Hill and National Disability Insurance Agency
[2022] AATA 3431
•19 October 2022
Hill and National Disability Insurance Agency [2022] AATA 3431 (19 October 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/7109
2022/7112
Re:Matthew Hill
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
INTERLOCUTORY Decision
Tribunal:Mr S. Webb, Member
Date:19 October 2022
Place:Canberra
No jurisdiction. Applications dismissed.
……………………..[sgd]……………………..
Mr S. Webb, Member
PRACTICE & PROCEDURE – jurisdiction – successive participant plans – replacement plan following plan review – approval of statement of participant supports – reviewable decision – internal review and deemed internal review decision essentially conditioned by request being made within the prescribed time – no request for internal review – no internal review decision – deemed decision to refuse review of a participant plan conditioned by request – no request for plan review – no actual or deemed decision – no jurisdiction –applications dismissed
Legislation
Administrative Appeals Tribunal Act 1975, ss 25, 42A
National Disability Insurance Scheme Act 2013, ss 33, 37, 48, 99, 100, 103
National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Act 2022Cases
FJKH and National Disability Insurance Agency [2018] AATA 1294
NNXF and National Disability Insurance Agency [2019] AATA 5552
Rogers and National Disability Insurance Agency [2022] AATA 2809REASONS FOR DECISION
Mr S. Webb, Member
19 October 2022
Matthew Hill is a participant in the National Disability Insurance Scheme (Scheme). As a participant, approved supports to be provided or funded for him were set out in successive participant plans. Mr Hill disputes the extent of supports approved for him. He has lodged 3 applications for review by the Tribunal: applications 2019/5857, 2022/7109 and 2022/7112.
Application 2019/5857 is an application for review of a decision made under s 100(6) of the National Disability Insurance Scheme Act 2013 (NDIS Act) which confirmed an original decision to approve a Statement of Participant Supports (SOPS). There is no dispute about the Tribunal’s jurisdiction in respect of this application. Proceedings in the application are well-advanced and the matter has been listed for hearing.
It was in the course of proceedings in application 2019/5857, Mr Hill’s lay representatives lodged the two further applications: 2022/7109 and 2022/7112 (new applications).
The Respondent Agency asserts the Tribunal lacks jurisdiction to deal with each new application.
Mr Hill maintains the Tribunal has jurisdiction to address the alleged failure of the National Disability Insurance Agency to properly address Mr Hill’s support needs.
The parties have been given opportunity to be heard on this question. Each party has made written submissions and relevant materials have been placed before the Tribunal.
It is convenient to deal with both new applications in these reasons.
Jurisdiction
The Tribunal does not exercise power at large. The Tribunal exercises powers under relevant sections of the Administrative Appeals Tribunal Act 1975 (AAT Act) when exercising jurisdiction conferred upon it by other enactments. Importantly, this is given expression in s 25 of the AAT Act, relevantly:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred
by that enactment; or
(b) for the review of decisions made in the exercise of powers
conferred, or that may be conferred, by another enactment having
effect under that enactment.
(2) The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the
provision applies;
(b) may be expressed to apply to all decisions of a person, or to a
class of such decisions; and
(c) may specify conditions subject to which applications may be made.
As can be seen, the Tribunal’s jurisdiction is enlivened by application for review of a decision made under an enactment which provides for the decision to be reviewed by the Tribunal. The Tribunal has no broader or general power to review decisions made or purported to be made outside this legislative framework.
Section 103 of the NDIS Act provides for certain decisions to be reviewed by the Tribunal:
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
(2) If:
(a) an application is made to the Administrative Appeals Tribunal for
review of a decision made by a reviewer under subsection 100(6);
and
(b) the decision relates to a statement of participant supports in a
participant’s plan; and
(c) before a decision on the review is made and despite
subsection 26(1) of the Administrative Appeals Tribunal Act 1975:
(i) the CEO varies the plan under subsection 47A(1) of this Act
and the variation is a change to that statement; or
(ii) a new plan for the participant comes into effect under
section 37 of this Act;
then:
(d) if subparagraph (c)(i) applies—the application is also taken to be an
application for review of the decision to make the variation covered
by that subparagraph; or
(e) if subparagraph (c)(ii) applies—the application is also taken to be an
application for review of the decision to approve the statement of
participant supports in the new plan.
Even though s 103(2) extends the scope of the Tribunal’s review, the review is essentially preconditioned by and in respect of a decision under s 100(6) of the NDIS Act.
Section 100 of the NDIS Act is in the following terms:
(1) The decision‑maker of a reviewable decision must give written notice of the
reviewable decision, and of the reasons for the reviewable decision, to each
person directly affected by the reviewable decision.
(1A) The notice must include a statement:
(a) that:
(i) the person may request a review of the reviewable decision
in accordance with this section; or
(ii) if the decision‑maker is taken to have made the reviewable
decision because of subsection 21(3), 47A(5) or 48(4)—the
decision will be reviewed automatically; and
(b) that the person may seek further review under section 103.
(2) A person who is directly affected by a reviewable decision may request the
decision‑maker to review the reviewable decision. If the person is given a
notice under subsection (1) the person must make the request within 3 months
after receiving the notice.
(3) A request may be made by:
(a) sending or delivering a written request to the decision‑maker; or
(b) making an oral request, in person or by telephone or other means,
to the decision‑maker.
(4) If a person makes an oral request in accordance with paragraph (3)(b), the
person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
(5) If:
(a) the decision‑maker receives a request for review of a reviewable
decision; or
(b) the decision‑maker is taken to have made a reviewable decision
because of subsection 21(3), 47A(5) or 48(4);
the decision‑maker (the reviewer) must review the reviewable decision.
(5A) The decision‑maker cannot review the reviewable decision personally if the
decision‑maker was involved in making the reviewable decision.
(5B) A delegate of the decision‑maker cannot review the reviewable decision if the
delegate was involved in making the reviewable decision.
(6) The reviewer must make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new
decision.
(6A) The reviewer must make the decision under subsection (6):
(a) within the period worked out in accordance with the National
Disability Insurance Scheme rules prescribed for the purposes of
this paragraph; or
(b) if there are no such rules—within the periodof 90 days beginning
on:
(i) if paragraph (5)(a) applies—the day the request is received;
or
(ii) if paragraph (5)(b) applies—the day after the end of the period
applicable under paragraph 21(3)(a) or (b) or
subsection 47A(5) or 48(4) (as appropriate).
(7) A request for review of a reviewable decision, or a requirement to review a
reviewable decision that the decision‑maker is taken to have made, does not
affect the operation of the decision or prevent the taking of action to
implement the decision.
(8) A failure of the decision‑maker to comply with subsection (1) does not affect
the validity of the reviewable decision or the right of a person directly affected
to request review of the decision.
At this point it is important to observe relevant sections of the NDIS Act, including ss 99, 100 and 103, were amended by the National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Act 2022 with effect from 1 July 2022.
The new applications were made on 27 August 2022. This notwithstanding, they each relate to alleged decisions in 2017 and 2019. Consequently, s 100(6) as it stood prior to 1 July 2022 at the particular times must also be considered:
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
Under s 9 of the NDIA Act, the term reviewable decision is given meaning with reference to s 99(1) and (2). For present purposes, the particular reviewable decisions are set out in items 4 and 6 of s 99(1) as it stood prior to 1 July 2022:
Reviewable decisions and decision‑makers Item Column 1
Reviewable decision
Column 2
Provision under which the reviewable decision is made
Column 3
Decision‑maker
1 … 4 a decision to approve the statement of participant supports in a participant’s plan subsection 33(2) CEO 5 … 6 a decision not to reassess a participant’s plan subsection 48(2) CEO 7 …
It is necessary to briefly address temporal aspects of s 100. The period in which a request may be made for review of a reviewable decision is prescribed in s 100(2). The means by which a request may be made is set out in s 100(3). The phrase as soon as reasonably practical has been construed in this context to refer to a prescribed period for the making of an internal review decision under s 100(6) which commences on the day the person requests a review under s 100(2) and ends on the day by which it would have been reasonably practicable for the decision to have been made.[1]
[1] NNXF and National Disability Insurance Agency [2019] AATA 5552 at [94]-[95].
In Rogers and National Disability Insurance Agency,[2] the Tribunal observed, and I agree, a beneficial approach is to be taken in the interpretation of communications from persons affected by a reviewable decision within the 3-month period in which a request for review may be made.[3] While no special words are required and the request may be made orally or in writing, the expression of dissatisfaction with a reviewable decision must, nevertheless, amount to a request for review in order to trigger the start of the period prescribed in s 100(6). The expression of dissatisfaction with a reviewable decision, alone, may not be enough. Dissatisfaction with a reviewable decision may arise in a wide variety of circumstances, such as frustration with the decision-making process or unhappiness with the decision maker’s conduct for example. In order to satisfy s 100(2), a person must convey a request consistent with exercise of their right to review of a reviewable decision.
[2] [2022] AATA 2809.
[3] Ibid at [41].
The operation of s 48(1) and (2) of the NDIS Act prior to 1 July 2022 raises similar issues in respect of making a request for review of a participant’s plan. The 14-day period prescribed in s 48(2) cannot commence unless a participant makes a request for review under s 48(1). While a request could be made at any time, and communications between the participant (or their representatives or advocates) and the Agency should be beneficially construed, for s 48(2) to operate, a request must in fact be made.
It should be noted, where a decision is taken to have been made under s 48(2), the review procedure under s 100(5) applies without the requirement for a request for review to be made under s 100(2). In those circumstances, a reviewer must then make a decision on the review under s 100(6).
For the purposes of s 25(5) of the AAT Act, where a decision is not made within the period prescribed in s 100(6) as it stood prior to 1 July 2022 (or under s 100(6A) presently), the decision under review is taken to have been affirmed.[4]
[4] FJKH and National Disability Insurance Agency [2018] AATA 1294.
Under s 103 and for the purposes of s 25(1) of the AAT Act, an application may be made to the Tribunal for review of a decision made, or deemed to have been made, under s 100(6).
Application 2022/7109
Mr Hill’s application for review states he received the decision he wants reviewed on 30 November 2017, the same day the decision was made. The application states:
The Agency did not properly fund Matthew’s (Ref. 430274107) driving needs in his NDIS Plans, 27/9/2017 (T21) or 30/11/2017 (T22).
In written submissions made for Mr Hill, his representative states:
On receipt of Mr Matthew Hill’s initial NDIS Plan (T21…), Mr Peter Hill requested, on his son’s behalf, an internal review of the reviewable NDIS decision under s 99(1)(4) (previously recognised as reviewable in s 99(d)) “to approve a statement of participant supports” in the Applicant’s NDIS Plan made in late 2017.
Apparently, the NDIA did an internal review as requested because the NDIA replaced Matthew’s T21 plan with a new NDIS Plan, T22 on 30/11/2017…
The Respondent’s action following its review (now referred to as a reassessment) appears to be an act described in s 100(6)(b) varying the reviewable decision (the original “statement of supports” decision) for the Applicant or s 100(6)(c) “setting aside the reviewable decision and substituting a new decision”. The outcome of the internal review was delivered in the form of a new NDIS Plan (T22) just over 2 months after the original decision.
The Agency asserts this is not correct. The Agency alleges the plan issued on 30 November 2017 was the result of a plan review conducted under s 48(4) of the NDIS Act.
I have reviewed the interaction notes covering the period from 21 September 2017 to 29 November 2017.
It is clear a review of Mr Hill’s plan inclusions was undertaken during this period. The question is whether the review was one undertaken pursuant to a request made by or on behalf of Mr Hill under s 100(2) of the NDIS Act for review of the decision on 26 September 2017 to approve a SOPS, or whether it was a review of Mr Hill’s 26 September 2017 participant plan under s 48.
While the records are not as precise or as clear as one might expect in respect of the kind of review being undertaken, there is no evidence a request was made under s 100(2) for review of the SOPS approved on 26 September 2017. The interaction records allude to a review of Mr Hill’s 26 September 2017 participant plan. The record on 26 October 2017 includes the following text:
… the changes I am proposing will result in a revised plan and a new service agreement will be required.
Changes of this kind are consistent with a plan review under s 48 of the NDIS Act.
I am reasonably satisfied that is what occurred. A review was undertaken of Mr Hill’s 26 September 2017 plan and consequently, on completion of the review, a SOPS was approved under s 33(2) on 29 November 2017. Under s 37(1) of the NDIS Act, the SOPS approval decision was instrumental in the coming into effect of the 29 November 2017 plan on that date. The 29 November 2017 SOPS approval decision was a reviewable decision under s 99 of the NDIS Act. This is consistent with the letter sent to Mr Hill on 30 November 2017, which expressly refers to a review of Mr Hill’s plan and sets out review information consistent with the requirements of s 100(2) of the NDIS Act.
From this it follows the decision on 29 November 2017 is not a decision which is reviewable by the Tribunal.
Consequently, application 2022/7109 cannot proceed for want of jurisdiction. It is dismissed under s 42A(4) of the AAT Act.
Application 2022/7112
Mr Hill’s application 2022/7112 states There was no decision – we want the lack of decision reviewed. Notwithstanding this, the application refers to the ‘decision’ being made on 30 August 2018. The application contains the following:
Mr Matthew Hill’s disability supports, funded by NDIS Plan (…T23), were cut suddenly in August 2018. He transitioned from a centre-based program with House with No Steps to a home-based program supervised by Autism Spectrum Australia (Aspect) with supports from Zest.
The transition required that Matthew’s family purchase a suitable vehicle and modify it by installing a passenger barrier.
Despite these substantial changes in circumstance, the Agency left Matthew’s NDIS Plan unchanged.
…
The decision to be reviewed is the NDIA’s decision to not review Matthew’s NDIS Plan at this time, when a plan review was required…
Mr Hills’ representatives assert the Agency should have conducted a plan review at the time, but a decision was taken no to do so. This, it is argued, may amount to a reviewable decision under s 99 of the NDIS Act.
The Agency asserts it was open to Mr Hill or those assisting and supporting him to request a plan review under s 48(2) of the NDIS Act at the time, but no such request was made. The Agency argues there was no obligation on the Agency to conduct a review of Mr Hill’s then Plan without a request being made for that to occur.
I have reviewed the Agency’s interaction records for the period from 14 June 2018 (which record the Plan was received by Mr Hill’s father) and 21 May 2019 (when the Plan in T24 came into effect following a scheduled plan review). The records do not record any request being made for a review of Mr Hill’s then current plan in or about August 2018. Reading the records, it is apparent Mr Hill’s father experienced a degree of frustration in his dealings with the Agency. Frustration, however understandable, does not amount to a request under s 48(1) of the NDIS Act. I am not persuaded the dissatisfaction and frustration Mr Hill’s father communicated to the Agency amounted to a request for a review under s 48(1).
Without such a request being made, the period specified in s 48(2), following which a deemed decision is taken to have been made, cannot commence. Consequently, the available materials do not establish the essential preconditions on which a deemed decision to refuse to undertake a plan review may be taken to have been made. Absent a deemed decision under s 48(2), the consequential provision in s 100(5)(b) cannot operate, such that a reviewer must review the deemed decision and, as soon as reasonably practicable, made a decision under s 100(6).
Furthermore, there is no evidence a decision was in fact made to refuse to undertake a review of Mr Hill’s Plan which commenced on 28 May 2018. While there is no doubt an actual decision under s 48(2) is a reviewable decision for the purposes of s 99 as it was at the time, the absence of such a decision does not, itself, amount to a reviewable decision within the terms of s 99.
It is not helpful to consider what might have occurred had a decision been made, or deemed to have been made, under s 48(2).
On the materials I have examined and in close consideration of the submissions of the parties, I am reasonably satisfied there was no actual or deemed decision under s 48(2) of the NDIS Act in or about August 2018.
That being so, there is no firm basis on which to conclude a decision should be taken to have been made under s 100(6) of the NDIS Act in respect of review of Mr Hills’ Plan which commenced on 28 May 2018. Without a decision under s 100(6) of the NDIS Act, the avenue for further review by the Tribunal under s 103 is not open.
Consequently, although I am sympathetic to the frustration Mr Hill’s father experienced and the difficulty a person in his position faces when attempting to navigate the confusing language and legislative processes of the NDIS Act, I am unable to find jurisdiction where none exists.
Application 2022/7112 must be dismissed under s 42A(4) of the AAT Act.
Decision
No Jurisdiction. Applications dismissed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
………………..[sgd]………………..
Associate
Dated: 19 October 2022
Date of final submissions received: 10 October 2022
Representative for the Applicant: Peter Hill and Bob Buckley, Autism Aspergers Advocacy Australia
Solicitor for the Respondent: Mia Donald, Sparke Helmore
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