FDFF and National Disability Insurance Agency - [2020] AATA 3385

FDFF and National Disability Insurance Agency [2020] AATA 3385 (4 September 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/8279
Re:FDFF
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:4 September 2020
Place:Sydney

The Tribunal has jurisdiction to review the decision to approve the statement of participant supports made on 24 October 2018. That statement of participant supports ceased when Plan 2 came into effect on 22 October 2019. The Tribunal’s jurisdiction is limited to reviewing the statement of participant supports that was in effect from 24 October 2018 to 22 October 2019.
...............................[sgd].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction issue – National Disability Insurance Scheme – statement of participant supports – mischaracterisation of request to review – internal review – right of review to the Tribunal – whether period of review limited
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 26, 42D, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 37, 48, 99, 100, 103
CASES
LQMG and National Disability Insurance Agency [2019] AATA 4975
NNXF and National Disability Insurance Agency [2019] AATA 5552
QZHH and National Disability Insurance Agency [2018] AATA 1465
Williamson and National Disability Insurance Agency [2019] AATA 2944
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
4 September 2020
BACKGROUND

This decision is concerned with issues about the jurisdiction of the Administrative Appeals Tribunal (the Tribunal) under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The Applicant is a participant in the National Disability Insurance Scheme. He is under 18 years of age and is represented by his father.
On 24 October 2018 the National Disability Insurance Agency (the NDIA) made a decision under s 33(2) of the NDIS Act to approve a Statement of Participant Supports for the Applicant. The Statement of Participant Supports was contained in what will be described as Plan 1. Plan 1 was in effect from 23 October 2018 to 23 October 2019. A decision under s 33(2) is a reviewable decision pursuant to s 99 of the NDIS Act.
On 14 January 2019 the Applicant’s father requested the decision-maker to review the reviewable decision to approve the Statement of Participants Supports pursuant to s 100(2) of the NDIS Act (the internal review).
The Applicant seeks NDIS funding for the following supports:
(a)Capital Supports funding of $5,000 for a modified bike;
(b)Capacity Building Supports including 60 hours of Occupational Therapy per year, 110 hours of Speech Therapy and assessments per year, and provision of orthotic casting, footwear and custom orthotics annually;
(c)Core Supports funding of $1,500 for podiatry assessments and reviews; and
(d)Weekly access to Applied Behaviour Analysis (ABA) therapy.
Section 100(6) of the NDIS Act requires the NDIA to make a decision in relation to the request for the internal review as soon as reasonably practicable. The NDIA did not make a decision about that request for…

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 FDFF and National Disability Insurance Agency

Details

AGLC: FDFF and National Disability Insurance Agency [2020] AATA 3385
Case: [2020] AATA 3385
Decision Date: 4 September 2020

CaseChat Overview and Summary

This matter concerned an application by FDFF to the Administrative Appeals Tribunal (AAT) for review of a decision made by the National Disability Insurance Agency (NDIA) concerning the applicant's statement of participant supports. The dispute centred on whether the Tribunal had jurisdiction to review the NDIA's decision of 24 October 2018, and if so, whether the period of review was limited to the life of the applicant's first plan.

The Tribunal was required to determine two primary legal issues. Firstly, whether it possessed jurisdiction to review the NDIA's decision approving the statement of participant supports made on 24 October 2018, particularly given the significant time lapse between the applicant's request for an internal review and their subsequent application to the Tribunal. Secondly, the Tribunal had to consider whether the scope of its review of the 24 October 2018 decision was confined to the period covered by the applicant's first plan, which had since expired.

The Tribunal found that it did have jurisdiction to review the 24 October 2018 decision. This was based on the interpretation of section 100(6) of the NDIS Act, which allows the Tribunal to find that the NDIA did not make a decision as soon as reasonably practicable. In this instance, the Tribunal found that the NDIA had not done so, and therefore, pursuant to section 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the NDIA was deemed to have made a decision affirming the original decision, which was reviewable under section 103 of the NDIS Act. Regarding the period of review, the Tribunal determined that the applicant's contention that the jurisdiction extended to the entire intervening period was not supported by the facts. The Tribunal clarified that the NDIA's subsequent decision of 18 March 2020 related to a different plan (Plan 2), which had replaced Plan 1. Therefore, the reviewable decision remained that of 24 October 2018, and the Tribunal's review was not limited by the expiry of Plan 1.

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

For those reasons the Tribunal has jurisdiction to review the decision to approve the statement of supports made on 24 October 2018. Is the period of review of the 24 October 2018 decision limited to the life of Plan 1? The Applicant contended that the Tribunal’s jurisdiction is not limited by the fact that since 22 October 2019 Plan 1 is no longer in effect, and jurisdiction extends to “the entire intervening period”, relying on QZHH and National Disability Insurance Agency [2018] AATA 1465. At paragraph 65, the Tribunal said: [R]esolution which is purely historical about what should have been approved and provided to the Applicant as reasonable and necessary supports at some earlier point in time (but the time has since passed for the Applicant to access those supports), would serve little or no benefit to the parties and is likely to lead to frustration. In support of its argument, the Applicant relied on s 43(6) of the AAT which provides:A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. The NDIA relied on the decisions of Deputy President Forgie in LQMG and National Disability Insurance Agency [2019] AATA 4975 and Williamson and National Disability Insurance Agency [2019] AATA 2944 to argue the contrary position. The Applicant argued that once an application is made to the Tribunal, the decision under review cannot be altered except for two exceptions which do not apply in this case, relying on s 26(1) of the AAT Act. That proposition is correct. Next, the Applicant argued that for that reason, the “purported” alteration by the decision made by the NDIA on 18 March 2020 has no effect. That argument ignores the following. Relevantly, s 37(3)(a) of the NDIS Act provides that a participant’s plan ceases to be in effect when it is replaced by another plan under Division 4. That is what happened in this case. The NDIA conducted a review of Plan 1 before the plan review date of 23 October 2019 as required by s 48(5) of the NDIS Act and prepared a new plan, Plan 2, which came into effect pursuant to s 37(1) of the Act on 22 October 2019. Plan 1 ceased to be in effect on that date. The decision made by the NDIA on 18 March 2020 specifically related to the statement of supports in Plan 2, not to the statement of supports in Plan 1. The reviewable decision relates to the statement of supports in Plan 1. Section 26(1) of the AAT Act does not apply. The Applicant seemed to apprehend that the 18 March 2020 decision had somehow become the reviewable decision. It has not. The reviewable decision is the deemed decision affirming the decision made on 24 October 2018.

Ratio Decidendi

Legal Principle Established

Following the decision of 18 March 2020, the only support in dispute is ABA therapy. The parties are working to resolve the substantive reimbursement issues in relation to the other supports. CONSIDERATION OF THE ISSUESDoes the Tribunal have jurisdiction to review the decision to approve the Statement of Participant Supports made on 24 October 2018? Both parties accept the following. Eleven months had passed from 14 January 2019 when the Applicant requested a review of the decision made on 24 October 2018, to 12 December 2019 when he applied to the Tribunal for review. Therefore, it is open to the Tribunal to decide that the NDIA did not make a decision as soon as reasonably practicable as required by s 100(6) of the NDIS Act. I so find. That being so, because a decision was not made within the prescribed time, pursuant to s 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) as construed in NNXF and National Disability Insurance Agency [2019] AATA 5552, the NDIA is deemed to have made a decision affirming the 24 October 2018 decision which is reviewable by the Tribunal pursuant to s 103 of the NDIS Act. For those reasons the Tribunal has jurisdiction to review the decision to approve the statement of supports made on 24 October 2018. Is the period of review of the 24 October 2018 decision limited to the life of Plan 1? The Applicant contended that the Tribunal’s jurisdiction is not limited by the fact that since 22 October 2019 Plan 1 is no longer in effect, and jurisdiction extends to “the entire intervening period”, relying on QZHH and National Disability Insurance Agency [2018] AATA 1465. At paragraph 65, the Tribunal said: [R]esolution which is purely historical about what should have been approved and provided to the Applicant as reasonable and necessary supports at some earlier point in time (but the time has since passed for the Applicant to access those supports), would serve little or no benefit to the parties and is likely to lead to frustration. In support of its argument, the Applicant relied on s 43(6) of the AAT which provides:A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. The NDIA relied on the decisions of Deputy President Forgie in LQMG and National Disability Insurance Agency [2019] AATA 4975 and Williamson and National Disability Insurance Agency [2019] AATA 2944 to argue the contrary position. The Applicant argued that once an application is made to the Tribunal, the decision under review cannot be altered except for two exceptions which do not apply in this case, relying on s 26(1) of the AAT Act. That proposition is correct.