GMVX and National Disability Insurance Agency
[2022] AATA 80
•25 January 2022
GMVX and National Disability Insurance Agency [2022] AATA 80 (25 January 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/2290
Re:GMVX
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member K. Parker
Date:25 January 2022
Place:Melbourne
For the reasons set out in the attached Reasons for Decision, the Tribunal has decided:
not to grant the Applicant’s request for summons made on 20 January 2022 to produce documents addressed to the Victorian Department of Families, Fairness and Housing;
not to grant the Applicant's request made on 20 January 2022 that the Tribunal invite the Australian Human Rights Commission to intervene in the review proceeding before this Tribunal; and
that it is not open to the Tribunal at the present time to make a declaration under s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Pursuant to s 25(4A) of the AAT Act, the Tribunal ORDERS that the scope of the review of the Decision Under Review in this application, be limited to the issues of, and evidence in relation to, whether the supports under GMXV’s statement of participant supports (SOPS) forming part of his National Disability Insurance Scheme plan, should be self-managed, rather than plan-managed or NDIA-managed, and whether GMXV’s SOPS should include transport funding and if so, to quantify the amount of transport funding.
Further and in accordance with s 33 of the AAT Act, the Tribunal has made a number of procedural directions, as set out in Annexure A, to progress this application to a substantive hearing on 17 March 2022 and to deal with other matters arising, including in relation to GMXV’s primary carer/father with whom the Applicant currently resides.
..........[SGD]....................
Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – child participant – Applicant’s mother suffers from borderline personality disorder and complex post-traumatic stress disorder – Applicant currently resides with father – application has been on foot for 19 months – Applicant’s mother has been unable to identify requested supports – Applicant’s request for summons – Applicant’s request that Tribunal invite Australian Human Rights Commission (AHRC) to intervene in proceeding – Applicant’s apparent request that Tribunal make declaration under s 28(5) of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – whether documents requested under proposed summons could reasonably be expected to shed light on the issues in the substantive proceeding – request for summons not granted – request to invite AHRC to intervene not granted – not open to Tribunal to make declaration under s 28(5) – order made under s 25(4A) of AAT Act determining scope of review – review limited to issues, and evidence relevant to, how NDIS funded supports are to be managed, whether transport funding is a “reasonable and necessary support” and if so, to determine the quantum – procedural directions made to timetable this application for a substantive hearing in March 2022 and in relation to other matters regarding the involvement of GMXV’s primary carer/father in this proceeding
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Harman v Secretary of State for the Home Department [1983] 1 AC 280
REASONS FOR DECISION
Member K. Parker
25 January 2022
INTRODUCTION
The Applicant, GMXV,[1] is a child participant of the National Disability Insurance Scheme (NDIS). GMXV’s mother is also a participant of the NDIS and will be referred to in these Reasons for Decision as M.
[1] On 22 April 2020, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to protect the confidentiality of the Applicant, who is a child, and will apply the pseudonym, GMXV, in place of his name.
On 18 April 2020, an application for review was lodged with the Administrative Appeals Tribunal (Tribunal) by M, on behalf of GMXV, seeking review of a decision dated 25 March 2020 by a delegate of the CEO of the National Disability Insurance Agency (NDIA) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (Internal Review Decision). The Internal Review Decision relates to a decision by a different delegate of the NDIA on 8 July 2019 to approve a statement of participant supports forming part of GMXV’s NDIS plan.
The Tribunal’s jurisdiction to review the Internal Review Decision arises under s 103 of the NDIS Act. The Tribunal will refer to a statement of participant supports in these Reasons for Decision as a SOPS.
On 12 November 2020, the Tribunal (differently constituted) remitted this matter pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). During the remittal, a delegate of the CEO of the NDIA made a decision on 17 November 2020 to approve a new SOPS for GMXV, with a review date of 17 November 2021.
Pursuant to s 42D(4) of the AAT Act, the remittal decision made on 17 November 2020 is taken to be the decision under review in this proceeding (Decision Under Review).
GMXV’s SOPS dated 17 November 2020 provides total funded supports of $205,560.39. The NDIA provided an update to the Tribunal on 18 January 2022 advising that GMXV’s “NDIS plan was auto-extended on 17 November 2021” and because, “the plan was auto-extended, there was no new plan or statement of participant supports created”. The supports remain the same. Some of GMXV’s supports are “Plan-managed” and others are “NDIA-managed”. On 20 January 2022, M informed the Tribunal of the name of the Plan Manager and that she had engaged them. Funding is available under GMXV’s NDIS plan for a range of supports including $19,054 for “Level 3: Specialist Support Coordination” which is NDIA-managed. M informed the Tribunal that GMXV has a support coordinator.
On 20 January 2022, M lodged an 11-page letter and 209-page written submission with the Tribunal which will be referred to collectively as GMXV’s Submissions. M, on behalf of GMXV, makes the following requests in GMXV’s Submission:
(a)that the Tribunal issue a summons to produce documents addressed to the Victorian Department of Families, Fairness and Housing (Summons Request);
(b)that the Tribunal invite the Human Rights Equal Opportunity Commission (HREOC), now known as the Australian Human Rights Commission (AHRC) to intervene in this proceeding before the Tribunal (AHRC Request); and
(c)in effect, the Tribunal make a declaration under s 28(5) of the AAT Act (Section 28(5) Request).
The Tribunal has decided not to grant any of those three requests for the reasons set out below.
Further to those requests, a significant procedural difficulty has prevented this application from progressing since lodgement in April 2020. M, on behalf of GMXV, has been unable to identify the supports she would like included in her son’s SOPS. The Tribunal will address this issue and make a set of procedural directions attached as Annexure A to this Decision, so that this matter may progress to a substantive hearing which has been timetabled to take place on 17 March 2022.
SUMMONS REQUEST
In M’s letter to the Tribunal forming part of GMXV’s Submissions, M states that the NDIA has not provided any documentation to the Tribunal about how her son’s NDIS plan was developed, and that M was not involved in the planning process. M states that she is “too distressed” to make a request for summons documents and calls for the Tribunal to “take the initiative”. M states that those documents comprise the records of the NDIA documenting extensive interaction that M states the NDIA had with staff from the then Victorian Department of Health and Human Services, now the Department of Families, Fairness and Housing (Department), “from both child protection and disability services” since November 2018. M states that the NDIA and the Department “began working together” to develop her son’s NDIS plan without JMVH’s involvement. M states that she is seeking material “that is damning evidence regarding the Agency’s conduct”.
M contends that the Tribunal “is obligated to consider these records to understand what has occurred and to engage with the matter actively and intelligently before it”.[2]
[2] As stated in M’s letter emailed to the Tribunal on 20 January 2022, forming part of GMXV’s Submissions.
M contends as follows:[3]
As the Tribunal and NDIA are aware the Child Protection case is ongoing even though I have not been able to take the matter further. My son and I have been the victims of the corrupt Victorian judicial system. I believe the Tribunal needs to access the court case files to make a proper assessment of [GMXV’s] best interests.
[3] Ibid.
M states that she is seeking supports in GMXV’s and her own NDIS plans “to help us begin the process of returning to live together”.
The Tribunal’s power to summons a person to produce documents arises under s 40A of the AAT Act. The power of the Tribunal to issue a summons is discretionary and a request for summons may be refused.[4]
[4] AAT Act, s 40A(2).
In exercising the discretion to issue (or refuse to issue) a summons requested by either party, the Tribunal will consider whether the documents expected to arise from the requested summons are likely to assist the Tribunal in deciding this application for review. Put another way, the Tribunal must consider whether the documents being sought by the summons could reasonably be expected to shed light on the issues in the substantive proceeding.
The NDIA opposes the Summons Request. The NDIA questions the relevance of documents relating to child protection to the issue before the Tribunal. Further, the NDIA contends that if the Tribunal concluded such documents were relevant, the appropriate course would be for the Tribunal to require production of them by the NDIA under s 38AA of the AAT Act.
M has the documents which she is requesting under the Summons Request, in her possession. M acquired them in the process of the a protection case involving GMXV. M informed the Tribunal that she is unable to lodge the documents with the Tribunal herself, due to “Harman undertakings”,[5] that is, obligations not to release or use those documents for any other purpose. The NDIA contends that M is at liberty to apply to the relevant courts to be released from any implied undertaking.
[5] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
The task of the Tribunal in this application is to undertake a merits review of the Decision Under Review and to decide whether it was correct or preferrable.[6] The Tribunal is required to step into the shoes of the original decision maker, in this case the NDIA “reviewer” who exercised powers under s 100 of the NDIS Act when making the Decision Under Review. This task will involve a consideration of the approval of the SOPS for GMXV on 17 November 2020.
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
Subsection 33(2) of the NDIS Act provides that a SOPS contains “general supports”, “reasonable and necessary supports”, a review date, and stipulations as to how the funding for supports or any other aspect of the NDIS plan is to be managed. Based on the GMXV’s Submissions, it is apparent that M is not satisfied with the aspects of GMXV’s SOPS relating to the supports (without specifying what she would like included, with the exception of transport funding), and the way his NDIS plan is to be managed.
The Tribunal is not satisfied that the documents sought to be obtained by the summons requested by M could reasonably be expected to throw light on any of the issues in the substantive proceeding in this matter. As addressed in paragraphs [44] to [45], at the present time, the only issues able to be identified by the Tribunal as arising in this application are how the supports in GMXV’s SOPS are to be managed, and whether transport funding should be added to his SOPS (and if so, to quantify such funding).
As mentioned above, in undertaking this task, the Tribunal is to step into the shoes of the original decision maker and the Tribunal will undertake a merits review. For this reason, the process by which the previous decision maker, a delegate of the CEO of the NDIA, arrived at their decision in relation to GMXV’s SOPS is irrelevant to the Tribunal’s consideration of this matter. The Tribunal will be making this decision afresh and will be focussed on the matters relevant to how the plan should be managed and whether transport funding is a “reasonable and necessary support” requiring a consideration of whether the “reasonable and necessary support” criteria in s 34(1) of the NDIS Act are met. The documents sought by M will not shed any light on those matters and for this reason, the Tribunal has decided not to grant the Summons Request.
AHRC REQUEST
M, on behalf of GMXV, has requested that the Tribunal invite AHRC to intervene in this application. M relies upon an extract from a paper by the then President of HREOC (as the AHRC was then known) arising from an Administrative Appeals Tribunal National Conference in October 2007, stating that, “The HREOC Act empowers HREOC to intervene, and special purpose Commissioners to appear as amicus curiae, with the leave of a court or tribunal in proceedings that involve discrimination or human rights issues”.[7]
[7] Refer M’s letter dated 20 January 2022, quoting John von Doussa, ‘How universal are international human rights principles?’ (Research Paper, Administrative Appeals Tribunal National Conference, 21–24 October 2007) <
Subsection 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) provides that where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involves human rights issue.
M contends that the NDIA and the Department have breached GMXV and M’s human rights “in multiple and serious ways” and that she has experienced “disability discrimination and victimisation” since her first engagement with the NDIA in November 2018.[8] As identified by the NDIA, M is at liberty to make a formal complaint to AHRC about the alleged human rights breaches, disability discrimination and victimisation. However, M’s allegations have no relevance to the issues arising for determination by this Tribunal because this case will involve a consideration of GMXV’s SOPS, who is to manage the funding for supports, and whether transport supports should be included and if so, to determine the quantum of transport funding. It will not involve the determination of any human rights issues. For this reason, the Tribunal has decided not to grant the AHRC Request.
[8] Refer M’s letter sent by email to the Tribunal on 20 January 2022.
SECTION 28(5) REQUEST
In M’s letter to the Tribunal dated 20 January 2022, M states she “wants to know why [her] request to self-manage [GMXV’s] plan was refused” and why the Tribunal is not “asking the NDIA questions” about this. M refers the Tribunal to subsection 28(5) of the AAT Act. The Tribunal will treat this as a request by M that the Tribunal make a declaration under subsection 28(5), being the Section 28(5) Request.
Section 28 of the AAT Act provides for a person affected by a decision to obtain reasons for the decision. Specifically, subsection (1) provides that an applicant may apply to the decision maker (in this case the NDIA) to give the applicant a statement in writing 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 as soon as practicable and in any case, within 28 days of receipt of such request. Subsection (4) sets out the circumstances when an applicant is not entitled to request a statement of reasons, being if such matters referred to above were set out in a decision or statement already provided to the applicant. Subsection (5) provides that an applicant who has been given a statement under subsection 28(1) may apply for a declaration that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars for the reasons for decision.
There is no evidence before the Tribunal that M has made a request to receive a statement from the NDIA under subsection 28(1) of the AAT Act. A precondition of the application of subsection 28(5) relies upon a statement having been made under subsection 28(1). Because there is no evidence before the Tribunal that such a request under subsection 28(1) has been made or statement issued, it is not open to the Tribunal to make a declaration under subsection 28(5). On that basis, the Section 28(5) Request is refused. M is at liberty to make a request to the NDIA under subsection 28(1) and when a statement is made under subsection 28(1) or response from the NDIA is received to that request, M may submit it to the Tribunal with any further request she may wish to make to the Tribunal for a declaration to be made under subsection 28(5) of the AAT Act.
The Tribunal has directed that the NDIA lodge its Statement of Facts, Issues and Contentions by 10 February 2022 – see Direction 1 in Annexure A. The NDIA will be required to “state its case” in that document including, as to why it has decided that some of GMXV’s supports are to be plan-managed and other supports are to be NDIS-managed, instead of them being self-managed.
PROCEDURAL DIRECTIONS
This application was lodged on 18 April 2020 and has had a complex and protracted procedural history. A procedural difficulty has arisen in relation to what supports require consideration as part of this review. The Tribunal has endeavoured, on a number of occasions, to ascertain from M what aspects of the SOPS for GMXV she would like to have considered as part of this proceeding. Those endeavours have not resulted in clarifying the supports in dispute. For an extended period now, M has indicated to the Tribunal that she is unable to attend this task, unless she is provided with support by a service provider to do so.
At various times during this proceeding, M lodged correspondence with the Tribunal from her treating general practitioner, Dr J, reporting that M is unable to prepare for or to participate in this review proceeding, for instance:
(a)in Dr J’s letter dated 24 May 2021, she states that M will not improve until she can undertake an appropriate treatment program; and
(b)in Dr J’s letter dated 5 October 2021, she explains that she had been attempting to facilitate an inpatient admission to address M’s complex mental health needs but had been unable to find a psychiatrist who is willing to oversee her inpatient treatment. Dr J states in her report as follows:
For [M] to get closer to being ready to negotiate with the NDIA as part of the AAT appeal process, it requires [M] to finally be linked in with appropriate mental health services, as well as an independent NDIS support planning service, as she has significant trauma from the previous plan development for herself and [GMXV] by the NDIA as described above.
This application was listed for a directions hearing before the Tribunal on 13 January 2020. The Tribunal (differently constituted) heard from the parties and directed (among other things), that on or before 3 February 2021, M must lodge a list of supports being requested and a bundle of relevant documents pertaining to this review application. The Tribunal also referred this matter to Registry to be listed for a Case Conference.
M did not comply with the Tribunal’s direction to lodge a list of requested supports and bundle of relevant documents. On 22 February 2021 and 4 March 2021, M informed the Tribunal that she was awaiting admission to hospital, and that she would like this matter placed on hold, explaining that she would not be able to comply with the Tribunal’s directions. The Case Conference was vacated.
On 20 May 2021, the Tribunal sought an indication from M as to whether she was ready to proceed. The Tribunal suggested that M provide an approximate time frame and that the Tribunal would follow up with her at that nominated time. On 27 May 2021, M replied to the Tribunal, indicating her mental health was still quite poor and explaining that she had been rejected for admission at all inpatient private facilities. M indicated that she was finding the process overwhelming.
On 9 August 2021, M contacted the Tribunal, and it was agreed with M that this application would be listed for a directions hearing in two months.
This led to a further directions hearing by telephone before the Tribunal, as currently constituted, on 11 October 2021. The Tribunal enquired of M whether she had prepared the list of requested supports. M asked the Tribunal whether she could be assisted to find as a “service provider of last resort”. The Tribunal enquired of the NDIA’s legal representative present at this hearing whether the NDIA would be able to provide M with assistance to find a “service provider of last resort”. The NDIA’s legal representative said she would seek instructions from the NDIA. This matter was adjourned for a period of ten days to provide an opportunity for that to take place and relisted for a direction hearing before the Tribunal, as presently constituted, on 21 October 2021.
On 18 October 2021, the NDIA’s legal representatives wrote to the Tribunal and M advising that the NDIA “typically recommends that applicants receive support from legal aid or a disability advocate”. The NDIA’s legal representatives considered it would be beneficial to provide M with a list of advocates, and M could search for an advocate by following the link provided to the disability advocacy finder website established by the Department of Social Services.[9]
[9] Refer to: Department of Social Services, Disability Advocacy Finder (Web Page) <>
On 20 October 2021, the Tribunal received lengthy correspondence from M addressing a range of matters and highlighting the psychological distress that she was in, stating that she was “emotionally exhausted and struggling to cope with daily living”. The Tribunal was also informed that no “service provider of last resort” had been engaged by the Applicant.
On 20 October 2021, the Registry of the Tribunal wrote to the NDIA and relayed a request by the Tribunal that the NDIA make telephone contact with M to provide her with active assistance. The NDIA replied on the same day stating that a representative of the NDIA had made contact with M on 20 October 2021. In a follow up email dated 20 October 2021 sent by the NDIA to M, the NDIA representative states that an NDIA planning team had advised that:
…Melbourne City Mission have supported participants with complex circumstances and interfaces across multiple mainstream systems. Please let me know if you would like the NDIA to send MCM a Request for Service or whether you would like assistance to link with a different support coordination provider.
NDIS Specialist Support Coordination Provider | Melbourne City Mission (mcm.org.au)
During our conversation you raised challenges in support coordinators understanding the AAT process. In our experience most support coordinators have limited involvement and experience with AAT proceedings and applicants are generally supported by legal aid and or disability advocates. As we discussed, it may be beneficial to be linked with a support coordinator initially to assist with the draft plan and then assist you to connect with disability advocate you are comfortable with for the AAT proceedings.
>
In response to M’s email on 20 October 2021 and out of concern for M’s mental health, the Tribunal agreed to adjourn the directions hearing on 21 October 2021 until 20 January 2022 to allow a further lengthy period of three months for M to take steps to engage a service provider, support coordinator and/or disability advocate or lawyer (whether through the NDIS Appeals program delivered by the Department of Social Services or otherwise), to assist her to compile a list of requested supports, and to take whatever steps were appropriate, as recommended by Dr J, to seek to improve her mental health.
The Tribunal received further correspondence from the parties leading up to the directions hearing scheduled to take place on 20 January 2022. Notably, M lodged a further letter by Dr J dated 17 January 2022, opining that M’s mental health will not improve to the point where she will be able to participate in the NDIS planning process, and that M will require significant support for this to progress. Dr J states in her letter that the Applicant would benefit from being put in touch with an experienced NDIS service provider who is able to cope with the psychosocial complexities of her situation. Dr J also states that unfortunately, M had not been able to find such a provider despite trying many different avenues.
M considers that she is not capable of identifying the requested supports unless she has engaged a service provider who is able to assist her with this process. However, in relation to this application, M informed the Tribunal that GMXV has a support coordinator. The Tribunal also observes that M has prepared a 209-page document and a further 11-page letter both sent by email on 20 January 2022 (referred to collectively as GMXV’s Submissions), comprising complex submissions and other matters including the Summons Request, Section 28(5) Request and AHRC Request. The Tribunal considers that the act of M preparing the GMXV’s Submissions demonstrates that she is capable of documenting her thoughts and requests. Importantly, the Tribunal considers that the complexity of the matters addressed by M in her extensive submissions, far exceeds the complexity of the task being requested of M, on behalf of GMXV, that is, to prepare a list of requested supports, likely to comprise one or two pages. The act of M preparing GMXV’s Submissions also appears to be inconsistent with the medical opinion expressed by Dr J on 17 January 2022 about M’s purported incapacity to participate in proceedings, and M’s assertion that she is unable to independently prepare a list of requested supports.
The Tribunal has a statutory obligation under the AAT Act to deal with applications before it in a timely manner. The Tribunal’s statutory objectives are set out in s 2A of the AAT Act. This provision requires the Tribunal (among other things), in carrying out its functions, to provide a mechanism of review that is, “fair, just, economical, informal, and quick”. Further in subsection 33(1)(b) of the AAT Act requires a proceeding before the Tribunal to be “conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and every other relevant enactment and a proper consideration of the matters before the Tribunal permit”. The objectives under s 2A of the AAT Act also require the mechanism of review to be “accessible”. The Tribunal acknowledges that M has expressed that she is feeling overwhelmed by the process. However, this application has been before the Tribunal for over 19 months. The Tribunal has allowed a number of lengthy adjournments over the course of this proceeding providing M with ample opportunity to prepare a list of requested supports or to obtain assistance to do so.
Despite the lengthy adjournments, it would appear to the Tribunal that the position of the parties and the progress of this proceeding has not changed, since at least January 2021. There is still no list before the Tribunal of requested supports that M would like to have included in GMXV’s SOPS. The Tribunal does not consider that the answer lies in providing M with another lengthy adjournment so that she can continue her search to find assistance from a service provider, disability advocate and/or lawyer under the NDIS appeals process or otherwise, or for her to seek further treatment in relation to her mental health.
Section 25(4A) Order
The Tribunal has considered the documentation presently before the Tribunal including GMXV’s Submissions, prepared by M, and the Internal Review Decision. Those documents refer to M’s stated concerns about GMXV’s funded supports under his SOPS being plan-managed or NDIS-managed instead of being self-managed, and the issue of transport funding. At the directions hearing on 20 January 2022, the Tribunal asked M if there were any other supports, she would like added to GMXV’s SOPS. M response was to the effect that she was unable to answer that question.
Pursuant to s 25(4A) of the AAT Act, the Tribunal ORDERS that the scope of this review proceeding is limited to the issues of, and evidence relevant to, whether the supports under the GMXV’s SOPS should be self-managed, rather than plan-managed or NDIA-managed, and whether GMXV’s SOPS should include transport funding and if so, to quantify the amount of transport funding. This will be referred to as the Section 25(4A) Order.
Matter to be listed for substantive hearing
Based on the matters set out above from paragraphs [29] to [43], the Tribunal will make directions to timetable this matter for a substantive hearing on 17 March 2022, as set out in the Directions in Annexure A to this Decision.
Parental responsibility for GMXV & Statement of Lived Experience
The extent of the Tribunal’s knowledge in relation to the current status of the child protection case concerning GMXV, is that a family protection order was made by the Children’s Court on 27 October 2020, placing GMXV into the care of his father from 27 October 2020 to 26 February 2021, subject to eight conditions. The Tribunal is aware that M appealed those orders. M’s appeal was allowed, and the family protection orders were set aside on 3 February 2021. As far as the Tribunal is aware, M, and GMXV’s father, both have shared parental responsibility for GMXV.
M informed the Tribunal at the directions hearing on 20 January 2022 that GMXV remains living with his father. M expressed concerns about whether GMXV was being properly cared for by his father. In M’s letter to the Tribunal on 20 January 2022, M states that “I have been separated from my son for more than two and a half years”.
In these circumstances, the Tribunal has also made directions to the following effect, as set out in Annexure A to this Decision:
(a)requiring M and/or GMXV’s father to keep the Tribunal updated at all times about who has parental responsibility for GMXV – see Direction 4. This is a matter that is relevant to who may act to do a “thing” under the NDIS Act, on behalf of GMXV.[10] This may inform, but does not determine, who may represent GMXV in this proceeding before the Tribunal, as representation of any party before the Tribunal remains as a matter in the Tribunal’s discretion;
[10] NDIS Act, s 74(1).
(b)to add GMXV’s father as the co-representative of GMXV in this proceeding, alongside M on the basis that GMXV’s father is both the primary carer of and currently resides with GMXV – see Direction 5; and
(c)requiring GMXV’s father to lodge a Statement of Lived Experience in respect to GMXV – see Direction 6.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the interlocutory decision herein of Member K. Parker
...[sgd].....................................................................
Associate
Dated: 25 January 2022
Date of interlocutory hearing: 20 January 2022 Advocate for the Applicant: M (lay person) Advocate for the Respondent: Ms Peta Heffernan Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2020/2290 National Disability Insurance Scheme Division ) Re: GMXV
ApplicantAnd: National Disability Insurance Agency
RespondentDIRECTION
TRIBUNAL: Member K. Parker DATE: 25 January 2022 PLACE: Melbourne Pursuant to subsection 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal DIRECTS that:
on or before 10 February 2022, the NDIA must lodge with the Tribunal and give to the Tribunal its Statement of Facts, Issues and Contentions in relation to the supports referred to in the Section 25(4A) Order made on 25 January 2022;
on or before 8 March 2022, M and/or GMXV’s father must lodge with the Tribunal and give to the NDIA, GMXV’s Statement of Facts, Issues and Contentions in relation to the supports referred to in the Section 25(4A) Order. If M, and/or GMXV’s father, does not to comply with this direction, the Tribunal will proceed to decide this application on the basis of all relevant documentation lodged with the Tribunal including GMXV’s Submissions, any further evidence or submissions lodged by the NDIA and any further oral or written submissions and evidence lodged by M and/or GMXV’s father in this proceeding including any Statement of Lived Experience;
the Tribunal will refer this application to the Registry to be listed for a one-day substantive hearing on 17 March 2022. The hearing is to take place by video conference. If M and/or GMXV’s father would prefer a telephone hearing, the Tribunal will accommodate any request to this effect;
from the date of this order until the determination of this application, M and GMXV’s father must keep the Tribunal updated at all times about whether they each continue to have parental responsibility for GMXV throughout the duration of this proceeding, and specifically, whether any family protection order, parenting order or parenting agreement has been made or entered into since 3 February 2021, the effect of which is to remove or limit M’s and/or GMXV’s father’s parental responsibility for GMXV;
GMXV currently lives with his father who is his primary carer. GMXV’s father will be added as a co-representative of GMXV in this proceeding on the Tribunal’s file. All correspondence, documents and notices of listing will be sent to GMXV’s father, in addition to M. GMXV’s father will be invited to attend any directions hearings or the substantive hearing of this application, to make submissions or to give oral evidence; and
on or before 24 February 2022, GMXV’s father must lodge with the Tribunal and give to the NDIA and M a detailed Statement of Lived Experience, which is to include information relevant to the supports referred to in the Section 25(4A) Order made on 25 January 2022 as set out in the Decision.
………[SGD]………..
Member K. ParkerNOTES TO DIRECTION
- The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
- If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
- If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.
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