HGLS and National Disability Insurance Agency

[2022] AATA 2774

HGLS and National Disability Insurance Agency [2022] AATA 2774 (25 August 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3331

Re:HGLS

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K Buxton

Date:25 August 2022

Place:Brisbane

The Applicant’s request for a direction that the Respondent produce a statement, under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

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

Senior Member K Buxton

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – request for statement of reasons under s 28 AAT Act – whether the basis for the decision is adequate – request refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K Buxton

25 August 2022

BACKGROUND

1. HGLS (‘the Applicant’) is a participant in the National Disability Insurance Scheme (‘NDIS’). These reasons set out the basis upon which the Applicant’s request for a direction that the Respondent produce a statement, under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), is refused.

2. The Applicant made an application to the Tribunal on 23 April 2022, seeking review of a decision made by a delegate of the CEO of the National Disability Insurance Agency (‘the Respondent’) dated 17 March 2022 pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).

3. On 21 February 2022, a delegate of the CEO of the Respondent approved the Applicant’s statement of participant supports and a NDIS Plan was implemented for the period covering 21 February 2022 to 21 February 2023. On 2 March 2022, the Applicant submitted a request for internal review of the original decision under section 100(3) of the NDIS Act.

4. The Respondent made a decision pursuant to section 100(6) of the NDIS Act on 17 March 2022 confirming the original decision dated 21 February 2022, deciding that funding for the following supports were not reasonable and necessary:

   (a)Funding for a gaming laptop with webcam, discrete mouse buttons and 17” screen;

   (b)An increase in support worker hours;

   (c)A comfortable chair;

   (d)A bed for the participant’s informal support; and

   (e)A night light.

5. On 25 March 2022, the Applicant submitted a written request to the Respondent to provide a statement of reasons pursuant to section 28(1) of the AAT Act within 28 days of the request. In her email the Applicant advised that without a statement of reasons she did not have the information needed to decide if she wanted to appeal the decision or not and expressed concern that the delegate failed to take into account all of the evidence submitted in support of her request.

6. On 22 April 2022, the Respondent sent an email to the Applicant asserting that the “Basis of Decision” letter made under section 33(2) of the NDIS Act set out the reasons for the decision and declining to provide a statement of reasons under the AAT Act. On 23 April 2022, the Applicant filed an application for review by the Tribunal of the Respondent’s decision dated 17 March 2022. On 5 May 2022, the Respondent filed with the Tribunal a copy of the documents relevant to the review identified as the ‘T-documents’.

7. On 9 May 2022, the Applicant filed a further request for statement of reasons under section 28 and section 37 of the AAT Act. In the letter, the Applicant noted that the T-documents were incomplete pursuant to section 37(1) of the AAT Act and requested that additional documents be filed. On 15 May 2022 and 30 May 2022, the Respondent filed supplementary T-documents.

8. On 11 July 2022, the Respondent filed a Statement of Issues which confirmed their original position that the internal review decision satisfies the requirements under section 28(4)(a) and 37(1)(a) of the AAT Act. The Respondent acknowledged that they filed supplementary T-documents which comprised of the internal review decision, interaction notes and the completed request for Home and Living Supports Form.

9. On 12 July 2022, the Applicant made a further request for a statement of reasons under section 28 of the AAT Act. On 27 July 2022, the Tribunal considered that request, and also whether it was appropriate to make an order under section 38 of the AAT Act requiring the Respondent to file a statement of reasons. The Tribunal refused to make orders under either provision, noting that the Applicant had not demonstrated that she had met the statutory precursor for an application to be brought under section 28 of the AAT Act as she did not provide the Tribunal any evidence that she made a written request to the Respondent for a statement of reasons pursuant to section 28(1) of the AAT Act. The Tribunal further noted that the decision under review and attached reasons, together with the supplementary T-documents filed on 30 May 2022 sufficiently particularised the findings made in the decision under review. For these reasons, the Tribunal refused to make an order under section 38.

10. On 28 July 2022, the Applicant made a further request for a statement of reasons under section 28 of the AAT Act, attaching evidence of that she had made a request of the Respondent for a statement of reasons.

11. On 18 August 2022, the Respondent provided a submission in reply to the Applicant. An amended version of the submission was also filed on 19 August 2022. The Applicant filed a further submission on 19 August 2022 in reply to the Respondent.

    ISSUE

12. The issue before the Tribunal is whether it should exercise its discretion under section 28 of the AAT Act and order the Respondent to provide a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

    APPLICANT’S POSITION

13. The Applicant has applied to the Tribunal for a declaration, pursuant to section 28(5) of the AAT Act, that the Basis of Decision letter made under section 33(2) of the NDIS Act does not contain:[1]

    (a)Adequate particulars of findings on material questions of fact;

    (b)An adequate reference to the evidence or other material on which those findings were based; and

    (c)Adequate particulars of the reasons for the decision.

    [1] Application for Statement of Reasons filed by the Applicant dated 28 July 2022, [9].

14. The Applicant has also applied for orders that the Respondent must, as soon as practicable and no later than 28 days after the day the declaration is made, give an additional statement containing further and better particulars in relation to the matters specified in the declaration.[2]

    [2] Application for Statement of Reasons filed by the Applicant dated 28 July 2022, [10].

    RESPONDENT’S POSITION

15. The Respondent submitted that, even if the Tribunal is satisfied that its “Basis of Decision” letter did not adequately set out its reasons, the purpose of section 28 of the AAT Act could not now be served by making a declaration under section 28(5) as the Applications for review had been lodged.[3] Furthermore, the Respondent submits that the Statement of Facts, Issues and Contentions it has been directed to provide will render redundant any statement of reasons or particulars sought under section 28.[4]

    [3] Submissions of the Respondent (Agency) dated 19 August 2022, [17].

    [4] Ibid, [18].

16. The Respondent further submitted that the purpose of a statement of reasons under section 37 and 38 of the AAT Act is to enable the Tribunal to perform its task on review.[5] The submissions of the Applicant should not alter the Tribunal’s decision, made on 27 July 2022, where the Tribunal noted that it was not minded to make such orders as the supplementary information from the Respondent was suffice, and the Respondent’s Statement of Facts, Issues and Contentions will clarify and amplify the Respondent’s position.[6]

    [5] Ibid, [20].

    [6] Submissions of the Respondent (Agency) dated 19 August 2022, [21] – [22].

    CONSIDERATION

17. The Applicant initially approached the Respondent to request, by her email to dated 25 March 2022, reasons or an explanation for the decision made by the Respondent on 17 March 2022.[7]  She wrote that the Agency was “withholding the reasons for which the decision that was made” and:[8]

    This means that I will not have the information I need to decide if I want to appeal this invalid decision to the AAT or not. Instead, I have to wait for the decision letter and then decide whether to apply, which means I will also have to ask for leniency for not filing within 28 days of the decision…I need a decision letter and I need it yesterday (preferably within 5 days). I need enough time to figure out what to do AFTER GETTING the decision letter.

    [7] Submissions of the Respondent (Agency) dated 19 August 2022, [2].

    [8] Applicant’s email correspondence dated 25 March 2022.

18. This information was not available to the Tribunal when determining the Applicant’s earlier request, under section 28 of the AAT Act, for reasons or particulars of the decision under review. In order to consider the substance of the Applicant’s request for more information about the basis of the decision under review, the Tribunal also considered, at that time, whether it would be appropriate for an order that an additional statement, with further and better particulars of the material findings of fact and reasons for decision, under section 38 of the AAT Act and declined to do so. The current application does not provide any basis upon which that decision should be revisited.

19. The substantive question now before me, under section 28 of the AAT Act, should be answered in the same way as I decided, on 27 July 2022, to refuse orders under section 38 of the AAT Act. My reasons for doing so, as set out below, have not changed:[9]

    The Tribunal is not minded to make any such orders as the decision under review and the attached reasons, together with the supplementary information since provided by the Respondent on 30 May 2022, sufficiently particularise the findings made in the decision under review.  The Applicant has accessed her right to have a full merits review conducted and the Tribunal does not require further particularisation of information in order to conduct the review.

    The Tribunal has considered, and accepts, the Applicant’s contention that, in this case, it is proper that the Respondent provide a Statement of Facts, Issues and Contentions to the Applicant and the Tribunal before the Applicant is directed to do so. … The Statement of Facts, Issues and Contentions will amplify and clarify the Respondent’s position, and this is likely to be of assistance in understanding the decision under review.

    [9] HGLS and National Disability Insurance Agency, [3] – [4].

20. The Tribunal is now seized of an application to review the Respondents decision and, in doing so, will conduct a full merit review and re-exercise the powers of the original decision-maker to arrive and what it considers to be the correct or preferable decision. A further explanation of the decision, beyond that in a Statement of Facts, Issues and Contentions and in the material before the Tribunal, including supplementary material, is not necessary as the Tribunal will have a sufficient understanding of the issues it must reconsider.

21. It is appropriate to refuse the request that the Respondent be compelled to produce the statement, under section 28(1) of the AAT Act, because the Applicant has already elected to exercise her review rights and the utility of the statement, in assisting her to do so, is now lost. Further, the Tribunal is not satisfied further reasons or particulars issued pursuant to a direction under section 28 of the AAT Act are necessary, nor that they will assist the Tribunal in understanding the substantive case, when other documents and mechanisms for this are available.

22. There is a procedural point which should be emphasised in this matter. The Respondent, wrongly, responded to the Applicant’s request under section 28(1) of the AAT Act to the effect that she was not entitled to further reasons. Rather than accepting, in retrospect, this somewhat inescapable conclusion, the Respondent instead submitted that the Agency “did not fail” to comply with section 28(1) because its (incorrect) response was made within the statutory time frame.[10]

    [10] Email from NDIS Complaints dated 22 April 2022.

23. What is clear from the Applicant’s helpful and comprehensive written submission is that she would have benefitted greatly from better communication from the Respondent at the time she was deciding whether to exercise her review rights. One of the general principles that is to guide actions taken under the NDIS Act[11] (and, by reasonable extension, actions taken in reviewing a decision made under that act) is that people with a disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. It is difficult to see how this principle has been met by the Agency in these circumstances when they have not admitted mistakes or offered the timely correction that would have been appropriate in the circumstances. This observation should not be interpreted as a criticism of counsel briefed to prepare the Respondent’s written submissions whom, the Tribunal can reasonably assume, was acting upon the instructions of the Respondent Agency.

    [11] NDIS Act, s 4(9).

24. The Tribunal does not have any general or supervisory jurisdiction with respect to the Respondent’s conduct, but simply notes that dealing adequately with a request under section 28(1) of the AAT Act, when it is made, would best serve the interests of the parties, discharge the Respondent’s statutory function, and obviate the need for an Applicant to escalate such requests to the Tribunal.

25. The Applicant’s request for a direction that the Respondent produce a statement, under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

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

Associate

Dated:   25 August 2022

Date of hearing:  On the papers

Applicant:  HGLS

Solicitor for the Respondent:             National Disability Insurance Agency