Helping Hands Residential Assisted Living and National Disability Insurance Agency

[2023] AATA 4089

Helping Hands Residential Assisted Living and National Disability Insurance Agency [2023] AATA 4089 (8 December 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2023/8065      

Re:Helping Hands Residential Assisted Living  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K Bean

Date:8 December 2023

Place:Sydney

The Tribunal is satisfied the decision the subject of the application is not reviewable by the Tribunal. Accordingly, the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD]...................................

Member K Bean

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – National Disability Insurance Scheme – whether a decision not to pay an invoice is a reviewable decision – whether a support provider has standing to make an application – no internal review decision – application not reviewable – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Member K Bean

8 December 2023

1. The Applicant, Helping Hands Residential Assisted Living (“Helping Hands”), provided emergency accommodation to a National Disability Insurance Scheme (“NDIS”) participant, Mr Craig Mitchell, for a number of weeks in January 2022 at a cost of just under $20,000.  Although I do not have a copy of Mr Mitchell’s NDIS Plan, as I understand the position, this accommodation was not provided for in Mr Mitchell’s then current plan, and the relevant plan has not been varied to include it.  The National Disability Insurance Agency (“the Agency”) has accordingly declined meet this cost and Helping Hands has brought this application seeking to have the amount it is owed for services provided to Mr Mitchell paid by the Agency.

2. The only issue currently before me is whether the Tribunal has jurisdiction to entertain the application.  I will first explain the factual background in more detail before addressing that issue directly.

   BACKGROUND

   
   
   

3. From the limited material before me, I understand the need for Mr Mitchell to be provided with emergency accommodation arose from a crisis that developed in early 2022, which meant Mr Mitchell was at risk of becoming homeless.  A document entitled “Craig’s History” described the situation as follows:

   Craig did not have anywhere else he could stay – there was an AVO between Craig and his sister and his elderly mum lived in Campbelltown and struggled with Parkinson’s. Craig found it very difficult to communicate with her. Craig’s elderly step-dad cares for Craig’s mum. Craig’s biological father passed away in 2002.  Prior to his death, Craig lived with his dad for 11 years.  After his dad passed away, Craig moved in with Rebecca.

   Support coordinator assisted Craig to find accommodation. Helping Hands offered modified home in Blacktown. Craig viewed the home and was happy to move in and have stable accommodation in an area that he knew well. Accommodation offers subsidised rent and utilities.

4. It appears therefore that accommodation was provided to Mr Mitchell in response to an urgent request from Mr Mitchell’s support co-ordinator, who was concerned that Mr Mitchell would otherwise have been left in a “catastrophic and possibly life-threatening” [1] situation.  In these circumstances it seems reasonable to infer Helping Hands are likely to have assumed the cost of this would be met under Mr Mitchell’s NDIS Plan. 

   [1] Application for Review of Decision, p 3.

5. Doing the best I can from the limited material, it appears the relevant Helping Hands invoice was initially submitted to the Agency for payment, but rejected on the basis that the “Participant’s Plan / Support Category budget has been consumed and supports have not been deemed reasonable and necessary as per the delegate”[2].

   [2] Screenshot filed by the Applicant on 30 October 2023.

6. An “appeal” was apparently lodged by Mr Mitchell’s plan manager, BudgetNet, but this was also rejected on or about 26 June 2023.  BudgetNet was apparently advised by the Agency:

   …we are unable to make the requested payment due to the participants plan being fully consumed and there was no prior approval of continuing those supports outside the impacted plan, the invoices as per the attached show more daily supports than what is considered reasonable and necessary as per subsequent plan – Retrospective approval of reasonable and necessary supports is not permissible under the NDIS Act, therefore additional funds are not able to be approved to cover any excessive services provided outside of the plan.”[3]

   [3] Application for Extension of Time, p 2. 

   STATUTORY FRAMEWORK

7. It is clear from the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”) that only particular decisions made under the Act are considered “reviewable decisions” which may be reviewed by this Tribunal (following internal review). Those decisions are specified in s 99 of the Act. They include decisions to approve a statement of participant supports (s 33(2)), and decisions not to vary a participant’s plan (s 47A). However, they do not include decisions not to pay a particular expense.

   ANALYSIS

8. The Agency contends the Tribunal does not have jurisdiction to review the ‘appeal’ decision referred to above, or any earlier related decision not to pay the relevant invoice, as “a payment decision of the Respondent is not a reviewable decision listed under s 99”[4].

   [4] Respondent’s Submissions of 27 November 2023.

9. I accept the correctness of this submission, although I would add a qualification. I have considered whether it could be argued that the ‘appeal’ lodged by BudgetNet should have been characterised as a request for review of the relevant statement of participant supports pursuant to s 33 of the Act. On balance, I have concluded it would be difficult to support that characterisation, at least on the very limited material I have. It follows I accept the Agency’s submission that the Tribunal does not have jurisdiction to consider the current application, as it does not relate to any decision which is reviewable by the Tribunal pursuant to ss 99, 100 and 103 of the Act.

10. I hasten to add however, that this may not have the consequence that Helping Hands is without any remedy. 

11. Although the current application has been made in the name of Helping Hands, I note it has been lodged by Mr Mitchell’s support co-ordinator, Mr Chandler, acting as representative for Helping Hands.  I infer he has made the application with a view to ensure Helping Hands are paid for the service he requested from them on behalf of Mr Mitchell.

12. It appears to me it would be open to Mr Chandler to make a formal request for internal review of the applicable statement of supports, seeking to include the accommodation provided by Helping Hands.  Assuming Mr Chandler either has or obtains the relevant authorisation from Mr Mitchell, this could potentially be done on Mr Mitchell’s behalf, accompanied by an explanation for the delay in making the application.  If such a request resulted in the Agency amending the relevant plan as sought, this may clear the way for payment of the amount owing to Helping Hands, subject to the Agency being satisfied that other relevant requirements were met.  In the event of an adverse decision by the Agency, or a refusal to extend time, this Tribunal may have jurisdiction to review that decision.

13. Alternatively, as I noted at the hearing of this matter, it is not inconceivable that Helping Hands itself would have standing pursuant to s 100(2) of the Act to request an internal review of the decision to approve the relevant statement of supports, as a “person directly affected” by the decision.  Arguably, an unpaid provider is in fact the person most affected by a failure to fund a support they have already provided to the participant, but not been paid for.  However, it is unnecessary to explore this issue further in the context of this matter, particularly in circumstances where it appears there is a more straightforward course of action available, as outlined immediately above. 

    CONCLUSION

14. For the reasons I have given, I have decided the Tribunal does not have jurisdiction to review the decision the subject of the application.  Therefore, the application must be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for the decision herein of Member K Bean

.....................................[SGD]...................................

Associate

Dated: 8 December 2023

Date(s) of hearing:	27 November 2023
Advocate for the Applicant:	Mr A Chandler, Non-Legal Advocate
Solicitors for the Respondent:	Mr J Burston & Ms P Lenehan, National Disability Insurance Agency