Goodliff and National Disability Insurance Agency
[2021] AATA 5022
•17 December 2021
Goodliff and National Disability Insurance Agency [2021] AATA 5022 (17 December 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/7389
Re:Karen Goodliff
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 December 2021
Date of written reasons: 17 January 2022
Place:Sydney
For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal refuses to grant the Applicant’s extension of time application.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for an extension of time – National Disability Insurance Scheme – Tribunal has no jurisdiction where an applicant has been accepted as a participant upon internal review – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
National Disability Insurance Scheme Act 2013 (Cth) ss 28, 34 and 48
CASES
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Mulligan v National Disability Insurance Agency (2015) 146 ALD 418
REASONS FOR DECISION
Chris Puplick AM, Senior Member
17 January 2022
On 29 March 2021 the National Disability Insurance Agency (the Agency), being the Respondent in this matter, made a decision to decline an application made by Mrs Karen Goodliff (the Applicant) for access to the National Disability Insurance Scheme (NDIS or the Scheme).
Her original application to become a participant in the Scheme was made in February 2021 and related to a number of claimed impairments, both psychological and physical.
On 13 May 2021 the Applicant sought an internal review of this decision and on 9 July 2021 the Agency granted her request and approved her application. Thus, as of 9 July 2021 the Applicant has become what is called a “participant” in the NDIS.[1]
[1] National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) s 28.
In determining to grant the Applicant’s status as a participant the Agency based its stated findings on acceptance that the Applicant was qualified for and should be granted access to the scheme for certain specified conditions, namely Major Depressive Disorder, Generalised Anxiety Disorder and Post-Traumatic Stress Disorder.
The Applicant is concerned that certain other conditions (such as bowel and bladder dysfunction; incontinence; hearing impairment and osteoarthritis) which she had included in her original NDIS application had not been recognised nor granted explicitly.
As a result, she lodged an application with this Tribunal for an extension of time under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to request a review of the Agency’s decision of 9 July 2021.
The Tribunal holds that no such extension of time is necessary for the Applicant to achieve her purposes and in any event, the Tribunal lacks the jurisdiction to grant such an application.
This is because of the way in which the NDIS operates. There is essentially a two-step process. In the first instance an applicant must be accepted as a “participant” and thereafter the participant and the Agency must agree upon a Participant Plan.[2]
[2] NDIS Act pt 2.
In the event that the participant and the Agency are unable to agree on the details of a Plan, that matter is subject to review through a number of processes which may well end up coming before this Tribunal or the Courts for final determination. In effect, the participant may request a “review” of their Plan at any time.[3]
[3] NDIS Act s 48(1).
In the key case of McLaughlin the Tribunal made it clear that nothing in the relevant sections of the NDIS Act “envisages that a decision on a person’s access to the NDIS must be referenced back to a particular impairment.”[4]
[4] McLaughlin and National Disability Insurance Agency [2021] AATA 496 at [46].
Similarly, in Mulligan, the Court made it clear that:
the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.[5]
[5] Mulligan v National Disability Insurance Agency (2015) 146 ALD 418 at [34].
In other words, once a person is an NDIS participant it is up to them and the Agency to determine what impairments will be addressed within their Plan and what will be the “reasonable and necessary supports” provided in relation to each.[6]
[6] NDIS Act s 34.
The Tribunal understands that the Applicant has in fact entered into a Plan as of 16 August 2021, although it is not aware of the full details of that Plan.
What now has to happen, from the Applicant’s point of view, is for her to engage with the Agency in any review of her Plan. It is up to her to put to the Agency what impairments should be covered by the Plan and what reasonable and necessary supports should be provided accordingly.
It is clear from the material already before the Tribunal that her claims will then cover more than simply the psychological conditions mentioned in the Agency’s letter to her dated 9 July 2021. She will no doubt advance those for consideration and inclusion in her Plan.
If all of those matters can be resolved to her satisfaction then she will move forward as a participant, hopefully with the levels of support she considers appropriate.
If those matters cannot be resolved the Applicant can apply for a review of the Plan. In McLaughlin the Tribunal noted:
[53] That being the case, it would be impractical if the supports that a participant can obtain through the NDIS were limited to supports which related to the impairments which qualified them for access to the NDIS under s 24. After all, one can expect that over a lifetime a person’s impairments may change, whereas their application for access to the NDIS occurs once, at a particular point in time.
[54] In contrast, once a person is a participant in the NDIS, the Act — in particular Part 2 of Chapter 3 — provides for continual review of the supports that are provided to them through their participant plan. Indeed, participant plans have a finite duration and a participant may request that their plan be reviewed by the CEO at any time (s 48). In other words, participant plans are not static and are expected to change over time as the person’s circumstances change over their lifetime. They therefore have the capacity to deal with new impairments as they arise.
The Applicant’s initial application to the Tribunal was designed to facilitate her having the Agency consider her non-psychological claims. She does not need any intervention by the Tribunal to do so. She has passed the threshold and is now an NDIS participant. She is free to advance whatever claims she likes for inclusion in her Plan.
The decision of 9 July 2021 was in her favour and does not need to be further reviewed for her to advance her case for support for all or any of the items for which she feels herself qualified. The Tribunal cannot do anything more to facilitate the progress of the Applicant’s claim.
It is because she is already an accepted participant that the Tribunal in fact lacks the jurisdiction to make any further determinations about anything related to her at this stage. Hopefully, she and the Agency will settle on a Plan which will not need to involve the Tribunal at any stage in the future.
The Tribunal notes the assurances given to it at the hearing on behalf of the Agency that it will arrange for an appropriate officer to contact the Applicant to provide her with further advice as to her rights under the legislation.
The immediate matter before the Tribunal, an application for an extension of time under the provisions of the AAT Act is refused for lack of jurisdiction.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 17 January 2022
Date(s) of hearing: 17 December 2021 Applicant: In person Solicitors for the Respondent: Ms A Botros, National Disability Insurance Agency
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