Farrall and National Disability Insurance Agency

Case [2020] AATA 5077

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

  1. 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

  2. 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…

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AGLC
Farrall and National Disability Insurance Agency [2020] AATA 5077
Case
[2020] AATA 5077
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a joint submission from Ms Farrall and the National Disability Insurance Agency (NDIA) regarding the Tribunal's jurisdiction to review a decision. The NDIA had approved Ms Farrall's NDIS plan on 22 May 2020. Subsequently, on 25 May 2020, a delegate of the NDIA's Chief Executive Officer (CEO) informed Ms Farrall that her request for an unscheduled plan review, specifically concerning a shelter for her ramp, would not be granted, citing that the request was not related to her disability-specific needs. Ms Farrall then sought a review of this decision.

The central legal issue before the Tribunal was whether it possessed jurisdiction to review the decision made by the NDIA delegate on 14 July 2020, particularly in so far as that decision reviewed and confirmed the CEO's earlier decision to approve Ms Farrall's statement of participant supports made on 22 May 2020. The Tribunal acknowledged that parties cannot confer jurisdiction by consent, and it must independently satisfy itself of its jurisdictional authority.

The Tribunal, presided over by Deputy S A Forgie P, determined that it did have jurisdiction to review the 14 July 2020 decision. The reasoning was that this decision, by reviewing and confirming the approval of the statement of participant supports, constituted a reviewable decision under the National Disability Insurance Scheme Act 2013. The Tribunal applied the principle that it must have jurisdiction to review decisions that fall within its statutory remit, even if the parties jointly submit that such jurisdiction exists. The Tribunal found that the decision to approve the statement of participant supports was a decision that it could review.

Orders

Orders of the court

Request for review

Background

Background to the litigation

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 JJBACKGROUND 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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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