plan dated 2 February 2017 was made.[3] The new plan resulted from the Respondent’s compliance with the obligation under s 49 of the NDIS Act and the new plan became a Participant’s Plan for the purposes of Division 2, Chapter 3 of that Act.
[3] Annexure E to its submission of 2 August 2017.
There is no evidence before the Tribunal of any request for a review (of any character) after 2 February 2017. Further, the decision regarding Thomas’ new plan of 2 February 2017 has not been subject to review by the CEO of NDIA as required by s 100(6) of the NDIS Act. As such, to the extent that the Applicant seeks to challenge it, the Tribunal does not have jurisdiction.[4]
[4] Following the decision in QQNH and NDIA [2016] AATA 220.
Now that the Tribunal has considered the facts and further materials submitted by the parties, it agrees with the Respondent’s contention that the facts of ZKTN and NDIA[5] are distinguishable and the statements of principle in that case do not alter the conclusion reached in this case.
[5] [2017] AATA 744.
However, to the extent that the Applicant seeks review of the deemed decision and deemed automatic review which resulted from the 23 September 2016 request for plan review, this Tribunal has jurisdiction pursuant to s 103.
CONCLUSION
The Tribunal does have jurisdiction to determine at least that part of the application for review which relates to the supports included in the first Participant Plan of 29 March 2016 and up until the new plan of 2 February 2017.
If the Applicant does not seek merit review of any of the first plan and is only aggrieved about the supports included in Thomas’ Participant Plan of 2 February 2017, it is appropriate that he withdraw the application in this Tribunal. Instead he ought to make a request to the Respondent pursuant to s 100(2) of the NDIS Act for review of the decision of 2 February 2017, it being reviewable by virtue of section 99(e) of the NDIS Act.
The Tribunal observes that the failure of the Respondent to properly review the first Participant Plan and/or notify of the deemed decision for the purpose of s 48(2) according to the requirements of the NDIS Act has plainly caused confusion for the Applicant and delay in addressing legitimate concerns about Thomas’ wellbeing. If application has been made in the interim for internal review of the supports included in the plan dated 2 February 2017 and the CEO has now made a decision for the purposes of s 100(6) of the NDIS Act in respect of it, the Respondent is encouraged to agree to treat the application already made to this Tribunal as a valid application for review in respect of the 2 February 2017 plan, for the purpose of s 103.
The Tribunal will convene a directions hearing to hear the parties in relation to what orders should reasonably be made to dispose of the application, noting the guidance given in paragraphs 21-22 above and the conclusion that it has some jurisdiction. At the same time, the Tribunal will hear the parties regarding procedural or time limit issues that may arise by virtue of s 29 of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member
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Administrative Assistant - Legal
Dated: 13 September 2017
Date(s) of hearing: 17 July 2017 Date final submissions received: 2 August 2017 Solicitors for the Respondent: Ms Laura Hinwood, National Disability Insurance Agency
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