Hassett and National Disability Insurance Agency

[2018] AATA 4

Hassett and National Disability Insurance Agency [2018] AATA 4 (4 January 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2017/6641

Re:Ethan Hassett

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:4 January 2018

Place:Brisbane

The Tribunal has jurisdiction to review the decision of the respondent dated 3 November 2017.

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Deputy President Dr P McDermott RFD

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – characterisation of decision made by delegate of Chief Executive Officer – whether reviewable decision is made under s 100(6) – reviewable decision made under s 100(6)(b) to vary statement of participant supports

PRACTICE AND PROCEDURE – JURISDICTION – Tribunal’s jurisdiction to review decisions under the National Disability Insurance Scheme Act 2013 limited to those made by a reviewer under s 100(6)

LEGISLATION

National Disability Insurance Scheme Act 2013

CASES

ZKTN and National Disability Insurance Agency [2017] AATA 744

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

4 January 2018

HISTORY

1. The applicant had a Participant Plan and Statement of Participant Supports approved by the respondent under section 33 of the National Disability Insurance Scheme Act 2013 (the Act) on 14 March 2017, which included provision for home modifications in the amount $1,475.00.

2. The applicant’s mother submitted an enquiry to the respondent on 8 May 2017 raising a number of questions and issues concerning the Participant Plan and Statement of Participant Supports.

3. The respondent subsequently issued a decision letter dated 3 November 2017 in which it stated the decision was an “internal review of the information supplied” in order to reach a decision about whether to adjust the fund for home modifications. The decision letter did not outline the legislative basis for the review.

4. In the decision letter of the respondent dated 3 November 2017, it was decided:

   (a)to “fund home modifications in line with the adjusted attached drawings”;

   (b)that what is reasonable and necessary was $81,842.05;

   (c)to reject the plans submitted by the Occupational Therapist as they were in excess of what would be reasonable and necessary for the National Disability Insurance Scheme (NDIS) to fund:

   (i)Bathroom modification – criteria not met under section 34(1)(e)

   (ii)Bedroom/living extension – criteria not met under section 34(1)(e), Rule 5.1a, 5.1b, 5.1c, 5.1d, 5.2a, 5.3a

   (iii)Concrete under-cover area – criteria not met under section 34(1)(e), Rule 5.1b, 5.1d, 5.2a, 5.3a

5. The letter of the respondent dated 3 November 2017 also outlined that the applicant had a right to have the decision reviewed with this Tribunal.

6. The parties have requested that a decision be made on the papers as to whether the Tribunal does in fact have jurisdiction to review the decision dated 3 November 2017. The respondent contends that the decision dated 3 November 2017 should be considered an internal review in response to a review request made on 8 May 2017.

   LEGISLATION

7. Section 33 of the Act provides that a participant’s plan must include a statement of participant supports which outlines the general supports for the participant, reasonable and necessary supports that will be funded by the respondent, a date by which the respondent must review the plan, management of funding for supports and management of other aspects of the plan. Section 99(d) of the Act states that a decision to approve a statement of participant supports in a participant’s plan is a reviewable decision.

8. Section 100(2) of the Act provides that a person who is directly affected by a reviewable decision may request a review, within 3 months after receiving notice of the reviewable decisions. Section 9 provides that a participant is a child for the purposes of the Act if they are under 18 years of age. Section 74 of the Act stipulates that a request from a parent is taken to be a request of the applicant.

9. Section 48(4) of the Act allows the Chief Executive Officer (CEO) of the respondent to conduct a review of the participant plan at any time.

10. Section 100(5) of the Act requires that where a request for review is received, the CEO of the respondent must ensure that the reviewable decision is reviewed by a delegated decision maker not involved in the original decision.

11. Section 100(6) of the Act provides that the reviewer must as soon as reasonably practicable make a decision, confirming the reviewable decision (section 100(6)(a)), varying the reviewable decision (section 100(6)(b)) or setting aside the reviewable decision and substituting a new decision (section 100(6)(c)).

12. Section 103 of the Act provides the Tribunal jurisdiction to review a decision made under section 100(6).

    CONSIDERATION

13. The applicant had a Participant Plan which included a Statement of Participant Supports which was approved on 14 March 2017. This allowed for reasonable and necessary supports for the applicant which included home modifications totalling $1,475.00. This is a reviewable decision under section 99(d) of the Act.

14. The applicant’s mother made an enquiry of the respondent on 8 May 2017 which included questions about the funding allocated for home modifications and whether the respondent intended to review, remove or alter, the funding included for modifications, and if yes, whether reasons would be provided. While the applicant’s mother did not request a review specifically under any section of the Act, on its plain reading it is clearly intended to represent the applicant’s mothers views that the funding allocated for home modifications in the original plan was inadequate

15. The original participant plan and statement of participant supports was approved on 14 March 2017 and the purported review request was made on 8 May 2017 which is within 3 months of the original decision: see section 100(2). The CEO of the respondent is allowed to conduct a review at any time according to section 48(4) of the Act, in which case any purported review would be within the bounds of the Act.

16. The Applicant was 17 years old at the time of the approval of the participant plan on 14 March 2017 and at the time of the correspondence from the applicant’s mother to the respondent on 8 May 2017. As the applicant was under 18 years old at the time, his mother’s request can be taken as a request for review by the applicant himself: see section 9 and section 74.

17. The decision letter of 3 November 2017 indicated that the author of the letter is a delegate of the CEO of the respondent and there is no indication that he had involvement in the original participant plan of 14 March 2017. Therefore the decision in this respect is in accordance with section 100(5) of the Act.

18. The wording of the decision letter of 3 November 2017 was unambiguous and stated it was an internal review of which the outcome was to fund home modifications that were reasonable and necessary; funding that was reasonable and necessary for home modifications was $81,842.05. This is a significant increase from the amount allocated in the original plan for $1,475.00.

19. The delegate of the CEO for the respondent does not reference making the decision under a particular section of the Act. At this early stage of the implementation of the NDIS it would be unfair to be unduly critical in the wording of the decision of 3 November 2017. I have previously decided that the Act does not impose a statutory requirement for a decision-maker to refer to the statutory provision under which the decision is made.[1] However in the future, it would be desirable to avoid any uncertainty if a decision referred to the statutory provision under which it was made.

    [1] ZKTN and National Disability Insurance Agency [2017] AATA 744 at [24]

20. The decision by the delegate on 3 November 2017 did vary the original decision in as much as the amount of funding for home modifications for the applicant was to increase from $1,475.00 to $81,842.05. On this basis, the decision of 3 November 2017 of the respondent can be taken as varying the statement of participant supports in the first participant plan under section 100(6)(b) of the Act. The decision letter also outlined that the applicant does have a right to have the decision reviewed by this Tribunal.

    CONCLUSION

21. As the decision of 3 November 2017 was a decision under section 100(6)(b) of the Act, the Tribunal has jurisdiction to review it according to section 103 of the Act.

    DECISION

22. The Tribunal has jurisdiction to review the decision of the respondent dated 3 November 2017.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 4 January 2018

Date(s) of hearing:	On the Papers
Advocate for the Applicant:	Queensland Advocacy Inc
Solicitors for the Respondent:	Australian Government Solicitor