GBNR and National Disability Insurance Agency

GBNR and National Disability Insurance Agency [2022] AATA 1323 (20 May 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/5569
Re:GBNR
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:20 May 2022
Place:Canberra

The Tribunal has jurisdiction to review the internal review decision made on 26 July 2021 under s 100(6) of the National Disability Insurance Scheme Act 2013 as varied by the reconsideration decision made on 9 January 2022 on remittal under s 42D of the Administrative Appeals Tribunal Act 1975.
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – review of internal review decision to affirm approval of a statement of participant supports - remittal of decision under review for reconsideration – scope of reconsideration decision – reconsideration decision varies decision under review – temporal considerations – participant plan document issued – plan document gives effect to reconsideration decision under existing plan – jurisdiction to review internal review decision as varied by reconsideration decision
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42D
National Disability Insurance Scheme Act 2013, ss 33, 37, 48, 49, 99, 100, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
RTRH and NDIA [2022] AATA 205
Williamson and National Disability Insurance Agency [2019] AATA 2944
REASONS FOR DECISION
Mr S. Webb, Member
20 May 2022

GBNR is a child participant in the National Disability Insurance Scheme (Scheme). A dispute has arisen in respect of supports approved by the CEO. An internal review has been completed but GBNR’s representative is not satisfied with the result and has lodged an application for review by the Tribunal.
The application has been on foot for a lengthy period, in the course of which the parties requested remittal of the application to the National Disability Insurance Agency (Agency) decision-maker for reconsideration. The purpose of this was to ensure continuity of supports for GBNR during the Tribunal review.
Subsequently, an issue has arisen in respect of the Tribunal’s jurisdiction.
It is this issue of the Tribunal’s jurisdiction, alone, that is the subject of this interlocutory decision.
The Tribunal’s jurisdiction in this case is conferred by s 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act):
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Under s 100(6) of the NDIS Act:
(6) The reviewer must 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.
In a case of this kind, under s 99(1) of the NDIS Act, the reviewable decision is a decision of the Agency CEO to approve the statement of participant supports in a participant’s plan under s 33(2) of that Act.
Importantly, there is no provision in the NDIS Act conferring jurisdiction on the Tribunal to review a participant’s plan. The making, review and replacement of a participant’s plan is a matter for the CEO and the participant under Part 2, Chapter 3 of the NDIS Act. Where the CEO reviews a participant’s plan s 49 applies:
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.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
Thus, a decision to approve a statement of participant supports (SPS) under s 33(2) is a reviewable decision even where the approval is given when formulating a replacement plan under s 49, following a review under s 48. The approval decision under s 33(2) is only reviewable by the Tribunal once it has been reviewed under s 100 and an actual or a deemed decision has been made under s 100(6), whereupon an application may be made for review by the Tribunal under s 103 of the NDIS Act for the purposes of s 25 of the AAT Act.
Procedural history
The procedural history in GBNR’s case is as follows:
(a)On 14 March 2019, previous proceedings in the Tribunal in respect of a review of an internal review of an SPS approval decision were concluded by written agreement of the parties to terms reflected in a decision of the Tribunal under s 34D of the AAT Act.[1] It may be inferred that the Tribunal’s decision was given effect in a participant plan (Plan A) which was slated for review within 12 months of implementation.
[1] T3.
(b)On 11 April 2020, a replacement participant plan came into effect for GBNR (Plan B).[2] The date by which the plan was to be reviewed was 11 April 2021.[3]
[2] T7.
[3] T7 folio 127.
(c)On 17 February 2021, a delegate of the CEO approved an SPS under s 33(2) of the NDIS Act (primary decision). The approved SPS was included in a participant plan for GBNR that came into effect on that day, 17 February 2021 (Plan C). The approved SPS specified 17 February 2022 as the date by which the Agency must review Plan C (review date).
(d)The only documentation of the primary decision appears to be the NDIA’s 17 February 2021 letter to which Plan C was attached. The letter states:
Please find a copy of [GBNR’s] approved National Disability Insurance Scheme (NDIS) plan attached to this letter. The plan started on 17 February 2021 and will be reviewed by 17 February 2022.
How we developed your plan
We recently received new information about [GBNR’s] disability related support needs.
This information assisted us to complete an unscheduled review [GBNR’s] plan. This is referred to as a section 48 review under the National Disability Insurance Scheme Act 2013 (NDIS Act).
As discussed with you, I reviewed [GBNR’s] plan to ensure they were receiving the right supports to meet their circumstances. Please note, as a result of this review, the duration or overall plan value may have changed.
…
You can request an internal review of a decision about this plan within three months of receiving this notice. You can still use [GBNR’s] plan while it is being reviewed. Details on how to request a review are at the end of this letter.
…
How to request for your plan approval decision to be reviewed
If you disagree with the decision about [GBNR’s] plan approval you can request the decision to be reviewed within 3 months of receiving this notice.
…
How to request a review of this decision
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.
When asking for an internal review you should explain why you think the decision made is incorrect. The staff member who works on the internal review won’t have been involved in the earlier decision. They may want to talk to you as part of this process.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).
The NDIS website (ndis.gov.au) provides more information about requesting a review.[4]
[4] T8, folios 134-135 and 136-138.
The letter appears to be in a standard format. It uses language which confuses approval and review of a plan with review of a decision to approve an SPS within the plan. A plan is not synonymous with an SPS even though, under s 37(1) of the NDIS Act, approval of the SPS is instrumental in the coming into effect of the plan. Review of a plan can be requested at any time, whereas review of an SPS approval decision can only be made within 3 months.
(e)Plan C included funding for supports totalling $14,888.82, comprised of:
(i)Core supports (self-managed):  $300.00
(ii)Capacity building supports:
-    Improved daily living  $12,313.26
-    Increased social and community participation     $2,275.56
(f)GBNR’s representative requested review of the primary decision under s 100(2) of the NDIS Act and provided extensive, detailed written submissions.[5] The representative was concerned by the lack of reasons for the primary decision:
[5] T1C and T4; T5 refers.
Nowhere in the plan does it explain how the decision was arrived at, what evidence was relied on to make the decision, what “reasonable and necessary supports” were agreed with and what supports were not. The NDIA delegate remains silent on how the matter was assessed under s34 of the of the National Disability Insurance Scheme Act 2013; and how the National Disability Insurance Scheme (Supports for Participants) Rules 2013 were applied in arriving at the decision.[6]
[6] T1C, folio 35.
(g)On 26 July 2021, a reviewer confirmed the primary decision and the review date (Internal Review Decision).[7] The reviewer stated:
[7] T1B.
I have now reviewed your request under Section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act).
The outcome you sought from the internal review was:
1. An additional 106 hours of therapy
I have decided that the original decision is correct. This means I have found the requested support does not meet the reasonable and necessary criteria under Section 34 of the NDIS Act or Part 5 of the NDIS (Supports for Participants) Rules 2013 and the NDIS (Plan Management) Rules.
What this means for you
The current plan has not changed and the review date remains the same.
A full explanation for my decision is set out in the review report at the end of this letter.[8]
[8] T1B, folios 27-28.
(h)On 14 August 2021, GBNR’s representative lodged an application for review of the Internal Review Decision by the Tribunal.[9]
[9] T1.
(i)In the course of the proceedings, disputes arose in respect of the Agency’s compliance with s 37 of the AAT Act, particularly whether all relevant documents in the Agency’s holdings had been given to the Tribunal and whether the Agency had complied with it obligation under s 37(1)(a) to provide the Tribunal with a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision or, alternatively, if directed to do so under s 37(1AB), to provide a document setting out the reasons for the relevant decision. On 20 October 2021, the Tribunal directed the Agency to lodge further documents under s 38AA of the AAT Act. On 3 November 2021, the Agency sought agreement to a timetable for remittal of the Internal Review Decision to the Agency for reconsideration and for the filing of further documents from the Agency’s holdings.
(j)On 17 December 2021, I conducted a directions hearing with the party representatives and, in the result, issued procedural directions and, under s 42D(1) and (5) of the AAT Act, remitted the Internal Review Decision to the decision-maker for reconsideration by 9 January 2022.
(k)On 10 January 2022, the Agency’s representative provided the Tribunal a copy of a letter from a delegate of the Agency CEO (reconsideration decision-maker) dated 9 January 2022 (reconsideration decision). The letter is headed Internal Review Decision and the delegate states:
I have now reviewed [GBNR’s] situation and disability support needs and have decided to approve the supports included in the attached plan. A new plan will be generated to include the following reasonable and necessary supports. Additional details are included in the Basis of Decision section further down in this letter.
This will now become the decision that is presently the subject of the AAT’s review in application 2021/5569, pursuant to section 42D(5) of the AAT Act.[10]
[10] FS22, folio 166.
…
In my capacity as delegate of the CEO, I am conducting a review of [GBNR’S] statement of supports approved on 17 February 2021 under section 100(6) of the NDIS Act. Under that section, I can either confirm, vary or set aside that approval and substitute a new decision. In conducting that review, I have the same powers that the original delegate of the CEO had under the Act.[11]
[11] Ibid, folio 167.
…
(l)The reconsideration decision-maker stated:
I have considered the current Plan of 17 February 2021 and I am satisfied that a new 12 month plan [sic – ‘is’] appropriate and should include the following supports;
-    Funding for assistive technology: $300 (self-managed) to buy Low Cost Assistive technology, and minor repairs to assistive technology.
-    Assessment, Recommendation, Therapy and/or Training (including Assistive Technology) – Other Therapy at 48 hours at $193.99 per hour (for Occupational Therapy and Speech Pathology, to be used flexibly to meet changing functional support needs): $9,311.52.
-    Assessment, Recommendation, Therapy and/or Training (including Assistive Technology) – Psychology at 14 hours at $214.41 per hour: $3,002.16.
-    Group social skills Therapy, for Secret Agent Society or other social skills group, at $2,800.[12]
[12] Ibid, folio 177.
(m)The reconsideration decision-maker set out reasons for her decision, including the following findings:
… I am satisfied that the above support [psychology session] is a “reasonable and necessary support” and 14 hours of psychological treatment has been allocated to the current plan, which includes funding for report writing.[13]
[13] Ibid, folio 178.
…
I am satisfied that group social skills sessions are reasonable and necessary, and $2,800.00 has been allocated for this under the current plan, to be used flexibly for the SAS or “Lego for Autism”.[14]
[14] Ibid, folio 178.
…
I am satisfied that the above support is a “reasonable and necessary support” and 48 hours of Other Therapy treatment has been allocated to the current plan for Occupational Therapy and Speech Pathology, to be used flexibly to work toward achieving plan goals.[15]
[15] Ibid, folio 179.
…
I am therefore not satisfied that the additional allied health support [claimed by GBNR’s representative] meets subsections 34(1)(a), (b), (c), (d), (e) or (f) of the Act.[16]
(n)On 14 January 2022, the Agency issued a new participant plan for GBNR (Plan D).[17] Plan D states it is to be reviewed by 14 January 2023[18] and it includes $15,413.26 total funding for supports, comprised of:
(i)Core supports (self-managed):  $300.00[19]
(ii)Capacity building supports:
-    Improved daily living  $12,313.26[20]
-    Increased social and community participation     $2,800.00[21]
(o)Subsequently, additional materials have been filed and the application is proceeding to a hearing.
[16] Ibid, folio 180.
[17] FS23.
[18] Ibid, folio 189.
[19] Ibid, folio 201.
[20] Ibid, folio 202.
[21] Ibid, folio 202.
Jurisdiction
There are 2 issues in respect of the Tribunal’s jurisdiction. The first turns on the terms of s 42D of the AAT Act – the remittal issue. The second turns on the legal effect of Plan D under the NDIS Act – the plan issue.
The remittal issue
This issue arises from the remittal made under s 42D(1) of the AAT Act on 17 December 2021 and the reconsideration decision made on 9 January 2022. The issue is whether the reconsideration decision engages s 42D(3) or (4), such that GBNR’s application is taken to be an application for review of the remitted decision as varied or set aside and substituted by the reconsideration decision. This will be so if the reconsideration decision satisfies paragraphs 42D(2) (b) or (c) and engages s 42D(3) or (4). If it does not, s 42D(7) and (8) will apply.
Section 42D is in the following terms:
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
Note:          For time limits, see subsection (5).
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i)    proceed with the application for review of the decision as
varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new   decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
Time limits
(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period
within which the person was to reconsider the decision—that period;
(b) in any other case—the period of 28 days beginning on the day on
which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
As can be seen, s 42D(2) is instrumental in the Tribunal proceedings. Where the reconsideration decision-maker decides under s 42D(2)(a) to affirm the remitted decision, the Tribunal proceedings resume. Should the decision-maker vary the decision under s 42D(2)(b), the application before the Tribunal is taken to be an application for review of the decision as varied unless the applicant withdraws. If the decision-maker decides to set aside the remitted decision and to substitute a new decision, the application is taken to be an application for review of the new decision, unless the Applicant withdraws the application.
On remittal, the reconsideration decision-maker is authorised to reconsider all matters that were capable of being decided by the person who made the decision under review. In making a reconsideration decision, the decision-maker must address the same legislative questions and thresholds that were before the primary decision-maker, and may exercise the same powers, subject to the same constraints, for the purposes of the reconsideration. While this requires the decision-maker to step into the shoes of the reviewer and the primary decision-maker, the power to reconsider is conferred by s 42D(1) and the decision to be made is described in paragraphs 42D(2)(a), (b) and (c): the decision-maker may affirm, vary or set aside the decision under review and substitute a new decision.
Where the reconsideration decision-maker does not do one of the things set out in paragraphs 42D(2)(a), (b) or (c), the decision under review is taken to be affirmed. Subsection 42D(7) is very clear on this point:
If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
[Emphasis added].
As can be seen, it is not sufficient for the decision-maker to reconsider the remitted decision without doing one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). Unless both elements of s 42D(7) are completed within the applicable period under s 42D(5), the remitted decision will be taken to be affirmed. This threshold is consistent with s 42D(5): the reconsideration decision-maker must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c) within 28 days or the period specified by the Tribunal in the remittal. The word ‘must’ is directive and it applies conjunctively to the reconsideration and the doing of one of the things mentioned in paragraphs 42D(2)(a), (b) or (c).

It is desirable, for reasons of certainty at least, for a reconsideration decision-maker to adopt the language of the legislation when doing one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). Where a reconsideration decision-maker fails to express their decision using the language of s 42D(2) (or s 100(6) of the NDIS Act) and, despite this, the reconsideration decision is unambiguous and properly capable of being construed to satisfy paragraph 42D(2) (b) or (c), then s 42D(3) or (4) may come into operation. Otherwise, s 42D(2)(a) or (7) will apply, whereupon s 42D(8) will operate and the Tribunal proceedings will resume with no change being made to the decision under review.
I do not accept the Agency’s assertion the reconsideration decision-maker is confined by terms agreed by the parties when requesting remittal under s 42D(1) by the Tribunal. As desirable as it may be for parties to narrow issues in dispute in Tribunal proceedings, under s 42D(1) of the AAT Act, the whole of the decision under review is remitted for reconsideration by the person who made it. It is open for that person to consider all matters within the ambit of the decision afresh on all the relevant materials at that time, and to decide if the decision should be affirmed, varied or set aside and substituted with a new decision. If the parties in the Tribunal proceedings agree upon particular matters, it would be open for the reconsideration decision-maker to consider if those matters can be accepted and included in the terms of the reconsideration decision, but it is not correct to assert the person is bound by any such agreement.
In this case, the questions and thresholds are those applying to the Internal Review Decision and the primary decision on 17 February 2021 to approve an SPS for GBNR under s 33 of the NDIS Act, with particular regard to the requirements of s 33(2), (5), (6) and (7), s 34 and other applicable provisions in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules). On internal review of this decision under s 100, or reconsideration on remittal under s 42D(1) of the AAT Act, the decision-maker is required to determine afresh each of the matters set out in s 33(2) and related provisions in the NDIS Act and the Rules as at the date the primary decision was made and presently, and having done so then to decide if the decision under review should be confirmed (or affirmed), varied or set aside and a new decision substituted.
The reconsideration decision-maker described the reconsideration task as a review of [GBNR’s] statement of supports approved on 17 February 2021 under section 100(6) of the NDIS Act, under which she could confirm, vary or set aside that approval and substitute a fresh decision. Unfortunately, the reconsideration decision-maker did not expressly state her decision in such terms. She does not refer to s 42D(2) of the AAT Act, and her decision is not reduced to the language used in paragraphs 42D(2)(a), (b) or (c), or to the language used in s 100(6) of the NDIS Act.
In the Agency’s submission, the reconsideration decision-maker decided to vary the Internal Review Decision. The Agency’s reasoning is that the reconsideration decision-maker was effectively re-exercising the review function under s 100 of the NDIS Act (albeit in a more limited sense, being guided by the agreement of the parties),[22] and she decided to approve an SPS operating from 9 January 2022 – she had “decided to approve the supports in the attached plan” and that a “new plan will be generated to include the following reasonable and necessary supports’.[23]
[22] Respondent’s written submissions, 16 March 2022 at [12].
[23] Ibid, at [16].
Even though the reconsideration decision-maker refers to an attached plan, it is not clear if a plan was attached to the reconsideration decision (the copy given to the Tribunal does not have such an attachment). The Agency asserts no plan was attached to the reconsideration decision and this was rectified on 14 January 2022 when a new plan was issued (Plan D). Clearly enough, the reconsideration decision could not have attached Plan D as that Plan was not in existence on 9 January 2022.
The language the reconsideration decision-maker used indicates each approved support has been allocated to the current plan. In all likelihood, the reconsideration decision-maker was not referring to a plan which had not yet been issued but was referring to Plan C – the current plan.
The total funding for supports the reconsideration decision-maker decided should be included in GBNR’s current plan is $15,413.26. It should be noted there is an arithmetic error in the calculation of psychology funding: 14 hours at the rate of $214.41 per hour amounts to $3,001.74, not $3,002.16.
The total funding for support determined in the primary decision is $14,888.82. The only variance in support funding between these decisions is in respect of capacity building supports for increased social and community participation. The amount originally determined in the primary decision, $2,275.56, was increased by the reconsideration decision-make to $2,800.00.
I accept the Agency’s submission that the reconsideration decision, in effect, varied the Internal Review Decision. The extent of the variation is very narrow: the only variation is in respect of the amount of funding for capacity building supports to improve social and community participation. All the other components of the Internal Review Decision are left unchanged and may be taken to be affirmed.
On close examination of the reconsideration decision, it appears the decision-maker did not address temporal aspects of the matters under reconsideration, namely when the variation in funding should apply and the date by which the plan (Plan C) is to be reviewed.
This creates two difficulties. Firstly, there is a question whether the variation applies from the date of the reconsideration decision, or from the date of the primary decision. Secondly, the primary decision specified the plan is to be reviewed by 17 February 2022. This was not addressed by the reconsideration decision-maker and it remains unchanged, albeit now in the past.
Where a decision-maker exercises power to vary a decision under review, subject to any applicable legislation, one would expect the decision-maker to specify when the variation would come into effect. There is little room for uncertainty of this kind when authorising the expenditure of public money. This notwithstanding, the reconsideration decision-maker did not specify when the variation was to come into effect.
As the legislation does not specify when a variation decision of this kind has effect, two possibilities are open: the variation has effect from the date the varied decision had effect, or it has effect from the day on which it was decided.
The Agency asserts the reconsideration decision has effect from 9 January 2022, the day it was made. The basis of this assertion is that the reconsideration decision-maker did not say the supports were approved retrospectively from 17 February 2021.[24] The difficulty with this assertion is that the reconsideration decision-maker expressly (and correctly) stated she is conducting a review of [GBNR’s] statement of supports approved on 17 February 2021. A review of that kind requires reconsideration of the supports approved under s 33(2) as at 17 February 2021 as well as the supports then and subsequently under claim, up to the date of the reconsideration decision.
[24] Respondent’s written submissions, 16 March 2022 at [16].
The reconsideration decision-maker’s references to allocation of supports she found to be reasonable and necessary to the current plan have an inclusive quality which is more consistent with the variation having effect from the date it was decided, 9 January 2022, rather than the date of the primary decision. I will proceed on that basis.
I am satisfied that the reconsideration decision satisfies paragraph 42D(2)(b) of the AAT Act. The reconsideration decision was made within the period specified by the Tribunal in the remittal order on 17 December 2021. Consequently, s 42D(3) is engaged and the application is taken to be an application for review of the Internal Review Decision (and the primary decision) as varied on 9 January 2022.
The plan issue
This issue arises in respect of Plan D, which was issued on 14 January 2022 purportedly to give effect to the reconsideration decision on 9 January 2022.
There are questions about the legal basis on which Plan D was issued, including whether it was properly made under Division 4, Part 2, Chapter 3 of the NDIS Act and whether it has legal effect, replacing Plan C under s 37(3) of the NDIS Act.
I directed the Agency to provide written submissions addressing these matters.
The Agency submits the reconsideration decision-maker was not exercising the review function under s 48 of the NDIS Act. This is correct. The reconsideration decision-maker was required to reconsider the Internal Review Decision which confirmed the primary decision. She could affirm, vary or set aside and substitute a new decision in place of the Internal Review Decision. It was not open to the reconsideration decision-maker to review GBNR’s plan (Plan C) or to make a new plan. The provisions for reviewing and replacing GBNR’s plan are not engaged by the remittal of the decision under review under s 42D(1) of the AAT Act. This is so even though the reconsideration decision-maker was required to reconsider the supports to be provided or funded for GBNR and other matters (including the review date) under Plan C.
Citing RTRH and NDIA (RTRH),[25] it is the Agency’s submission that Plan C did not cease to have effect and the Tribunal’s jurisdiction is not temporally constrained by the issuing of Plan D.
[25] [2022] AATA 205 at [113]-[117].
Having closely examined the documents helpfully provided by the Agency and GBNR’s representative, I am satisfied the Agency’s submission is correct. Plan D does not replace Plan C, which continues to be in effect. This means that Plan D is not effective as a new plan for the purposes of the NDIS Act.
This notwithstanding, the Agency asserts Plan D is simply a document that implements the reconsideration decision.[26]
[26] Respondent’s written submissions, 16 March 2022 at [22].
I have examined the Agency’s submissions on this point very closely. The Agency has not established any legal basis on which it can safely be concluded Plan D has any effect at all independent of Plan C. The Agency accepts Plan D is not effective as a new plan and that Plan C remains in effect. That being so, the only basis on which the Plan D document might have effect is if it is a further expression of Plan C consequent to the reconsideration decision.
This can be understood in the following steps:
(a)The SPS approved on 17 February 2021 was instrumental in the coming into effect of Plan C.
(b)On 26 July 2021, the SPS was not changed by the Internal Review Decision.
(c)On 9 January 2022, the reconsideration decision-maker decided to vary the SPS approved on 17 February 2021.
(d)The reconsideration decision to vary the SPS approved on 17 February 2021 has effect under Plan C.
(e)The variation to the SPS is given expression in the Plan D document, which has effect under Plan C.
(f)Plan C remains in effect and it authorises the expenditure of public money on the provision or funding of supports in the approved SPS as varied by the reconsideration decision.
There is one further matter arising from Plan D that requires comment.
Plan D sets out the date by which the plan is to be reviewed, 14 January 2023. The present materials do not establish this was decided by the reconsideration decision-maker. The reconsideration decision does not specify a date by which Plan C must be reviewed. In effect, the date determined in the primary decision, namely 17 February 2022, remains unchanged. This is so even though the remittal order refers to the agreement of the parties to a further 12-month period.
While the failure to deal with the review date in the text of the reconsideration decision may be the result of the way in which data is entered into the Agency’s ICT system or an error of some kind, belatedly including a date in Plan D is no remedy. There are two reasons for this. Firstly, Plan D has no effect beyond the scope of the reconsideration decision under Plan C, it simply gives expression to the reconsideration decision to vary the SPS approved on 17 February 2021. Plan D is not a viable mechanism for determining the date by which Plan C is to be reviewed. Secondly, even if I am wrong on that point, Plan D was issued on 14 January 2022, outside the period specified in the remittal order on 17 December 2021. By that order, under s 42D(5) of the AAT Act, the specified period ended on 9 January 2022. For this reason, by operation of s 42D(7), as the review date had not expressly been reconsidered and varied by 9 January 2022, the original review date is taken to be affirmed.
As the review date is now in the past, no doubt, the parties may have some concerns. The Agency may not be compliant with its obligation under s 48(5) of the NDIS Act to conduct a review of GBNR’s plan before the specified review date. Consequential issues may arise for GBNR in respect of the continuity of funding for reasonable and necessary supports.
These are not matters for the Tribunal to resolve. Nevertheless, it may be apposite to observe that remittal under s 42D is but one of the available mechanisms the AAT Act provides by which the terms of a decision under review may be altered.
Where parties agree to vary a decision under review without resolving the entire gamut of issues in dispute, s 26 of the AAT Act may provide a more efficient mechanism to effect such a change than remittal under s 42D where the entire decision will be reconsidered. Related matters were considered in previous decisions of the Tribunal.[27] It is not necessary to revisit such matters in any detail here. It is sufficient to observe, if one accepts the construction adopted in RTRH (which was not challenged in the Federal Court of Australia), there is no want of power for the CEO to agree, for the purposes of s 26 of the AAT Act, to vary the terms of an SPS approval decision in the course of Tribunal proceedings. This may be done at any point in such proceedings where the Tribunal has jurisdiction under s 103 of the NDIS Act and consequent to an application for review under s 25 of the AAT Act.
[27] See RTRH and NDIA [2022] AATA 205 at [112]-[119] and [158]-159] and Williamson and National Disability Insurance Agency [2019] AATA 2944 at [21]-[30] and [73]-[86].
Section 26 is in the following relevant terms:
(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) …; or
(aa) …; or
(b) the parties to the proceeding, and the Tribunal, consent to the making of
the alteration.
(1A) …
(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.
As can be seen, where parties agree to the variation of a decision under review, and the Tribunal consents, the decision may be varied in the terms agreed.
In the present circumstances, it is for the parties to decide if a request should be made under s 26 of the AAT Act for the Tribunal to consent to vary the plan review date in the decision under review, namely the SPS approved on 17 February 2021. Should that occur, it will be decided on its merits.
Decision
The Tribunal has jurisdiction to review the Internal Review Decision as varied by the reconsideration decision.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member S Webb.
………………………[sgd]………………….
Associate
Dated: 20 May 2022
Date final submissions received:                   16 March 2022
Representative for the Applicant:                  Self-Represented
Solicitor for the Respondent:   Ms Melanie McKean, Ashurst

[2022] AATA 1323

20 May 2022

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