GBNR and National Disability Insurance Agency - [2022] AATA 1323

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GBNR and National Disability Insurance Agency [2022] AATA 1323
Case: [2022] AATA 1323
Decision Date: 20 May 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) to affirm a statement of participant supports. The applicant, GBNR, sought review of the NDIA's internal review decision. The Tribunal, pursuant to section 42D of the relevant legislation, remitted the decision to the NDIA for reconsideration.

The central legal issue before the Tribunal was the scope of the reconsideration decision that the NDIA was authorised to make following the remittal. Specifically, the Tribunal had to determine whether a reconsideration decision that varied the original decision under review had the effect of altering the nature of the application before the Tribunal, and what temporal considerations applied to such a varied decision.

The Tribunal reasoned that section 42D(2) of the legislation empowers the person to whom a decision is remitted to affirm, vary, or set aside the decision and substitute a new one. Crucially, section 42D(3) provides that if the decision is varied, the application is taken to be an application for review of the decision as varied. The Tribunal held that the NDIA, upon remittal, was authorised to reconsider all matters that were capable of being decided by the original decision-maker. This included addressing the same legislative questions and thresholds, and exercising the same powers subject to the same constraints. The Tribunal clarified that a reconsideration decision that varies the original decision effectively creates a new decision for the purposes of the review application, and the applicant then has the choice to proceed with the review of this varied decision or withdraw their application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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