Groves and National Disability Insurance Agency

[2023] AATA 3143

Groves and National Disability Insurance Agency [2023] AATA 3143 (25 July 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/4281

Re:Mark Groves

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date of decision:                   25 July 2023

Date of written reasons:        4 October 2023

Place:Adelaide

For the reasons set out below, the Tribunal decided that it does not have jurisdiction to review the Respondent’s decision to place restrictions on communications with the Applicant as joint Plan Nominee for a participant under the National Disability Insurance Scheme. Pursuant to s 42A(4) of the Administrative Appeals Act 1975, the application for review was dismissed.

.....................[Sgnd]...........................................

Member I Thompson

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction - whether Respondent’s decision to limit communications with a Plan Nominee is reviewable – decision is not reviewable – the Tribunal does not have jurisdiction.

LEGISLATION

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360

SECONDARY MATERIALS

NDIS (Nominees) Rules 2013

REASONS FOR DECISION

Member I Thompson

4 October 2023

1. The applicant, Dr Mark Groves, applied to the Tribunal for review of a decision dated 16 May 2023 by the respondent, the National Disability Insurance Agency (“the Agency”).

2. An interlocutory hearing by telephone was convened to consider whether the Tribunal had jurisdiction to review the decision. Dr Groves attended the interlocutory hearing and Mr Nguyen represented the Agency. Having heard oral submissions from the parties the Tribunal was satisfied that the decision by the Agency is not reviewable. The Tribunal made an order pursuant to s 42(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) dismissing the substantive application, indicating also that written reasons would be provided subsequently. Those reasons are now set out.

3. The Agency’s decision dated 16 May 2023 is contained in a letter of the same date addressed to Dr Groves with the heading “support channels and communication expectations.” It was written to Dr Groves in his capacity as a plan nominee for his daughter Ms Samantha Groves. She is a participant in the National Disability Insurance Scheme (“NDIS”). Dr Mark Groves and Dr Peta Groves are joint guardians, plan nominees and primary carers for Ms Samantha Groves. The guardianship orders were made by the SA Civil & Administrative Tribunal (“SACAT”)

4. The letter dated 16 May 2023, which was written by the Agency’s Director Planning, Complex Support Needs Branch, to Dr Mark Groves states: –

   “Support channels and communication expectations

   Dear Dr Groves,

   I am writing to let you know that we need to make changes to the way you communicate with the National Disability Insurance Agency (NDIA) in your capacity as a Plan Nominee for Ms Samantha Groves.

   Recent telephone contact

   During a recent telephone conversation with Samantha’s planner on 14 April 2023, you displayed inappropriate behaviour, which impacted on staff well being. As a result, the NDIA need to make changes to how you connect with staff.

   Our commitment

   We are committed to ensuring that supports are maintained, in line with participant needs. This includes access to contact channels between plan nominees, participants and planners.

   Support channels

   Samantha’s current plan was endorsed on 13 January 2023 and has funding allocated for Support Coordination services. Support Coordinators can provide links with other mainstream services, such as support to engage with providers and community programs, whilst supporting participants to best access the supports indicated in their plans. It is encouraged this support be accessed.

   Planner contact

   Samantha will be assigned a new planner in due course. Once the new planner is assigned, they will contact you via email to arrange frequency of contact and how best they can support you in your role as a plan nominee.

   Respectful communication

   It is important to note that all future correspondence with Agency staff is to be via email or through a Support Coordinator. When communicating with Agency staff, we expect you to always be respectful. If your email correspondence contains any inappropriate or abusive content, it will be discarded.

   These changes will remain in place for six months from the date of this letter. At which time the Agency will determine whether the changes detailed above, will need to be continued.”

5. In that letter, the telephone conversation in question is said to have occurred on 14 April 2023. The Agency’s written submissions, however, refer to the applicable telephone call occurring on 11 May 2023, followed by the correspondence dated 16 May 2023. In his application to the Tribunal, Dr Groves states that the relevant telephone call occurred on 11 May 2023. The Agency’s interaction records noted a telephone conversation with an Agency delegate on 14 April 2023, in which Dr Groves’ behaviour “escalated” and included verbal abuse, noting too that Dr Groves would lodge a formal complaint against the delegate together with requests for a new delegate and contact from the manager/supervisor. Subsequent communications about complaints and issues with the NDIS plan culminated in the telephone conversation on 11 May 2023

6. In his application to the Tribunal, Dr Groves denied allegations of misconduct during a phone call with the Agency. On the contrary, he wrote that the Agency representative with whom he spoke was “uncooperative, antagonistic and opaque throughout our conversation and terminated the call without any reasonable cause. Specifically the person did not indicate that she was terminating the call due to misconduct, aggression or any inappropriate behaviour or language on my part.” In its written submissions, the Agency commented that the call was terminated by the Agency employee “when the Applicant became aggressive.”

7. Dr Groves submitted that it was not possible for him to request an internal review of a reviewable decision as the Agency’s senior complaints officer refused to refer his verbal and written requests for an internal review and consideration of his complaint documents to the Agency’s CEO “and advised me my only option to progress was to refer the matter to the Tribunal (AAT) “[1]

   [1] Dr Groves email to the Tribunal 30 June 2023

   JURISDICTION

8. In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360 the Tribunal (comprising Deputy President Forgie) explained the context in which the NDIS Act provides for review of a range of decisions made under it [8]: –

   “Provision for review is made of some decisions and not of others. Determining whether the Tribunal has jurisdiction or power to review a particular decision is a matter of statutory interpretation. The starting point must always be the provision that gives the Tribunal power interpreted in the context of the relevant enactment having regard to the particular words used by Parliament and having regard to the object and underlying policy of the enactment. Parliament has chosen those decisions which should be reviewed and those which should not. It is not for the Tribunal to attempt to stretch the boundaries of the scheme of review established by the Parliament in an endeavour to make the Agency accountable for its expenditure and administration. Parliament will have had that in mind when it selected the decisions that the Tribunal might be asked to review just as it will have had in mind other means to ensure that the Agency is accountable for its administration of the NDIS. Those other means will include the Commonwealth Ombudsman and the Auditor General as well as, through the responsible Minister, Parliament.”

9. Section 99 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”) includes a table which sets out the reviewable decisions under the NDIS Act.

10. Section 100(2) of the NDIS Act provides that a person directly affected by a reviewable decision may request the decision-maker to review that decision. On internal review, pursuant to s 100(6) of the NDIS Act the reviewer must make a decision confirming the reviewable decision, or varying it, or setting it aside and substituting a new decision.

11. The Tribunal’s jurisdiction is established by s 103(1) of the NDIS Act which states relevantly: –

    (1)   Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)

    CONSIDERATION

12. Chapter 6, Part 1 of the NDIS Act provides for the functions and powers of the Agency. It is a body corporate which may sue and be sued (s 117(2) of the NDIS Act). Of the numerous functions set out in s 118 of the NDIS Act, the Agency must use its best endeavours to “act in a proper, efficient and effective manner.” (s 118(2)(b) of the NDIS Act). It has the power “to do all things necessary or convenient to be done for or in connection with the performance of its functions.” (s 119(1) of the NDIS Act). The NDIS (Nominees) Rules 2013 set out the provisions regarding the appointment, duties, cancellation, and suspension of nominees.

13. NDIS (Nominees) Rules 3. 2 & 3.3 acknowledge that there are times when a nominee of an NDIS participant is required to act and make decisions on behalf of a participant, in circumstances when it is not possible for participants to be assisted to make decisions for themselves.  Dr Mark Groves and Dr Peta Groves are appointed as plan nominees jointly.

14. In the NDIS Act, a nominee is defined as the correspondence nominee of a participant or the plan nominee of a participant (s 9 of the NDIS Act). A decision by the CEO of the Agency pursuant to s 86 of the NDIS Act to appoint a person to be a plan nominee of a participant is a reviewable decision under s 99 of the NDIS Act. A decision to appoint a correspondence nominee pursuant to s 87 of the NDIS Act is a reviewable decision under s 99 of the NDIS Act. Decisions pursuant to ss 89, 90 or 91 of the NDIS Act to cancel or suspend, or not to cancel or suspend, the appointment of a nominee are reviewable under s 99 of the NDIS Act. In this matter, the Agency did not purport to cancel or suspend the appointment of one or both of the nominees. If the decision had been a cancellation or suspension, rights of internal and external review would apply.

15. In addition to being plan nominees, Dr Mark Groves and Dr Peta Groves were appointed by SACAT on 21 March 2022 as guardians of Ms Samantha Groves with specific reference to NDIS and service decisions and planning. The terms of the SACAT order were confirmed by the previous guardian, the Office of the Public Advocate (OPA) by email to the Agency on the same day, namely 21 March 2022, with the Agency acknowledging receipt of the SACAT documentation by email to OPA on 25 March 2022. It appears from interaction records that the Agency continued to direct correspondence to OPA for many months and possibly into early 2023, rather than to Dr Mark Groves and Dr Peta Groves. They were concerned that the change which gave guardianship status to them was not recorded appropriately in the relevant records within the Agency, which caused unnecessary and cumbersome complications for both of them, as guardians and plan nominees, on the critical question of management of the NDIS plan funds. This matter, together with other concerns about funding and services, was the subject of numerous communications between the parties. Those communications culminated in the email exchanges and conversations by telephone in the weeks leading up to the Agency’s “support channels and communication expectations” letter to Dr Mark Groves on 16 May 2023.

16. The table of reviewable decisions in s 99 of the NDIS Act specifies 33 items each of which specifies one or more reviewable decisions and the provisions of the Act under which the reviewable decision is made.

17. There is no provision in the NDIS Act for internal review of a decision by the Agency with regard to the way in which a plan nominee is required or expected to communicate with the Agency. The Agency’s decision on 16 May 2023 in which it purports to direct Dr Mark Groves to abide by its criteria for communication as a plan nominee is not a decision which is specified in ss 99(1) or (2) of the NDIS Act.

18. It appears that Dr Mark Groves submitted a request on 17 May 2023 to the Agency Escalations Team of the Complex Support Needs Branch in which he asserted that the Agency’s decision on 16 May 2023 about terms of communication was inappropriate and, in effect, should be reviewed and set aside. However, that decision was not a decision capable of being reviewed under s 100(2) of the NDIS Act. Any decision that may have been made subsequently by the Agency on that question is not a decision under s 100(6) of the NDIS Act. In the absence of any such decision, the Tribunal does not have a power of review under s 103 of the NDIS Act.

19. It is clear from the documents that both Dr Mark Groves and Dr Peta Groves are united in their views about the relevant issues. The “probation” period for Dr Mark Groves expires on 11 November 2023 with the suggestion that it be reviewed at that time. In the meantime, it is not clear how a communication would be described objectively as “inappropriate”. Obviously, correspondence which contains “abusive content” would be more readily apparent. It is difficult, nonetheless, to discern the Agency’s practical and technical process for “discarding” correspondence that relates to an NDIS participant.

20. It should also be noted that it was not within the scope of the interlocutory hearing  to delve into the substance of the concerns, complaints and responses that featured in the communications between the parties. Those are matters that can be pursued in other processes. The Tribunal makes no assessment about those claims and counterclaims, other than to note from the interaction records that the content and tone of the written correspondence to the Agency from Dr Mark Groves and from Dr Peta Groves is not in fact, and could not conceivably be, the subject of the alleged inappropriate behaviour.

21. Further reflection will be necessary about restrictions purporting to apply to communications with an NDIS participant’s plan nominee who is also a guardian appointed by SACAT. Those restrictions could be problematic if the effect is to undermine the SACAT order.

    DECISION

22. For the reasons set out above, the Tribunal decided that it does not have jurisdiction to review the Respondent’s decision to place restrictions on communications with the Applicant as joint Plan Nominee for a participant under the National Disability Insurance Scheme. Pursuant to s 42A(4) of the Administrative Appeals Act 1975, the application for review was dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.............................[sgnd]..................................

Associate

Date of Decision:

Date of Written Reasons:

25 July 2023

4 October 2023

Date of Hearing:

25 July 2023

Representation for the Applicant:

Self-represented

Solicitor for the Respondent:

Mr Nguyen
The Agency