Holland and National Disability Insurance Agency
[2021] AATA 92
•2 February 2021
Holland and National Disability Insurance Agency [2021] AATA 92 (2 February 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/4622
NATIONAL DISABILITY
INSURANCE SCHEME DIVISION )Re: Jennifer Holland
Applicant
And: National Disability Insurance Agency
RespondentDIRECTION
TRIBUNAL: Deputy President J W Constance
DATE OF CORRIGENDUM: 11 February 2021
PLACE: Sydney
IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that:
- the reference to “not” in paragraph 4 of the decision is replaced with “now” such that the sentence reads “I have now reviewed your request under section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act).”; and
- the nine digit number in paragraph 13 is replaced with “[redacted]”.
..........................[SGD].........................................
J W ConstanceDivision:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/4622
Re:Jennifer Holland
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:2 February 2021
Place:Sydney
The Tribunal has jurisdiction to review Ms Holland’s participant supports from 29 November 2018 until the date of the Tribunal’s final decision in this application.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION – where Applicant requested internal review of November 2018 plan – where Agency did not make an internal review decision until July 2020 – where Respondent agreed Tribunal had jurisdiction in respect of the November 2018 statement of participant supports – where Respondent argued that there was no utility in the Tribunal reviewing the November 2018 supports as the plan had been replaced by later plans and no payments were outstanding – manner of seeking an extension of supports pending the finalisation of an application for review by the Tribunal – section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) – where Agency processes are unduly complicated and confusing – where Tribunal has jurisdiction to review supports
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 26, 42D
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 37, 100, 103CASES
NNXF and National Disability Insurance Agency [2019] AATA 552
Radar Investments Pty Ltd and Health Insurance Commission [2004] AATA 166
Williamson and National Disability Insurance Agency [2019] AATA 2944
REASONS FOR DECISION
Deputy President J W Constance
2 February 2021
INTRODUCTION
Unfortunately, this case is not isolated amongst those that come before the Tribunal in its National Disability Insurance Scheme jurisdiction. Its history illustrates the problems which can beset a participant in the Scheme who seeks to navigate the review process if a request for additional participant supports is refused by the National Disability Insurance Agency.
As this matter illustrates, the Agency’s processes are unduly complicated and confusing for all concerned and should be addressed in the interests of good public administration.
BACKGROUND
Ms Holland’s application for review by the Tribunal
On 30 July 2020 Ms Holland applied to the Tribunal to review a decision of the Agency notified to her on 8 July 2020. In her application she claimed the decision was wrong for the following reasons:
The NDIA did not make a correct and preferable decision which correctly addresses [my] reasonable and necessary supports. Further, the NDIA failed to address the issues caused by an insufficient NDIS plan and the extensive delay that has impacted [my] existing support network.
The decision which Ms Holland seeks to have reviewed is set out in a letter dated 8 July 2020 addressed to Ms Holland. The letter reads, in part:
Outcome of your internal review request
NDIS participant number: [redacted]
Dear Jennifer,
I am writing in response to your request that the National Disability Insurance Agency (NDIA) review our earlier decision to approve the statement of supports in your plan. This plan was approved on Thursday, 29 November 2018.
I have now reviewed your request under section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act). The National Disability Insurance Agency (NDIA) has now decided to fund some but not all of the supports you requested.
………..
A Local Area Coordinator or Support Coordinator will be able to help you implement this new plan and may be able to help you to consider alternative ways of achieving the outcomes you requested, such as connecting with community or government programs or by using existing supports in the NDIS plan.
If you are not satisfied with the decision, you may also apply to the Administrative Appeals Tribunal (AAT) for a further external review within 28 days. Information about how to apply is available on the AAT website (aat.gov.au), or by calling 1800 228 333. [Emphasis added].
The Agency’s objection to the jurisdiction of the Tribunal
On 23 September 2020 the Solicitors for the Agency provided a Statement of Issues in which it set out the periods covered by each of the four plans which have been put in place for Ms Holland:
·29 November 2018 – 2 April 2019
·3 April 2019 – 2 September 2019
·3 September 2019 – 12 December 2019
·13 December 2019 – 12 December 2020.
In the Statement of Issues the Agency objected to the Tribunal’s jurisdiction to determine Ms Holland’s application on the ground that “the review request was not made within three months of the Applicant having been provided with the November 2018 plan cf s100(2) of the NDIS Act”.[1]
[1] At [11].
The Agency later revised this argument in its submissions dated 22 October 2020.
THE AGENCY’S ARGUMENT AS SET OUT IN RESPONDENT’S SUBMISSIONS ON JURISDICTION FILED 22 OCTOBER 2020
In paragraph 5 the Agency submitted:
…… the Respondent’s position is that the Tribunal only has jurisdiction in this application to review the November 2018 SOPS and that such a review is futile given it is not the current SOPS and no payments under that SOPS are outstanding. The Tribunal will have jurisdiction to review the December 2019 SOPS if the Applicant lodges a new application in the Tribunal seeking to review the deemed confirmation of that plan under s100(6): NNXF and National Disability Insurance Agency [2019] AATA 5552.
Subsection 33(2) of the Act provides that a participant’s plan must include a statement of participant supports specifying the reasonable and necessary supports (if any) which will be funded under the Scheme.
A plan comes into effect when the CEO of the Agency has received the participant’s statement of goals and aspirations and has approved the statement of participant supports (subsection 37(1)). A plan cannot be varied after it comes into effect but can be replaced (subsection 37(2)). This is confirmed by subsection 37(3) which provides that a plan ceases to be in effect when the plan is replaced or when the participant ceases to be a participant.
The Agency argues that as a result, the Tribunal only has jurisdiction in relation to the statement of participant supports set out in the 29 November 2018 plan which ended on 2 April 2019. However, any review is futile as the November 2018 statement of participant supports are not the current statement of participant supports, which have been overtaken by a number of subsequent plans. Whenever a new plan was put in place Ms Holland was required to make a new request for review under subsection 100(2) and, if she was not satisfied with the decision on review, make a separate application to the Tribunal in accordance with section 103 on each occasion.
DECISION THAT THE TRIBUNAL HAS JURISDICTION
On 18 November 2020 I decided that the Tribunal has jurisdiction to review the Agency’s decision of 8 July 2020 in accordance with the advice given to Ms Holland in the letter advising her of the decision. I now provide detailed reasons for my decision. In the intervening period the matter has progressed in the usual manner.
CHRONOLOGY
In order to understand the difficulties faced by Ms Holland in the process leading up to her application to the Tribunal it is necessary to set out the events in some detail.
Plan in force
Date
Event
28 November 2018 – 2 April 2019
13 December 2018
Email: sent to NDIS by [redacted] (coordinator of support) “[redacted] Request for Review of a Reviewable Decision” – request form was not attached.
14 December 2018
Interaction notes: [Mr J.] (Senior Planner) speaking to Matthew Holland (Applicant’s partner)
“I called Matt to confirm receipt of both of his emails and also sent an email reply today confirming receipt of his emails. I advised Matt that the planner had forwarded AT docs already to Enable NSW and Home Mods have been sent to NDIA's Technical and Advisory Team (TAT). Explained to Matt this means the assessment of R & N is already underway for both AT and Home Mods.
Explained to Matt I am unable to provide timeframe when R & N decision will be made for AT and Home Mods. Matt stated he will have the RORD application completed either today or tomorrow and will forward this to NSWCentral Enquiries mail box.”
1 February 2019
Interaction notes: review request received via email on 19 December 2019 – progressed for actioning on 1 February 2019. Active plan period noted to be 29 November 2018 to 29 November 2019.
11 February 2019
Letter from NDIA to Applicant: request for front access home modifications under the NDIS declined. [The parties agree that this letter was sent in error.]
3 April 2019 – 2 September 2019
5 April 2019
Email: to [Ms C.] (NDIS Planner) from [the Applicant’s Advocate) noting:
“On 16 December 2018 a RORD [Review of Reviewable Decision] application was sent to the NDIA in response to the NDIS plan dated 29 November 2019, which is within the 3-month Internal Review deadline. Jennifer has yet to receive a decision in response to this request. Most recently, I have been informed that a light-touch review was undertaken generating a new 8-month plan. Can you please clarify whether this is an extension of Jennifer’s NDIS plan dated 29 Nov 2019 and that an Internal Review as per s 100(2) is still ongoing, or whether the plan is a result of the internal review request and an impending decision as per s 100(2) will be provided shortly.”
15 April 2019
Interaction note: plan review started for RORD (in relation to the 3 April 2019 plan).
17 May 2019
Interaction note: NDIA contacted [the Applicant’s Advocate] and advised:
“…best way forward would be to lodge a RORD against the new plan 3/4/19 regarding shortfall in funding that they have calculated…”
“…There are still outstanding issues in relation to CORE supports being inadequate since original plan 29/11/18 as well as Therapy funding. She also wanted to understand what the next step is regarding the HM [home modifications] that was declined as considered this a mistake. The original RORD does not appear to have been addressed properly or dealt with in the new plan 3/4/19 to 2/12/19. [Emphasis added] I advised I would get back to her on suggested course of action after speaking to my team Leader.”
6 July 2019
Respondent receives request for review of a reviewable decision form from the Applicant, requesting a review of the November 2018 plan.
3 September 2019 – 12 December 2019
3 September 2019
Interaction notes: email exchange between [Mr J.] and [Applicant’s advocate]:
“I have approved a 3 month plan extension for Jennifer, this plan is simply a pro-rata version of the current plan to ensure Jennifer does not run out of supports while I consider the S100 review request. [Emphasis added] Obviously I don't expect to need the full 3 months, and hope to have decision in 2-4 weeks, but just want to leave some extra room just in case.”
29 November 2019
Interaction notes: email exchange between [Mr J.] and [the Applicant’s Advocate] and Matt Holland:
“Just a heads up I made a mistake with Jennifer’s plan (slightly underfunded some supports). It should not matter in the short term, and I will have to do a light touch review when the wheelchair comes in next week, so will add it back in at the same time.”
13 December 2019 – 12 December 2020
5 February 2020
Interaction notes: email from [the Applicant’s Advocate] to [Mr J.]:
“As you are aware, Jennifer’s core supports, therapy and travel budget is still a concern and insufficient for her needs. Could you please let me know if you require further information in this regard or alternatively when you will be able to provide a decision letter addressing the s 100 internal review.” [Emphasis added]
Interaction notes: note of phone conversation between [Mr J.] and [the Applicant’s Advocate]:
“I indicated to [the Applicant’s Advocate] that if they were able to provide further evidence for additional supports I would consider them.”
24 June 2020
Interaction notes: [Mr J.] referred email of 5 February 2020 to IRT triage with comment:
“This request was missed back in February (as part of correspondence about home mods).”
7 July 2020
Interaction notes: [name redacted] (Internal Reviews Team) contacted [the Applicant’s Advocate] regarding internal review request made on 5 February 2020.
8 July 2020
Interaction notes: Phone note from conversation between [Mr J.] and [the Applicant’s Advocate]
“[Applicant’s Advocate] had been contacted yesterday by the national review team, I was trying to clarify that I had since spoken to the national review team, [Applicant’s Advocate] was adamant that she did not consider they had asked for an internal review on the current plan, and wanted an outcome letter for the original request.” [Emphasis added].
9 July 2020
Interaction notes: email from [name redacted – Internal Reviews Team] to [the Applicant’s Advocate]:
“I have just received word from my team leader, she has advised, if you would like to take the case straight to AAT [emphasis added] we can confirm the decision of the planner and then we would send you a letter to explain we have confirmed the decision and that your next step is to dispute the decision at AAT, with all your relevant documentation.
OR
We consider the supports requested, for Jennifers CURRENT plan only (13/12/2019-12/12/2020) and then if you and Jennifer are not happy with the decision, you would still be able to dispute the decision at the AAT.”
Interaction note: email from [the Applicant’s Advocate to Internal Reviews Team]:
“I note that we have received a s100 decision letter from NDIS senior planner [Mr J.].
As indicated to you in our previous call, Matt and Jennifer’s preference is to proceed with an AAT review due to the complexities of a number of issues.
I believe the decision letter from [Mr J.] is sufficient to begin the AAT process, copy attached for your reference. Can you please advise if this is not the case? Of course, if a decision letter is best obtained from the Internal Reviews Team, that would be much appreciated.”
10 July 2020
Interaction notes: S100 update note:
“[Applicant’s Advocate] has been sent an s100 outcome from senior planner, [Mr J,] who has finalized a historical review submitted in 2018. The s100 review submitted on 5 February 2020 remains open and CO has informed advocate of her options to finalise the recent review”
Interaction notes: email from [Internal Reviews Team]:
“It appears, [Mr J.] has sent through an outcome of your previous s100 review submitted in 2018. Which also confirms you are able to proceed with an AAT review. The instructions are on the outcome letter I believe, so if you have any queries, do not hesitate to ask.
This also means however, that the s100 review that was submitted on 5 February 2020, allocated to myself, is still open. As you have already received a s100 outcome, you are more than welcome to withdraw this review (which will have no impact on you proceeding to AAT with the review that has been finalised by [MrJ.]) [emphasis added], or I will still need to consider the open review request (which will most likely be a confirmed decision).”
Interaction notes: email from [the Applicant’s Advocate]
“I’d like to clarify that my email dated 5 February 2020 is not a s100 review request, [emphasis added] see copy of attached email. I understand that for simplicity sake this was intended to resolve the complexity of Jennifer’s matter. However, as you now know, it has unnecessarily complicated Jennifer’s matter further. Please close this s100 review request that was opened erroneously, if you require anything further from Matt or myself on this regard feel free to contact me.”
Request for internal review in respect of 13 December 2019 plan closed.
14 October 2020
Section 42D decision issued, remitting the decision of 8 July 2020 to the Respondent in order to ensure the Applicant had funding.
21 October 2020 – 21 October 2021
21 October 2020
Letter to Applicant: Outcome of your internal review request, attaching new NDIS plan.
16 November 2020
Email: Respondent advises Tribunal that it did not comply with the s 42D order of 14 October 2020 as the 21 October 2020 plan came into effect. The decision of 8 July 2020 is therefore taken to have been affirmed.
DISCUSSION
Ms Holland’s request for review of the reviewable decision made 28 November 2018 and the jurisdiction of the Tribunal
It is clear from the Agency’s own records that the initial argument that Ms Holland did not request a review of the reviewable decision (the review under subsection 100(2)) cannot be sustained.
The decision to approve the statement of participant supports was made on 28 November 2018 and formed part of the plan of that date. In accordance with subsection 100(2), Ms Holland had three months in which to request the decision-maker to review that decision.
Although the request made on 13 December 2018 did not attach a request form, the notes of the discussion between Mr Holland and Mr J. on 14 December 2018 show that Ms Holland wished to proceed and that Mr Holland would forward the required form. The Agency’s interaction note of 1 February 2019 records that the review request was received on 19 December 2018 and forwarded for actioning on 1 February 2019. The request made on 19 December 2019 was well within time and treated as such by the Agency. The basis of the argument advanced on behalf of the Agency in the Statement of Issues filed on 23 September 2020 (see paragraph 6 above) is not apparent.
On the basis of the material available to me, the subsequent management of Ms Holland’s request is difficult to understand. What is perfectly understandable and apparent from the correspondence, is that the process was confusing to both Ms Holland and her Advocate.
On 11 February 2019, just over 10 days from when the review request was actioned, the Agency informed Ms Holland that her request for a review of the support (being a modification of front access to her home) was declined. The Agency later advised that this advice was issued in error.
On 3 April 2019 a new plan was approved, apparently without reference to Ms Holland or her Advocate. According to the Applicant’s Advocate, she was advised that “a light touch review” was undertaken and a new eight-month plan had been generated. In fact, the new plan was for 6 months. It is unclear what was meant by a “light-touch review”.
The Advocate’s email of 5 April 2019 sought clarification of the status of Ms Holland’s plan and in particular whether the review requested in December 2018 was still ongoing.
On 15 April 2019 the Agency commenced a review of the plan dated 3 April 2019. There is nothing before me to indicate why this was commenced. The interaction note of 17 May 2019 indicates that Ms Holland had not requested this review as, on 17 May 2019, the Advocate was advised that “the best way forward” was for Ms Holland to make an application for a review of a reviewable decision in respect of the 3 April 2019 plan. The author of the note recorded that “[the] original RORD [Review of Reviewable Decision] does not appear to have been addressed properly or dealt with in the new plan 3/4/19 to 2/12/19”.
No doubt as a result of not receiving any further advice from the Agency, on 6 July 2019 Ms Holland renewed her request for a review of the supports in the November 2018 plan. The Agency chose to treat this as a request for review of the April 2019 plan.
The Agency issued a new plan for Ms Holland on 3 September 2019 for the period from that date to 12 December 2019. At the time the Advocate was informed that this was done to ensure that supports were continued for Ms Holland while the section 100 review request was being considered.
On 5 February 2020 the Advocate enquired as to when the Agency would be able to address the section 100 internal review. The records provided to the Tribunal indicate that this request did not receive a response until 7 July 2020. The notes do not disclose what was discussed.
An interaction note by the Agency dated 8 July 2020 records that the Advocate “was adamant that she did not consider they had asked for an internal review of the current plan [13 December 2019 – 12 December 2020], and wanted an outcome letter for the original request”.
Based on the documents supplied to the Tribunal by the Agency, the Advocate’s adamant view was correct.
On 8 July 2020 Ms Holland received the decision she has asked the Tribunal to review in these proceedings. As noted earlier, this decision clearly stated that it was the outcome of her internal review request relating to the statement of supports in the plan approved on 29 November 2018 and could be reviewed by this Tribunal.
On 10 July 2020 the Advocate requested confirmation that an application for review could be commenced in the Tribunal. On the same day the Agency confirmed that this was the case. Nevertheless, the confusing action by the Agency continued, as set out in paragraph 14 of these reasons
As Ms Holland requested a review of the reviewable decision and then requested the Tribunal to review the decision of the reviewer, notified to her on 8 July 2020, the Tribunal has jurisdiction to review the decision of the reviewer, as provided by section 103 of the Act. The application to the Tribunal was made within time in accordance with section 29 of the Administrative Appeals Tribunal Act 1975 (Cth).
What supports are reviewable by the Tribunal?
The Agency argued further that if the Tribunal has jurisdiction to review the reviewer’s decision, it is limited to reviewing the supports available in the period of the November 2018 plan, which ended on 2 April 2019. However the Agency said that there was no utility in the Tribunal considering a variation to the funding of supports in the plan beginning 29 November 2018 as the plan has since been replaced. This assumption is based on Ms Holland not having incurred any relevant expenses in this period.
Ms Holland’s differences with the Agency over the supports she is seeking remains unchanged since the November 2018 plan was issued. If the Agency’s argument is correct, in addition to the application for review of a reviewable decision made in December 2018, Ms Holland was required to make a separate application for a review of a reviewable decision in respect of each of the following plans:
·3 April 2019;
·3 September 2019;
·13 December 2019;
·21 October 2020; and
·a deemed decision made sometime during 2019.
In relation to the “deemed decision” it is argued by the Agency that as a reviewer within the Agency did not make a decision on Ms Holland’s December 2018 request for internal review “as soon as reasonably practicable” (as required by subsection 100(6) of the Act), the reviewer is deemed to have made a decision affirming the reviewable decision.[2]
[2] See NNXF and National Disability Insurance Agency [2019] AATA 552 and subsection 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:
For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
It is argued further that “having regard to the majority in NNXF[3] (where a period of six months was sufficiently long to give rise to a deemed decision) a period of nearly a year must certainly meet the required standard for a deemed decision to confirm the November 2018 SOPS.” “SOPS” is a reference to a Statement of Participant Supports. On this basis it follows, from the argument advanced on behalf of the Agency, that Ms Holland should have applied to the Tribunal for a review of the deemed decision sometime during 2019.
[3] See preceding footnote.
The Agency does not offer a suggestion as to how Ms Holland was to ascertain when she could have applied to the Tribunal to review the deemed decision. The proposition that it “must certainly” be less than 12 months must be rejected. Each matter in which the issue arises will be determined on its own facts. For example, if an applicant has failed to provide information requested by the Agency without good reason, it may be that a decision made more than 12 months after the request is made “as soon as reasonably practicable”.
The Act is to be administered with a degree of practical common sense. Parliament would not have intended the Agency and/or the Tribunal to embark on an inquiry in every case where a reviewer has made a decision, to determine whether a decision had already been deemed to have been made and, if so, whether an applicant had applied to the Tribunal within the required time. The Tribunal will only undertake such an inquiry if an applicant seeks to rely upon a deemed decision.
The Tribunal’s jurisdiction is to review “a decision to approve the statement of participant supports in a participant’s plan” made under subsection 33(2) of the Act
The decision to approve a statement of participant supports is included in the definition of reviewable decisions under the Act by Item 4 of the Table in subsection 99(1).
For the reasons I set out in SHGH and National Disability Insurance Agency,[4] the Tribunal has been given jurisdiction to review the decision to approve the supports in Ms Holland’s November 2018 plan, not the plan as a whole.
[4] [2018] AATA 674.
It is to be noted that the reviewable decision is a decision to approve the statement of supports in a plan. Further, the Table in subsection 99(1) includes “a decision not to reassess a participant’s plan” (Item 6); it does not include a decision to approve a plan. For these reasons, the approval of one or more plans after the November 2018 plan does not affect the Tribunal’s jurisdiction, in this application, to review Ms Holland’s statements of supports from the date of the November 2018 plan until the date of the Tribunal’s decision. It is not necessary for Ms Holland to commence a separate application every time the Chief Executive Officer of the Agency issues a new plan.
I agree with the Agency’s submission that a plan ceases to have effect when it is replaced by another plan (see section 37). However it does not follow that a decision as to the reasonable and necessary supports which are to be provided to a participant necessarily also ceases to have effect.
The Agency argues that its interpretation of section 37 is confirmed by the Tribunal’s decision in Williamson and National Disability Insurance Agency.[5]I do not agree. In fact, the following passage from the decision by Deputy President Forgie supports the view that the decision in relation to supports is distinct from, although part of, the plan:
In practical terms, replacement of the plan means that the CEO has approved a new participant’s plan and not a variation of the previously existing plan. Replacement of the plan does not mean that the replaced plan is of no relevance. If the CEO’s decision under s 33(2) to approve the statement of participant supports has been reviewed under s 100(6) of the NDIS Act and an application made to the Tribunal for review of the decision under s 100(6), that application remains on foot. The fact that a new plan with a new statement of supports has been made does not replace the decision under s 100(6) that is the subject of the review. The operative decision is the statement of supports as originally made. If the Tribunal were to decide that the supports provided in the statement of participant supports should have been approved at a higher level, the Agency will look to whether the participant has incurred expenses in providing those supports in the period covered by the earlier plan. If he or she has done so, it has the power to reimburse those additional expenses. It is important that the participant retains receipts of those expenses.[6] [Emphasis added].
[5] [2019] AATA 2944.
[6] At [25].
The issue on which I respectfully disagree with Deputy President Forgie is that of the need for an applicant to seek a review by a reviewer and a review by the Tribunal every time the Chief Executive Officer approves a new plan. It would mean that Ms Holland would have six applications before the Tribunal with at least one more to come. This would delay the resolution of her present application significantly and would waste the time and resources of the parties and the Tribunal.
In this regard I note that the plan which commenced on 13 December 2019, was due to be reviewed by 12 December 2020. On 14 October 2020 the Applicant and the Respondent requested the Tribunal issue a section 42D order remitting the matter to the Agency for redetermination as the Applicant’s NDIS funding was almost exhausted. The Tribunal remitted the matter as requested.
Notwithstanding the request for remittal, the Agency conducted an urgent section 100 review and issued a new plan dated 21 October 2020. As the Agency did not reconsider the remitted decision within the stipulated time, it was taken to have affirmed the decision in accordance with subsection 42D(7). On the argument advanced by the Agency, Ms Holland will need lodge a new application for review by the Tribunal in respect of that part of the decision of 21 October 2020 as relates to the supports provided. Such bureaucratic “red tape” is to be avoided unless it is mandated by the legislation. In my view, it is not so mandated by the Act.
The manner of seeking an extension of supports pending the finalisation of an application for review by the Tribunal
I also find myself disagreeing with Deputy President Forgie as to how an extension of supports should be dealt with pending the finalisation of an application before the Tribunal. It is common for this to become necessary on more than one occasion whilst an application progresses through the alternative dispute resolution and hearing stages in the Tribunal.
In accordance with the decision in Williamson, the Agency has requested that the Tribunal remit matters under section 42D so that the necessary administrative arrangements can be made to ensure that applicants continue to receive support pending the finalisation of the Tribunal proceedings. This occurred in this application in October 2020.
Section 42D provides, in part:
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
…
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
As is apparent from the wording of section 42D, for an extension of supports to be effected under that section the following steps are required to be taken:
·the applicant and the Agency agree that the relevant supports should continue until the application before the Tribunal can be finalised;
·a party (usually the Agency) requests the Tribunal to remit the decision under review to the Agency for reconsideration;
·the Tribunal remits the decision to the Agency, imposing the agreed time limit for reconsideration;
·the Agency varies the decision or sets aside the decision and makes a new decision;
·the Agency notifies the applicant of the action it has taken;
·if the Agency has varied or set aside the decision the applicant notifies the Tribunal that the application before the Tribunal should proceed or alternatively, withdraws the application;
·if the Agency has affirmed the decision the application proceeds unless the applicant decides to withdraw the application in any event.
I have set out the above steps to illustrate the complexity of a remittal under section 42D. It is a process which is very difficult to explain, particularly to an unrepresented applicant, who believes he or she has consented to the process in the first place. The complexity arises from the fact that section 42D was not designed to serve this purpose.
In an effort to simplify the process for applicants, in many, if not all instances, the Tribunal is proceeding with applications without the applicants notifying it that they wish to proceed, as required by the section. This is not good practice but saves considerable confusion by many applicants.
On the other hand, section 26 of the Act is clearly designed to deal with the situation of the parties wishing to alter the reviewable decision while an application for review is proceeding before the Tribunal.
Subsection 26(1) relevantly provides:
Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
…
(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
In Williamson, Deputy President Forgie said, in part:
I do not agree that s 26 of the AAT Act can be regarded as a source of power enabling a decision-maker to consent to an alteration of the decision under review. As the AAT Act is currently drafted, the decision-maker’s power to consent to an alteration must be found in the enactment authorising applications to be made to the Tribunal.
I am unable to agree with the view put forward by Deputy President Forgie that the Chief Executive Officer does not have the power to consent to an alteration of the decision being reviewed by the Tribunal. While I agree that there is no specific power to consent to an alteration of the decision as to the supports to be provided, equally there is no specific power given to the CEO to request the matter be remitted to the Agency under section 42D for the same purpose. In fact, the Act is silent on the powers the CEO may exercise in relation to proceedings before the Tribunal.
Section 103 provides for a review process in the Tribunal. Although there are no express powers to take part in such proceedings, it must be implied that the CEO will have the necessary powers to enable the Agency to advance its interests before the Tribunal, including consenting to a variation of the decision under review when appropriate.
I find support for my view in Deputy President Forgie’s interpretation of section 26 in relation to the powers of a decision-maker under the Freedom of Information Act 1982 (Cth). In Radar Investments Pty Ltd and Health Insurance Commission, Deputy President Forgie said, in part:
29. It is apparent from what I said in Re Jonsson and Marine Council and in light of the doubts that have been expressed in other quarters (see paragraph 14 above) that, regretfully, I disagree with Senior Member Sassella's conclusion that s. 26 is intended to impede the alteration of a decision once an application for review has been lodged in this Tribunal. It does, in fact, extend the decision-maker's power to do so. Depending on the view that is taken of the law as it stood prior to the introduction of s. 26 , that section either extends the decision-maker's power by enabling him or her to alter a decision once an application has been made to the Tribunal or clarifies his or her power to do so. While I agree with his further statement that a decision can only be altered by consent or if an enactment permits it, I do not agree with his conclusion that the FOI Act does not permit it in the circumstances under consideration in Re SROO. Section 56(5) does not seem to have been drawn to Senior Member Sassella's attention. On one view, it could be said that s. 56(5) assumes that the decision-maker may make a new decision after an application for review has been lodged in the Tribunal rather than expressly permits the decision-maker to make a new decision. If that is the correct view, it might be said, the decision could not be substituted for the previous decision without both parties to the proceeding consenting. It does not, however, seem to me to be the correct view. Reading ss. 56(5) and (6) together, it seems to me that the FOI Act expressly permits the decision that has been deemed to have been made to be altered i.e. varied, set aside or set aside and a new decision substituted. If it were otherwise, there would be no reason to give the Tribunal the power to allow an agency or Minister further time "to deal with the request". Section 56(5) does, therefore, expressly permit the decision to be altered but only where it is a deemed decision to refuse access. Putting s. 56(5) to one side, I agree with Senior Member Sassella that there are no other provisions of the FOI Act permitting the alteration of a decision. Therefore, if a decision-maker wishes to vary a decision other than a deemed decision, he or she must rely on the s. 26(1)(b) of the AAT Act.[7]
[Emphasis added].
[7] [2004] AATA 166.
My conclusion is consistent also with section 101 of the Act which provides:
If:
(a) a request is made for review of a reviewable decision; and
(b) before a decision on the review is made, the reviewable decision is varied;
the request for review is taken to be for review of the reviewable decision as varied.
The Agency’s argument that a new application must be made to the Tribunal whenever a new plan is put in place is inconsistent with the manner in which it deals with remittals under section 42D. If its argument (which I have rejected), is correct, there would be hundreds of matters in which the Tribunal has proceeded without jurisdiction after they were remitted to the Agency to permit supports to be extended pending the Tribunal’s final determinations. Such an unintended result of itself suggests that the argument is flawed.
CONCLUSION
As I said at the outset, negotiating the review process from beginning to end can be stressful for applicants in this jurisdiction. It is incumbent on the Agency and the Tribunal to make the experience as accessible, informal and quick as possible.
The Tribunal has jurisdiction to review Ms Holland’s participant supports from 29 November 2018 until the date of the Tribunal’s final decision in this application.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
..............................[SGD]..........................................
Associate
Dated: 2 February 2021
Date(s) of hearing: 14 October 2020 Advocate for the Applicant: Disability Advocacy NSW Solicitors for the Applicant: L Ash, Legal Aid New South Wales Solicitors for the Respondent: M Knight and I Heath, Ashurst
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