FFVQ and National Disability Insurance Agency
[2018] AATA 1968
•2 July 2018
FFVQ and National Disability Insurance Agency [2018] AATA 1968 (2 July 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/3237 and 2017/6358
Re:FFVQ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:2 July 2018
Place:Canberra
The Tribunal lacks jurisdiction to stay the Agency’s plan dated 27 January 2016 in respect of the Applicant.
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Deputy President Gary Humphries
Catchwords
National Disability Insurance Scheme – Jurisdiction – Statement of supports is not to be conflated with a plan – Plan is not a decision to which the relevant proceeding relates – Tribunal lacks jurisdiction to stay the operation of the National Disability Support Agency’s plan.
Legislation
Administrative Appeals TribunalAct 1975 s 26, 41
National Disability Insurance Scheme Act 2013 ss 33, 37, 48, 49, 99, 100, 103
Cases
SHGH and National Disability Insurance Agency [2018] AATA 674
QZHH and National Disability Insurance Agency [2018] AATA 1465REASONS FOR DECISION
Deputy President Gary Humphries
2 July 2018
INTRODUCTION
The Applicant, FFVQ, is a young woman living in Canberra. She became a participant in the National Disability Insurance Scheme (NDIS) in March 2015. Pursuant to s 37 of the National Disability Insurance Scheme Act 2013 (the Act) three plans have been produced for her by the National Disability Insurance Agency (the NDIA or the Agency) since then.
Section 33 of the Act provides that a plan must include a Statement of Participant Supports. The supports provided for FFVQ under the second and third plans (Second Plan and Third Plan) are less than those provided under the first plan (First Plan). As a result, she applied to the Tribunal for merits review in relation to the supports provided for in the Second Plan (Matters 2016/3237 and 2017/5072) and the Third Plan (Matter 2017/6358). After hearing the parties, the Tribunal determined that it had jurisdiction to hear the applications in respect of the Second Plan (Matter 2016/3237) and the Third Plan (Matter 2017/6358), but not the other application in respect of the Second Plan (Matter 2017/5072). By consent, the Tribunal dismissed the latter application on 30 April 2018.
FFVQ has made an application to the Tribunal to stay the operation of the Second Plan until the Tribunal’s review is completed with the consequential restoration of the First Plan.[1] The application is supported by a contention that the NDIA had no power to promulgate the Third Plan, in that, by purporting to do so, it breached s 26 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which provides that a decision under review by the Tribunal may not be altered except with the consent of the parties and the Tribunal. Since the Third Plan could not be lawfully enacted, it was contended, the Tribunal has jurisdiction to stay the Second Plan with the effect that the First Plan – with its higher level of supports for FFVQ – would be restored to operation.
[1] In this decision, italicised text is generally used to indicate direct quotations.
BACKGROUND
The parties agreed on the relevant facts against which the Tribunal’s decision is to be made. This chronology outlines those facts:
·16 February 2015 – FFVQ applied for access to the NDIS
·13 March 2015 – FFVQ became a participant in the scheme
·10 July 2015 – FFVQ’s First Plan commenced with a plan review date of 13 April 2016
·27 January 2016 – the Second Plan commenced with a plan review date of 26 January 2017
·8 March 2016 – FFVQ sought internal review of the Second Plan
·13 May 2016 – NDIA completed its internal review of the decision to approve the Second Plan, in response to the request of 8 March 2016
·21 June 2016 – FFVQ applied to the Tribunal for review of NDIA’s decision dated 13 May 2016 (2016/3237)
·8 May 2017 – NDIA wrote to FFVQ regarding the approval of a Third Plan that commenced on 23 February 2017 with a plan review date of 23 February 2018
·11 August 2017 – NDIA received a request for an internal review of NDIA’s decision of 8 May 2017 to approve the Third Plan
·18 October 2017 – NDIA completed its internal review of the decision to approve the Third Plan, in response to the request of 11 August 2017
·26 October 2017 – FFVQ applied to the Tribunal for review of NDIA’s decision dated 18 October 2017 (2017/6358).
This chronology omits many other engagements between FFVQ, her representatives and NDIA because it has not been necessary to recount them for the purposes of this decision. The Tribunal was advised that, although the review date for the Third Plan has now passed, a fourth plan has not as yet come into effect.
THE RELEVANT LEGISLATION
Section 33 of the Act provides:
A participant's plan must include a statement (the statement of participant supports ), prepared with the participant and approved by the CEO, that 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.
Section 37 provides:
(1)A participant's plan comes into effect when the CEO has:
(a)received the participant's statement of goals and aspirations from the participant; and
(b)approved the statement of participant supports.
A participant's plan cannot be varied after it comes into effect, but can be replaced under Division 4…
A participant's plan ceases to be in effect at the earlier of the following times:
(a)when it is replaced by another plan under Division 4;
(b)when the participant ceases to be a participant.
Section 48 provides:
(2)A participant may request that the CEO conduct a review of the participant's plan at any time.
The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Section 49 provides:
…If the CEO conducts a review of a participant's plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Section 100 provides:
Review of reviewable decisions
(1)The CEO must give written notice of a reviewable decision to each person directly affected by the reviewable decision. The notice must include a statement:
(a)that:
(i) the person may request the CEO to review the reviewable decision; or
(ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b)that the person may seek further review under section 103.
(2)A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3)A request may be made by:
(a)sending or delivering a written request to the CEO; or
(b)making an oral request, in person or by telephone or other means, to the CEO.
(4)If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a)make a written record of the details of the request; and
(b)note on the record the day the request is made.
(5)If:
(a)the CEO receives a request for review of a reviewable decision; or
(b)the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(c)to whom the CEO’s powers and functions under this section are delegated; and
(d)who was not involved in making the reviewable decision.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision…
Section 103 in turn provides for the jurisdiction of the Tribunal:
Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)…
Section 26 of the AAT Act provides:
(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a)if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application--the enactment that authorised the making of the application expressly permits the decision to be altered; or
(aa) if regulations made for the purposes of subsection 25(2) authorised the making of the application--the Norfolk Island enactment under which the decision was made expressly permits the decision to be altered; or
(b)the parties to the proceeding, and the Tribunal, consent to the making of the alteration…
(2)A reference in subsection (1) to the alteration of a decision is a reference to:
(a) the variation of a decision; or
(b) the setting aside of a decision; or
(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.
The power to stay the operation of a decision under review before the Tribunal is contained in s 41(2) of the AAT Act, which provides:
(2)The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
THE PARTIES’ SUBMISSIONS
Counsel for FFVQ made the following submission with respect to the Second Plan. The First Plan, it was contended, purportedly came to an end when it was replaced with the Second Plan on 27 January 2016. The latter is now subject to review by the Tribunal. The Tribunal may ultimately decide to affirm the plan, vary it or set it aside. If the Tribunal sets the Second Plan aside, this would have the effect, it was argued, of restoring the First Plan.
Because an application had been lodged for review of the Second Plan (as FFVQ’s submission put it) before the coming into effect of the Third Plan, s 26 of the AAT Act prevented the Agency from replacing the Second Plan. Thus the Third Plan never came into lawful force.
In response, the NDIA observed that s 99(d) provides that a decision to approve the statement of supports under s 33 is a reviewable decision. The statement of supports, as a component of the plan, is therefore reviewable by the Tribunal by virtue of ss 100(6) and 103, but the plan itself is not reviewable. The NDIA further contended that s 26 does not have the operation argued for by FFVQ. The section provides that a decision the subject of an application for review may not be altered without the consent of the parties and the Tribunal. Subsection (2) provides that alteration of a decision means
(a)the variation of a decision; or
(b)the setting aside of a decision; or
(c)the setting aside of a decision and the making of a decision in substitution for the decision set aside.
The Agency submitted that the replacing of a plan by the coming into operation of a new plan cannot be construed as either a variation or the setting aside of the reviewable decision.
In a further submission, FFVQ conceded that the reviewable decision in this case is not the plan per se but is the decision to approve the statement of supports, but argued that this is a distinction without meaning. Section 33, she contended, provides that the statement of supports is an essential element of the Plan, such that a plan cannot be approved without the statement. A plan without a statement of supports is no Plan at all. She argued:
Thus when section 99 makes the decision on the statement of supports reviewable, it is in fact making the Plan itself reviewable…
If the Tribunal sets aside the statement of supports then it cannot order, or assume the ongoing existence of the Plan minus any statement of supports.
She went on to argue that the possibility the Tribunal may reject a statement of supports, as part of its function of merits review, means that the plan and its statement are linked, such that merits review of a statement becomes review of the plan under which it is made. With respect to the operation of s 26, she observed that the making by the NDIA of a new plan every 12 months or so would have the effect of ousting the Tribunal’s jurisdiction to review a statement of supports since the plan under which the statement had been promulgated would cease to be in operation. This, she argued, cannot have been the intention of the legislature.
CONSIDERATION
The contentions of the Agency must be supported. A statement of supports is not to be conflated with a plan promulgated under s 37.
Evidently, the legislation ensures that certain decisions made in respect of a participant’s plan are reviewable by the Tribunal. Those decisions are listed exhaustively in s 99. These include a decision to approve a statement of supports (paragraph 99(d)), a decision not to review a plan (paragraph (f)) and a decision to appoint a plan nominee (paragraph (l)). It is passably clear that the architecture of the Act evinces the intention, expressio unius est exclusio alterius, that a decision to bring a participant’s plan into effect under s 37 is not a reviewable decision.
It is hard to conceive of a plan having any meaningful operation without a statement of supports, which defines the quantum of assistance which a participant can expect from the NDIA during the life of that plan. But the practical dependence of one concept on the other does not permit the Tribunal to acquire jurisdiction over a category of decision-making in the absence of any clear legislative intent to that effect. FFVQ maintains that a plan without a statement of supports is no Plan at all. In a practical sense, however, it is difficult to imagine a fair-minded decision-maker – whether the CEO or the Tribunal standing in his or her shoes – leaving a plan in that unhappy state.
The legislative and practical separation of the two concepts was recognised by the Tribunal in SHGH and NDIA [2018] AATA 674. There, a participant sought review of the Agency’s decision, maintaining that the level of support offered in a plan set up under s 37 did not fully fund the program required and that the plan should be for a period of 12 months rather than six. Deputy President Constance at [11] stated:
In this application the decision under review is the decision to include in the plan funding for intensive therapeutic supports calculated on the basis of decreasing therapy hours over the six month period of the plan, being 4 September 2017 to 4 March 2018. The Tribunal is not conducting a review of the plan as a whole. This is made clear by the provisions of the NDIS Act.
He later added at [26]:
I reiterate that it is the decision relating to the supports being provided, not the Plan itself, which is under review.
The contention of counsel for FFVQ that such an approach will generally oust the jurisdiction of the Tribunal must be rejected. It is theoretically possible for the NDIA to be bloody-minded by, say, enacting a new plan while a subsisting plan is being reviewed by the Tribunal. In practice however, the Agency has generally agreed to act co-operatively to avoid rendering the Tribunal’s work nugatory, for example by extending the life of a plan in issue for longer than the usual 12 months. In other cases, it has agreed to amend later plans to include any additional or increased supports identified by the Tribunal in reviewing earlier but superseded plans; see for example QZHH and NDIA [2018] AATA 1465 at [49]. Even if it were not to take such measures, the Tribunal’s review of a particular statement of supports may still have effect in many circumstances, including where a participant has incurred costs which the Agency was not originally prepared to fund. Indeed, that is the case in these proceedings where, the Tribunal was told, FFVQ has purchased or been provided with supports at a higher level than sanctioned by the Second and Third Plans, but where she can expect reimbursement in the event that she is wholly or partially successful in her substantive applications.
On that assessment of what the Tribunal has jurisdiction to consider on an application such as this, the replacement of one plan by another does not constitute the alteration of a reviewable decision pursuant to s 26 of the AAT Act.
It follows that the Tribunal has no power, pursuant to s 41(2) of the AAT Act, to stay the operation of the Second Plan. The operation of the Second Plan is not a decision to which the relevant proceeding relates, nor could it be said that a stay is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Accordingly, it is unnecessary to determine the question of whether the operation of the First Plan is restored by a decision to stay the Second Plan. The NDIA contended that a plan remains in force until it is replaced by another plan. It referred to the passage in SHGH where Deputy President Constance opined (at [20]):
… there is nothing to suggest that the Plan does not continue in force. It is clear from the wording of section 37 of the Act that, provided a participant continues to be a participant in the scheme, a Plan continues until it is replaced by another Plan…
The agency submitted that staying the operation of the Second Plan does not have the consequence of restoring the First Plan, since the latter ceased to have effect on the promulgation of the former.
The staying of an operational decision does not proceed on the premise that the decision so stayed was legally flawed or ultra vires the decision maker. The fact that the decision is stayed, if that occurs, does not have the effect, it seems to me, of rescinding the legal effect of it having been made in the first place, including, in the present circumstances, its effect of replacing the First Plan. However, it is unnecessary to reach a concluded view on this point.
ADDITIONAL COMMENT
Notwithstanding the Tribunal’s finding that it lacks jurisdiction to stay the operation of the Second Plan, some comment is warranted on the NDIA’s approach to FFVQ’s situation.
Extensive submissions were made by the parties addressing the question of whether the Tribunal had jurisdiction to consider each of the three applications FFVQ has made to the Tribunal. Some hours were then devoted over two hearings to the task of considering this question of jurisdiction as well as resolving the issue of whether a stay could be granted. The resources each of these steps consumed may not have been necessary but for the haphazard approach of the NDIA to the making of decisions affecting the needs of FFVQ. Put bluntly, decision-making by the Agency has been slow and difficult to interpret. In the case of Matter 2017/5072, the parties and the Tribunal were put to the task of deciphering whether certain steps taken by the NDIA could be characterised as either internal review or reviewable decisions, or neither, relating to FFVQ’s supports.
The Tribunal observes that FFVQ’s experience in dealing with the NDIA is far from being an isolated one. The steps prescribed by the Act to enable merits review of a decision have not always been taken in a timely and transparent way by the Agency. It seems to the Tribunal entirely inappropriate that a participant, working with finite resources and coping with the added burden of a disability, should need to be left in doubt as to the status of decisions made affecting his or her entitlement to the benefits conferred by the legislation, yet this is precisely the situation many applicants to the Tribunal have found themselves in recently.
Accordingly, the Tribunal urges the responsible minister to consider as a matter of urgency the circumstances which give rise to this entirely unsatisfactory state of affairs, and to assess what measures, administrative or financial, might be required to mitigate it.
CONCLUSION
The Tribunal lacks jurisdiction to stay the Agency’s plan dated 27 January 2016 in respect of FFVQ.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 2 July 2018
Date(s) of hearing: 30 April 2018; and 14 June 2018 Date final submissions received: 14 June 2018 Counsel for FFVQ: Mr Allan Anforth Solicitors for FFVQ: Mr Jeffrey Silk Solicitors for NDIA: Mr Dominic Lay, Wisewould Mahony Lawyers
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