Farrall and National Disability Insurance Agency
[2020] AATA 5077
•14 December 2020
Farrall and National Disability Insurance Agency [2020] AATA 5077 (14 December 2020)
Division:GENERAL DIVISION
File Number: 2020/4315
Re:Kayla-Marie Farrall
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 14 December 2020
Place:Melbourne
The Tribunal decides that:
in so far as it reviews and confirms the decision of a delegate of the Chief Executive Officer of the respondent to approve the statement of participant supports made on 22 May 2020, it has jurisdiction to review the decision made on 14 July 2020 by the reviewer under s 100(6) of the National Disability Insurance Act 2013.
.............[sgd]...................................................
Deputy President S A Forgie
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – identification of decision under review – may be more than one request for review of a reviewable decision – jurisdiction to review decision to approve statement of participant supports.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25(1)(a), 27 and 37
National Disability Insurance Scheme Act 2013; ss 3(1)(d) and (f), 21 to 25, 28(1), 32, 33(1) and (2), 34, 37(1), 37(2), 37(3), 47(1), 47(2), 47(3), 48, 48(1), 48(2), 48(4), 48(6), 49, 99(1), 100, 100(1) and (1A), 100(2)-(4), 100(6) and 103
Cases
Collector of Customs (NSW) v Brian Lawlor Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
Mcleish v Faure [1979] FCA 38; (1979) 40 FLR 462
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; 353 ALR 600
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Re QMCT and National Disability Insurance Agency [2019] AATA 6111
Re ZKTN and National Disability Insurance Agency [2017] AATA 744
REASONS FOR DECISION
Deputy President S A Forgie
The parties made a joint submission asking me to find that the Tribunal has jurisdiction to review a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) on 25 May 2020. They would understand, however, that, just as the parties cannot confer jurisdiction upon it by consent, nor can they confer jurisdiction upon the Tribunal.[1] The Tribunal itself must consider the matter and come to its own decision whether it is satisfied that it has jurisdiction. In this case, I have decided that, in so far as it reviews and confirms the CEO’s decision to approve the statement of participant supports made on 22 May 2020, the Tribunal has jurisdiction to review the decision made by the reviewer on 14 July 2020.
[1] Mcleish v Faure [1979] FCA 38; (1979) 40 FLR 462 at [9]; 467; Sweeney, Evatt and Northrop JJ and see also It is no different in the Tribunal: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225; Stephen, Murphy and Aickin JJ
BACKGROUND
On 22 May 2020, the Agency wrote to Ms Farrall advising her that her “National Disability Insurance Scheme (NDIS) plan had been approved” with effect from that date. Included in the letter was information that she could ask for a review if she disagreed “with the decision about your plan approval …”.[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T6 at 19-20
It would seem that Ms Farrall requested a review of her plan because, on 25 May 2020, a delegate of the CEO wrote to her. The subject line in the delegate’s letter stated: “Outcome of your request for an unscheduled plan review”. The first two paragraphs of the letter read:
“I am writing to let you know the outcome of your request that the National Disability Insurance Agency (NDIA) review Kayla-Marie’s National Disability Insurance Scheme (NDIS) plan. This is referred to as a section 48 review under the National Disability Insurance Scheme Act 2013 (NDIS Act).
After careful consideration, the NDIA has decided not to review Kayla-Marie’s plan at this time.”[3]
[3] T documents; T4 at 13
The letter went on to advise Ms Farrall that she could request an internal review of the decision within three months of receiving notice of the decision. At the conclusion of the letter, the delegate set out her reasons for making her decision:
“I have reviewed your request and I am not satisfied that your request for a shelter over your ramp is related to your disability, as detailed in the National Disability Insurance [Supports for Participants] Rules 2013 Part 5.1.b. Your Occupational Therapist … in her report dated 23 October 2019 has stated that you have installed a rear access wheelchair ramp at your home.
Your Occupational Therapist states that the request for a shelter will allow you to use the ramp to access outdoors in all types of weather. I acknowledge that a shelter would be beneficial to your comfort whilst accessing outdoors, unfortunately this is not related to your specific needs. An individual can choose when they access outdoors, such as, waiting until it stops raining or not leaving the home in extreme weather conditions. NDIS is unable to fund supports which are not related to your disability specific needs.”
On 25 June 2020, the Agency received what it described in its records as “Request review of decision under s. 100 NDIS Act Internal Notes”. The “Core issues associated with review request” were recorded as “Participant would like to request for core, CB, AT, CBHW”. With the assistance of Mr …. for the Agency, I understand the abbreviations to stand for “Capacity Building”, “Assistive Technology” and “Capacity Building Health and Wellbeing”.
I have been unable to locate a written request for review by Ms Farrall but the Agency’s note would suggest that she had requested review of the statement of participant supports rather than review of the plan as such. The references to her requesting review for “core, CB, AT, CBHW” support me in that conclusion. So too does the letter of acknowledgment dated 26 June 2020 and sent by the Agency to Ms Farrall. It is not included in the T documents but the Agency has provided a copy at my request. It reads:
“I am writing to acknowledge that we have received your request for an internal review under section 100 of the National Disability Scheme Insurance Act 2013 (NDIS Act).
What this means for you
The decision you would like us to review was made on 25 June 2020 and relates to the supports that are funded in your plan (a decision made under section 33) of the NDIS Act).”
On 14 July 2020, a delegate of the CEO wrote to Ms Farrall:
“I am writing in response to your request received on 25 June 2020, that we review our earlier decision (under section 100 of the NDIS Act) made on 25 May 2020 not to review your plan (under section 48 of the NDIS Act).
What this means for you
I have reviewed your plan review request and the information available at the time of this review. After careful consideration, I have decided to confirm the earlier decision. This means that we will not review your plan to include the requested home modifications.”[4]
[4] T documents; T2 at 10
The delegate’s reasons were:
“In your request, you have asked for funding for the construction of an overhead shelter over an existing ramp. However, this support cannot be provided because Rule 5.1 of the NDIS (Supports for Participants) Rules 2013 prevents the funding of this support. I have decided the following rules apply:
∙ Support is not related to the participant’s disability – Rule 5.1(b)
NDIS is unable to fund a support that is not related to a participant’s disability.
∙ Support relates to day-to-day living costs – Rule 5.1(d)
NDIS is unable to provide a support that relates to day-to-day living costs that are not attributable to disability support needs.
Your request for the overhead shelter is to protect Kayla-Marie in adverse weather. Weather conditions are a concern for all individuals and not a disability related concern and therefore considered a day-to-day living cost/home owner responsibility.”[5]
[5] T documents; T2 at 12
On 15 July 2020, Ms Farrall lodged an application in the Tribunal for review of the delegate’s decision dated 14 July 2020. She explained that she was “… seeking a review for the rejection to fund a shelter over an existing ramp because we believe it is related to the participant’s disability. The ramp is for safety reasons and not a day to day living cost.”[6]
[6] T documents; T1 at 5
LEGISLATIVE FRAMEWORK
The objects of the NDIS Act include providing “… reasonable and necessary supports … for participants in the National Disability Insurance Scheme launch” and facilitation “… the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability”.[7]
[7] NDIS Act; ss 3(1)(d) and (f)
A person becomes a participant in the NDIS when the Agency’s Chief Executive Officer (CEO) decides that he or she meets the access criteria.[8] In order to meet the access criteria, the CEO must be satisfied of certain matters specified in ss 21 to 25. Ms Farrall has met those access criteria and was accepted as a participant.
[8] NDIS Act; s 28(1)
Preparation of a participant’s plan
If a person becomes a participant, regard must be had to Division 2 of Part 2 of Chapter 3 of the NDIS Act regarding the preparation of participants’ plans. The CEO must facilitate the preparation of a participant’s plan in accordance with the National Disability Insurance Scheme rules.[9] A participant’s plan must include a statement prepared by the participant (participant’s statement of goals and aspirations) as well as a statement of participant supports.[10]
[9] NDIS Act; s 32
[10] NDIS Act; ss 33(1) and (2)
A statement of participant supports is prepared with the participant and approved by the CEO. It specifies:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”[11]
[11] NDIS Act; s 33(2)
In deciding whether or not to approve a statement of participant supports, the CEO must:
“(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to the relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purpose of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.”
A participant’s plan comes into effect when the CEO has received the participant’s statement of goals and aspirations and has approved the statement of participant supports.[12] It ceases to be in effect either when it is replaced by another plan under Division 4 of Part 2 of Chapter 3 of the NDIS Act or the participant ceases to be a participant.[13] A participant’s plan cannot be varied after it comes into effect.[14]
[12] NDIS Act; s 37(1)
[13] NDIS Act; s 37(3)
[14] NDIS Act; s 37(2)
Reviewing and changing a participant’s plan
Division 4 of Part 2 of Chapter 3 of the NDIS Act is entitled “Reviewing and changing participant’s plans”. As I have noted, a participant’s plan has two elements. One element is the participant’s statement of goals and aspirations. A participant may give the CEO a changed version of that at any time.[15] If a participant does that, his or her participant’s plan is taken to be replaced by a new plan comprising that changed version of his or her participant’s statement of goals and aspirations and the statement of participant supports in the existing plan.[16] The CEO must give a copy of the new plan to the participant within seven days of receiving the changed version of the participant’s statement of goals and aspirations.[17]
[15] NDIS Act; s 47(1)
[16] NDIS Act; s 47(2)
[17] NDIS Act; s 47(3)
The CEO has a discretionary power to review a participant’s plan and is obliged to do so in circumstances, if any, prescribed by the National Disability Insurance Scheme Rules.[18] On his or her own initiative, the CEO has discretionary power to conduct a review of a participant’s plan at any time.[19] The CEO’s power of review may also arise if a participant requests him or her to conduct such a review.[20] Before exercising his power, however, the CEO must first decide whether he or she will conduct the review requested by the participant.[21] The CEO has 14 days within which to make that decision. If he or she does not do so, he or she is taken to have decided not to conduct the review.[22]
[18] NDIS Act; s 48(6)
[19] NDIS Act; s 48(4)
[20] NDIS Act; s 48(1)
[21] NDIS Act; s 48(2)
[22] NDIS Act; s 48(2)
If the CEO conducts a review of a participant’s plan, he or she must facilitate the preparation of a new plan with the participant in accordance with Division 2 of Part 2 of Chapter 3.[23] As the new plan must be prepared in accordance with Division 2 of Part 2 of Chapter 3 of the NDIS Act, it will again have two elements: a statement of the participant’s goals and aspirations specifying the matters set out in s 33(1) and a statement of participant supports prepared in accordance with s 33(2) and having regard to s 34.
[23] NDIS Act; s 49
Review of the CEO’s decisions
Section 99(1) sets out 33 decisions that may be made by a decision-maker under the NDIS Act and describes them as “reviewable decisions”. Twenty five of those reviewable decisions are decisions made by the CEO but not all are decisions that relate to the two elements of a participant’s plan. I am concerned with only two of them. One is a decision not to reassess a participant’s plan under s 48(2). The other is a decision to approve a statement of participant supports in a participant’s plan under s 33(2).[24] The CEO must give a written notice of the reviewable decision to each person directly affected by the reviewable decision. That notice must also advise that person that he or she may request a review of that decision or, in the case of a decision taken to have been made under s 48(2), that the decision will be reviewed automatically.[25] The person may request a review either in writing or orally but must do so within three months of receiving notice of the reviewable decision.[26]
[24] NDIS Act; s 99(1) and Items 6 and 4
[25] NDIS Act; ss 100(1) and (1A)
[26] NDIS Act; ss 100(2)-(4)
On receiving the request for review, the CEO must cause the reviewable decision to be reviewed by a person, who was not involved in making the reviewable decision, and to whom the CEO has delegated his or her powers and functions under s 100. The reviewer must, as soon as reasonably practicable, make a decision under s 100(6) confirming or varying the reviewable decision or setting it aside and substituting another. On receiving the reviewer’s decision, the person may apply to the Tribunal for review of that decision.[27]
[27] NDIS Act; s 103
CONSIDERATION
The parties made joint submissions supporting their contention that the Tribunal has jurisdiction to hear Ms Farrall’s application. Noting that a participant’s plan must contain a statement of participant supports, they submitted that a decision to approve a statement of participant supports in a participant’s plan is a reviewable decision under Item 4 of s 99(1) of the NDIS Act. They also submitted that a decision not to reassess a participant’s plan is a reviewable decision under Item 6 of s 99(1). In their joint written submission, the parties continued:
“17. It is apparent that the decision made on 25 May 2020 on its face purports to be a decision to decline a request to conduct a review of the applicant’s plan, under subsection 48(2) of the Act. That is, the decision-maker who made the decision on 25 May 2020 treated the applicant’s request for review made following the decision to approve the applicant’s statement of participant supports on 22 May 2020 to be a request for a plan review under subsection 48(2) of the Act.
18.However, in making this decision, the decision-maker made a decision relating to the substantive issue arising with respect to the applicant’s statement of participant supports, as identified by the applicant. That is, the decision-maker made a decision specifically in relation to declining funding for an overhead ramp shelter.
19.Hence, while the decision of 25 May 2020 was purportedly made as a decision under subsection 48(2) of the Act, in substance it may be treated as a decision with respect to the statement of participant supports in the applicant’s plan (ie it was a decision to not make any changes to the applicant’s statement of participant supports). This can be treated, in substance, as being a decision under subsection 33(2) of the Act.
20.It follows that the internal review decision, which itself considered substantively the applicant’s statement of participant supports, should be treated as being a decision under item 4 of the table of reviewable decisions under section 99 of the Act.
21.The applicant has duly applied to the Tribunal for review of the internal review decision, and the internal review decision is reviewable under section 103 of the Act.
22.The parties are therefore agreed that that the Tribunal’s jurisdiction in this matter involves the review of the decision relating to the applicant’s statement of participant supports.”
They drew support for their submissions from the decisions of Re ZKTN and National Disability Insurance Agency[28] (ZKTN) and Re QMCT and National Disability Insurance Agency[29] (QMCT). Each decision turned on its own facts as determined by the Tribunal hearing the matter. ZKTN began with the proposition drawn from the judgment of Bowen CJ in Collector of Customs (NSW) v Brian Lawlor Pty Ltd[30] (Brian Lawlor) when speaking of the Administrative Appeals Tribunal Act 1975 (AAT Act) that:
“… The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. …”[31]
[28] [2017] AATA 744; Deputy President McDermott
[29] [2019] AATA 6111; Deputy President Constance
[30] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting
[31] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 4
That proposition appears in a paragraph in which Bowen CJ was considering the meaning that should be given to the word “decision” as used in s 25(1)(a) of the AAT Act. Section 25(1)(a) provides that “An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; …”. His Honour concluded that the word “decision” “… simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. …”[32] The difficulty that he had was in interpreting the further words in s 25(1)(a) i.e. that the decision is “made in the exercise of powers conferred by that enactment”. Did that mean that the decision had to be made: (a) in pursuance of a legally effective exercise of powers conferred by that enactment; (b) in the honest belief that it was in the exercise of powers conferred by the enactment; or (c) in the purported exercise of powers conferred by that enactment? By using the expression “purported exercise of powers”, Bowen CJ explained that he used it “… as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred.”[33]
[32] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 4
[33] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 4
The statement quoted in ZKTN was made in the context of Bowen CJ’s rejecting interpretation (a) as it would, in many cases, render a right to apply to the Tribunal useless. As he said:
“… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).”[34]
[34] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 5
Bowen CJ rejected interpretation (b) as introducing a subjective element that would require the Tribunal to find that it did not have jurisdiction to consider an application if it found that the decision-maker did not honestly believe that he or she was acting in the exercise of powers conferred by the enactment. That would be so notwithstanding the fact that the absence of the decision-maker’s honest belief might not affect the legal standing of the decision.
His Honour adopted interpretation (c) saying:
“ Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417 . I would adopt interpretation (c).”[35]
[35] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 315; 344; 5
Smithers J concluded that:
“ In my opinion, adopting what I have called a liberal construction of the relevant expressions in ss 25 and 26 and the Schedule to the Administrative Appeals Tribunal Act which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision. …”[36]
[36] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 339; 373; 27
These passages give context to the extract from Bowen CJ’s judgment in Brian Lawlor as set out in ZKTN. The case of Brian Lawlor allows the Tribunal to review an administrative decision regardless of whether the decision-maker made that decision in a legally effective way. I do not, however, think that the case can been understood as permitting the Tribunal to review any administrative decision made in the course of administering an enactment, regardless of whether that enactment confers on the Tribunal any power to review that decision. I think that this is clear in the way in which the High Court gave its endorsement to Brian Lawlor in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[37]
“... as a ‘landmark decision’ in the early history of the Administrative Appeals Tribunal .... The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a ‘decision’ in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than ‘a decision in fact made, regardless of whether or not it is a legally effective decision’ .... The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdictionon the Tribunal ‘to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task’: ‘[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review’ and ‘technicality would be introduced at the outset’ .... In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.”[38]
[37] [2018] HCA 16; (2018) 264 CLR 217; 353 ALR 600; Gageler, Keane, Nettle, Gordon and Edelman JJ
[38] [2018] HCA 16; (2018) 264 CLR 217; 353 ALR 600 at [39]; 232-233; 611 (citations omitted)
It remains necessary to identify the decision that has been made and then to identify whether it has been identified in an enactment as a decision that may be reviewed by the Tribunal. Whether or not it was lawfully made is of no consequence. It remains a decision that is affecting the rights and duties or liabilities or immunities of the person who is identified either by a particular provision in the enactment or by the general provisions in s 27 of the AAT Act.
I have set out the course of events in this matter above but it is, I think, best understood by setting them out in a table form:
Date
Decision
Request for review
22 May 2020
Participant’s plan approved
Unknown
No record of oral or written request or terms of any such request but accept that it must have been made.
25 May 2020
Agency advised outcome of Ms Farrall’s request for an unscheduled plan review i.e. not to review her plan under s 48 of the NDIS Act.
25 June 2020
The Agency recorded that Ms Farrall requested “… review of decision under s. 100 NDIS Act Internal Notes”. The “Core issues associated with review request” were recorded as “Participant would like to request for core, CB, AT, CBHW”.
14 July 2020
An Agency reviewer advised Ms Farrall that she had reviewed her participant’s plan and the information available at that time. She decided that “… After careful consideration, I have decided to confirm the earlier decision.”
15 July 2020
Ms Farrall lodged an application in the Tribunal for review of the delegate’s decision dated 14 July 2020. She explained that she was “… seeking a review for the rejection to fund a shelter over an existing ramp because we believe it is related to the participant’s disability. The ramp is for safety reasons and not a day to day living cost.”
It seems to me that Ms Farrell’s request for review to the Agency on 25 June 2020 was a request for review of her statement of participant supports approved under s 33(2). It was not a request to review a decision made under s 48(2) refusing to review her plan even though the reviewer characterised it in that way. Ms Farrell’s reference to what I understand to be her Capacity Building, Assistive Technology and Capacity Building Health and Wellbeing is a clear request for review of those aspects and not of the plan generally. The Agency characterised it as a request for review of the supports in its letter of acknowledgment dated 26 June 2020. It was a request made within the period permitted by s 100(2) as it was made within three months of the approval of her participant’ plan on 22 May 2020.
If Ms Farrall’s request for review dated 25 June 2020 can be construed as a request for review of both the decision under s 48(2) and the statement of supports under s 33(2), that is simply a request for review of two decisions. There is nothing in the NDIS Act that restricts a person’s right to seek review to seeking review of only one reviewable decision. When a participant’s plan is made, there are always two avenues of review. One is found in s 48(1) and it enables a participant to request the CEO to conduct a review of the participant’s plan under s 48(2). If the CEO decides not to review the participant’s plan, a participant may request review under s 100(2) as the decision made under s 48(2) is a reviewable decision within the meaning of Item 6 of s 99(1). Once reviewed, a participant may apply to the Tribunal under s 103. The other avenue of review is found in Item 4 of s 99(1) and s 100(2) when it provides for review of the CEO’s decision to approve a statement of participant supports. That also leads to review by the Tribunal.
It is true that Ms Farrell’s first request for review had been taken by the Agency to be a request following the first avenue i.e. for an unscheduled plan review under s 48. That may be an accurate description of her request. I cannot tell because I do not have a record of her request either as made or as summarised. I respectfully suggest that the Agency should be very slow to regard any request as a request for an unscheduled plan review under s 48 unless the request is absolutely clear in expressing that was what was being requested. I say that because, in most instances, a participant’s focus is upon the supports he or she is to receive and those that the CEO has not approved. In most instances, a participant is seeking review of a decision to approve a statement of participant supports in a participant’s plan.
The statement of goals and aspirations is generally not the focus of any request for review. Even if successful in having a plan reviewed, any participant who is dissatisfied with the supports approved by the CEO must still seek review of the CEO’s decision under s 100(2) before being able to lodge an application in the Tribunal for review of any decision under s 103 of the decision on review made under s 100(6). Better for both the participant and the Agency to go straight to the heart of the matter right from the start without adding an extra step of seeking review of the participant’s plan under s 48.
On this occasion, the reviewer has also understood her task as a task on the first avenue. She described it as reviewing the Agency’s earlier decision made on 25 May 2020 not to review Ms Farrall’s decision. She has also framed her decision on review in terms of deciding not to review Ms Farrall’s participant’s plan. The issue is whether she can also be understood to have reviewed the decision to approve Ms Farrell’s statement of participant supports in response to her request dated 25 June 2020.
When reviewing a decision not to review a participant’s plan under s 48(2), it is to be expected that a reviewer will refer to the participant supports. For the purposes of a s 48(2) decision, however, he or she will not engage in a detailed consideration or review of those supports and of what is reasonable and necessary. That is not what is required under s 48(2). Section 48(2) requires the reviewer to decide whether or not to review the participant’s plan. Considerations that will be relevant will include whether or not new information that should be considered, the time between the making of the participant’s plan and the request for review and whether or not any relevant criteria have been overlooked. What they will not include is a consideration of what the statement of participant supports should, or should not, include. That is the task of a review of a decision made under s 33(2) to approve a statement of participant supports.
In this case, the reviewer has gone beyond a review of a decision made under s 48(2) to a review of whether or not the statement of participant supports is appropriate. She has looked at the limits of supports that may, and that may not, be approved by the CEO and determined that the support cannot be provided because it is prevented by Rule 5.1 of the Supports for Participant Rules. That is consistent with Ms Farrall’s having requested review of the supports in her plan. Taking her request and the substance of the reviewer’s decision, I have concluded that the reviewer reviewed not only the decision under s 48(2) but also the decision made under s 33(2). She confirmed both decisions.
DECISION
It follows that the Tribunal has jurisdiction to review the decision made by the reviewer on 14 July 2020 in so far as it reviews and confirms the CEO’s decision to approve the statement of participant supports made on 22 May 2020.
| I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
..........[sgd].............................................................
Personal Assistant
Dated: 14 December 2020
| Heard on the papers: Advocate for the Applicant: | Ms R. Thompson |
Solicitor for the Respondent: | Mr D. McLaren |
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