Hayes and National Disability Insurance Agency

[2020] AATA 3643

Hayes and National Disability Insurance Agency [2020] AATA 3643 (18 September 2020)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/4691

Re:Simon Hayes

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Buxton

Date:18 September 2020

Place:Brisbane

The Tribunal does not have jurisdiction to determine the application for review lodged by the Applicant on 27 July 2020. Accordingly, pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), I dismiss the application for review.

……………..…….……………….

Member Buxton

CATCHWORDS

PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – Application for review of decision to approve statement of supports in participant plan – jurisdiction to review decision – Whether internal review conducted by National Disability Insurance Agency in accordance with section 100 of the Act – Whether internal review request made – whether decision apparently made under subsection 33(2) is outcome of internal review request – Decision not reviewable by Tribunal pursuant to section 103 – Application for review dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Member Buxton

18 September 2020

Background

1. On 27 July 2020, Mr Simon Hayes, with the assistance of his mother, Mrs Eleanor Hayes, lodged with the Tribunal an application for review of a decision of the National Disability Insurance Agency (the NDIA) dated 24 July 2020.  On 27 August 2020, an interlocutory hearing was conducted by telephone in order to consider submissions from the parties as to whether the Tribunal has jurisdiction to review that decision.

2. Mr Hayes has been diagnosed with Autism Spectrum Disorder.  He lives with his parents and brother.  He is a participant in the National Disability Insurance Scheme (the NDIS) and various plans have been put in place to provide funding to support Mr Hayes pursuant to the National Disability Insurance Scheme Act 2013 (the Act).

   Participant’s plans

3. Each participant in the NDIS has a participant’s plan prepared with the assistance of the CEO of the NDIA: s 32(1).  The plan comprises a statement of the participant’s goals and aspirations, and a statement of participant supports approved by the CEO which specifies matters including:

   ·the reasonable and necessary supports, if any, that will be funded under the NDIS: s 33(2)(b);

   ·the date by which, or the circumstances in which, the plan must be reviewed: s 33(2)(c); and

   ·the management of the funding for supports under the plan: s 33(2)(d).

4. The CEO of the NDIA may decide to conduct a review of a participant’s plan at any time under s 48 of the Act.  Where such a review is conducted and a new plan is prepared, that becomes the participant’s plan as provided for in ss 32 and 33 of the Act.

   Review of decisions in participant’s plans

5. Some, but not all, decisions made under the Act with respect to a participant’s plan are reviewable by the Tribunal.  The decisions which are reviewable are identified in s 99 of the Act and relevantly include:

   ...

   (d)a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan;

6. Section 100 provides for review of a reviewable decision. As a decision to approve the statement of supports in a participant’s plan is a reviewable decision for the purposes of the Act: s 99(d), the CEO must give written notice of a reviewable decision to each person directly affected by it.  The notice must include information about the person’s rights to have the decision reviewed by the NDIA and by the Tribunal: s 100(1).

7. A person affected by a reviewable decision may request the CEO to review the decision: s 100(2).  This is commonly referred to as a request for “internal review”.  The request may be made in writing or orally, whether in person, by telephone or other means: s 100(3).  No particular words are required by the statute in order to initiate an internal review.

8. If a person requests internal review, the CEO must cause the reviewable decision to be reviewed by a reviewer to whom the necessary powers and functions have been delegated, and who was not involved in the decision under review: s 100(5).  The reviewer must make a decision confirming or varying the reviewable decision or setting it aside and substituting a new decision: s 100(6). 

9. Applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6): s 103.

   Mr Hayes’ plans

10. On 28 February 2020, the NDIA wrote to Mr Hayes attaching an approved plan (Plan 1).  In accordance with s 33(2)(c), the letter advised that the plan started on 28 February 2020 and would be reviewed on 27 February 2021.  After the body of the letter concluded, further information was provided, including the following statements:

    What if my circumstances change?
    Please remember that as a participant in the NDIS it is important to tell us about any event or change in circumstance that may affect your plan. This includes, but is not limited to, compensation that has been received, or that you are applying for. This may also include a significant change in your care arrangements or perhaps starting school or looking for work.

    If your circumstances change at any time and your plan no longer meet your needs, please discuss this with the person who is supporting your plan implementation or contact the NDIA in any of the ways listed below.

    How to request for your plan approval decision to be reviewed
    If you disagree with the decision about your plan approval you can request for the decision to be reviewed within 3 months of receiving this notice.

11. On 12 May 2020, Mrs Hayes notified the NDIS that Mr Hayes’ circumstances had changed.  The NDIA agreed to undertake a further plan review under s 48(2) of the Act.  Brief reasons for that decision were provided as follows:

    In your request, you told us Simon has received a new diagnosis warranting the need for review of his plan. The NDIA is satisfied that what you have described is enough of a change in circumstances to justify a review of Simon’s plan.

12. As a result of that review, on 2 June 2020 the NDIA wrote to Mr Hayes attaching a new approved plan (Plan 2).  In accordance with s 33(2)(c), the letter advised that the plan started on 2 June 2020 and would be reviewed on 2 June 2021.  After the body of the letter concluded, information in the same terms (as set out in paragraph 10 above) was again provided.

13. On 3 June 2020 and 5 June 2020, Mrs Hayes provided further information to the NDIA about Mr Hayes’ circumstances.  The full text of the further information has not been provided to the Tribunal.  However, on 25 June 2020, the NDIA informed Mr Hayes in writing of the decision to undertake a further plan review under s 48 of the Act.  Brief reasons for that decision were provided as follows:

    In your request, you told us that Simon requires additional funding for supports and respite added to his plan as carer unavailable to support due to personal health. The NDIA is satisfied that what you have described is enough of a change in circumstances to justify a review of Simon’s plan.

14. As a result of that further review, on 24 July 2020, the NDIA wrote to Mr Hayes attaching a further plan (Plan 3).  In accordance with s 33(2)(c), the letter advised that the plan started on 24 July 2020 and would be reviewed on 24 July 2021.  The Tribunal notes that amount of funding for supports in the new plan was at a slightly lower level than in Plans 1 and 2.  After the body of the letter concluded, information in the same terms (as set out in paragraph 10 above) was again provided.

15. On 27 July 2020, Mr Hayes lodged an application for review with the Tribunal, identifying Plan 3 as the decision he wished to have reviewed.

    Submissions

16. On 25 August 2020, written submissions were provided by the Respondent the effect of which was to invite the Tribunal to “infer” jurisdiction to review Plan 3.  Those submissions are summarised as follows:

    (a)the Respondent considers that it is open for the Tribunal to construe that it has jurisdiction to hear this matter.

    (b)On 28 February 2020, the Agency made a decision to approve the statement of participant supports in Plan 1 under s33(2). This was a reviewable decision under s99. On 12 May 2020, the Applicant requested a plan review take place as they had received a new diagnosis. While this request came within the period to be considered as a request for internal review of Plan 1 under s100(2), the Respondent submits that this request was appropriately treated as a request for an unscheduled review under s48(1) as it related to a change in the Applicant’s circumstances. On 18 May 2020, the Agency agreed to conduct a plan review in accordance with s48(2).

    (c)On 2 June 2020, the Agency completed the unscheduled review of the Applicant’s supports and approved the statement of participant supports in Plan 2 under s33(2). On 5 June 2020, the Applicant requested review of this decision. The Agency submits that this request can be construed as a request for internal review of Plan 2 under s100(2). However, the Agency processed this request as a further request for an unscheduled plan review under s48(1). On 25 June 2020, the Agency purported to make a decision to agree to conduct a plan review under s48(2) and on 24 July 2020, the Agency approved Plan 3 for the Applicant. Plan 3 is the decision that the Applicant seeks to have reviewed by the Tribunal.

    (d)The Respondent submits that it is open to the Tribunal to construe that the Agency mischaracterised the Applicant’s request of 5 June 2020 as a request under s48(1) rather than a request under s100(2) for internal review of Plan 2. Further, the Respondent considers that it is open to the Tribunal to construe that Plan 3 is in fact a decision under s100(6) in relation to the internal review request, albeit not in the usual form. If the Tribunal adopts this construction, the Agency considers that the Tribunal would have jurisdiction to hear this matter.

    (e)Alternatively, if the Tribunal does not accept this construction and considers that Plan 3 constitutes a further decision under s33(2), the Agency is willing to fast-track an internal review of Plan 3 in order to progress this matter.

17. The Respondent was directed, following the interlocutory hearing, to provide further submissions and documents in order to assist the Tribunal to properly determine the question of jurisdiction.  On 8 September 2020, the Respondent provided some relevant documents, and the following further written submissions:

    (a)We note that the Respondent’s earlier submissions alluded to the Applicant requesting a review of Plan 2 (dated 2 June 2020) on the 5 June 2020. As per the attached documents (see interaction notes), the Applicant in fact requested a review of Plan 2 on 3 June, and later filed additional evidence to be considered as part of that review on 5 June 2020.

    (b)The Respondent contends the Agency mischaracterised the Applicant’s request of 3 June 2020 as a request under s48(1) rather than a request under s100(2) for internal review of Plan 2.

    (c)The Respondent therefore considers it is open to the Tribunal to find that Plan 3 is in fact a decision under s100(6), and so, should the Tribunal adopt this construction, the Tribunal would have jurisdiction to hear this application.

18. The Applicant provided written submissions to the Tribunal prior to the interlocutory hearing.  Understandably, those submissions were directed towards substantive matters relating to Mr Hayes’ approved plan and did not directly address whether the Tribunal has jurisdiction to review Plan 3.

    Is there a decision that the Tribunal can review?

19. Mr Hayes’ application to the Tribunal seeks review of the statement of supports in Plan 3, approved on 24 July 2020.  The question is whether that decision was a decision by a reviewer under s 100(6) which the Tribunal has power to review.  For the reasons that follow, I have found that it was not such a decision.

20. I have considered each of the two occasions that Mrs Hayes has communicated with the NDIA about the statement of supports following the approval for Mr Hayes, on 28 February 2020, of Plan 1.  On both occasions, Mrs Hayes provided new information about changed circumstances and/or changed diagnoses.  Although I have not been given all of the information provided by Mrs Hayes to the NDIA on those occasions, the delegates who considered that information each turned their minds to the question whether Mr Hayes’ circumstances had changed sufficiently to justify undertaking an “unscheduled” review.  In the letters dated 18 May 2020 and 25 June 2020, the delegates determined that sufficiently changed circumstances justified undertaking such a review and indicated that an “unscheduled” review would take place in accordance with the provisions of s 48 of the Act.  The reasons expressed by the delegates on those two occasions differed, demonstrating that each set of changed circumstances was different.  Plan 3, which was the decision resulting from the review of the plan which the NDIA agreed on 15 June 2020 to undertake, is expressed to be a “new plan”. This indicates that the decision maker considered that a new statement of supports had been made under s 33 of the Act. 

21. The submission as to jurisdiction made by the NDIA is, in effect, that substance should prevail over form in this case and that Plan 3 was arrived at following a thorough review of Mr Hayes’ circumstances.  However, that is not the question.  The Tribunal can review only certain decisions, and the Act reserves to the NDIA the task of first internally reviewing a decision as to the statement of supports made under s 33 of the Act.  Only after completion of this internal review process is a decision made in respect of which the Tribunal’s review jurisdiction is enlivened.

22. The NDIA’s submissions do not address the issue whether the officer who signed the decision made on 24 July 2020 had authority to act as a reviewer or whether or not they were involved in making the reviewable decision approving the statement of supports in the plan which Mrs Hayes asked the NDIA to review. The Tribunal cannot be satisfied, therefore, that the officer met the description of a reviewer in s 100(5). 

23. In any event, the decision conveyed in the letter dated 24 July 2020 cannot properly be construed as a decision under s 100(6) which the Tribunal has power to review.  Nothing in the letter suggests that the officer approved Plan 3 in their capacity as a reviewer.  The officer did not refer to or utilise the language of s 100(6) but, rather, expressly stated that they had made a further decision approving the statement of supports in a new plan.  That decision is made under s 33 of the Act and, if dissatisfied, it is open to a participant to seek internal review of that decision within the statutory three-month time frame.[1]  The NDIA has accepted that, if the Tribunal does not have jurisdiction to review the decision to approve the statement of participant supports in Plan 3, the actions of Mrs Hayes have been sufficient to constitute a request on behalf of Mr Hayes to review that decision.  The NDIA has further indicated that any internal review would be conducted without delay.

    [1] National Disability Insurance Scheme Act 2013 (Cth) s 100(2) “…the person must make the request within 3 months after receiving the notice.”

24. It follows, for the reasons above, that the 24 July 2020 Plan 3 decision, made in response to the provision of further information by Mrs Hayes on 3 June 2020 and  5 June 2020, was not a decision under s 100(6) but was a decision approving a new statement of supports in Mr Hayes’ plan made following a review undertaken by the NDIA pursuant to s 48 of the Act.       

    Conclusion

25. As there has not been a decision by a reviewer made under s 100(6) of the Act, there is no decision which Tribunal has jurisdiction to review.

    DECISION

26. The Tribunal does not have jurisdiction to determine the application for review lodged by the Applicant on 27 July 2020. Accordingly, pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), I dismiss the application for review.

I certify that the preceding 26   (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member Buxton

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Associate

Dated: 18 September 2020

Date of hearing:	27 August 2020
Date final submissions received:	8 September 2020
Advocate for the Applicant:	Mrs Eleanor Hayes, by telephone
Solicitor for the Respondent:	Ms Cassandra Polese, by telephone