The decision under review is further varied in the following terms:
(a)the date by which Mr Hill’s plan is to be reassessed is 12 months from the date of this decision (reassessment date);
(b)the following reasonable and necessary transport support will be funded under the Scheme applying the standard ATO cents per kilometre rates in effect during each period:
(i)from 21 May 2019 to 6 March 2020: 80 kilometres per day;
(ii)from 7 March 2020 to 1 February 2021: 72 kilometres per day;
(iii)from 2 February 2021 to 30 January 2022: 65 kilometres per day;
(iv)from 31 January 2022 to 5 December 2022: 55 kilometres per day;
(v)from 6 December 2022 to the present: 55 kilometres per day; and
(vi)from the date of this decision to the reassessment date: 55 kilometres per day;
(c)the funding for this transport support is to be calculated applying the following standard ATO cents per kilometre rates:
(i)68 cents per kilometre in the 2018-2019 and 2019-2020 financial years;
(ii)72 cents per kilometre in the 2020-2021 and 2021-2022 financial years;
(iii)78 cents per kilometre in the 2022-2023 financial year; and
(iv)85 cents per kilometre in the 2023-2024 financial year;
(d)all other supports in the approved statement of participant supports as varied on 6 May 2020 will be funded until the reassessment date;
(e)the management of the funding for supports and other aspects of Mr Hill’s plan will continue without change until the reassessment date.
The matter is remitted to the Respondent to determine the appropriate mechanism for provision of Mr Hill’s transport support funding consistent with this decision.
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports which will be funded – transport support – participant goals, objectives and aspirations – participation in activities – social and economic participation – exercise of choice – value for money assessment – meaning of ‘effective and beneficial’ and ‘current good practice’ – reasonable expectations of family support – amount of transport support to be funded – decision
JURISDICTION – remittal for reconsideration – consideration of Klewer v National Disability Insurance Agency – meaning of ‘decision as varied’ – scope of original decision not limited by variation of content
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hill and National Disability Insurance Agency [2023] AATA 3626
Case
[2023] AATA 3626
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr Hill for review of an internal review decision made by the National Disability Insurance Agency (NDIA) regarding his participant plan under the National Disability Insurance Scheme. The dispute centred on the amount of transport support to be funded within Mr Hill's plan, with Mr Hill seeking to restore previous funding levels and consider increases in other support categories. The Administrative Appeals Tribunal (AAT) was required to determine the scope of its jurisdiction and the effect of remittal orders in reconsidering the NDIA's decision.
The Tribunal was tasked with determining the meaning of "decision as varied" in the context of remittal and whether the scope of the original decision was limited by the variation of its content. Specifically, the Tribunal needed to consider the legal principles governing the assessment of "reasonable and necessary supports" under the NDIS Act, including the meaning of "effective and beneficial" and "current good practice," as well as the reasonable expectations of family support. The ultimate question was the appropriate amount of transport support to be funded in Mr Hill's plan.
The Tribunal reasoned that the parties had agreed to remit the matter for reconsideration, and that the NDIA had agreed that certain supports, including various forms of assistance with self-care activities and capacity building supports such as coordination of supports, speech therapy, occupational therapy, and behaviour support plan implementation, should be funded as reasonable and necessary. The Tribunal noted that the NDIA's internal review decision had stated that transport support could be funded from Mr Hill's core budgets, as these could be used flexibly. The Tribunal's ultimate orders reflected the parties' agreement on the specific supports to be funded.
Orders
Orders of the court
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Background
Background to the litigation
In order to determine the Tribunal’s jurisdiction and the effect of remittal orders and decisions made by the NDIA in respect of participant plans for Mr Hill, it is necessary to consider the procedural decisions in fact made under the NDIS Act. To the extent possible, these are set out in the following procedural background. Procedural background On 14 February 2017, Mr Hill was accepted as a participant in the Scheme. A participant plan for Mr Hill was issued on 27 September 2017.[2] The plan set out Mr Hill’s goals and aspirations, a date by which the plan would be reviewed, and funded supports for Mr Hill. The funded supports amounted to $172,943.59, which included $2,472 for transport support.[2] T21. On 6 November 2017, Mr Hill’s father contested the funding provision for transport support. On 30 November 2017, a delegate of the CEO informed Mr Hill:As you may know, I reviewed your plan to ensure you were receiving the right supports to meet your circumstances. Following the review I am pleased to say that a new plan has been approved.[3][3] T22, folio 213. On 30 November 2017, a participant plan was issued for Mr Hill in which funding of $164,935.28 was specified for supports, including $3,900.28 for transport support.[4] The plan commenced on 29 November 2017, and it was due to be reviewed by 30 May 2018.[5][4] Ibid, folios 218-219.[5] Ibid, folio 215. On 29 May 2018, a participant plan was issued for Mr Hill which commenced on 28 May 2018 and was due to be reviewed by 28 May 2019.[6] The plan specified funded supports amounting to $244,475.12, including $2,472.00 for transport support.[7] Even though no separate decision to approve a statement of participant supports has been given to the Tribunal, it may be inferred the participant plan was based on prior approval of a statement of participant supports, including a reduction of transport support funding, by the CEO.[6] T23, folio 229.[7] Ibid, folios 209-210. On 21 May 2019, following a plan review, a participant plan was issued for Mr Hill which included:(a)funded supports for Mr Hill amounting to $200,104.56, of which $1,784.00 was allocated for transport support;[8] and(b)a plan review due date on 20 May 2020.[9][8] T24, folios 248-251.[9] Ibid, folio 243. Documentation of the actual decision to approve the statement of participant supports which was instrumental in the coming into effect of the participant plan on 21 May 2019, which further reduced transport support funding for Mr Hill, has not been given to the Tribunal. Nevertheless, it is open to infer the participant plan was based on prior approval of a statement of participant supports (primary decision) following a plan review under s 48 of the NDIS Act (as then in effect).[10] [10] T24. On 30 May 2019, Mr Hill requested “an urgent review of [Mr Hill’s] plan to restore at least the previous funding levels, and to consider increases in the support categories noted above [community support, transport and support coordination].[11] [11] T5, folio 26.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 29 August 2019, a reviewer[12] decided under s 100(6)(b) of the NDIS Act to vary the primary decision (IR decision).[13] The Internal Review Decision Report sets out, inter alia:(a)approved supports for Mr Hill amounting to $256,064.47, including $1,784 for transport support and noting in respect of the Core Budget:The supports and amount of funding have changed from the supports and funding in [Mr Hill’s] previous plan…;(b)The Plan will be reviewed in August 2020; and(c)reasons for the supports which will be funded and which have not been approved, including:Support 2: Core Budget: Transport (additional)Rule 5.1(c) on doubling upThe support cannot be funded under the NDIS because the support duplicates other supports delivered under alternative funding through the NDIS. This is because:As [Mr Hill’s] Core budgets may be used flexibly, available funds within these other budgets may be used to increase his Transport funds if needed.[14] [12] Defined in s 9 and s 100(5) of the NDIS Act.[13] T2.[14] Ibid, folio 14. A new participant plan document was issued with purported effect from 29 August 2019.[15] The participant plan document was not entirely consistent with the IR decision and included:(a)funded supports for Mr Hill amounting to $263,648.47 in the period 29 August 2019 to 28 August 2020, including $1,784 for transport support;[16] and(b)a plan review due date of 28 August 2020.[17][15] T25.[16] Ibid, folio 259.[17] Ibid, folio 254. On 18 September 2019, Mr Hill applied for review of the IR decision by the Tribunal.[18][18] T1. On 29 April 2020, in the course of the Tribunal proceedings, the parties applied for the IR decision to be remitted under s 42D(1) of the AAT Act for reconsideration on or before 6 May 2020 and stated:The parties consider it desirable to remit the matter for reconsideration, having regard to the Respondent’s agreement that the following should be funded as reasonable and necessary supports:a. Core Supports:i. 18 hours per weekday x 252 weekdays per year (9 hours per day at 2:1) of Assistance with Self-Care Activities - Standard - Weekday - Daytime - TTP (support item 01_011_0107_1_1_T of the NDIS Price Guide 2019-20); ii. 18 hours per weekday x 9 weekdays per year (9 hours per day at 2:1) of Assistance with Self-Care Activities - Standard - Public Holiday - TTP (support item 01_012_0107_1_1_T of the NDIS Price Guide 2019-20); iii. 10 hours per Sunday x 52 Sundays per year (5 hours per Sunday at 2:1) of Assistance with Self-Care Activities - Standard - Sunday - TTP (support item 01_014_0107_1_1_T of the NDIS Price Guide 2019-20);iv. 8 hours per evening x 26 evenings per year (4 hours at 2:1) of Assistance with Self-Care Activities - Standard - Weekday - Evening – TTP (support item 01_015_0107_1_1_T of the NDIS Price Guide 2019-20); and v. 60 hours of support worker training per year (calculated at 4 x three-hour sessions per annum for 5 staff) (support item 01_011_0107_1_1_T of the NDIS Price Guide 2019-20). b. Capacity Building Supports:i. 92 hours of Coordination of Supports per year (comprising of 80 hours of Coordination of Supports, 10 hours for provider travel and 2 hours for report writing) (support item 07_002_0106_8_3 of the NDIS Price Guide 2019-20); ii. 121 hours of Speech Therapy per year (comprising of 104 hours of Speech Therapy, 13 hours for provider travel and 4 hours for report writing) (support item 15_056_0128_1_3 of the NDIS Price Guide 2019-20); iii. 62.5 hours of Occupational Therapy per year (comprising of 52 hours of Occupational Therapy, 6.5 hours for provider travel, and 4 hours for report writing) (support item 15_056_0128_1_3 of the NDIS Price Guide 2019-20); and iv. 104 hours per year for the implementation of the Behaviour Support Plan, including training in behaviour management strategies (support item 11_023_0110_7_3 of the NDIS Price Guide 2019-20).