Ferguson and National Disability Insurance Agency

[2024] AATA 3257

Ferguson and National Disability Insurance Agency [2024] AATA 3257 (9 September 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/9203

Re:Robyn Anne Ferguson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Mischin

Date:9 September 2024

Place:Perth

The decision under review, being the decision of the National Disability Insurance Agency made on 16 November 2023 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the decision made on 25 August 2023 to refuse the Applicant access to the National Disability Insurance Scheme, is affirmed.

........................[Sgd]................................................

The Hon. Michael Mischin, Deputy President

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access to Scheme – age requirements per section 21(2) National Disability Insurance Act 2013 (Cth) – section 21(2) alternative access criteria – prescribed program basis for eligibility – whether the Applicant meets the age requirements – where the Applicant’s guardian contends the Applicant meets the alternative access criteria because she was receiving supports at the time of the request – where Applicant’s guardian contends an administrative error has prevented Applicant’s access to the scheme

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 37J
National Disability Insurance Scheme Act 2013 (Cth) ss 21, 21(1)(a), 21(1)(c)(i), 21(2), 22, 22(1)(a), 100(6), 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 3.1, 3.2, 8.4
National Disability Insurance Scheme (Prescribed Program – Western Australia) Rules 2018 (Cth) rules 1.3, 1.4, 1.5, 3.5, 2.1

CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2019] AATA 4025

SECONDARY MATERIALS
NDIS Applying to the NDIS (guideline of 26 June 2023)

REASONS FOR DECISION

Deputy President the Hon. Michael Mischin

9 September 2024

BACKGROUND

1. The Applicant is a 76-year-old woman, born 12 June 1948, residing in a high-dependency unit in a suburb of Perth. She has a long history of mental illness, dating back to at least 1972 when she was 23 years of age.[1]

   [1] Exhibit R1 T1A 13.

2. The Applicant is represented by her son, who is also her State Administrative Tribunal appointed Guardian.[2] For clarity, I shall refer to matters done on the Applicant’s behalf as being performed by her Guardian.

   [2] Exhibit R1 T11 255-256.

3. On 25 July 2023 the Applicant, through her Guardian, applied for access to the National Disability Insurance Scheme (NDIS or Scheme), identifying her primary disability as Schizophrenia.[3]

   [3] Exhibit R1 T4 228-233.

4. On 25 August 2023, access was refused on the basis that the Applicant did not meet the age requirements prescribed by section 22(1)(a) of the NDIS Act, in that she was not under the age of 65 on the day that she made the application.[4]

   [4] Exhibit R1 T6 235-238.

5. The Applicant’s Guardian requested an internal review of the decision. Following the submission of further information, the internal review was completed on 16 November 2023, confirming the earlier decision and for like reason.[5]

   [5] Exhibit R1 T2 222-226.

6. This application for review and supporting documents were lodged on the Applicant’s behalf on 6 December 2023.

   THE EVIDENCE

7. By emails dated 22 and 23 July 2024 the parties agreed, pursuant to section 37J of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to having the review determined without holding a hearing and ‘on the papers’ lodged with the Tribunal. I am satisfied that the issues for determination can be adequately determined in the absence of the parties. 

8. The Tribunal had before it the ‘T-Documents’ filed by the Respondent pursuant to its obligations under section 37 of the AAT Act,[6] and other documents lodged by the parties over the course of the review, including the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), Rules and Operational Guidelines,[7] and correspondence and reports.

   [6] Exhibit R1.

   [7] Exhibit R1 T14 262-303 and T15 304-358.

9. Accordingly, the Tribunal has received the following as exhibits:[8]

   (a)Exhibit R1: the T-Documents, lodged by the Respondent on 14 December 2023, comprising items T1 to T18 inclusive (which includes documents lodged for the Applicant on 6 December 2023);

   (b)Exhibit R2: National Disability Insurance Scheme (Prescribed Program – Western Australia) Rules 2018 (Cth);[9]

   (c)Exhibit R3: Respondent’s Updated Statement of Issues dated 23 April 2024;

   (d)Exhibit R4: Respondent’s Statement of Facts, Issues and Contentions dated 9 July 2024;

   (e)Exhibit A1: The Guardian’s email with his submission in response to the Respondent’s Statement of Issues, dated 29 April 2024, and accompanying documents;

   (f)Exhibit A2: the Guardian’s email with his supplementary submission dated 1 May 2024, and accompanying document;[10] and

   (g)Exhibit A3: the Applicant’s Statement of Facts, Issues and Contentions dated 24 June 2024 and accompanying documents.

   [8] Copies of several documents had been lodged on different occasions, duplicating the material before the Tribunal. Unfortunately, while the Index to the volume of T-Documents gave page numbers for items T1 to T18 inclusive, the pages were not numbered; conversely, while the volume ‘Brief on the Papers’ filed by the Respondent numbered each of the 574 pages within it, the Index did not identify the pages at which the 11 items within appeared. As it happened, only one of the documents therein was not already in the T-Documents before the Tribunal, which I have identified as Exhibit R2.

   [9] Contained in a ‘Brief on the Papers’ filed by the Respondent on 30 May 2024, pages 309-313.

   [10] National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Exhibit R1 T14.

   ACCESS REQUIREMENTS

10. The relevant requirements for access to the Scheme are set out in sections 21 and 22 of the NDIS Act, which provide as follows:

    21  When a person meets the access criteria

    (1)       A person meets the access criteria if:

    (a)the CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)the CEO is satisfied that, at the time of considering the request:

    (i)the person meets the disability requirements (see section 24); or

    (ii)the person meets the early intervention requirements (see section 25).

    (2)If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:

    (b)the person:

    (i)was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

    (ii)received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and

    (iii)received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;

    (c)if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports;

    (d)the person satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.

    (3)The CEO is taken to have decided that the prospective participant does not meet the access criteria if:

    (a)the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable undersection 20; or

    (b)if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14‑day period referred to in that subsection.

    Note:Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

    22  Age requirements

    A person meets the age requirements if the person was aged under 65 when the access request in relation to the person was made.

    [emphasis in original]

    Age requirements: sections 21(1)(a) and 22

11. The Applicant was 75 years of age when she made her request for access to the Scheme. Section 22 of the NDIS Act specifies that she must be under the age of 65 years. Accordingly, the Chief Executive Officer of the National Disability Insurance Agency (CEO)[11] could not be satisfied that the Applicant met the age requirements in section 21(1)(a). The Guardian acknowledges this.

    [11] NDIS Act section 9 ‘Definitions’.

12. It is noteworthy that the NDIS Act received Royal Assent on 28 March 2013, and foundational provisions of the Scheme, including sections 21 and 22, commenced operation on 1 July 2013. By that time the Applicant was 65 years of age, having celebrated her birthday on 12 June 2013.

13. At the time the NDIS Act came into operation, section 22 provided that:

    (1) A person meets the age requirements if:

    (a) the person was aged under 65 when the access request in relation to the person was made; and

    (b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules.

    [emphasis in original]

14. Accordingly, even if the Applicant had sought to apply immediately upon the Act coming into operation, she would not have met the age requirements.[12]

    [12] Section 22 was repealed and replaced by the current section 22 by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022, effective from 8 April 2022.

15. Section 209 of the NDIS Act provides for the making of rules prescribing matters ‘required or permitted’ by the NDIS Act to be prescribed by rules, or ‘necessary or convenient to be prescribed in order to carry out or give effect to’ the Act. The Tribunal was directed to the following as Rules relevant to the matters in question:

    (a)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules);[13] and

    (b)National Disability Insurance Scheme (Prescribed Program – Western Australia) Rules 2018 (Cth) (Prescribed Program Rules).[14]

    [13] Exhibit R1 T14 262-303.

    [14] Exhibit R2.

16. The Access Rules expand on the interpretation to be applied to the age requirements as follows:[15]

    3.1Generally, a person meets the age requirements if the person was aged from birth up to 65 when the access request in relation to the person was made.

    3.2However, additional age requirements apply, as set out in Schedule A to this Instrument.

    [emphasis in original]

    [15] Exhibit R1 T14 266.

17. Under the subheading ‘Interpretation’ in Part 8 of the Access Rules appear the following:

    8.4      In this Instrument:

    …

    ExistingWA NDIS Participant means a person who:

    (a)is a participant of the WA NDIS Model (whether or not that participant already has a plan prepared in accordance with the Disability Services Commission’s requirements); and

    (b)resides, or resided at any time on or after 1 July 2014, in the area of Western Australia that comprises any of the following:

    (i)Kimberley-Pilbara service region;

    (ii)South Metro service region;

    (iii)Augusta-Margaret River, Boyup Brook, Bridgetown-Greenbushes, Busselton, Donnybrook-Balingup, Manjimup, and Nannup districts of the South West service region;

    (iv)Central South Metro service region;

    (v)Wheatbelt service region; or

    (vi)North East Metro service region.

    Note: The Disability Services Commission is established under the Disability Services Act 1993 (WA) and in the context of the WA NDIS Model, a ‘participant’ is a participant under that Act.

    …

    WA NDIS Model means the disability supports and services model designed to mirror the NDIS, funded or administered by the Department of Communities representing the State of Western Australia.

    [emphasis in original]

18. Schedule A is titled ‘Additional age and residence requirements’ and sets out provisions specific to each State and Territory.[16] The purpose of Schedule A, when read with Schedule B and the then residence requirements in section 23, was to enable a staged expansion of the Scheme into the various service regions within that State or Territory. It also enabled each to have additional rules in respect of age. As to Western Australia (WA), there were no additional age requirements prescribed for any NDIS service region, but a Note to that part of the Schedule states:

    Existing WA NDIS Participants (including those aged 65 and over) may meet the NDIS access criteria if they meet the criteria prescribed in the National Disability Insurance Scheme (Prescribed Program – Western Australia) Rules 2017.

    [16] Exhibit R1 T14 278-287.

19. Appearing after this is the following:

    Schedule A is made for the purposes of paragraphs 22(1)(b) and 23(1)(c) of the Act.

    The reference to section 22(1)(b) is to the section as it stood when the NDIS Act came into operation on 1 July 2013, and until it was replaced by its current form effective from 8 April 2022.[17]

    [17] See n12 supra.

20. The Access Rules referable to WA did not change the age requirements that the Applicant had to satisfy. To be eligible for access, the Applicant had to be under 65 years of age when the specific region in which she lived was in transferred into the NDIS. It is not plain from the papers before the Tribunal where the Applicant was living at the time that her area transferred into the NDIS. The Respondent avers that at the material time she lived and continues to live in a suburb of Perth within the Canning local government area which, by operation of Schedule B of the Rules, is classified as ‘Southeast Metro’. If that is right – and the Guardian has not contradicted it – Southeast Metro transferred to the NDIS on 1 January 2019. At the time of transfer the cut-off age for access was 65, and the Applicant was 70.

21. Even if the Applicant had sought access during the transition period, she would not have met the age requirements for access under the NDIS Act and Rules.

    Alternative access criteria: section 21(2)

22. However, the Guardian argues that that Applicant is not seeking access to the Scheme under section 21(1) of the NDIS Act, but under section 21(2), and that there is sufficient evidence upon which the CEO can be satisfied that the Applicant meets its criteria for access.[18] In support of that, the Guardian has provided evidence that the Applicant has had supports from Milperra Respite Cottage as ‘Other Health Care Accommodation’ and Maudie Armstrong Lodge as ‘Psychiatric Residential’, and material he says supports an argument that an administrative error has occurred that has prevented the Applicant being transitioned into the Scheme.

    [18] Exhibit A3, at [8], [9].

23. As will be noted from paragraph 10 above, section 21(2) of the NDIS Act focuses on whether the person seeking access was receiving supports from a program prescribed by the NDIS rules; was doing so for such period as may be prescribed; and was receiving them at the time of the person’s request for access. The person must also satisfy any other requirements prescribed by the National Disability Insurance Scheme rules, and must show that they will lose their entitlement to the prescribed program supports should they become a participant in the Scheme.

24. The Prescribed Program Rules were made under section 209 for the purposes of section 21 of the NDIS Act and were effective from 11 May 2018. According to the preamble to the Instrument, they were ‘about ensuring that people in Western Australia who are currently receiving supports from certain specified State funded disability services will be supported as participants in the NDIS, provided that they meet the access criteria set out in section 21 of the Act.[19] Part 1 of the Prescribed Program Rules tells that the Scheme had initially been implemented in the Perth Hills trial site, and the State of Western Australia had also implemented an NDIS ‘comparative model’ operated under State legislation, namely, the ‘WA NDIS Model’ defined in the Access Rules.[20] The Prescribed Program Rules recount how the NDIS would be implemented progressively in WA as set out in the Access Rules, and that the WA NDIS Model would cease in each NDIS Area in WA upon transition of that area to the NDIS.[21]

    [19] Exhibit R2 309.

    [20] Prescribed Program Rules rule 3.5.

    [21] Prescribed Program Rules rule 1.3.

25. While the Prescribed Program Rules contain no provisions prescribing criteria for section 21(2)(b)(i) or (ii), or for section 21(1)(d) of the NDIS Act, they do specify a program for the purposes of section 21(2)(b)(iii).

26. Rule 1.4 advises:

    To access the NDIS, each Existing WA NDIS Participant must make an access request to the Agency to become a participant under the NDIS. Under subsection 21(2) of the Act, a person who does not meet the access criteria specified under subsection 21(1), may be considered against the alternative access criteria under subsection 21(2).

27. Rule 1.5 reinforces and expands upon this as follows:

    This instrument is made for the purposes of subsection 21(2) and section 209 of the Act. This instrument makes the WA NDIS Model a prescribed program for the purpose of subparagraph 21(2)(b)(iii) of the Act. This instrument is to give effect to the agreement between the Commonwealth of Australia and WA to transition Existing WA NDIS Participants (including those aged 65 or over provided they were under 65 years when they became an Existing WA NDIS Participant) into the NDIS, to ensure the continuity of disability supports and services to those people.

    [emphasis added]

28. Rule 2.1 provides that:

    The WA NDIS Model is prescribed for the purposes of subparagraph 21(2)(b)(iii) of the Act.

    Note 1: To satisfy the requirement of subparagraph 21(2)(b)(i) of the Act, an Existing WA NDIS Participant must also be receiving supports under the WA NDIS Model at the time the CEO is considering their access request (see paragraph 21(2)(b) of the Act).

    Note 2: In addition to paragraph 21(2)(b) of the Act, the CEO must also be satisfied that an Existing WA NDIS Participant meets the requirements of paragraphs 21(2)(a) and (c) of the Act.

    [emphasis in original]

29. Accordingly, section 21(2) would ensure that those persons receiving supports from the WA NDIS Model would be able to transition into the Scheme notwithstanding that they may be over the age of 65 at the time of transition. It would also ensure that they would not be able to continue to receive supports from both the Scheme and the State. However, they must have been under the age of 65 to be eligible for access to the WA NDIS Model. It would have been inconsistent with the philosophy of the NDIS to permit those over the age of 65 entry into a ‘comparative model’ to the Scheme, but entirely reasonable to recognise that they may be over 65 when transferred into the Scheme from the comparative model.

30. The Applicant would satisfy the criteria of section 21(2)(b) if it could be demonstrated that on the date she requested access (25 July 2023), she was receiving supports as a participant under this comparative NDIS model funded or administered by the Western Australia Department of Communities under the Disability Services Act 1993 (WA). However, while the Guardian has asserted that the Applicant was receiving supports from WA Health at the time of the transition, there is no evidence that the Applicant was ever a participant in the WA NDIS Model, let alone that at the relevant time she was an Existing WA NDIS Participant within the meaning of rule 8.4 of the Access Rules. In fact, militating against that is the letter from the Department of Communities dated 6 June 2023 to the effect that a search of its records revealed no disability records pertaining to the Applicant.[22]  

    [22] Exhibit R1 T3 227.

1. In the absence of any evidence demonstrating that the Applicant was a participant of the WA NDIS Model, the Tribunal cannot be satisfied that the Applicant meets the access requirements under section 21(2).

2. For completeness, I should mention the Guardian’s assertion that there has been some ‘administrative error’ that has excluded the Applicant from entry into the Scheme.[23] It is unclear what that error is said to be. If it is that the Bilateral Agreement between the Commonwealth and the State of Western Australia was broader in scope than the legislation governing the Scheme,[24] it is not a matter the Tribunal can rule on. The Tribunal, like the CEO and any other decision-maker delegate exercising powers under the Act, can only operate within the available legal framework. Likewise, contentions on behalf of the Applicant that the transfer of people to the NDIS in WA was not as efficient or effective as it might have been, and to an individual’s disadvantage, even if proven cannot override the legislative requirements.

   Western Australia’s ‘defined programs’

   [23] Exhibit A1.

   [24] Exhibit R3 at [11].

3. The Guardian avers that the Applicant has ‘had many “defined programs” of support where she was supported by WA Health for her disability’.[25]

   [25] Exhibit R1 T1 10.

4. The Tribunal is informed that for the purposes of streamlining the NDIS access process during the period of the nationwide transition to the Scheme, the NDIA CEO approved a list of disability services administered by Commonwealth, state and territory governments as ‘defined programs’. Where a person is identified by the relevant jurisdiction as receiving support from a defined program, the person is considered to meet the disability requirements for NDIS access under section 24.[26]

   [26] Exhibit R4 at [26].

5. The application of the NDIS Act and its Rules is supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[27]

   [27] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 at [9].

6. The Tribunal had before it the NDIS’s Applying to the NDIS guideline of 26 June 2023.[28]

   [28] Exhibit R1 T15 304-358.

7. List C of the Applying to the NDIS guideline[29] sets out WA services, formerly administered by the WA Government and now ceased, considered to be ‘defined programs’, namely:

   [29] Exhibit R1 T15 343.

   ·WA state-administered National Disability Insurance Scheme

   ·Supported Community Living

   ·Community Residential

   ·Day Options

   ·Disability Professional Services

   ·Emergency Accommodation

   ·Respite

   ·LAC Coordination

   ·Recreation

8. The question of if an applicant for access to the Scheme is receiving supports from a defined program is relevant only to whether the person meets the disability requirements under sections 21(1)(c)(i) and 24 of the NDIS Act. It does not affect the necessity of an applicant meeting the age or residential requirements. Even if a person is supported under a defined program (and, as a matter of policy considered by the Agency to satisfy the disability requirements), they must still satisfy the age requirement of section 22.[30]

   [30] Exhibit R1 T15 343.

9. The Tribunal is informed that the Applicant’s details are not included in the NDIA’s transition data, indicating that WA Department of Communities did not identify the Applicant as having been part of a defined program (or any other WA Department of Communities-administered disability-specific program).[31]

   [31] Exhibit R4 at [30].

10. Nevertheless, even if the Applicant was receiving supports under a defined program, it does not mean that the Applicant satisfies section 21(2). The question is whether the Applicant was an Existing WA NDIS Participant and, if so, whether she was under the age of 65 years when she became one.

    Bilateral Agreement

11. The Guardian places emphasis on the Bilateral Agreement between the Commonwealth and Western Australia – Transition to a National Disability Insurance Scheme in Western Australia (Bilateral Agreement).[32] As noted, the Guardian seems to contend that the Applicant was meant, as part of that agreement, to be transferred into the Scheme but wasn’t.

    [32] Exhibit R1 T1K 95-193.

12. The Bilateral Agreement was an intergovernmental agreement entered into between the Commonwealth and the State of Western Australia. It replaced an earlier agreement[33] and set out the ‘the roles and responsibilities’ of the respective governments ‘for the transition to full coverage of an NDIS in WA’.[34] Paragraph 8 states:[35]

    This Agreement will cover transition during which all eligible existing WA disability service clients, eligible Commonwealth clients and estimated new participants are transitioned into the NDIS and other transitional arrangements are being implemented, including the transition of trial participants in the NDIA and WA NDIS administered sites.

    [33] Exhibit R1 T1K 98, paragraph 7.

    [34] Exhibit R1 T1K 96, paragraph 3.

    [35] Exhibit R1 T1K 98.

13. The Bilateral Agreement is relevant for determining the policy informing the transition to the NDIS in WA and the touchstone for each government’s understanding of its respective entitlements and obligations. However, as already mentioned, it cannot determine the eligibility of persons seeking to gain access to the Scheme. The Tribunal, like the original decision-maker, is bound to apply the legislative criteria prescribed by the NDIS Act and Rules. There is no cause to resort to extrinsic material to understand the legislation in this case.[36]

    [36] Exhibit R4 at [31]-[32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, at [47].

    CONCLUSION

14. Having regard to the above, I am not satisfied that the Applicant’s satisfies the age requirements for access to the NDIS. 

15. Accordingly, I affirm the decision under review.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision of Deputy President Mischin

....................[Sgd]....................................................

Associate

Dated: 9 September 2024

Date(s) of hearing:	3 September 2024 (on the papers)
Applicant:	Robyn Anne Ferguson
Representative for the Applicant:	Karl Ferguson
Solicitors for the Respondent:	Isabella Goodwin, Makinson d’Apice Lawyers