FDFF and National Disability Insurance Agency
[2020] AATA 3385
•4 September 2020
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.
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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 2944REASONS 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 review.
The NDIA mischaracterised the internal review request. It understood it to be a request to review Plan 1 pursuant to s 48(1) of the NDIS Act which allows for a participant to make a request for review at any time. On 27 April 2019, the NDIA decided not to conduct an unscheduled plan review of Plan 1 under s 48 of the NDIS Act but did not inform the Applicant of that decision.
Both parties accepted that on 22 October 2019 the NDIA made a decision under s 33(2) of the NDIS Act to approve a Statement of Participant Supports for the Applicant which was included in what will be described as Plan 2. Plan 2 was in effect from 22 October 2019 and was to end on 21 October 2020.
On 12 December 2019 the Applicant applied to the Tribunal. Section 103 of the NDIS Act gives the Tribunal the power to review decisions made under s 100(6). At that time, the NDIA had not made a decision under s 100(6) of the NDIS Act about the Applicant’s request for review made on 14 January 2019.
On 18 March 2020, the delegate of the NDIA made a decision reviewing the statement of supports in Plan 2. In the letter notifying the Applicant’s father of that decision, the delegate stated that the review had been at the Applicant’s request under s 100 of the NDIS Act. Therefore, it purported to be a decision made pursuant to s 100(6) of the NDIS Act. The letter notified the Applicant of the right of review in the Tribunal. The letter stated:
The outcome you sought from the internal review was:
1. Funding for a modified bike.
2. An increase in Capacity Building, Improved Daily Living budget as per recommendations for 60 hours of Occupational Therapy (OT), 110 hours of Speech Therapy and assessments, and funding for podiatry assessments and reviews.
3. Funding for Orthotics for casting, footwear and custom orthotics annually.
I am satisfied the supports you requested are reasonable and necessary under section 34 of the NDIS Act and satisfy Part of the NDIS (Supports for Participants) Rules 2013.
…
A new NDIS plan is attached which included the supports you requested. The next scheduled review date has been changed and the date is on the new plan.
The plan attached to the letter started on 18 March 2020 and the plan review due date is 18 March 2021. That is Plan 3.
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 ISSUES
Does 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.
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.
Next, the Applicant argued that the Tribunal’s jurisdiction is not limited by Plan 1 “created as a result of the decision under review no longer being in effect”.
First, Plan 1 was not created as a result of the decision under review. The statement of supports in Plan 1 was the subject of the reviewable decision. Section 33 of the NDIS Act sets out what must be included in a participant’s plan. A statement of participant supports is one component of a plan. This Tribunal has no jurisdiction to review plans. A decision not to reassess a participant’s plan under s 48(2) of the NDIS Act is a reviewable decision under s 99 of the NDIS Act. When a decision on review has been made under s 100(6) in respect of s 48(2), then the Tribunal will have jurisdiction to review that decision.
The issue is whether the Tribunal’s jurisdiction is limited because Plan 1 is no longer in effect.
A statement of participant supports must be prepared and included in a plan.[1] In the period of concern, there have been three plans and three statements of participant supports. As Deputy President Forgie said in Williamson and National Disability Insurance Agency [2019] AATA 2944:
In practical terms, replacement of the plan means that the CEO has approved a new participant’s plan and not a variation of the previously existing plan. Replacement of plan does not mean that the replaced plan is of no relevance. If the CEO’s decision under s 33(2) to approve the statement of participant support has been reviewed under s 100(6) of the NDIS Act and an application made to the Tribunal for review of the decision under s 100(6), that application remains on foot. The fact that a new plan with a new statement of support has been made does not replace the decision under s 100(6) that is the subject of the review … .
[1] Section 33(2) of the NDIS Act.
The reviewable decision relates to the statement of participant supports that was approved and included in Plan 1 which ceased to be in effect on 22 October 2019. An application has been made to the Tribunal for review and it remains on foot but is limited in effect to the period when Plan 1 and the statement of supports approved for the purpose of that plan, were in effect. Section 43(6) of the AAT Act does not change the operation of the NDIS Act.
The decision made on 18 March 2020
The parties had very different positions on the decision made on 18 March 2020.
The Applicant’s father stated very clearly that he did not request a review of the statement of supports in Plan 2 because he wanted to seek reimbursement for expenditure during the life of Plan 1. He said that he received an email from the NDIA suggesting that a way forward would be to conduct a review of Plan 2 but he declined. The Applicant’s legal representative was similarly firm on the issue: it was not a decision made pursuant to s 100(6) of the NDIS Act and the Applicant did not propose to rely on it to seek review of that decision in the Tribunal.
The NDIA put the following arguments. Plans 2 and 3 were in “one stream”. The NDIA took the Applicant’s application to the Tribunal lodged in December 2019 to be a request for a review of the statement of supports in Plan 2 pursuant to s 100(2) of the NDIS Act and made a decision pursuant to s 100(6). A request for a review under s 100(2) can be made in writing or orally.[2] The request must be made within three months after receiving the notice of the reviewable decision.[3] The NDIA has taken a pragmatic approach to ensure all issues, historical and current, can be ventilated. The Applicant would have to apply to the Tribunal for review of the 18 March 2020 decision and seek an extension of time within which to do so because the appeal period to the Tribunal has lapsed. The NDIA would not be opposed to the extension of time being granted. The NDIA considered that this proposal would resolve the jurisdictional issues in this matter. If the Applicant argued that the decision of 18 March 2020 has no effect, he has no right of review of the statement of supports in Plan 2.
[2] Section 100(3) of the NDIS Act.
[3] Sections 100(1) and (2) of the NDIS Act.
In response to the Tribunal expressing its concern that there was a gap in the Tribunal’s potential jurisdiction between 22 October 2019, when Plan 1 ceased and was replaced by Plan 2, and 18 March 2020 because Plan 3 had come into effect, the NDIA argued that the 18 March 2020 decision varied the decision made on 22 October 2019. Therefore the Tribunal would have jurisdiction to review the decision to approve the statement of participants supports from 22 October 2019.
Given the Applicant’s clearly expressed and maintained position after hearing the NDIA’s position, it is unnecessary to consider further the decision made on 18 March 2020. The Applicant does not seek to rely on that decision to proceed to review of it in this Tribunal.
Should the reviewable decision be remitted to the NDIA pursuant to s 42D of the AAT Act?
The Applicant requested that the reviewable decision be remitted to the NDIA for reconsideration pursuant to s 42D of the AAT Act for a decision to be made effectively in terms of the decision made on 18 March 2020 and that the Tribunal continue to hear the issue of whether ABA therapy is a reasonable and necessary support.
That submission was made based on the Applicant’s arguments that the decision made on 18 March 2020 had no effect due to the operation of s 26(1) of the AAT Act and that a decision made in respect of Plan 1 had continuing effect. Those arguments have been rejected for the reasons set out above. The NDIA did not consider there was any utility in remitting the reviewable decision pursuant to s 42D.
The Tribunal cannot direct the NDIA to make any particular decision under s 42D of the AAT Act. Given the NDIA’s position, there is no utility in remitting the reviewable decision pursuant to s 42D.
CONCLUSION
The Tribunal has jurisdiction to review the decision to approve the statement of participant supports made on 24 October 2018. The 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.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 4 September 2020
Date(s) of hearing: 28 August 2020 Solicitors for the Applicant: Ms D Brown, Legal Aid NSW Solicitors for the Respondent: Ms Z Harwood, National Disability Insurance Agency
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