Gabriela and Chief Executive Officer, National Disability Insurance Agency
[2024] AATA 741
•15 April 2024
Gabriela and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 741 (15 April 2024)
Division: National Disability Insurance Division
File Number(s):2023/0579
Re:Gabriela
APPLICANT
Chief Executive Officer, National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Member P French
Date:15 April 2024
Place:Sydney
1.Leave is granted to the Applicant to amend the application to apply for an order to set-aside the summons issued to My Plan Manager.com.au Pty Ltd ABN 52617963676.
2.The Applicant’s application to set aside the summons issued to My Plan Manager.com.au Pty Ltd ABN 52617963676 dated 6 March 2024 is refused.
3.Pursuant to subsection 40B(1) of the Administrative Appeals Tribunal Act1975, the Tribunal has determined that each party is given leave to inspect the documents produced under summons referred to in the following schedule, in the order and from the dates set out in the following schedule:
Party with leave to inspect documents
Documents produced by (date produced)
Party’s leave to inspect documents commences
Gabriela
My Plan Manager.com.au Pty Ltd ABN 52617963676 (20 March 2024)
16 April 2024
National Disability Insurance Agency
My Plan Manager.com.au Pty Ltd ABN 52617963676 (20 March 2024)
23 April 2024
If the party with first access objects to the other party inspecting all or some of those documents, the other party’s leave to inspect the documents in relation to which the objection is made is suspended until the objection is determined by the Tribunal.
If:
(a) the party with first access notifies the Tribunal and the other party in writing that it does not object to the other party inspecting all or some of the documents; and
(b) this notice is given before the time at which the other party’s leave to inspect those documents is to commence in accordance with paragraph 3;
the other party may inspect those documents from the time the Tribunal is given the notice.
..............[SGD]...................
Member P French
Catchwords
PRACTICE AND PROCEDURE – objection by the Applicant to the issue of a summons to a registered plan management provider – where registered plan manager is no longer the Applicant’s registered plan manager – where objection was made after issue of summons – where summons has been complied with as at the date of the hearing – whether documents the subject of the summons are relevant to the review – whether summons constitutes a fishing expedition - whether summon lacks necessary particularity – application to set aside summons dismissed
Legislation
Acts Interpretation Act 1901 (Cth), s 33
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 33(1AA), 34E, 37, 38AA, 39, 40A, 40B
National Disability Insurance Scheme Act 2013 (Cth), s 33, 42, 43, 44, 48, 99, 100, 103National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Beezley v Repatriation Commission [2015] FCAFC (2015) 150 ALD 11
Department of Planning, Industry and Environment v Blacktown City Council [2012] NSWCA 145
Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577
Kollias and National Disability Insurance Agency, (No 2) [2023] AATA 1702
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
QLYQ and National Disability Insurance Agency [2022] AATA 4384
Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90; [1989] FCA 248
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 372REASONS FOR DECISION
The substantive application
The substantive matter before the Tribunal is an application by Sabrina Gabriela (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) for administrative review of an internal review decision made by the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) under s 100(6) on 31 January 2023 which affirmed an original decision of the CEO made on 15 November 2022 to approve a statement of participant supports under s 33(2) in response to her request under s 48 of that Act for a reassessment of her Participant Plan.[1] This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review this decision because it is designated a reviewable decision by s 99 (item 4) of the NDIS Act.
[1] T2, pages 21 - 35.
The substantive application was filed with the Tribunal on 1 February 2023.[2] Since that time the parties have participated in 5 Case Conferences conducted by a Conference Registrar where they have sought to clarify and narrow the issues in dispute and prepare the matter for conciliation. A conciliation conference is currently scheduled for 28 May 2024. The matter has not yet been constituted to a Tribunal Member for Hearing.
[2] T1, pages 1 - 5.
If this matter does proceed to final hearing the Tribunal will ultimately be required to undertake an independent assessment of the facts on the material before it as at the date of the hearing to reach its own conclusion as to what is the correct or preferable decision according to law in relation to the Applicant’s request for reassessment of her Participant Plan. This is, in essence, to do again what the original decision-maker did.[3]
[3] Shi v Migration Agents Regulation Authority [2008] HCA 31 at [141]; (2008) 248 ALR 390 (Shi)
The issue for decision
The issue for decision at this stage of the proceedings is, however, whether the Tribunal ought to exercise the discretion conferred by s 40(A)(2) of the AAT Act to refuse an application the Agency has made to the Tribunal pursuant to s 40A(1)(b) of that Act for the issue of a summons to a registered plan management provider, My Plan Manager.com.au Pty Ltd ABN 52617963676 (My Plan Manager), which, at least until recently, was the Applicant’s plan management provider.
The Agency’s application to issue the summons to My Plan Manager to produce documents was made on 1 March 2024. It was processed by a Deputy Registrar of the Tribunal and a summons was issued to the Agency on 6 March 2024 to serve on My Plan Manager, which it did on 7 March 2024. That summons was returnable on 20 March 2024. As at the date of the hearing My Plan Manager has complied with the summons by producing documents it considers responsive to it. No orders have yet been made for the parties to have access to this material, however.
The Applicant’s objection to the issue of the summons was filed on 8 March 2024, after it had been issued. Nevertheless, the objection is pressed. The Applicant therefore now applies to amend her application to ask that the summons be set aside. In this respect, it is submitted that s 33(3) of the Acts Interpretation Act 1901 (Cth) (AI Act) operates to permit s 40A(1)(b) of the AAT Act to be construed as permitting the Tribunal to “rescind” or “revoke” the summons.
In this respect that section provides:
33 Exercise of powers and performance of duties
…
(3)Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any), to repeal, rescind, amend or vary such an instrument.
The Agency opposes the Applicant’s application to set aside the summons. It submits that the summons should stand and that orders ought to be made to provide the parties with access to the summonsed documents produced by My Plan Manager.
Jurisdiction
A summons issued pursuant to s 40A(1)(b) of the AAT Act is a compulsory administrative direction given to a person not directly involved in a proceeding that requires that person to produce to the Tribunal any document or thing specified in the summons. In this respect I am satisfied that a summons is an instrument of an “administrative character” within the meaning of s 33(3) of the AI Act. It follows from this that, by operation of that section, the power conferred by s 40(A)(1)(b) to decide to grant a party’s request to issue a summons includes a power to rescind or revoke such a decision after it has been made. I do not understand the Agency to contend otherwise.
I therefore grant leave to the Applicant to amend her application to apply for an order that would set aside the summons. For the reasons stated above I am satisfied the Tribunal has jurisdiction to deal with that amended application.
Material considered and hearing
I have considered the following evidence and submissions in determining the outcome of this application:
iThe Agency’s application for the summons dated 1 March 2024, and the summons issued by the Deputy Registrar on 6 March 2024,
iiThe Respondent’s Statement of Issues dated 14 March 2023,[4]
iii.The Respondent’s Statement of Issues dated 23 November 2023,
iv.The Applicant’s Summons Hearing Submissions and Annexures A to C, undated, but filed 20 March 2024,
v.The Respondent’s Outline of Submissions dated 21 March 2024,
vi.MyIntegra NDIS Plan Management Service Agreement signed by the Applicant on 7 March 2024 and post-hearing comments made in relation to it by the legal representatives of the parties in emails copied to the Tribunal dated 25 March 2024.
[4] In the National Disability Insurance Scheme Division of the Tribunal ‘Statements of Issues” are prepared by the Agency for the purposes of the alternative dispute resolution process under Part IV, Division 3 of the AAT Act. Pursuant to s 34E(1) of the AAT Act a document of this nature is presumptively not admissible as evidence in the proceeding. However, 34E(2) permits the parties to agree to such evidence being admitted. In this case both parties referred in their evidence and submissions to the Statement of Issues filed by the Agency on 14 March 2023 and 23 November 2023. Reference to these documents was not subject to objection by either party.
The hearing was conducted by telephone. Ms A Schneider, solicitor, NSW Legal Aid, attended the hearing as the Applicant’s representative. Ms A Barac, solicitor, Maddocks, attended the hearing on behalf of the Agency. The hearing proceeded by oral submissions.
Factual background
It is necessary to set out some short factual background to provide context to the present application.
The Applicant is an existing NDIS participant. She was assessed as eligible for NDIS on the basis on a psychosocial impairment that resulted in significantly reduced functional capacity in specified areas of life.
At all material times for this dispute the funding for supports contained in her statement of participant supports was either ‘plan managed’ (meaning it is managed by a registered plan management provider) or ‘agency managed’ (meaning it is managed by the NDIA) as follows:
i.Core supports – plan managed,
ii.Capacity building supports:
a.Improved life choices – agency managed,
b.Improved daily living – plan managed,
iii.Support co-ordination – plan managed.
In or about October 2022 (the exact date not being in evidence) the Applicant made a request to the Agency for a reassessment of her NDIS Plan pursuant to s 48 of the NDIS Act. By that request the Applicant sought the CEO’s approval of additional supports she contended were reasonable and necessary which were related to a purported significantly reduced functional capacity in specified areas of life that resulted from her psychosocial impairment and physical impairment. The Applicant did not request any change to plan management arrangements as a component of her request for reassessment of her NDIS Plan.
A delegate of the CEO (the delegate) initially refused to carry out a reassessment of the Applicant’s plan, but by notice dated 27 October 2022, the delegate advised that the Agency would do so. [5]
[5] T13 – T14, pages 203 – 208.
On 15 November 2022 the delegate made a NDIS plan for the Applicant for the 24-month period from 18 January 2023 to 17 January 2025 (the original decision).[6] That plan did not include additional supports sought by the Applicant other than that it did include an increased allocation for ‘capacity building: choice and control’ which is related to plan administration funding. The plan made no change to plan management arrangements.
[6] T32, page 278 – 290.
The Applicant was dissatisfied with the original decision and applied for an internal review. By notice dated 31 January 2023, the delegate notified the Applicant of the outcome of the internal review, which was to affirm the original decision.
As already noted above, the Applicant instituted this administrative review proceeding on 1 February 2023 and since that time the matter has been progressing through the Tribunal’s alternative dispute resolution processes.
The Agency filed a statement of issues for the purposes of the first case conference in the alternative dispute resolution process on 14 March 2023. A list of ‘issues’ is set out at paragraph 15 of the statement. These issues do not include any issue with respect to plan management.
On 23 November 2023 the Agency filed a further statement of issues for the purposes of the fourth case conference in the alternative dispute resolution process. Annexure A to that statement is a summary of the Agency’s reconsideration of the Applicant’s reassessment request up to that point. In that Annexure, the Agency indicates an intention to provide 3 additional supports related to the Applicant’s physical disability but states with respect to those supports:
The Respondent considers that it is most appropriate to make this funding Agency-managed, as it is of the view that self-management would present an unreasonable risk to the Applicant: s 44(1)(b)(i).
At Item 8 of Annexure A the Agency sets out concerns in relation to the Applicant’s request for additional support (funding) in relation to ‘all meals’. Under the heading ‘respondent position and issues to be addressed’ the following is stated:
One of the participant’s goals is to develop her skills and confidence to cook her own meals (T33). Further, the Applicant is presently funded for assistance with self-care and daily activities (being a total of 14 hours per week).
In light of these matters, there is insufficient evidence to conclude that the provision of the requested support would assist the Applicant to pursue her goals, be value for money or be effective and beneficial s 34(1)(a), (c) and (d).
The respondent has reviewed the Applicant’s plan usage, and notes that the Applicant has spent significantly more of her funding than aligns with the plan’s duration. The Respondent has also reviewed the identity of the providers who are providing services which are being funded by the Applicant’s present core funding. The Respondent is very concerned that the Applicant is utilising her funding on services which are not related to her disability and which are day-to-day living costs: rules 5.1(b) and (d).
The Respondent is concerned that the Applicant is not being supported to use her plan most effectively, and encourages the Applicant to engage with her support coordinator.
In its Statement of Issues dated 5 October 2023, the Respondent stated that it was of the view that the Applicant did not have sufficient support worker hours as her plan was over-utilised. Now that the Respondent has reviewed the nature of that over utilisation, it is of the view over-utilisation by itself does not suggest that the Applicant requires additional support worker hours. It is of the view that the Applicant may have sufficient hours, if the funding were used only for disability-related supports and not day-to-day living costs.
The Respondent is thus of the view that further evidence is required to establish that the Applicant’s present funding is insufficient for her to access support with meal preparation. In addition, the Respondent considers that it is most appropriate to make the Applicant’s Core funding Agency-managed, as it is of the view that self-management would present an unreasonable risk to the Applicant: s 44(1)(b)(i).
In a further column of Annexure A the Agency states the following under the heading ‘suggested further evidence’:
The Respondent considers that the Tribunal would be assisted by the provision of the following documents:
(a)A statement setting out the identity of each provider for which the Applicant has utilised her Core funding in the Current Plan, what services the Applicant has accessed from that provider, and how those services relate to the Applicant’s disability and are not a day-to-day living cost.
(b)A roster setting out when, and for what tasks, the Applicant presently engages support workers.
The Applicant reacted to the concerns set out in the Agency’s 23 November 2023 statement of issues, and in related correspondence that passed between the parties’ legal representatives (which is at Annexures A to C of the Applicant’s submissions filed 18 March 2024) by taking steps to change her plan manager from My Plan Manager to Integrated Care Pty Ltd t/a MyIntegra (MyIntegra).
In this respect, the Applicant has filed a ‘service agreement’ with MyIntegra dated 7 March 2024. At page 2 of that agreement, it is stated that the start date for MyIntegra’s plan management will be set out in a ‘welcome letter’ ‘after we have accepted your application to receive MyIntegra’s services’. There is no evidence before me as to whether MyIntegra has accepted the Applicant’s application for its plan management, and if so, whether this alternative plan management has commenced.
In the body of MyIntegra’s service agreement the following is stated:
…
The NDIS and this Service Agreement
This Service Agreement sets out how MyIntegra will deliver its plan management services to you.
We will verify your Plan details via the NDIS Provider Portal and will provide our services in line with your Plan details recorded in the NDIS Provider Portal.
MyIntegra’s Responsibilities
We agree to deliver plan management services such as:
· facilitating payments of invoices on your behalf.
· processing reimbursement claims to you (where approved to do so).
· tracking expenditure supports against your budget.
· providing monthly statements of your expenditure and remaining available funding.
· providing an on-line budget monitoring tool for your use.
· access to a contact centre to address your questions relating to your plan.
…
Customer responsibilities
As the Customer, under this Service Agreement, you agree to:
· inform us immediately if your plan is suspended or replaced by a new Plan or you stop being a Participant in the NDIS.
· before engaging providers or receiving any additional supports outside of your Plan’s approved services, verify with us the availability of funds in your NDIS budget.
· communicate to MyIntegra as to how you wish the supports to be delivered.
· bring to our attention any concerns you have about the supports being provided.
· only purchase supports that meet the NDIA criteria of reasonable and necessary.
· advise us of your invoice approval preferences, which you can update at any time.
…
The summons
The summons (as applied for by the Agency and issued by the Tribunal) required My Plan Manager to produce documents described as follows (personal information redacted):
All invoices submitted in respect of services provided to Sabrina Gabriela (date of birth (redacted), participant number (redacted) since 18 January 2023.
In the section of the summons application form which required the Agency to set out the ‘reasons for [its] request’, the following is stated:
On 18 January 2023, a delegate of the CEO of the Respondent made an NDIS plan for the Applicant, including determining that the reasonable and necessary supports funded in the Statement of Participant Supports included in the plan were to be plan-managed (Reviewable decision, T33). The Applicant sought review of the decision to approve the Statement of Participant Supports, under s 99 (item 4) of the National Disability Insurance Scheme Act 2013 (NDIS Act). In the proceedings, the Applicant seeks review of the decision of a delegate of the CEO of the Respondent to confirm the Reviewable Decision under s 100(6)(a) of the NDIS Act (Internal Review Decision, T2)
The Tribunal’s role is to affirm, vary or set aside the Internal Review Decision: s 43, Administrative Appeals Tribunal Act 1975. The Tribunal is thus reviewing the Statement of Participant Supports contained in the plan made on 18 January 2023. Accordingly, the matters before the Tribunal are what supports are reasonable and necessary for the Applicant, as well as the other matters identified in s 33(2), NDIS Act. A necessary element of a Statement of Participant Supports is the management of the funding for such supports: s 33(2)(d), NDIS Act. The manner in which the funding for each support contained in the Statement of Participant Supports is managed is thus an issue before the Tribunal.
The Applicant has utilised her plan funding to acquire services from a range of entities. The Respondent does not have access to copies of the individual invoices rendered by those entities. The Respondent expects that the Applicant’s plan manager, the summons recipient, will be able to provide copies of each invoice which has been paid utilising plan funding. The Respondent considers that copies of these invoices will assist the Tribunal to determine whether the current management arrangements pose an unreasonable risk to the Applicant within the meaning of s 44, NDIS Act.
Contentions of the parties
Applicant
The Applicant contends that the summons ought to be set aside because the Agency’s stated ‘issue’ in relation to management of the funding for supports misconceives the applicable law and, consequently, the documents sought to be obtained from My Plan Manager cannot be relevant to an issue in the proceedings. In short, it is submitted that s 44(1)(b)(i) of the NDIS Act is only capable of being engaged in circumstances where it is the participant who is responsible for managing the funding for supports and it is the participant’s conduct in doing so which constitutes an unreasonable risk to the participant. It is submitted that in this case the Applicant has never managed the funding for her supports, that this is not an outcome that was sought by her when she requested the reassessment of her plan, and it is not an outcome sought by her in this administrative review.
The Applicant also submits that to any extent that the Agency has a concern that My Plan Manager’s management of her funding supports constituted an unreasonable risk of harm to her pursuant to s 44(2) of the NDIS Act, that concern is extinguished by the Applicant’s subsequent termination of My Plan Manager’s services and her engagement of MyIntegra as her current plan manager. It is submitted that the material sought to be produced from My Plan Manager, as the Applicant’s former plan manager, is incapable of being relevant to her current plan management arrangements to any extent that this is an issue in this administrative review, which the Applicant contends it is not. It is said that this is wholly or substantially because s 44(2) is ‘provider specific’, rather than being directed to a particular type of plan management of itself.
Additionally, the Applicant submits that to any extent that the Agency contends that the documents sought to be produced by the summons are relevant other than in relation to plan management, ‘there is no basis in law for considering past management and disbursement of plan funding in determining whether a support is reasonable and necessary …’.
Based on these submissions the Applicant contends that the summons does not serve a legitimate forensic purpose because the material sought to be produced is of no apparent relevance, in that it cannot shed any light on the issues in the administrative review.
The Applicant further complains that the summons is a mere fishing expedition which she contends is an abuse of the Tribunal’s process. In this respect, it is submitted that the Applicant’s request for reassessment of her Statement of Participant Supports and the internal review decision in relation to that request raised no issue of mis- or over-utilisation of funding. It is also submitted that no such issue is reflected in any of the material the Agency has lodged with the Tribunal to date despite its obligations under ss 37(1) and 38AA of the AAT Act. Against that backdrop, it is submitted that the summons is improperly seeking to discover if the Agency has any case in relation to plan management rather than seeking the production of documents relevant to its existing case.
The Applicant also objects to the summons on the basis that it is oppressive. The Applicant complains that the Agency seeks production by My Plan Manager of every invoice held in relation to her former plan period, rather than being limited to specified invoices or suppliers upon which its purported concerns about mis- or over-utilisation of funds are founded. In this respect it is submitted that the summons does not identify the documents sought to be produced with sufficient particularity.
If the Tribunal is against the Applicant on the question of whether the summons should be set aside, the Applicant contends that the usual orders for access to the documents produced should be made. That is, she should have first access to these documents, and the opportunity to object to the Agency being provided with access to any of the documents produced.
Agency
The Agency submits that the Tribunal should not set aside the summons. It submits that the documents sought under summons are likely to be relevant to the issues in the proceedings, regardless of any change in plan management provider. In this respect it is contended:
i.the administrative review involves the Tribunal reviewing the Applicant’s Participant Plan, having regard to the matters that must be included in that Plan: (s 33 of the NDIS Act), including the matters prescribed by s 33(2) of that Act. That includes not only the ‘reasonable and necessary supports’ that will be funded under the NDIS (s 33(2)(b)) but also the ‘management of the funding supports’ (s 33(2)(d)). In this respect, it is submitted that plan management is an issue that is necessarily before the Tribunal by operation of s 33(2),
ii.the Applicant’s current Participant Plan has as a goal in her ‘statement of goals and aspirations’ (see s 33(1)(a)) the development of her skills and confidence to cook her own meals,
iii.one of the requested supports under review is a request for meal preparation and delivery supports for all meals (requested meal preparation and delivery support),
iv.the Applicant’s current plan includes 4 hours per week of assistance with daily activities and 10 hours per week of assistance with self-care activities (assistance with daily activities). The Agency considers these support worker hours to be sufficient to assist the Applicant with meal preparation,
v.in the context of these proceedings the Agency is called on to assist the Tribunal to determine the correct and preferable decision with respect to the requested meal preparation and delivery supports,
vi.in October 2023 the Agency ascertained that the Applicant had, at that time, already expended more than 80% of her allocated funding for assistance with daily activities, although only 25% of her current plan duration had lapsed,
vii.consequently, the Agency developed a concern that the Applicant’s Participant Plan was being over-utilised and that the Applicant was not presently funded for sufficient support worker hours to obtain assistance with meal preparation,
viii.in this context, at a Case Conference conducted in these proceedings on 5 October 2023 the Agency suggested the Tribunal would be assisted if the Applicant provided a roster setting out when and for what tasks, she currently engages support workers (a roster). However, the Applicant did not provide information of this nature.
ix.in November 2023 as part of its ongoing assessment of the requested meal preparation and delivery supports, the Agency reviewed the identity of the suppliers who are supplying services to the Applicant which are funded from the ‘core supports’ budget in the Participant Plan. As a result of that review, the Agency remained concerned that the Applicant’s Participant Plan was being over-utilised, that she was utilising funding for services not related to her disability and which were day to day living costs, and that she was not being supported to use her plan most effectively,
x.in that context, at the Case Conference conducted in these proceedings on 29 November 2023, in addition to again suggesting the Applicant provide a roster, the Agency suggested that the Tribunal would be assisted if the Applicant would provide a statement setting out the identity of each supplier she utilised for her core supports funding, what services she has obtained from those suppliers, and how those services related to her disability and were not day-to-day living costs. The Applicant did not provide this information.
xi.it is in this context that the Agency considers at this stage of the proceedings that the core supports in the Applicant’s Participant Plan ought to be Agency Managed.
The Agency submits, having regard to the matters set out above, that summons has a legitimate forensic purpose because the documents to be produced have apparent relevance to the issues to be determined in the administrative review. In this respect it is contended that they may reasonably be expected to throw light on the issues in the proceedings, and that there is a real possibility that they may assist in the resolution of the issues in contention.
It submits that it is ultimately a matter for the Tribunal alone, based on all the material before it and in the context of the final hearing, to determine whether the documents produced in response to the summons are relevant, and if so, what weight they should be accorded, after considering any written and oral submissions of the parties.
The Agency further submits that as My Plan Manager has complied with the summons, pursuant to s 40B(1) of the AAT Act, the Tribunal ought to now grant leave to both parties to inspect the documents My Plan Manager has produced in response to the summons. It submits that the parties should be granted simultaneous immediate access because there is no reason to believe that there would be a proper basis for any objection to the Agency’s access to these documents.
Applicable law
The documents sought to be produced under summons need to be considered in the context of the law to which the Tribunal must give effect, and any relevant policy.
Part 2, Division 2 of the NDIS Act concerns the preparation of Participant Plans. In this respect, s 32(1) provides that if a person becomes a NDIS participant the CEO must facilitate the preparation of the participant’s plan. Section 33 sets out the matters that must (emphasis added) be included in a participant’s plan. They include pursuant to s 33(1) the participant’s ‘statement of goals and aspirations’ and pursuant to s 33(2) the ‘statement of participant supports’. The statement of participant supports is required to specify 5 matters:
33 Matters that must be included in a participant’s plan
…
(2)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 reassess 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.
Part 2, Division 3 of the NDIS Act concerns the management of funding for supports under participant’s plans.
Section 42 explains what is meant by ‘managing the funding for supports under a participant’s plan’:
42Meaning of managing the funding for supports under a participant’s plan
(1)For the purposes of this Act, managing the funding for supports under a participant’s plan means doing one or more of the following:
(a)purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports);
(b)receiving any funding provided by the Agency;
(ba)managing any funding provided by the Agency;
(c)acquitting any funding provided by the Agency.
(2)For the purposes of the statement of participant supports in a participant’s plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by:
(a)the participant; or
(b)a registered plan management provider; or
(c)the Agency; or
(d)the plan nominee.
Subject to s 44, s 43 gives primacy of choice in relation to plan management to a participant:
43 Choice for the participant in relation to plan management
(1)A participant for whom a plan is in effect or is being prepared may make request (a plan management request):
(a)that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by the Agency.
(2)If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (3) to (6).
(3)If:
(a)a participant makes a plan management request covered by paragraph (1)(a); and
(b)subsection 44(1) applies in relation to the participant;
the statement of participant supports in the plan must provide for the finding for the supports under the plan:
(c)if paragraph 44(1)(a) applies – to be wholly managed by the Agency; and
(d)if paragraph 44(1)(b) applies – to be managed by the Agency to the extent covered by that paragraph.
(4)If:
(a)a participant makes a plan management request covered by paragraph (1)(b); and
(b)subsection 44(2) applies in relation to the registered plan management provider;
the statement participant supports in the plan must provide for the funding for supports under the plan to be managed by the Agency to the extent covered by that subsection.
…
Section 44 of the NDIS Act sets out the circumstances in which persons must not manage funding. It provides, relevantly:
44 Circumstances in which persons must not manage funding
Participant
(1)For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:
…
(b)the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i) present an unreasonable risk to the participant; or
…
Registered plan management provider
(2)For the purposes of paragraph 43(4)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider’s management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.
…
Consideration
Section 39(1) of the AAT Act requires the Tribunal ‘to ensure that every party to a proceeding is given a reasonable opportunity to present their case’, subject to some exceptions that are not presently relevant. The power conferred by s 40A(1) of that Act is to be understood in this context. It enables a party to a proceeding to invoke the Tribunal’s compulsory power to obtain evidence (in this case, documentary material) from a person not directly involved in the proceeding which they believe will be relevant in the preparation and presentation of their case.
In general terms the Tribunal’s management of a summons to produce documents sought to be issued by a party in a proceeding involves the following 4 steps[7]:
Step 1:consideration of the application for the summons by a person authorised by s 40A(1) of the AAT Act to determine if leave to issue the summons will be granted. Leave to issue the summons will either be granted or refused at this stage. If leave is granted, the Tribunal will provide the party requesting the summons with a sealed summons to serve on the intended recipient. The summons will require the production of the material subject to the summons to the Tribunal (not to the issuing party),
Step 2:consideration of any objections to compliance with the summons made by the person to whom the summons has been issued,
(then, assuming compliance with the summons)
Step 3:provision of directions for the parties’ access to the material produced under summons. The non-summoning party will generally be provided with first access to this material, and the opportunity to object to the summonsing party’s access to any part of it. If such an objection is raised, it must be determined by the Tribunal before the summoning party is provided access, if at all.
[7] Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 327 at 381 (Waind); Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 (Panagiotou) at [20].
Beyond Step 3, it is substantially a matter for the parties what role this material will take in the proceedings (Step 4). In this respect, it may be admitted into evidence and provide the basis for cross-examination of a witness. It is at this stage that the Tribunal will determine, with the assistance of the parties, the relevance of this material (including by hearing any objections to its tender and use), and the weight that is to be given to it, in the determination of the ultimate issues in the proceeding.
It is a serious matter to seek to invoke the compulsory power of a court or tribunal to obtain evidence from a person not directly involved in a proceeding. For this reason, as a matter of general law, there have developed various principles to be applied in the exercise of discretion to permit invocation of the power, and in the provision of access to material produced to the Tribunal in response to the summons, which guard against various forms of abuse of process.[8] However, in the steps outlined above the recipient of the summons and the parties have different rights, and the role of the Tribunal differs.[9]
[8] Persuasive statements of these principles are typically those articulated by superior courts in relation to the invocation of a court’s power to issue a subpoena, which is essentially an equivalent process to the issue of a summons in a Tribunal context: Panagiotou at [19]
[9] Waind at 381.
At step 1 the person authorised by s 40A(1) is to determine, in an exercise of discretion, and by reference to the subject matter of the proposed summons and the general subject matter of the proceeding, if the summons should issue. In this respect the authorised person must satisfy themselves that the summons has a legitimate forensic purpose, principally by considering if the subject matter of the summons is of apparent relevance to the issues in the proceedings. That is, they must be satisfied that the subject matter of the summons could reasonably be expected to throw light on to some of the issues in the proceeding[10], or put another way, ‘that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case’.[11] This is a relatively low ‘bar’ or ‘threshold’.[12] It is to be contrasted with the level of scrutiny that will be applied by the Tribunal, with the assistance of the parties, in determining the relevance, and if relevant, the weight, to be accorded to evidence produced under summons in Step 4.
[10] Department of Planning, Industry and Environment v Blacktown City Council [2012] NSWCA 145 (Blacktown City Council) at [89]; QLYQ and National Disability Insurance Agency [2022] AATA 4384 at [38]
[11] Waind at 384; cited with approval in Blacktown City Council at [89] per Brereton J
[12] Blacktown City Council at [71] per Bell P
While nothing prevents a non-summonsing party from being heard in relation to the exercise of discretion to issue a summons on the application of another party, the frame of analysis is not inter-party. Rather, the frame of analysis is whether the summonsing party is properly invoking the Tribunal’s compulsory power. This is not an opportunity for the non-summonsing party to limit the summonsing party’s case or prevent it from obtaining evidence it believes is relevant to the issues to be determined. Nor is it the time at which the ultimate relevance, if any, of the material sought by the summons, will be determined. Any objection to the issue of the summons founded in these ways will therefore be misconceived.
While I have used the word ‘case’, it is important to keep firmly in mind that this is an administrative review proceeding in which the Agency is not the Applicant’s true adversary. Its role is to use its best endeavours to assist the Tribunal to reach the correct or preferrable decision on the material before it.[13] In doing so it performs a public, statutory function, which is to ensure the proper administration of the NDIS.[14] That role extends to ensuring that the Tribunal has before it evidentiary material that is necessary to give authentic effect to that statutory scheme. The Agency may properly be robust in the execution of that task because, ultimately, the Tribunal must be positively satisfied that the relevant statutory criteria are met.[15]
[13] S 33(1AA) AAT Act; Drake v Minister for Immigration and Ethnic affairs [1979] FCAFC 39; 24 ALR 577 at 589.
[14] National Disability Insurance Agency v Davis [2022] FCA 1002 at [44]
[15] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201]; Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68].
Does the summons have a legitimate forensic purpose?
The Applicant’s contention that the documents sought to be summonsed cannot be relevant to any issue of self-management in the proceedings must be accepted. No component of the Applicant’s current plan is self-managed, and her request for reassessment of her plan did not (and still does not) involve any ‘plan management request’ within the meaning of s 43(1) of the NDIS Act for self-management of the plan to any extent. The Tribunal, standing in the shoes of the administrator, could only make a decision related to self-management if the Applicant had made such a request. In the absence of any such request that issue is not before the Tribunal and any documents that may be relevant only to that issue thus can have no apparent relevance in the proceedings. In this respect the Agency’s reference to s 44(1)(b) of the NDIS Act in its statement of issues dated 23 November 2023 is misconceived.
However, this does not mean that the issue of plan management is not before the Tribunal. It necessarily is. That is because it is one of the mandatory matters that is to be specified in the statement of participant supports (s 33(2)(d)). The Applicant’s request for reassessment of her statement of participant supports contained at least the implied request that the additional supports sought also be managed by a registered plan management provider (s 43(1)(b)). The CEO was obliged by s 43(2) of the NDIS Act to give effect to that request unless s 43(4) applied in the circumstances. That necessitated the CEO’s consideration of s 44(2): that is, whether the Applicant’s registered plan manager’s management of her Participant Plan would present an unreasonable risk to her.
The reviewable decision made no reference to plan management but nor did the delegate approve most of the additional supports requested by the applicant. This administrative review requires the Tribunal to make a new decision in relation to the Applicant’s request for reassessment of her statement of participant supports based on all the relevant material as it stands as at the date of the hearing. The Tribunal is not bound by the material that was before the delegate who made the reviewable decision, or the issues considered relevant by the parties at that time. [16]
[16] Shi at [142]-[147] per Keifel J.
The Applicant’s contention that any documents produced by My Plan Manager cannot be relevant because it is no longer her registered plan manager cannot be accepted. While I accept the Applicant’s submission that s 44(2) is ‘provider specific’, it does not follow that evidence of My Plan Manager’s historical management of the Applicant’s plan funding is incapable of being relevant to a question of whether MyIntegra’s future management of her plan funding could constitute unreasonable risk of harm to her.
In this respect, I do not understand it to be in issue that in October 2023 the Applicant’s available funding for plan managed supports had been 80% utilised when only 25% of the plan period had elapsed. I infer from the Agency’s 23 November 2023 statement of issues that, in this context, it wishes to establish whether My Plan Manager has made payments to suppliers at the Applicant’s request which are inconsistent with her approved supports and related funding.
The terms of MyIntegra’s service agreement (set out above) make it clear that a participant (customer) has significant obligations that must be fulfilled in relation to its plan management function. There is thus a reasonable basis to suppose that the documents sought from My Plan Manager under summons will likely add to the relevant evidence in the case by shedding light on the extent to which the Applicant is able to fulfil those responsibilities.
I also note in relation to this objection that I could not conclude on the evidence before me that the Applicant’s registered plan manager had changed as at the date of this hearing (21 March 2024). I can accept that the Applicant lodged an expression of interest with MyIntegra on 7 March 2024 asking that agency to become her registered plan manager, but there is no evidence before me that this expression of interest has been accepted by MyIntegra, that plan management by that entity had commenced, and that My Plan Manager’s management has ceased.
The Applicant submits that the documents sought under summons cannot be relevant to any issue of the reasonable and necessary supports to which the Applicant is entitled because there is ‘no basis in law for considering past management and disbursement of plan funding in determining whether a support is reasonable and necessary’. No authority is cited in support of that bare proposition, and I do not accept it.
What is reasonable and necessary by way of support must be objectively ascertained having regard to the statutory criteria set out in s 34 of the NDIS Act, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 and any relevant agency policy.
It does not follow, however, that past and future plan management arrangements are irrelevant to that inquiry. In this case, the Agency points to potential inconsistency between what is expressed as an objective in the Applicant’s statement of goals and aspirations (‘development of skills and confidence to cook her own meals’) and her request for reassessment of her statement of participant supports to include support in relation to ‘all meals’ in a context of the rapid depletion of her approved funding for support.
As I understand the Agency’s submissions, this raises a question about how the Applicant’s present funding for support is being managed, and, whether over-utilisation of that funding results from its diversion to the Applicant’s meal related day to day living expenses, rather than approved supports. If that were to be the case, it would be a relevant consideration in determining whether support for ‘all meals’ was reasonable and necessary. Whether there is a real basis for this concern may ultimately be an issue to be determined at the final hearing. But at this stage it is reasonable to assume that the documents sought by the Agency from My Plan Manager under summons can shed some light on that issue.
Is the summons oppressive?
The Applicant claims that the summons is a ‘fishing expedition’ and therefore an abuse of process because no issue related to plan management is reflected in the reviewable decision or the documents the Agency has filed with the Tribunal to date pursuant to ss 37(1) and 38AA of the AAT Act. It is said that by issuing the summons the Agency is merely fishing to see if it can find a case in relation to mismanagement of funding supports.
As I have discussed above, the issue of plan management is necessarily before the Tribunal and the Tribunal is not bound by the material or issues considered by the delegate who made the internal review decision. I am, moreover, satisfied by the Agency’s submissions that the issue of risk in plan management plausibly arises from its re-consideration, in the context of this administrative review, of the Applicant’s request for additional supports, particularly that related to ‘all meals’.
The Applicant’s final objection to the summons relates to its particularity. Its alleged lack of particularly is said to be oppressive.
This is a form of objection to a summons that usually arises at Step 2 in the sequence outlined above. It is typically the objection of the summons recipient complaining about alleged difficulties of compliance.
In this case My Plan Manager has not complained about any difficulties in complying with the summons and it has complied with the summons by the compliance date. The Applicant’s objection on this ground should therefore be given no weight.
Conclusion
For the foregoing reasons I am satisfied that the summons that has been issued to My Plan Manager does not constitute any form of abuse of process that ought to result in it being set aside. The Applicant’s application is therefore refused.
Access to documents produced by My Plan Manager
It is convenient that I now make orders for the parties’ access to the documents produced by My Plan Manager in response to the summons.
In that regard I am satisfied that the usual orders should be made. That is, that the Applicant will have first access and thereby the opportunity to raise any objection to the Agency’s access before the Agency is provided with access to the documents.
The Agency submits that there is no reason to believe that there would be any viable objection to its access to the documents produced and, consequently, that simultaneous access should be provided. Given the description of the documents contained in the summons I accept that there is an unlikelihood that the release of these documents to the Agency could be objectionable. However, having regard to the fact that the issue of the summons has been controversial, it is prudent not to depart from the usual procedure.
The usual procedure will still provide time for any objections to the Agency’s access to the documents to be dealt with, and subject to the outcome of any such objection, access to be provided to the Agency well in advance of the conciliation conference set down for 28 May 2024.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the interlocutory decision herein of Member P French.
.........[SGD].......................
Associate
Dated: 15 April 2024
Date(s) of hearing: 21 March 2024 Date final submissions received: 25 March 2024 Solicitors for the Applicant: Ms A Schneider, NSW Legal Aid Solicitors for the Respondent: Ms A Barac, Maddocks
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