Hill and National Disability Insurance Agency

[2023] AATA 3626

Hill and National Disability Insurance Agency [2023] AATA 3626 (6 November 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2019/5857      

Re:Matthew Hill  

APPLICANT

National Disability Insurance AgencyAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:6 November 2023

Place:Canberra

1. 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.

2. 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.

   ..............................[sgd].........................................

   Mr S. Webb, Member
   

   Catchwords

   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

   Legislation

   Administrative Appeals Tribunal Act 1975, ss 25, 26 42D, 43

   National Disability Insurance Scheme Act 2013, ss 3, 4, 17A, 31, 32, 33, 37, 39, 41, 47A, 48, 99, 100, 101, 103

   Cases

   Beezley v Repatriation Commission [2021] FCAFC 165

   DLYS and National Disability Insurance Agency [2023] AATA 2965

   Dorrington and National Disability Insurance Agency [2022] AATA 1714

   Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

   DZNB and National Disability Insurance Agency [2022] AATA 1326

   Frugtniet v ASIC [2019] HCA 16

   GBNR and National Disability Insurance Agency [2022] AATA 1323

   Hill and National Disability Insurance Agency [2022] AATA 3431

   Jebb v Repatriation Commission [1988] FCA 105

   Klewer v National Disability Insurance Agency [2023] FCA 630

   LWVR and National Disability Insurance Agency [2021] AATA 4822

   McGarrigle v National Disability Insurance Agency [2017] FCA 308

   Minister for Immigration and Border Protection v Makasa [2021] HCA 1

   National Disability Insurance Agency v Davis [2022] FCA 1002

   National Disability Insurance Agency v KKTB by her litigation representative CVY22 [2022] FCAFC 181

   National Disability Insurance Agency v WRMF [2020] FCAFC 79

   O’Hearn and NDIA [2023] AATA 2993

   Pavlakis and National Disability Insurance Agency [2023] AATA 2485

   Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

   QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

   Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167

   Rogers and National Disability Insurance Agency [2022] AATA 2809

   RTRH and National Disability Insurance Agency [2022] AATA 205

   Shi v Migration Agents Registration Authority [2008] HCA 31

   SYDDALL AND NATIONAL DISABILITY INSURANCE AGENCY [2022] AATA 5738

   Williamson and National Disability Insurance Agency [2019] AATA 2944

   REASONS FOR DECISION

   Mr S. Webb, Member

   6 November 2023

3. Matthew Hill is a participant in the National Disability Insurance Scheme (Scheme). The Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) approved supports to be provided or funded for him under the Scheme. The approved supports are set out in successive participant plans made for Mr Hill.

4. Mr Hill has level 3 autism spectrum disorder and severe intellectual disability. His disability, including his psychosocial disability, is attributable to intellectual and cognitive impairments. He is non-verbal and he has limited communication. He requires substantial support.

5. Through his nominee, his father, Peter Hill, and a lay representative, Bob Buckley, Mr Hill cavils with the extent of supports approved for him under the Scheme.

6. This application is for review of a decision made under s 100(6)(b) of the National Disability Insurance Scheme Act 2013 (NDIS Act) which varied an original decision under s 33(2) to approve a statement of participant supports for Mr Hill.

7. As will appear from the factual matters set out below, the conduct of the review proceedings has been protracted. In the course of the proceedings, the Tribunal twice remitted the decision under review for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act), and the NDIA subsequently decided to ‘auto extend” Mr Hill’s participant plan on 2 occasions.

8. The Tribunal conducted 2 hearings over 6 days in December 2022 and April 2023. Thereafter, the parties made extensive written submissions. Before final submissions for Mr Hill were provided, the Federal Court handed down a decision in Klewer v National Disability Insurance Agency[1] (Klewer). The parties provided further submissions addressing the effect of this decision on the Tribunal’s jurisdiction. On the day the parties were given listing notices for publication of the Tribunal’s decision, the NDIA provided further written submissions effectively reversing its position on Klewer.

   [1] [2023] FCA 630.

9. On this background, in consideration of the parties’ submissions and the judgment in Klewer, it is necessary to determine the effect of the decisions made on remittal and the decisions to ‘auto extend’ Mr Hill’s participant’s plan, if any, on the Tribunal’s jurisdiction.

10. Once the Tribunal’s jurisdiction is determined, the substantive issue of approval of reasonable and necessary supports that will be funded under the Scheme is to be decided under s 33 and s 34 of the NDIS Act and the applicable National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules). As in the course of the proceedings the issues in dispute narrowed substantially, only the funding of reasonable and necessary transport support remains to be determined.

    JURISDICTION

11. 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

12. 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.

13. On 6 November 2017, Mr Hill’s father contested the funding provision for transport support.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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 up

    The 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.

21. 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.

22. On 18 September 2019, Mr Hill applied for review of the IR decision by the Tribunal.[18]

    [18] T1.

23. 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).

24. On 29 April 2020, the Tribunal granted the request and issued an order of remittal in the terms sought.

25. Documentary evidence of a reconsideration decision actually made under s 42D(2) of the AAT Act has not been given to the Tribunal.

26. The NDIA asserts this is contained in a new participant plan document issued on 6 May 2020. The new plan document specified:

    (a)approved supports for Mr Hill amounting to $454,253.21, including $1,784 for transport support, in the period from 6 May 2020 to 6 May 2021; and

    (b)a plan review date of 21 May 2021.

27. On 23 April 2021, the parties applied for remittal of the 6 May 2020 ‘decision’ under s 42D(1) and stated:

    3. The Parties consider it desirable to remit the decision under review for reconsideration, having regard to:

    a. the need to ensure that the Applicant has continued access to supports while this application remains in the Tribunal;

    b. the Respondent’s obligation to conduct a review of the Applicant’s plan by 6 May 2021 (the review date); and

    c. the Respondent’s intention to recommend to a delegate of the CEO of the Respondent that:

    i. the review date should be varied to six months after the date the reconsidered decision is made (the varied review date); and

    ii. the reasonable and necessary supports in the existing statement of participant supports should be provided on a pro-rata basis for the period from the date of the reconsidered decision to the varied review date.

28. On 28 April 2021, by order under s 42D of the AAT Act the 6 May 2020 ‘decision’ was remitted for reconsideration on or before 5 May 2021.

29. Documentary evidence of a reconsideration decision made under s 42D(2) consequent to the 28 April 2021 order of remittal has not been given to the Tribunal.

30. The NDIA asserts this is contained in a new a participant plan document issued on 10 May 2021, which specified:

    (a)approved supports for Mr Hill amounting to $234,112.27, including $892 for transport support, in the period from 10 May 2021 to 8 November 2021; and

    (b)a plan review date of 8 November 2021.

31. The NDIA accepts it did not provide evidence of a reconsideration decision within the period specified by the Tribunal, and asserts the remitted decision should be taken to have been affirmed for the purposes of s 42D(7) of the AAT Act. This notwithstanding, there are factual questions arising under s 42D(5) and (7) in respect of when the reconsideration decision, which underlies the ‘plan’ document issued on 10 May 2021, was in fact made. There are further questions about the legal basis of the 10 May 2021 ‘plan’ and its effect, if any, on the Tribunal’s jurisdiction. When this application came before me in the latter part of 2022, these questions were squarely raised with the parties. Two further applications were made on Mr Hill’s behalf, each of which I dismissed on 19 October 2022 for want of jurisdiction.[19]

    [19] Hill and National Disability Insurance Agency [2022] AATA 3431.

32. In written submissions addressing jurisdictional questions, the NDIA stated:

    33. After May 2021, in order to continue the Applicant’s funding while the proceedings remained on foot in the Tribunal, the Applicant’s plan was “auto-extended” on two occasions:

    (i) 8 November 2021 until 8 November 2022; and

    (ii) 8 November 2022 until 8 November 2023.

    34. Upon the “auto extension” of the Applicant’s plan on each occasion no new plan was generated and sent to the Applicant.[20]

    [20] Respondent’s written submissions, 18 August 2023, page 4.

33. The NDIS Act was amended by the National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Act 2022 (Amendment Act). Notwithstanding Mr Hill’s application for review is in respect of a reviewable decision made on 21 May 2019 which was varied on 29 August 2019, by operation of s 65, Schedule 1 of the Amendment Act, the participant’s plan which was in effect before the commencing day continued to have effect.

34. In consideration of amendments to the NDIS Act which came into effect on passage of the Amendment Act, the consequential effect on the Tribunal’s jurisdiction, if any, of the NDIA’s decisions to ‘auto extend’ Mr Hill’s plan must be considered.

    Documentation of decisions

35. Pausing at this point, the NDIA’s practice of issuing reconsideration decisions under s 42D(2) using a participant plan template is problematic for a number of reasons which were explained in DZNB and National Disability Insurance Agency[21] at [52]-[60]. A purported ‘plan’ issued in such circumstances has no legal effect as a new replacement participant plan under s 37 of the NDIS Act. The documentation given to Mr Hill and the Tribunal by the NDIA in respect of reconsideration decisions purportedly made by order of remittal in these proceedings is a matter of concern. The concern arises on three legs.

    [21] [2022] AATA 1326.

36. Firstly, the reconsideration decisions are presented in the form of participant’s ‘plans’, set out in a template format, with a covering notice. These plan documents do not set out relevant factual findings in reference to the materials on which they are made, or reasons for the decisions made, positively or negatively, in respect of specific supports and levels of funding. In particular, the ‘plans’ produced as reconsideration decisions do not explain how, why and on what basis the amount of transport support funding was decided. Mr Hill’s representatives expressed understandable concern and frustration about this failing.

1. It is important to note reconsideration on remittal authorises the decision-maker to decide afresh all matters that are capable of being decided by the Tribunal in the review, namely the statement of participant supports determined by the CEO under s 33(2) as confirmed, varied or substituted by the reviewer. This requires reconsideration of all the contents of the approved statement on the most current information available, including the supports that will be provided or funded for Mr Hill from the date of the CEO’s original approval decision. The failure to provide Mr Hill with a document setting out the terms of the reconsideration decision and the reasons for it, albeit perhaps with the brevity one might expect from a Commonwealth agency dealing with many thousands of decisions every day, has caused confusion and uncertainty. How is a participant to understand a decision if they are not properly notified of all the contents of the decision and the reasons for it?

2. Secondly, these plan documents do not set out details of when the particular decision was made, who made the decision, and the entire contents of the decision, including positive and negative elements. This does not meet the basic standards for documentation of administrative decision making in the Commonwealth. Failing to provide such basic information may result in procedural unfairness.

3. Furthermore, factual details of this kind are of particular significance under s 42D of the AAT Act, where a reconsideration decision is to be made within the period specified under s 42D(5). Without precise information of when the reconsideration decision was made, there will be uncertainty about the applicability of s 42D(3), (4) or (7) and the Tribunal’s jurisdiction. Uncertainty of this kind should be avoided. As I explained in Dorrington and National Disability Insurance Agency[22] at [52]-[53], the extent to which these considerations and the documentation of reconsideration decision (or other kinds of decisions) in respect of participant supports are the result of NDIA’s procedural policies or the limited parameters of the NDIA’s CRM IT system would be a matter of serious concern. Furthermore, the absence of documentary evidence of funding decisions made in the exercise of powers conferred on the CEO might raise questions about the proper authorisation of public funding. These are matters for the CEO to consider, however, not this Tribunal.

   [22] [2022] AATA 1714.

4. Thirdly, the language used in the documents purporting to be reconsideration decisions in Mr Hill’s case does not align with the language of s 42D(2) of the AAT Act. This places the Tribunal in a position of making assumptions about factual matters which may bear upon its jurisdiction. Without documentation of the actual reconsideration decision in fact made, the Tribunal is asked to draw inferences or to make assumptions about the facts and incidents of the decision. A plan document issued in purported expression of a reconsideration decision is not sufficient proof of the matters in fact decided, positively and negatively.

5. This is most unsatisfactory. The operation of s 42D(3), (4) and (7) is conditioned by the reconsideration decision made under s 42D(2) and, for those purposes, a reconsideration decision should be expressed in terms which align with the statute, without ambiguity.

6. I reiterate what I said in GBNR and National Disability Insurance Agency[23]:

   15. On remittal, the reconsideration decision-maker is authorised to reconsider all matters that were capable of being decided by the person who made the decision under review. In making a reconsideration decision, the decision-maker must address the same legislative questions and thresholds that were before the primary decision-maker, and may exercise the same powers, subject to the same constraints, for the purposes of the reconsideration. While this requires the decision-maker to step into the shoes of the reviewer and the primary decision-maker, the power to reconsider is conferred by s 42D(1) and the decision to be made is described in paragraphs 42D(2)(a), (b) and (c): the decision-maker may affirm, vary or set aside the decision under review and substitute a new decision.

   16. Where the reconsideration decision-maker does not do one of the things set out in paragraphs 42D(2)(a), (b) or (c), the decision under review is taken to be affirmed. Subsection 42D(7) is very clear on this point:

   If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.

   [Emphasis added].

   17. As can be seen, it is not sufficient for the decision-maker to reconsider the remitted decision without doing one of the things mentioned in paragraphs 42D(2)(a), (b) or (c). Unless both elements of s 42D(7) are completed within the applicable period under s 42D(5), the remitted decision will be taken to be affirmed. This threshold is consistent with s 42D(5): the reconsideration decision-maker must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c) within 28 days or the period specified by the Tribunal in the remittal. The word ‘must’ is directive and it applies conjunctively to the reconsideration and the doing of one of the things mentioned in paragraphs 42D(2)(a), (b) or (c).

   [23] [2022] AATA 1323.

7. In extension of these concerns in these proceedings, there are serious questions about the NDIA’s practice of serially issuing purported participant plans as, or consequent to, review decisions made under the provisions of Part 6, Chapter 4. Not only are there questions of power and authority to which the Tribunal has adverted in previous cases,[24] there are also questions about the proper documentation and notification of review decisions made in the exercise of powers under Part 6, Chapter 4.

   [24] See discuss in Pavlakis and National Disability Insurance Agency [2023] AATA 2485 at [25]-[32].

8. While the merging of statutory processes for the preparation of participant plans under Part 2, Chapter 3 with the statutory provisions for merit review of reviewable decisions in Part 6, Chapter 4 may serve to streamline administration of the Scheme for the NDIA, this lacks legislative authority, and it unnecessarily confounds the operation of the Scheme. In my experience, it is a cause of confusion, bewilderment and frustration and it increases the difficulty of people, often with no legal training or detailed knowledge of the Scheme, comprehending and navigating the statutory processes for review of decisions about the funding of supports for participants, which are perceived by the participant or their representatives to be reasonable and necessary, and which affect participant’s life (and their budget). It is also a source of apparent confusion within the NDIA and among its retained representatives.[25]

   [25] See Dorrington and NDIA [2022] AATA 1714; GBNR and NDIA [2022] AATA 1323; Pavlakis and NDIA [2023] AATA 2485; and O’Hearn and NDIA [2023] AATA 2993.

9. While these are matters beyond the remit of the Tribunal to address, they are matters squarely within the power of the CEO of the NDIA.

   Submissions

10. Mr Hill’s representatives make the point they are not lawyers and they do not fully comprehend the contents and legal implications of the Klewer decision on the Tribunal’s jurisdiction. Nonetheless, they argue the Tribunal should have jurisdiction to determine Mr Hill’s reasonable and necessary transport support from 21 May 2019 as this has been in contention and it has been the subject of review from that date, albeit thus far without success. In their submission, the reconsideration decisions made following the Tribunal’s remittal orders did not vary or change the transport support funding previously approved by the CEO and confirmed by the reviewer who made the IR decision. In these circumstances, they contend the Tribunal has jurisdiction to review the reasonable and necessary transport support for Mr Hill from the date of the original approval decision on 21 May 2019.

11. The NDIA originally ran its case on the basis the Tribunal had jurisdiction and power to review and determine reasonable and necessary supports for Mr Hill as confirmed in the IR decision, from the date of the CEO’s original approval on 21 May 2019.

12. This changed following the judgment in Klewer. The NDIA then argued Klewer applies to the extent the reconsideration decision purportedly made on 6 May 2020, following remittal, is taken to be the subject of the review, and consequently the Tribunal’s jurisdiction is transmogrified to review of that decision. Applying Klewer, the NDIA asserted the Tribunal has jurisdiction to review and decide afresh the statement of participant supports for Mr Hill at and from 6 May 2020, and prospectively, but not from 21 May 2019.

13. On 3 November 2023, shortly before publication of this decision, the NDIA lodged and sought leave to rely on 14 pages of further written submissions outlining a further change in its position.

14. The NDIA’s final position appears to be that the Tribunal retains jurisdiction to review and approve Mr Hill’s statement of participant supports from 21 May 2019 and, consequently, Mr Hill can be reimbursed for his reasonable and necessary transport support costs (as determined by the Tribunal) for the period 21 May 2019 to current.[26]

    [26] Respondent’s Supplementary Submissions on Jurisdiction, 3 November 2023, at [2].

15. In the NDIA’s further submission, it contends certain comments made by the Court in Klewer were not correct.[27] In explanation, the NDIA asserts:

    In respect of Klewer, the [NDIA] submits the Court’s comments regarding the effect of section 42D of the AAT Act are not binding because they are obiter dicta (the Court having resolved the appeal on a procedural fairness point), and because the Court was exercising its original jurisdiction [sitting as a single judge on first instance judicial review], not its appellate jurisdiction. Further, to the extent that the Court’s comments in Klewer regarding the effect of s 42D of the AAT Act are not consistent with the Court’s comments in McGarrigle, the [NDIA] submits that the Tribunal should follow McGarrigle…[28]

    [27] Ibid at [48].

    [28] Ibid at [50].

16. It is the NDIA’s current position, the Tribunal’s reasoning was correct in Pavlakis and National Disability Insurance Agency (Pavlakis),[29] DZNB and National Disability Insurance Agency (DZNB),[30] Dorrington and National Disability Insurance Agency (Dorrington),[31] RTRH and National Disability Insurance Agency (RTRH),[32] Rogers and National Disability Insurance Agency (Rogers),[33] and Williamson and National Disability Insurance Agency (Williamson).[34] While these decisions are not binding, the NDIA argues the reasoning adopted ought to be preferred and followed.

    [29] [2023] AATA 2485 at [19], [24], [25], [30] and [38].

    [30] [2022] AATA 1326 at [36].

    [31] [2022] AATA 1714 at [52].

    [32] [2022] AATA 205 at [98-101], [112] and [122].

    [33] [2022] AATA 2809 at [21].

    [34] [2019] AATA 2944 at [91].

17. Applying this reasoning, the NDIA argues when determining the date on or from which a particular support should be funded, the reviewer or the Tribunal must determine the date from which the support was reasonable and necessary within the meaning of s 34(1) of the NDIS Act. This, so the argument goes, also applies when reconsidering a decision remitted by order of the Tribunal under s 42D of the AAT Act, such that:

    … the reviewer has power to determine that supports should be funded from the start date of the plan (or any later date). The Tribunal has jurisdiction over the decision of the reviewer (pursuant to subsections 42D(3) and (4)). It follows that, even after remittal under section 42D, the Tribunal retains (and does not lose) jurisdiction to determine that supports should be funded from the start date of them plan (or any later date) notwithstanding what the reviewer decided on remittal…[35]

    [35] Respondent’s Supplementary Submissions on Jurisdiction, at [63].

18. Mr Hill’s representatives informed the Tribunal they did not seek to be heard on these further submissions, although Mr Hill’s father expressed frustration and exasperation at the turn of events.

19. In order to address these matters, including the various positions adopted by the NDIA and the issues arising from Klewer, to which I will return, the legislative scheme for merits review under the NDIS Act and the AAT Act must be carefully considered. Despite similar matters having been dealt with in previous Tribunal cases, there appears to be continuing uncertainty or confusion, exemplified by the NDIA’s last minute change of position. As the jurisdictional issues in this case turn on the intersection of the legislative machinery for the preparation of participant plans and the legislative scheme for merits review of decisions, for reasons of clarity, a thorough and detailed explanation is warranted even though this adds substantially to the length of these reasons.

    Legislative scheme for merits review

20. The legislative scheme for merits review of decisions under the NDIS Act is set out in Part 6, Chapter 4 of that Act. When construing the scope and operation of the merits review provisions of the NDIS Act, it is necessary to consider 3 terms which are defined in s 9, namely:

    participant means a person who is a participant in the National Disability Insurance Scheme launch (see sections 28, 29 and 30).

    plan, for a participant, means the participant’s plan that is in effect under section 37.

    reviewable decision has the meaning given by subsections 99(1) and (2).

21. A participant in the Scheme is a person with impairments attributable to disability who satisfies the access criteria set out in Part 1, Chapter 3 of the NDIS Act. A person becomes a participant when the CEO decides the person meets the access criteria: s 28. A participant ceases to be a participant under the terms of s 29:

    (1)  A person ceases to be a participant in the National Disability Insurance Scheme when:

    (a)  the person dies; or

    (b)  the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or

    (c)  the person’s status as a participant is revoked under section 30; or

    (d)  the person notifies the CEO in writing that he or she no longer wishes to be a participant.

    Note:          Residential care service and home care have the same meanings as in the Aged Care Act 1997.

    (2)  A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.

22. The NDIS Act draws important statutory, procedural and conceptual distinctions between a plan and a reviewable decision.

23. A plan refers to a participant’s plan under Part 2, Chapter 3 of the NDIS Act. Once a person becomes a participant, under s 32, the CEO must facilitate preparation of the participant’s plan in accordance with the principles set out in s 31 and the applicable Rules, noting s 32A was repealed on 1 July 2022.

24. A participant’s plan has 2 main components, namely the participant’s statement of goals and aspirations and a statement of participant supports: s 33(1) and (2).

25. The statutory requirement under s 33(2) of the NDIS Act is for a statement of participant supports prepared with the participant to be approved by the CEO. A decision under s 33(2) is the culmination of consideration of the supports, which are reasonable and necessary for the participant, which will be funded under the Scheme at that time and prospectively during the period from commencement of the particular participant’s plan to the date by which the plan must be reassessed (or prior to 1 July 2022, reviewed) under s 48.

26. While the preparation of such a statement is intended to be collaborative and must be facilitated by the CEO, the approval of it involves the exercise of power by the CEO, alone. Even though the statement of participant supports approved by the CEO in the first instance is an essential precondition to the coming into effect of a participant plan under s 37(1), it is a reviewable decision. In that context, the CEO’s approval decision is in respect of all supports and other matters considered, including those arising from the relevant materials or raised by or on behalf of the participant which are not approved. Where a participant is seeking funding for support the CEO is not prepared to approve, one would expect the CEO’s approval decision to provide an explanation for the refusal.

27. The CEO’s decision under s 33(2) is a reviewable decision for the purposes of Part 6, Chapter 4.

28. A reviewable decision is a decision specified in the Table in s 99(1) (Table) which is capable of review under s 100, relevantly:

Reviewable decisions and decision‑makers
Item	Column 1 Reviewable decision	Column 2 Provision under which the reviewable decision is made	Column 3 Decision‑maker
…
4	a decision to approve the statement of participant supports in a participant’s plan	subsection 33(2)	CEO
5	…

1. A reviewable decision has other important characteristics and statutory effects. It is a specific administrative decision made at a point in time. The making of a reviewable decision by the person nominated in the Table triggers a notice obligation on the decision-maker and confers a statutory entitlement on a person affected by the decision to request a review: ss 100(1), (1A) and (2). A reviewer must review the reviewable decision where a request is made under s 100(2) within the specified period of 3 months after receiving the notice: s100(5). The review is conducted on the merits and the reviewer must make a decision to confirm, vary or set aside the reviewable decision and substitute a new decision: s 100(6). Before 1 July 2022, the decision was to be made as soon as reasonably practical, and thereafter within the period prescribed in s 100(6A).

2. The scope of the review is informed by the nature and incidents of the decision under review. When reviewing a decision to approve a statement of participant supports, the reviewer is not confined to the supports or the materials which were put before the original decision-maker. [36] The reviewer is required to consider the totality of relevant matters which were, or could have been, decided by the original decision-maker from the date the original decision first had (or could have had) effect.[37] In so doing, the reviewer does over again what the original decision-maker was authorised to do, but does so exercising power conferred by s 100(5) for the purposes of the review. Only by approaching the review in this way can the reviewer be satisfied the reviewable decision should be confirmed, varied or set aside and substituted under the obligation imposed by s 100(6).

   [36] QDKH v National Disability Insurance Agency [2021] FCAFC 189 at [7].

   [37] Pavlakis at [21].

3. The provision of merits review of reviewable decisions under the NDIS Act extends to review of a reviewer’s decision under s 100(6) by the Tribunal where an application is made under s 103.

4. I note in passing, s 103(2) was introduced on passage of the Amendment Act. By operation of s 68(2) in Schedule 1 of the Amendment Act, the subsection does not apply to Mr Hill’s application for review, whereas by operation of s 65(4) in Schedule 1, the amendments to s 37 and the new s 47A apply to Mr Hill’s plan which was in effect immediately prior to 1 July 2022 or which subsequently came into effect.

5. Where an application for review of a decision under s 100(6) is lodged with the Tribunal for the purposes of s 25 of the AAT Act, the Tribunal must proceed to review the operative decision, and make a new decision. Under s 43(1) of the AAT Act, for the purposes of the review, the Tribunal is able to exercise all of the powers and discretions conferred upon the reviewer:

   (1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)  affirming the decision under review;

   (b)  varying the decision under review; or

   (c)  setting aside the decision under review and:

   (i)  making a decision in substitution for the decision so set aside; or

   (ii)  remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

1. It is the scope of the review under s 100 and the powers available to a reviewer for that purpose which inform the scope of the Tribunal’s review and the powers it may exercise for the purposes of review under s 43(1) of the AAT Act. The provision of a tiered approach for merits review of reviewable decisions under the NDIS Act reinforces the requirement for the Tribunal to address the same statutory question that was before the reviewer, and hence the original decision-maker, with reference to relevant materials placed before it.[38]

   [38] Frugtniet v ASIC [2019] HCA 16, per Kiefel CJ, Keane and Nettle JJ at [14]-[15] and Bell, Gageler, Gordon and Edelman JJ at [51]; Shi v Migration Agents Registration Authority [2008] HCA 31, per Kiefel J at [142]; National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [139].

2. In this context, the Tribunal stands in the shoes of the reviewer and makes a fresh decision.[39] The scope of the Tribunal’s review is necessarily influenced by the steps taken and the scope of decisions made, or able to be made, in the exercise of statutory power conferred upon each decision-maker prior to the Tribunal’s review.[40] That said, the Tribunal reviews the actual decision, not the reasons for it.[41]

   [39] Minister for Immigration and Border Protection v Makasa [2021] HCA 1, per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ at [50]; QDKH at [7]; LWVR and National Disability Insurance Agency [2021] AATA 4822 at [7].

   [40] Shi v Migration Agents Registration Authority [2008] HCA 31, per Kirby J at [45]-[46].

   [41] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, per Smithers J at 591.

3. The Tribunal does not assume all the powers of the CEO or the NDIA, only those required for the purposes of reviewing the decision of the reviewer.[42] Furthermore, as Brennan J explained in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales),[43]not all the powers of the Tribunal are drawn from those conferred upon the reviewer or the original decision-maker:

   A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

   [42] Shi v Migration Agents Registration Authority [2008] HCA 31, per Kiefel J at [147].

   [43] (1978) 1 ALD 167 at 175-176.

4. This construction of the review provisions in Part 6 is consistent with the discussion of the Tribunal’s role by the Full Federal Court in QDKH, by his litigation representative BGJF v National Disability Insurance Agency (QDKH)[44] in the following terms:

   The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act. The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.[45]

   [Citations removed.]

   [44] [2021] FCAFC 189.

   [45] Ibid at [7](b).

5. Under s 43(6) of the AAT Act, a decision under s 43(1)(b) or (c) is deemed to be a decision of the person who made the decision under review, with effect from the date that decision had effect or could have had effect:

   (6)  A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

6. The object of this provision is to bring finality to the administrative decision-making process,[46] in this case, under the review provisions set out in Part 6, Chapter 4 of the NDIS Act.

   [46] Minister for Immigration and Border Protection v Makasa [2021] HCA 1, per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ at [51].

7. Importantly, review by the Tribunal in a case of the present kind is in respect of, but not limited to, the supports set out in the statement of participant supports as originally approved under s 33(2) and confirmed, varied or substituted under s 100(6).[47] Review of such a decision by a reviewer, may result in approval, variation or modification of the supports set out in the participant’s plan.[48]

   [47] QDKH at [7].

   [48] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [85].

8. Following the consent decision delivered by the Full Federal Court in QDKH, the scope of review under s 100(5) of the NDIS Act in respect of a decision of the CEO to approve a statement of participant supports, and subsequent review by the Tribunal, is not limited to any particular supports raised previously by a participant or decided by a previous decision maker. The question to be answered at each level of decision making is the same, and that is framed by s 33(2), read with s 33(5), of the NDIS Act with regard to the lived experience and circumstances of the participant and the matters set out in s 34. Essentially, the questions are:

   (a)What are the general supports that will be provided to the participant?

   (b)What are the reasonable and necessary supports that will be funded in the participant’s plan under the NDIS?

   (c)When should the participant’s plan be reviewed?

   (d)How should the funding of the participant’s plan be managed?

   (e)How should other aspects of the participant’s plan be managed?

9. The Tribunal is not limited to consideration of matters at the time of the internal review decision. Just as the reviewer is required, for the purposes of s 100(5), to consider the totality of matters capable of being decided by the CEO under s 33(2), so must the Tribunal in exercise of the jurisdiction conferred upon it to review the reviewer’s decision. The NDIA’s most recent submissions on this point are correct and can be accepted.

10. The provision of a statutory entitlement to review of a reviewable decision is an important feature of the legislative scheme. This affords an effective means of redress in respect of perceived deficiencies in a reviewable decision, and it allows for the correct or preferable decision to be made on review with reference to the most current relevant information available. Even though a reviewer or the Tribunal may have regard to relevant materials which were not before the previous decision-maker, relevance is framed by the statutory question being addressed. The reviewer or the Tribunal must address the same statutory question as the person who made the decision under review.

11. It is significant the provision for review of reviewable decisions in Part 6, Chapter 4 is not included in the provisions for the preparation, variation and reassessment of a participant’s plan in Part 2, Chapter 3. The provision of a statutory entitlement to merits review applies only in respect of particular decisions within the statutory decision-making framework, namely reviewable decisions set out in the Table following s 99(1).

12. Each species of reviewable decision set out in the Table shares a common characteristic: each is capable of substitution on review.

13. Plainly enough, a reviewer’s decision under s 100(6) of the NDIS Act and a decision of the Tribunal on further review are within the continuum of administrative decision making authorised under Part 6 of Chapter 4 in the NDIS Act, where a reviewable decision may be set aside and substituted with another on review.[49] The statutory function of substituting one administrative decision with another is authorised by and involves the exercise of power relevantly conferred by s 100(6) of the NDIS Act or s 43(1) of the AAT Act. This characteristic of substitutability reinforces the conceptual distinction drawn between decisions made in the progressive reassessment or variation of a participant’s plan and the review of such reviewable decisions in the context of the participant’s plan.

    [49] Frugtniet v ASIC [2019] HCA 16, per Bell, Gageler, Gordon and Edelman JJ at [53]; Jebb v Repatriation Commission [1988] FCA 105 at [10].

14. As Mortimer J (as the Chief Justice then was) observed in McGarrigle v National Disability Insurance Agency[50] (McGarrigle), the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant’s plan.[51] This is entirely consistent with the language used to describe the reviewable decision in item 4 of the Table following s 99(1), which refers to a statement of participant support in a participant’s plan. This language aligns with the language used in other sections of the NDIS Act, including s 39, which obligates the NDIA to comply with a statement of participant supports in a participant’s plan, and s 41 which provides for suspension of a statement of participant supports in a participant’s plan in circumstances where the plan remains in effect.

    [50] [2017] FCA 308, upheld in National Disability Insurance Agency v McGarrigle [2017] FCAFC 132.

    [51] Ibid at [85]; Klewer, at [164].

15. In further support of this construction, s 100(7) of the NDIS Act preserves the operation or implementation of the reviewable decision under review, and the operation or implementation of a decision made under s 100(6) is preserved by operation of s 41(1) of the AAT Act in the context of review by the Tribunal. Furthermore, s 43(6) of the AAT Act makes abundantly clear the review decision of the Tribunal is taken to be the decision of the person who made the decision under s 100(6) of the NDIS Act.

16. These provisions and the legislative scheme for merits review of reviewable decisions under the NDIS Act accord with a conventional understanding of merit review principles which the NDIA appears to accept in its most recent submissions.

17. In general terms, the power to approve a statement of participant supports conferred by s 33(2) is capable of positive or negative application in respect of any particular component of such a statement. A support sought by or on behalf of a participant may be refused. The thresholds set out in s 33(5) and s 34(1) reinforce this point. A decision to refuse to approve any matter in s 33(2) for which a participant contends is like any other negative decision in respect of a person’s entitlement to a benefit or support: it is made at a point in time and, should it be set aside on review and a decision made to approve the support, the participant’s entitlement would run from the date on which the original refusal decision had effect or, as the NDIA asserts, from the date the Tribunal decides the support is reasonable and necessary and will be funded under the Scheme. Close examination of the text and purposes of relevant Parts of the NDIS Act does not reveal any different purpose or intention. The objectives set out in s 3 and the principles set out in s 4, s 17A and s 31 underscore this point.

18. The principles [p]eople with disability have the same right as any other member of Australian society to pursue any grievance (s 4(7)) and the Scheme is to enable people with disability to make decisions that will affect their lives (s 17A(3)(a)) are reinforced by the principles in Chapter 3 relating to people with disability exercising control, independence and choice in s 31(g) and (i) in the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan. These considerations bear upon the remedial and beneficial nature of the NDIS Act and the pragmatic approach it requires of decision-makers, as well as construction of the provisions conferring statutory entitlements to review under Part 6, Chapter 4. As Mortimer J (as she then was) said in National Disability Insurance Agency v Davis (Davis):[52]

    The NDIS Act’s construction and operation should not be beset by parsing, technicalities and distinctions which make the legislative scheme more difficult to comprehend and administer.[53]

    [52] [2022] FCA 1002.

    [53] Ibid at [142].

19. A practical, pragmatic approach is required when determining reasonable and necessary supports which will be funded under the Scheme.[54] A prescriptive approach is not required.[55] Where approval of a contested support for a participant is initially refused and on review it is found to meet the thresholds in s 34(1) of the NDIS Act, questions of practicality or utility might arise when considering funding the support from the earliest date the reviewable decision had effect in the past. There may also be questions for the NDIA or a plan manager about the crystallization of funding approval into entitlement to payment or reimbursement of previously incurred costs in the particular circumstances of and related claim. Nevertheless, such questions should not be confused with a participant’s statutory entitlements to review. Once a participant’s statutory entitlement to review is enlivened by request under s 100(2) or by subsequent application to the Tribunal under s 103(1), such questions of utility may readily be dealt with in the review. Such considerations do not curtail the participant’s statutory entitlement to review, and they do not limit the scope of the review, which runs from the date the original decision had or could have had effect under applicable provisions of the NDIS Act.[56]

    [54] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].

    [55] National Disability Insurance Agency v KKTB by her litigation representative CVY22 [2022] FCAFC 181, per Mortimer and Abraham JJ at [133].

    [56] Pavlakis at [21].

20. Thus, consistent with the approach adopted in QDKH, WRMF, McGarrigle and Davis, in consideration of the matters set out in s 33(5) and s 34, where a decision of the CEO to refuse to approve a support for a participant is varied or set aside and substituted on review with a decision to approve provision or funding of the support, where costs have been incurred to obtain the support for the participant, the participant may be entitled to recover from the earliest date the CEO’s original decision had or could have had effect, or if the cost was incurred at a later date, from that date.

    Participant plans

21. Pausing at this point, it is desirable to make some observations about the legislative machinery for the provision of participant plans under the NDIS Act.

22. A participant’s plan comes into effect once the requirements of s 37(1)(a) and (b) are met. Up to 1 July 2022, s 37 was in the following terms:

    (1)  A participant’s plan comes into effect when the CEO has:

    (a)  received the participant’s statement of goals and aspirations from the participant; and

    (b)  approved the statement of participant supports.

    (2)  A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.

    Note:          Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.

    (3)  A participant’s plan ceases to be in effect at the earlier of the following times:

    (a)  when it is replaced by another plan under Division 4;

    (b)  when the participant ceases to be a participant.

23. I note s 37(2) was repealed on 1 July 2022 on passage of the Amendment Act. Thereafter, once a participant plan is in effect under s 37, the plan cannot be varied unless the variation is within the terms of s 47A, which came into effect under the Amendment Act on 1 July 2022.

24. As can be seen, by operation of s 37(1), a participant plan comes into effect when the essential preconditions are met: the CEO has received the participant’s statement of goals and aspirations; and the CEO has approved the statement of participant supports. The use of the past tense is important. Each of the preconditioning actions on which s 37(1) turns must have occurred before the plan can come into effect. Furthermore, s 37(1) must be read with s 37(3).

25. A participant’s plan ceases to have effect only when the thresholds in s 37(3)(a) or (b) are met, namely when it is replaced under Division 4, Part 2, Chapter 3 or the participant ceases to be a participant in the Scheme. There is no provision for multiple participant plans to have concurrent effect. For this reason, s 37(3)(a) provides that a plan ceases to have effect when it is replaced by another plan under Division 4. The phrase replaced by another plan under Division 4 refers to Division 4, Chapter 2, Chapter 3 of the NDIS Act, the present terms of which make provision for a participant’s plan to be:

    (a)varied under s 47(2) where the participant gives the CEO a changed statement of goals and aspirations;

    (b)varied by the CEO under s 47A;

    (c)reassessed at any time under s 48 and for the CEO to prepare a new replacement plan with the participant; or

    (d)reassessed prior to the plan reassessment (previously review) date under s 49 and for the CEO to prepare a new replacement plan with the participant.

26. Subsections 48(7) and 49(1) are directive.

27. Where a new plan is authorised under s 48(7) or s 49, it is to be prepared under the terms of Division 2, Part 2, Chapter 3. This requires the making of a new reviewable decision under the terms of s 33(2), read with s 33(5), whereupon the participant is accorded a fresh entitlement to request a review under s 100.

28. Replacement of a participant’s plan under s 37(3) is authorised only where the CEO conducts a reassessment (previously a review) of the participant’s plan under s 48 or s 49 and prepares a new plan with the participant in accordance with Division 2, Part 2, Chapter 3. Under these provisions, the CEO is authorised to reassess a participant’s plan in the particular circumstances which might arise from time to time under s 48(1) and is obligated to undertake such reassessment under the terms of s 49(1). In so doing the CEO is capable of responding to participant requests or changed circumstances, progressively and prospectively.

29. The procedure for making a new plan under Division 2, Part 2, Chapter 3 is one which requires the CEO to facilitate the preparation of the participant’s plan: s 32(1); and to prepare a statement of participant supports with the participant: s 33(2). It involves the making of different kinds of reviewable decisions, which trigger statutory entitlements to review under Part 6 in Chapter 4: items 6, 6A, 6B and 6C in the Table following s 99(1).

30. No such obligations apply or review entitlements arise under the review provisions in Part 6 of Chapter 4.

31. There is no provision in the NDIS Act for the making of a new participant plan under or consequent to the review provisions set out in Part 6, Chapter 4. A construction of that kind would be entirely circular (a decision under s 100(6) would trigger new review rights under s 100(2)) and it would subvert the statutory machinery for variation and replacement of a participant’s plan under Division 4, Part 2, Chapter 3. Where a plan document has been issued by the NDIA consequent to a reconsideration decision, as occurred on 6 May 2020 and 10 May 2021 in this case, the document has no legal effect as a new or replacement plan under s 37 of the NDIS Act. At best, it is an expression or representation of some elements of a decision in fact made, being the elements approved in a statement of participant supports, which does not set out elements not approved for inclusion in the statement and the reasons for such a decision.

1. Thus, a decision under s 100(6) in respect of a reviewable decision of the kind specified in item 4 of the Table is conducted in the context of the participant’s plan. As the NDIA now submits, it is a decision in respect of a statement of participant supports in the participant’s plan which does not authorise or trigger replacement of the participant’s plan under s 37.

2. While a reviewer might be said to re-exercise power under s 33(2) when making a fresh approval decision, the power being exercised by the reviewer is conferred by s 100(5) for the purposes of review. It is not an exercise of power under s 33(2) for the purposes of making a new plan under Division 2, Part 2, Chapter 3. It does not involve the making of a new reviewable decision under s 33(2).

3. Just as a reviewer has no power to prepare a new or a replacement participant plan and is confined to review of a reviewable decision, so, too, the Tribunal does not have such a power and the jurisdiction conferred by s 103 is limited to review of a decision under s 100(6) and (since 1 July 2022) the additional matters set out in s 103(2). On remittal of such a decision for reconsideration under s 42D(1), the scope of the reconsideration is the same as the scope of the Tribunal’s review. The same statutory questions must be addressed, albeit the reconsideration decision-maker may take account of the most current information available without being confined to the materials before the Tribunal. No different or additional power is available to a reconsideration decision-maker on remittal of a decision under s 42D(1) of the AAT Act than is available to the Tribunal under s 43(1) of the AAT Act,[57] albeit the reconsideration decision is made under s 42D(2) of the AAT Act.

   [57] DLYS and National Disability Insurance Agency [2023] AATA 2965 at [12]; Pavlakis at [25]-[26]; Williamson at [91].

4. The proposition a participant’s plan might be ‘auto extended’ requires elaboration. The meaning of this term is not clear and it does not appear in the NDIS Act or the Rules. There is no authority for ‘auto extension’ of a participant’s plan outside the statutory machinery the NDIS Act provides. Expenditure of public money under the Scheme requires proper authorisation. The requirement in s 33(2) for inclusion of a plan reassessment date (previously a plan review date) in a statement of participant supports is synchronous with the requirement in s 49(1)(a) that the CEO must undertake a reassessment of the plan before the specified reassessment date.

5. Extension of the funding approved under s 33(2) in a statement of participant supports requires a decision under one of the 3 options the legislation provides:

   (a)on review, under Part 6, Chapter 4;

   (b)by variation of the participant’s plan under s 47A under that subsection or (since 1 July 2022); or

   (c)by approval of a statement of participant supports under s 33(2) in the preparation of a new plan consequent to Division 4, Part 2, Chapter 3.

6. Where extension of funding is required in the course of proceedings in the Tribunal, commonly, in accord with the NDIA’s stated preference, this is the subject of a request for remittal whereby, on reconsideration, the date by which the participant’s plan must be reassessed may be extended and additional funding authorised during the additional period. Common practice and NDIA preference notwithstanding, in such circumstances there are 5 options:

   (a)reconsideration by order of remittal under s 42D of the AAT Act;

   (b)alteration by consent under s 26(1) of the AAT Act;

   (c)partial agreement by consent under s 42C(3) of the AAT Act;

   (d)variation of the participant’s plan under s 47A of the NDIS Act; or

   (e)reassessment of the participant’s plan under s 48 of the NDIS Act.

7. I note in passing, where Tribunal proceedings are on foot, s 26(1) of the AAT Act bars alteration of the decision under review without the consent of the parties and the Tribunal. Following passage of the Amendment Act and noting the contents of s 103(2), the extent to which s 26 of the AAT Act intersects with s 47A or s 48 of the NDIS Act is unclear. This is not a matter I need to consider further for present purposes.

8. There is nothing automatic about the extension of a participant’s plan or the extension of the plan reassessment date and the approval of additional funding for supports in such circumstances. The progressive replacement of participant plans occurs under the synchronous operation of s 37(1) and (3), consequent to operation of the plan variation and reassessment (previously plan review) provisions in Part 4, Chapter 3 of the NDIS Act and the making of new reviewable decisions under Part 2, Chapter 3. These provisions are not engaged by operation of the provisions for review of a reviewable decision in Part 6, Chapter 4.

9. Plainly enough, as the NDIA now contends, correctly in my opinion, the Tribunal’s review is conducted in the context of the participant’s plan which is in effect under s 37 rather than in respect of it. The effectiveness of the participant’s plan is not affected by a review decision under s 100(6) or by a review decision of the Tribunal, although the contents of the approved statement of participant supports might be varied or substituted. The amendments which commenced on 1 July 2022 in s 47A, s 49, s 101 and s 103 of the NDIS Act reinforce this construction.

10. There is no express or implied legislative authority to limit a person’s statutory entitlement to review of a reviewable decision to a participant plan currently in effect. A construction of that kind would enable the NDIA to subvert a person’s statutory review entitlement by issuing a new plan consequent to a decision under s 48, for example. Furthermore, as an order of remittal under s 42D(1) requires the decision-maker to reconsider the internal review decision under s 100(6), by logical extension, an internal review decision under s 100(6) of the NDIS Act would also cause a new plan to come into effect, consequently confining any further review to the supports included, prospectively, in such a plan.

11. If adopted, a construction of this kind would produce inconsistency in the application of review provisions and statutory entitlements, such that a decision under s 42D(2(b) or (c) (or under s 100(6)(b) or (c) of the NDIS Act) would limit further review to the statement of participant supports from the new start date of a plan automatically effected, whereas a decision under s 42D(2)(a) (or under s 100(6)(a) of the NDIS Act) would not cause a new plan to come into effect and it would not, therefore, impose a new start date for the review of the previously approved statement of participant supports. Inconsistency of this kind would likely result in unfairness and inconsistent application of the legislative scheme for merits review of reviewable decisions. The review provisions should apply equally to those exercising the statutory entitlement to review. A decision under s 42D(2)(a) to affirm the decision under review should not have a different effect under s 37 of the NDIS Act to a decision under s 42D(2)(b) or (c). The NDIA’s submissions on this point are correct.

12. Subsection 37(1) does not stand alone. The subsection must be read with s 37(3) in the context of Part 2, Chapter 3 and the NDIS Act more broadly. For s 37(1) to operate, each of the 2 preconditions in s 37(1)(a) and (b) must be met and, where a plan is already in effect, the plan will continue until it too ceases to have effect under s 37(3)(a) or (b). Where a participant’s plan is in effect, there is no statutory provision conferring power on the CEO to prepare a new participant plan other than by the methods set out in Division 4, Part 2, Chapter 3. There is no power or statutory authority for an existing participant plan to be replaced by a new plan consequent to a decision made for the purposes of s 42D(2)(b) or (c) of the AAT Act. For reasons explained in Pavlakis,[58] DZNB,[59] Dorrington,[60] RTRH,[61] Rogers,[62] and O’Hearn and National Disability Insurance Agency,[63] a purported plan issued consequent to a decision under s 42D(2) of the AAT Act lacks a proper legal basis and it would have no legal effect. Issuing a ‘plan’ in such circumstances might be considered ultra vires the NDIS Act. Characterising the issuing of a plan document in that way misses the real point, which is the issuing of a ‘plan’ without exercising power to make the statutory decision on which it essentially depends, namely making a reviewable decision under s 33(2) of the NDIS Act. Such a ‘plan’ is no more than a document without legal effect.

    [58] [2023] AATA 2485 at [19], [24], [25], [30] and [38].

    [59] [2022] AATA 1326 at [36].

    [60] [2022] AATA 1714 at [52].

    [61] [2022] AATA 205 at [98-101], [112] and [122].

    [62] [2022] AATA 2809 at [21].

    [63] [2023] AATA 2993.

13. Plainly, as the Court stated in Klewer’s case, a decision under s 42D(2)(b) or (c) transmogrifies the Tribunal’s function by deeming the application for review to be an application in respect of the decision as varied under s 42D(3)(a) or as substituted under s 42D(4)(a). This turns on satisfaction of the temporal element in s 42D(5) and it requires factual findings in respect of the decision actually made on remittal. It also requires a carefully considered understanding of the term “the decision as varied” in s 42D(3)(a).

14. The conception of varying a decision is not difficult to comprehend. It involves changing some elements of the decision and leaving other elements in place, without change. For the purposes of s 42D(2)(b), for example, where a reconsideration decision on remittal is made to vary the previously approved statement of participant supports by advancing the plan reassessment date and extending the funding for supports in on a pro rata basis, but without change to controversial supports not previously approved, the application is taken to be for review of the decision as varied. Whereupon the Tribunal’s review is in respect of the statement of participant supports as varied, namely the new plan reassessment date, the funding for originally approved supports as extended, and the controversial supports not previously approved. At the level of principle, as the NDIA now correctly asserts, for the purposes of review and s 42D(3)(a) of the AAT Act generally, the ambit or scope of the decision remitted is not limited by variation of the content of the decision on reconsideration. Whether a decision of this kind is made under s 42D(2(b) or (c) is a question of fact to be determined on the basis of probative evidence.

15. Subject only to findings in respect of the facts and incidents of the decision made on remittal, limiting the statutory entitlement to review to exclude matters previously decided, positively or negatively, is not expressly provided for in the legislation and no such constructive implication can safely be drawn.

16. It is clear enough, if a participant plan is merely a representation of a decision made under s 42D(2)(b) or (c) (or under s 100(6)(b) or (c) of the NDIS Act) it has no legal effect as a replacement plan under s 37 of the NDIS Act, and it cannot create a new start date for a new plan. Where s 42D(5) is complied with, it is the decision as varied or substituted, in fact, which is taken to be the subject of the application for review by the Tribunal. Without the imposition of a new start date in a plan, there is no bar to consideration of controversial supports or funding not previously approved by the reviewer or by the CEO in the original s 33(2) decision.

17. If review decisions under Part 6, Chapter 4 are taken to authorise new participant plans without application of the provisions in Division 4, Part 2, Chapter 3, this would effectively undercut those provisions and the procedural protections, including review entitlements, for participants. This is not consistent with the scheme of the NDIS Act and it impermissibly expands the scope of s 37(3)(a).

18. Concerns of this kind have been raised previously by the Tribunal in published decisions which have not been challenged, taken up on appeal, adopted or followed by the NDIA. This is an additional matter of concern. It is not for the NDIA to cherry pick Tribunal decisions on that basis of preference or convenience.

    The decision in Klewer’s case

19. In Klewer, the Court dealt with the 6 grounds of appeal pressed by Mr Klewer. Only the third ground raised issues of present significance:

    Whether the Tribunal misapplied the relevant legal test when deciding that as at the date of the Tribunal decision (30 March 2022) it was not satisfied that Mr Klewer required overnight care … , rather than deciding the matter (whether also or instead) as at the period the subject of the relevant Statement of Participant Supports under review, being 31 May 2018 to 31 May 2019.[64]

    [64] Klewer, at [41].

20. In addressing this ground, the Court responded to the facts of the case before it when considering the submissions of the parties, the case as run before the Tribunal and the statutory indicators it identified.[65] From the Court’s reasoning, it is clear a number of legal principles and conclusions were applied when addressing the particular facts and the submissions made, including:

    (a)a statement of participant supports approved under s 33(2)(b) of the NDIS specifies the reasonable and necessary support that will be funded for a new plan which then comes into effect under s 37(1) with a new start date; [166], [202];

    (b)the point in time being considered on review depends on the internal review decision before the Tribunal; [168];

    (c)the effect of a remittal under s 42D of the AAT Act, and a subsequent decision by a respondent decision-maker (such as the NDIA), is that “the application is taken to be an application for review of the decision as varied” (s 42D(3)(a) of the AAT Act) or “of the new decision” (s 42D(4)(a) of the AAT Act); [194], [201]; and

    (d)the legislation specifically contemplates variation whilst a review is on foot, and deems the review to be of the reviewable decision as varied; [199], [217];

    (e)the machinery of s 42D gives effect to the intention of the NDIS Act to operate a forward-looking funding scheme; [201], [211]-[212].

    [65] Ibid, at [155]-[225].

21. The Court applied these principles to the relevant facts it identified in respect of the third ground of appeal. The relevant facts included ‘plans’ issued by the NDIA consequent to reconsideration decisions under s 42D of the AAT Act. The sharp focus of the controversy before the Court when addressing the third ground of appeal was a legal question about the effect of decisions made in the course of Tribunal proceedings to vary Mr Klewer’s approved statement of participant supports on the time at which approval (or refusal) of a particular support (overnight care) was to be ultimately to be determined by the Tribunal. The Court identified remittal decisions made for the purposes of s 42D(2) of the AAT Act as ‘plans’ issued by the NDIA.[66] The legal basis of such ‘plans’ was not squarely raised by the parties, and it was not controverted by the evidence before the Court or its consideration of statutory indicators. Applying legal principle to the identified facts, the Court decided s 37(1) of the NDIS Act created a new start date for a plan and accepted the factual basis of the NDIA’s related submissions.[67] It was for this reason the Court concluded the Tribunal’s review was affected by new start dates in the plans which were said to have come into effect consequent to the Tribunal’s orders of remittal under s 42D of the AAT Act on 4 June 2020 and 13 May 2021.

    [66] Ibid, at [178]-[196].

    [67] Ibid, at [166] and [202], for example.

22. On my reading of the Court’s reasons, this conclusion is central to resolution and disposition of Mr Kewer’s third ground of appeal. It is for this reason, I am not persuaded the Court’s decision and related reasoning can be treated as obiter dicta, and I do not accept the NDIA’s present submission on this point. The legal principles the Court applied to the facts before it are within the ratio decidendii of the Court’s decision on Mr Klewer’s third ground of appeal. This is so, even though the Court decided the ground was not made out. It is not to the point the Court upheld Mr Klewer’s second ground of appeal on a procedural fairness point and, for this reason, set aside the Tribunal’s decision and remitted the matter for reconsideration according to law.

23. Consequently, the legal principles and conclusions underlying the Court’s disposition of Mr Klewer’s third ground of appeal are in the ratio decidendii which is binding on the Tribunal.

24. That is not the end of the matter, however. I am not persuaded the Court’s decision in Klewer is binding in Mr Hill’s case for 2 reasons. Firstly, Mr Hill’s case is distinguished on the facts and, secondly, Mr Hill’s case squarely raises legal questions which were not ventilated, argued or decided in Klewer’s case.

25. In Klewer, the Court proceeded on the facts it relevantly identified, namely new participant plans which contained new start dates in fact made in the course of the Tribunal proceedings. The Court proceeded to consider and determine the legal effect of such ‘plans’. In Mr Hill’s case, while plan documents were issued by the NDIA following the Tribunal’s orders of remittal on 29 April 2020 and 28 April 2021, these were not accepted as new participant plans in fact or effect. The NDIA’s submissions on this point are correct. The decision in Klewer is distinguished on this factual basis.

26. Furthermore, the ratio decidendii in disposition of Mr Klewer’s third ground of appeal does not include binding authority or a legal basis which requires the Tribunal to find Mr Hill’s participant plan was replaced by a new plan on 6 May 2020 or on 10 May 2021. This is because the legal basis of the new participant ‘plans’ the Court accepted were in fact made in the context of the Tribunal’s review of Mr Klewer’s application under Part 6, Chapter 4 of the NDIS Act was not squarely raised, argued or decided by the Court in that statutory context. Such considerations and legal questions are squarely raised in the submissions of the parties on the facts of Mr Hill’s case, presently. The legal question, presently, is whether s 37(3) of the NDIS Act authorises replacement of a participant’s plan when a review decision is made under Part 6, Chapter 4, including under s 42D(2) of the AAT Act following remittal for reconsideration of a reviewer’s decision in respect of approval of a statement of participant supports. This legal question was not the legal question the Court decided in disposition of Mr Klewer’s third ground of appeal.

27. The legal questions on which the Tribunal’s jurisdiction in Mr Hill’s case turns, having regard to the related arguments ventilated and the submissions made by the parties, clearly distinguish Mr Hill’s case from Klewer.

28. Furthermore, and finally on this point, the proposition Klewer precludes the Tribunal’s review from considering participant supports in a past period cannot be accepted generally. This misunderstands the Court’s reasoning on the facts of Klewer’s case. And, as the NDIA now submits, it is not consistent with the legislative scheme for merits review of reviewable decisions under the NDIS Act.

29. When addressing the issue of whether the Tribunal applied the wrong legal test, the Court set out a key plank of the NDIA’s submissions which was instrumental in its subsequent reasoning:

    166. …the NDIA submits there is no legal error in the Tribunal specifying in a statement of participant supports approved under s 33(2) the reasonable and necessary supports “that will be funded” for a new plan that then “comes into effect” pursuant to s 37(1) of the NDIS Act rather than approving only the reasonable and necessary supports for the “period the subject of the relevant Statement of the [sic] Participant Supports under review, as Mr Klewer’s application suggested. What the NDIA submits is evident from the above analysis of statutory provisions [referring, in part, to Mortimer J’s (as she then was) explanation in McGarrigle v National Disability Insurance Agency[68] at [85]] , and particularly s 33(2)(b) concerning the supports that “will be funded” in a newly approved statement of participant supports which must have a review date in the future, is that Mr Klewer is wrong in his submission that “[t]hese are the supports that are reasonable and necessary for the participant in that period of time” (emphasis added). The words emphasised in Mr Klewer’s submissions are contrary to the statutory language which provides that the decision-making function is to approve reasonable and necessary supports that “will be funded” for a future plan…

    [68] [2017] FCA 308.

    167. For the reasons which follow, this ground is not made out. Mr Klewer did not run his case before the Tribunal on the basis he was seeking retrospective reimbursement for the overnight care provided by his mother, between 2018 and 2019. Rather, consistent with the NDIA, Mr Klewer was asking the Tribunal to determine, in the current circumstances, whether overnight care was a reasonable and necessary support. By consent, Mr Klewer and the NDIA obtained orders which varied and remitted the reviewable decision, which ultimately led to the then current 2021 plan being the reviewable decision; that plan started on 7 June 2021 and had a review date of 7 June 2022.

    …

    194. The effect of a remittal under s 42D of the AAT Act, and a subsequent decision by a respondent decision-maker (such as the NDIA), is that “the application is taken to be an application for review of the decision as varied” (s 42D(3)(a) of the AAT Act) or “of the new decision” (s 42D(4)(a) of the AAT Act).

    195. … Therefore, the consequence of the remittals was that the “matter before the Tribunal” was not the “NDIS plan for the period 31 May 2018 to 31 May 2019” but, rather, as the Tribunal observed, the supports still “in contention” under the extant plan at the time of its decision.

    …

    201… The possible consequences of remittal are clearly stated in s 42D(2) and, if there is a variation or the decision is set aside and a new decision is made, then the application is taken to be an application for review of the decision as varied (s 42D(3)(a)) or the new decision (s 42D(4)(a)). It is clear the effect of the power under s 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to being about the new plan.

    …

    221. A review of these provisions [including s 33, s 37, s47, s 48, s 49, s 99, s 100 and s 101 of the NDIS Act] reveals a number of matters. First, the participant plan is time-limited. Secondly, it mandates that the statement of participant supports must contain a review date (s 33(2)(c)). Thirdly, by operation of s 37(1), a plan comes into effect from the date the CEO approves the statement of participant supports. Fourthly, the Act contemplates various circumstances for review, variation and alteration of the plan, including replacement by change in the participant’s statement of goals and aspirations (s 47), where a review is conducted under s 48, the CEO must “facilitate the preparation of a new plan” (s 49) or where a variation is made when a review is on foot (s 101).

    222. Accordingly, there is nothing arising from a consideration of the statute which precluded the parties from, by operation of s 42D, varying or substituting the 2018 decision with the 2021 decision and then asking the Tribunal to review that decision.

    …

1. Unfortunately, the alternatives open to Mr Hill are few. A suite of less resource intensive calming and engagement strategies, as recommended by Mr Breslin and Professor Einfeld, may reduce Mr Hill’s dependence of driving as a calming strategy or as an attachment to routine, and thereby reduce the distances he is driven on a daily basis, but they are not alternatives to much of the transport support Mr Hill requires.

2. On the available evidence, it is probable there has been some reduction in daily distances Mr Hill has been driven since 21 May 2019. At that time, on the evidence of Ms Ferguson, Ms Gibson, Ms Guy and Ms Garbutt future reduction in transport support was anticipated. Evidence given by Mr Breslin, Professor Einfeld and Mr Hill’s parents is sufficient to establish the level of Mr Hill’s transport support reduced in the period to January 2022. Presently, the evidence of Mr Breslin and Professor Einfeld implies further reductions in Mr Hill’s dependence on driving as a calming strategy might be possible. No such positive finding can be made, however as it is unclear if further reductions might be achieved. If not, no future reduction in the cost of transport support for Mr Hill is likely to be obtained.

3. There is no evidence comparable alternative supports exist which are capable of entirely replacing Mr Hill’s dependence on driving as a calming strategy or as a preferred activity. The NDIA’s assertion, in reference to Rule 3.1(a), that Professor Einfeld gave evidence there are comparable supports that would achieve the same outcome at a substantially lower cost is partially correct, but it cannot be accepted generally. The Professor’s evidence was in respect of alternative calming strategies to reduce Mr Hill’s dependence of driving as a major calming strategy, not in respect of transport support for Mr Hill more broadly. It can be accepted the alternative calming strategies the Professor recommended are likely to be cheaper and less resource intensive than driving, but these were posited in the context of reducing dependence on driving as a calming strategy, not phasing it out altogether.

4. The proposition that untried pharmacological treatments, such as serotonin reuptake inhibitors, might have a positive calming effect for Mr Hill is, as Professor Einfeld made clear, somewhat speculative and a matter for Dr Evans, Mr Hill’s treating psychiatrist, to consider. Professor Einfeld’s other suggested alternatives, such as access to a trampoline or a swing, crunchy foods or flicking a gum leaf for example, are not capable of replacing transport support for Mr Hill, although these alternatives might assist reducing his dependence on driving as a calming strategy. It is probable the present level of transport support Mr Hill requires is likely to continue, subject to any further changes in his support arrangements or in his domestic environment.

5. With regard to Rules 3.1(b), (c) and (f), it is difficult to gauge if transport support is likely to increase Mr Hill’s independence or reduce the future cost of other supports. The weight of the practical and expert evidence suggests supports which assist Mr Hill to develop capacities and skills, and adaptive behaviour, may assist him to become more independent. Transport support is key in this as it provides Mr Hill access to the community and to social and economic participation experiences, without which his opportunities to develop such capacities and skills would be reduced.

6. There is one further consideration in the value proposition. Mr Hill’s representatives assert a modified vehicle rate should be applied, not the standard vehicle rate applied by the Australian Taxation Office (ATO)[139]. Mr Hill’s representatives assert a rate of between $1.00 to $1.20 per kilometre should be applied. Underlying this assertion is the proposition the vehicle used to transport Mr Hill, a second-hand vehicle purchased prior to 21 May 2019, has been modified with a safety screen and the vehicle is subject to higher levels of wear and tear than a standard vehicle, as supported by repair invoices in evidence.

   [139] Exhibit 16.

7. The ATO rates are calculated for the purposes of deeming vehicle operating costs which may be claimed as deductions for taxation purposes. They provide a standard determined by the ATO from time to time on the basis of overall estimated running costs of a vehicle. It is a reasonable standard to apply when considering use of a private vehicle and the comparative assessment required in Rule 3.1 (e).

8. While one can readily accept a security screen (a restrictive practice for which authorisation was given) was installed in the vehicle and the vehicle may have been subject to higher than usual levels of wear and tear, the matter for determination is the reasonable and necessary supports that will be funded for Mr Hill in consideration of his disability and disability support needs. It is through this lens estimated (or actual) cost and cost recovery formulations must be viewed.

9. To my mind, the arguments pressed by Mr Hill’s representatives are not made out. On the available materials, I am not satisfied the vehicle operating costs are greater than would be covered under the applicable standard ATO rate in the period from 21 May 2019 to the present. Even if the matters pressed by Mr Hill’s representative were to be accepted, no different conclusion would obtain. I am not persuaded transport support calculated at a rate greater than the relevant standard ATO rate (as set out in Exhibit 16 as updated by the ATO in respect of the 2023-2024 financial year) satisfies the value proposition in respect of reasonable and necessary transport support for Mr Hill related to his disability support needs. That being so, I am satisfied the ATO standard vehicle rate should be applied, as follows:

   (a)68 cents per kilometre in the 2018-2019 and 2019-2020 financial years;

   (b)72 cents per kilometre in the 2020-2021 and 2021-2022 financial years;

   (c)78 cents per kilometre in the 2022-2023 financial year; and

   (d)85 cents per kilometre in the 2023-2024 financial year.

10. Applying the ATO standard rates, I am satisfied the cost of the reasonable and necessary transport support Mr Hill requires to access the community, to access other preferred activities, to access medical treatment and therapeutic support and for calming purposes, as set out in paragraph [263], above, is reasonable.

    Effective and beneficial

11. The applicable threshold is whether the transport support will be, or is likely to be, effective and beneficial for Mr Hill, having regard to current good practice. Deciding this, Rules 3.2 and 3.3 apply:

    3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

    (a)     published and refereed literature and any consensus of expert opinion;

    (b)     the lived experience of the participant or their carers; or

    (c)     anything the Agency has learnt through delivery of the NDIS.

    3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

12. Considering all the evidence, I am satisfied, in the period from August 2018 to January 2021, Mr Hill was confronted with changes and inconsistencies in his day program and support arrangements, as well as in his domestic environment and his ability to access the community (partly due to the Covid pandemic public health restrictions). On the evidence of Ms Ferguson, Ms Garbutt, Zest Care records, Mr Hill’s family members, Professor Einfeld and Dr Leif, it is probable this affected Mr Hill’s behaviour and his demand for transport support, as well as the manner in which transport support was used or provided by his support workers and family members.

13. The expert opinion evidence is largely consistent. Professor Einfeld’s evidence driving was the most effective and predictable calming strategy for Mr Hill is supported by Dr Leif’s opinion and the evidence of Mr Breslin, Ms Garbutt and Mr Hill’s family members. Dr Leif considered Mr Hill’s driving requests also related to other factors, including accessing other preferred activities and sheer enjoyment. Professor Einfeld agreed with Ms Garbutt that travelling by car was a habitual calming tool for Mr Hill and an attachment to his routine. The Professor explained it would be desirable to reduce rather than fade out Mr Hill’s dependence of driving as a major calming strategy over time, but he did not agree with Ms Ferguson that Mr Hill’s high demand for driving was maladaptive, albeit less than ideal. Dr Leif was largely in agreement on these points, although she underlined the significance of Mr Hill participating in activities which bring him joy and to access the community. I accept Professor Einfeld’s evidence, which is supported by the evidence of Dr Leif and Ms Garbutt, changing Mr Hill’s habitual behaviour of wanting to be driven would likely take much time, ingenuity and effort.

14. I accept Professor Einfeld’s evidence in respect of ‘current good practice’ in Mr Hill’s circumstances. With regard to the practices deployed prior to 27 July 2020, the Professor considered it was current good practice at that time if the driving approach is continuing at the same time as attempts are being made to reduce dependency on it. He largely reiterated this opinion on 15 January 2021 and, on 21 November 2022, reported significant progress had been made in all areas identified in his previous reports to the extent that driving is no longer being used primarily as a calming strategy.

15. I am satisfied the strategies and practices Ms Ferguson, Ms Gibson, Ms Guy, Ms Garbutt recommended from 21 May 2019 in the particular circumstances I have discussed above were consistent with current good practice at the time. This is so despite difficulties which affected implementation of behaviour support and related strategies recommended by Ms Ferguson, Ms Guy and Ms Garbutt, including:

    (a)restrictions on Zest Care support workers accessing the community with Mr Hill due to his behaviour issues at the time;

    (b)restrictions accessing the community during the Covid pandemic;

    (c)challenges maintaining reasonable consistency in Mr Hill’s routine by Zest Care support workers and Mr Hill’s parents, including in respect of:

    (v)dietary choices and access to sugary or junk foods, caffeine and alcohol;

    (vi)the administration of medicines;

    (vii)sleep hygiene; and

    (viii)use of driving as a calming strategy;

    (d)tensions in the relationship between Zest Care support workers and Allison Hill, in particular.

16. No doubt there was scope for improvement implementing the recommended strategies and practices in the period from 21 May 2019 to in or about January 2021, particularly addressing the difficulties maintaining consistency in the implementation of Mr Hill’s routine. This must be viewed in the circumstances, including Mr Hill’s behavioural issues and related factors, at that time. The conception of ‘current good practice’ in the context of s 34(1)(d) of the NDIS Act is a reference point when assessing whether the particular support is effective and beneficial. The concept does not require strict adherence to a standard. Whatever the content of ‘current good practice’ might be in any case, it is something to which regard must be had as a measure of efficacy and benefit rather than as a rule demanding compliance, without room for progressive improvement or variation, or reasonable flexibility in response to circumstances which arise. In Mr Hill’s case, ‘current good practice’ as described by Professor Einfeld and Dr Leif is sufficiently broad to accommodate scope for improvements in the practical implementation of behaviour support strategies in difficult circumstances.

17. Mr Hill’s circumstances changed with the transition to Bunji support workers from December 2020 into the early months of 2021. The strategic approach adopted by Mr Breslin in the Behaviour Support Plans he developed, introduced different expectations and processes and greater consistency in Mr Hill’s routine, adopting reinforcement and ‘first, then’ strategies combined with improved use of communication tools, for example.[140] I am satisfied, with the assistance of Mr Hill’s parents and the Bunji support workers, this was implemented with reasonable consistency across Mr Hill’s domestic environments over the period from 8 February 2021 to 5 December 2022. In all likelihood, following the transition from Zest Care to Bunji support workers, the changes Mr Breslin introduced were instrumental in effecting gradual changes in Mr Hill’s routine and the amount of transport support he required. Notwithstanding the inconsistencies Professor Einfeld was asked to assume when answering questions put by the NDIA, his evidence and the evidence given by Dr Leif largely support this conclusion. I accept, as Professor Einfeld, Dr Leif and Ms Garbutt foreshadowed, the process of changing Mr Hill’s dependency on driving as a major calming strategy is gradual and slow, and in all likelihood it is ongoing.

    [140] See, for example, Exhibit 2; Exhibit 5, documents 1 and 19; and Exhibit 6, document 9.

18. I do not accept the NDIA’s submission the strategies and practices adopted under behaviour support plans Mr Breslin introduced from January 2021 and implemented by Bunji support workers and Mr Hill’s family members were not consistent with current good practice. The evidence of Professor Einfeld and Dr Leif is to the contrary. This is so even though, as Professor Einfeld observed, improvements could have been made and alternative strategies could have been considered.

19. I accept Dr Leif’s evidence and the evidence given by Mr Hill’s family members there is a place in ‘current good practice’ for Mr Hill to exercise choice in respect of activities he enjoys. Not only is this his human right, as Dr Leif suggests, it is entirely consistent with the objectives and principles set out in s 4 and s 31 of the NDIS Act.

20. On balance, having regard to ‘current good practice’ as described by Professor Einfeld and Dr Leif, I am satisfied the provision of transport support to assist Mr Hill access the community, preferred activities and medical or therapeutic support, and as a reasonable calming strategy was and is likely to be effective and beneficial for Mr Hill since 21 May 2019 and presently.

    Expectation of family and community

21. The applicable threshold is the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.

22. It is necessary to apply Rule 3.4:

    3.4     In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

    (a)     for a participant who is a child:

    …

    (b)     for other participants:

    (i)      the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

    (ii)     the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

    (A)     the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

    (B)     the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

    (C)    the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

    (iii)     the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

    (c)     for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

23. The question to be answered is not about the capacity or willingness of Mr Hill’s parents or carers to contribute financially to the transport support Mr Hill reasonably requires, rather it is a matter of taking account of what it is reasonable to expect them to provide.

24. The support Mr Hill’s parents provide to Mr Hill involves greater instructional control than his support workers, and this reduces risks to Mr Hill and to members of the public, particularly when he is accessing the community or engaging in activities outside the domestic environments in which he resides. There is a risk Mr Hill’s reliance on his parents for transport support might reinforce dependence on them and, where the transport support practices do not align with recommendations, this might impede reduction of his dependence on driving as a major calming strategy and Mr Hill’s development of capacity and skills, or a greater level of independence and adaptive behaviour. I am satisfied the levels of transport support I have set out in paragraph [263], above, minimise this risk and take account of the potential harm to Mr Hill, maintaining a steady eye on Rule 5.1(a) and the objective set out in s 3(1)(ga) of the NDIS Act to:

    protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme;

25. The suitability of Mr Hill’s parents to provide him with reasonable and necessary transport support implementing the strategies recommended by Mr Breslin and Professor Einfeld can be accepted.

26. Peter Hill and Allison Hill are separated. Mr Hill gave evidence about the intensity of the stress they experienced supporting Mr Hill over a number of decades and the effect of this on their marriage. Each of them is in employment, Mrs Hill on a part-time basis, 3 days each week. Nonetheless, as of 21 May 2019 and presently, I am satisfied they each have capacity to share provision of the transport support Mr Hill requires outside his day program hours, during which transport support is provided by support workers. I accept this may be onerous burden for each of them, and the sustainability of them providing transport support is, in part at least, affected by the cost of doing so.

27. Nonetheless, it is realistic and reasonable to expect Mr Hill’s family members to continue to provide Mr Hill with transport support to a level they are likely to have the capacity to sustain. This is particularly in respect of transport support in relation to family events and visits, recreational outings or trips and day-to-day activities not related to Mr Hill’s disability, outside the hours of his day program.

28. The level or extent of such support must be considered against the intensity and purposes of the transport support Mr Hill requires in order to access the community, preferred activities and medical or therapeutic treatments, as well as a calming strategy where this is one component of an overall strategy to expand the range of calming experiences and processes. To my mind, the level of transport support Mr Hill requires for these purposes is intensive, costly and likely to be ongoing, although some further reduction may be possible. I do not think it is reasonable to expect Mr Hill’s parents to provide all Mr Hill’s transport support outside his day program hours, and it is not reasonable for all Mr Hill’s transport support to be provided or funded under the Scheme. A reasonable balance must be struck in which the sustainability of their capacity to provide transport support is weighed against the costs of doing so, where what is reasonable to expect them to provide is balanced with what is most appropriately funded under the Scheme.

1. I am satisfied the levels of transport support set out in paragraph [263] are reasonable and necessary supports which will be funded under the Scheme, and it is reasonable to expect Mr Hill’s family members to provide additional transport support for Mr Hill, particularly in respect of family activities, recreational outings, and day-to-day activities not related to Mr Hill’s disability. I note additional transport support includes transport for Mr Hill to access the community, preferred activities and medical or therapeutic support, and as a calming strategy, which is in addition to the levels of reasonable and necessary transport support which will be funded under the Scheme.

   Most Appropriately funded under the Scheme

2. The applicable threshold is the support is most appropriately funded or provided through the Scheme, and it is not more appropriately funded or provided through other general systems of service delivery or support services offered as part of a universal service obligation, or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

3. The NDIA accepts transport support for Mr Hill is most appropriately funded under the Scheme.

4. I do not accept all Mr Hill’s transport support needs are most appropriately funded under the Scheme, however. It is realistic and reasonable to expect Mr Hill’s family members to provide a proportion of his transport support needs, and that proportion is not most appropriately funded under the Scheme.

5. As I have said, the levels of transport support set out in paragraph [249], above, are reasonable and necessary transport support which will be funded under the Scheme.

   Conclusion

6. Mr Hill requires a level of transport support which is greater than previously approved.

7. The reasonable and necessary transport support for Mr Hill which will be funded under the Scheme from 21 May 2019 is to be calculated by applying the relevant standard ATO rate to the daily distances set out in paragraph [263].

8. It follows the statement of participant supports which was approved on 21 May 2019, as varied on 29 August 2019 and further varied on 6 May 2020, must be varied again to include the reasonable and necessary transport support I have decided will be funded under the Scheme. The parties agree, and I accept, the statement should be varied to include a reassessment date 12 months after the date of this decision and all other components of the approved statement, including all other supports and management arrangements, should be extended to that date.

9. As the variations to the approved statement traverse past periods from 21 May 2019, and the funding for supports is NDIA-managed, claims made for reimbursement of previously incurred costs relating to transport support consequent to this decision will be determined by the NDIA, having regard to amounts previously paid for transport support.

10. Previous transport support funding was provided on a periodic basis. Whether this is the most appropriate mechanism for provision of transport support funding consequent to this decision, from now until the varied reassessment date, remains to be determined. The matter will be remitted to the NDIA for this purpose.

    Decision

11. The decision under review, being the reconsideration decision made on 6 May 2020, which varied the IR Decision to vary the statement of participants supports originally approved by the CEO on 21 May 2019, is further varied in the following terms:

    (e)the date by which Mr Hill’s plan is to be reassessed is 12 months from the date of this decision (reassessment date);

    (f)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;

    (g)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;

    (h)all other supports in the approved statement of participant supports as varied on 6 May 2020 will be funded until the reassessment date;

    (i)the management of the funding for supports and other aspects of Mr Hill’s plan will continue without change until the reassessment date.

12. 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.

I certify that the preceding 321 (three hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.............................[sgd].........................................

Associate

Dated: 6 November 2023

Date(s) of hearing: 

12, 13, 14 & 16 December 2022; 4 & 5 April 2023

Date final submissions received: 

7 September 2023

Representatives for Applicant: 

Mr Peter Hill

Mr Bob Buckley, Autism Aspergers Advocacy Australia

Counsel for Respondent: 

Ms Melissa Fisher

Solicitors for Respondent: 

Ms Mia Donald, Sparke Helmore Lawyers

Mr Matthew Sheedy, Sparke Helmore Lawyers