Hill and National Disability Insurance Agency - [2022] AATA 3431

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 2022
Cases
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 2809
REASONS 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill and National Disability Insurance Agency

Details

AGLC: Hill and National Disability Insurance Agency [2022] AATA 3431
Case: [2022] AATA 3431
Decision Date: 19 October 2022

CaseChat Overview and Summary

This matter concerned an application by Peter Hill and Bob Buckley, represented by Autism Aspergers Advocacy Australia, against the National Disability Insurance Agency. The core of the dispute involved the applicant's eligibility for certain benefits or services under the National Disability Insurance Scheme. The decision was made by Mr S. Webb, a Member of the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether it had jurisdiction to hear and decide the application brought before it. This involved an assessment of the relevant legislative provisions governing the Tribunal's powers and the nature of the application made by the applicant.

The Tribunal Member, Mr S. Webb, concluded that the application must be dismissed under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth). This provision relates to the dismissal of applications where the Tribunal lacks jurisdiction. The Member's reasoning, though not detailed in the provided extract, led to the finding that the Tribunal was not empowered to entertain the specific application before it.

Consequently, the Tribunal ordered that the application be dismissed for want of jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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]………………..AssociateDated: 19 October 2022 Date of final submissions received: 10 October 2022Representative for the Applicant: Peter Hill and Bob Buckley, Autism Aspergers Advocacy AustraliaSolicitor for the Respondent: Mia Donald, Sparke Helmore

Ratio Decidendi

Legal Principle Established

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