Glady & Co Mental Health Support and National Disability Insurance Agency

[2023] AATA 18

Glady & Co Mental Health Support and National Disability Insurance Agency [2023] AATA 18 (12 January 2023)

Division:National Disability Insurance Scheme Division

File Number:2022/2937          

Re:Glady & Co Mental Health Support  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member K. Parker

Date:12 January 2023

Date of written reasons:        13 January 2023

Place:Melbourne

The Tribunal does not grant an application by the mother of a former client of the Applicant, that is Ms Lorraine Garth (as appointed plan nominee under the National Disability Insurance Scheme Act 2013 (Cth), for Alison Garth), to reinstate this application for review.

................................[SGD]........................................

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – application for reinstatement of review proceedings previously dismissed by this Tribunal for failure by the Applicant to appear at an earlier interlocutory hearing – application lodged in the name of a disability advocate and not in the name of the NDIS participant to which the decision relates – no appearance for or on behalf of the Applicant or the NDIS participant at the interlocutory hearing in respect of the reinstatement application – consideration of written reasons for seeking reinstatement submitted by NDIS participant’s mother (and appointed plan nominee) prior the interlocutory hearing – Tribunal not satisfied there is a good reason to reinstate this proceeding – reinstatement application not granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K. Parker

13 January 2023

1. Ms Alison Garth is an adult participant in the National Disability Insurance Scheme (NDIS). This application was lodged by a former disability advocate of the Applicant, Glady & Co Mental Health. It was lodged in the name of the disability advocate, and not in the name of Ms Alison Garth. Glady & Co Mental Health said they did so with the consent of Ms Alison Garth and her mother, Ms Lorraine Garth.

2. A question arose as to whether the Tribunal has power to change the name of the Applicant from Glady & Co Mental Health to Ms Alison Garth in these circumstances, causing the Tribunal to list the matter for an interlocutory hearing on 14 December 2022 to establish whether the Tribunal had power to undertake the requested review or to change the name of the Applicant in this review proceeding. At the time of this listing, Glady & Co Mental Health had ceased providing disability advocacy services to Ms Alison Garth.

3. The reason given by the disability advocate in the Application for Review form for seeking a review by the Tribunal, was that the NDIA had not taken into account the medical evidence and recommendations from Ms Alison Garth’s allied health services “when creating her NDIS plan”.

4. At the interlocutory hearing on 14 December 2022, Ms Lorraine Garth did not appear, nor any other person for or on behalf of the Applicant or Ms Alison Garth. They did not contact the Tribunal before this hearing to advise they would not be able to appear. Accordingly, the Tribunal dismissed this application pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and notice of this dismissal was sent to the parties and to Ms Lorraine Garth.

5. On 17 December 2022, Ms Lorraine Garth contacted the Tribunal and applied under subsection 42A(8) of the AAT Act for reinstatement of this application.

6. An interlocutory hearing to address Ms Lorraine Garth’s reinstatement application took place on 12 January 2023. The NDIA was represented by Ms J. Egger of Hunt & Hunt and the relevant NDIA case manager.

7. Ms Lorraine Garth had informed the Tribunal in email correspondence prior to the hearing on 12 January 2023 that the reason she was seeking reinstatement was due to Ms Alison Garth’s adverse personal history (which the Tribunal has not set out to protect the confidentiality of the Applicant in relation to sensitive matters) and due to a lack of support from Ms Alison Garth’s support workers and support coordinator in relation to the Tribunal’s review processes.

8. The Tribunal was also provided with a copy of the instrument of appointment appointing Ms Lorraine Garth as her plan nominee (with no limitations) with effect from 17 March 2022.

9. At the interlocutory hearing on 12 January 2023, neither Ms Lorraine Garth, nor anyone else for and on behalf of the Applicant or Ms Alison Garth, appeared at the hearing. No explanation was provided ahead of this hearing by those persons of their intention not to attend the hearing.

10. At the interlocutory hearing on 12 January 2023, the Tribunal proceeded to consider the reasons provided in writing by Ms Lorraine Garth before the hearing, as described above in paragraph [7], as to why she sought reinstatement purportedly on behalf of her daughter. When considering those reasons, and without an opportunity to seek clarification from Ms Lorraine Garth about those reasons on account of her non-attendance at the hearing, the Tribunal does not consider that those reasons, as stated in the email correspondence, disclose any reasonable explanation as to why Ms Lorraine Garth, on behalf of Ms Alison Garth, as her plan nominee, failed to attend the hearing on 14 December 2022.

11. The Tribunal acknowledges that Ms Lorraine Garth asserts that there has been a lack of support from Ms Alison Garth’s support workers and support coordinator with this review process. However, Ms Lorraine Garth has consented to being appointed as her daughter’s plan nominee, meaning that the responsibility to act in relation to this review application falls to Ms Lorraine Garth, instead of Ms Alison Garth. In that regard, s 80 of the NDIS Act provides that it is the duty of a nominee of a participant to ascertain the wishes of the participant and to act in a manner that promotes the personal wellbeing of the participant. Ms Lorraine Garth made the reinstatement application and by doing so, was expected to attend the interlocutory hearing in relation to this application to provide an opportunity for the Tribunal to ascertain with clarity the reason for why reinstatement of this proceeding was sought and if granted, to address the jurisdictional questions arising in relation to the named Applicant in the proceeding. Based on the information available to the Tribunal in this proceeding, the Tribunal is not satisfied there is a reasonable explanation for why Ms Lorraine Garth did not attend the interlocutory application, nor is the Tribunal aware of any good reason why the application should be reinstated.  

12. On this basis, the Tribunal does not grant Ms Lorraine Garth’s application to reinstate this application pursuant to subsection 42A(9) of the AAT Act.

13. As a separate matter, the Tribunal notes that Ms Alison Garth’s current statement of participant supports (SOPS) within her NDIS plan is scheduled for reassessment on or before 11 February 2023. This will provide an opportunity for Ms Lorraine Garth, as plan nominee for her daughter, to discuss Ms Alison Garth’s SOPS with the NDIA within the next month as part of that plan reassessment process.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the written reasons for the decision herein of Senior Member K. Parker

...............................[SGD].........................................

Associate

Dated: 13 January 2023

Date of hearing:

12 January 2023

Applicant:

NDIS participant:

No appearance.

No appearance by appointed plan nominee.

Respondent:

National Disability Insurance Agency, Mr P. Wray, case manager.

Solicitors for the Respondent:

Ms J. Egger, Hunt & Hunt.