Hoolachan and National Disability Insurance Agency

[2024] AATA 1794

Hoolachan and National Disability Insurance Agency [2024] AATA 1794 (18 June 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/1589

Re:Tracey   Hoolachan

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member L Proske

Date:18 June 2024

Place:Adelaide

Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal dismisses the application for review made on 18 March 2024.

..................[sgnd]......................................................

Member L Proske

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – National Disability Insurance Scheme – whether internal review conducted by National Disability Insurance Agency – whether Tribunal has jurisdiction to review a decision that has not been internally reviewed – application dismissed pursuant to s 42A(4) of the AAT Act

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Member L Proske

18 June 2024

INTRODUCTION

1. Ms Hoolachan made an application to the Tribunal on 18 March 2024. The Tribunal notified the National Disability Insurance Agency (Respondent) of the review application on 19 March 2024. In an email dated 24 May 2024, the Respondent contended that the Tribunal does not have jurisdiction to consider the review application.

2. The issue for determination by the Tribunal is whether the decision to which the review application relates is reviewable by the Tribunal. For the reasons outlined below, the Tribunal finds the decision to which the review application relates is not reviewable by the Tribunal, and accordingly the application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

   PROCESS AND SUBMISSIONS

3. On the review application form filed with the Tribunal on 18 March 2024, Ms Hoolachan identified a decision made by the Respondent dated 26 February 2024 as the decision she wants reviewed; and described that decision as ‘special circumstances review of compo with charges by NDIS for products never received or approved’.

4. In an email dated 24 May 2024, the Respondent contended that the decision made by the Respondent on 26 February 2024 was a decision made under s 116 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act); and that that decision is not reviewable by the Tribunal. In that email, the Respondent also confirmed their view that Ms Hoolachan could request an internal review of the decision dated 26 February 2024, which was sent to her by post on 6 March 2024, but any such request must be made within the prescribed time limit. Further, the Respondent stated that if Ms Hoolachan remained unsatisfied with the internal review decision, she could then make an application to the Tribunal for review of that decision.

5. An interlocutory hearing was listed on 5 June 2024 to consider whether the decision to which the review application relates is reviewable by the Tribunal. On the morning of that interlocutory hearing, the Respondent emailed the Tribunal and the Applicant a chronology for the period 4 December 2023 until 18 March 2024 with various attachments.

6. At the interlocutory hearing on 5 June 2024:

   a)    Ms Hoolachan advised she had not received the Respondent’s email dated 5 June 2024.

   b) The Respondent contended that Ms Hoolachan has asked the Tribunal to review the Respondent’s decision dated 26 February 2024; that decision was made under s 116 of the NDIS Act concerning a request made on 29 December 2023 for consideration of special circumstances in relation to the amount recoverable from her compensation payment; that decision would need to be internally reviewed by the Respondent before an application could be made to the Tribunal for review; no request for internal review has been made; any request for internal review must be made within the prescribed time limit, which expires imminently.

   c)    Ms Hoolachan made preliminary submissions to the effect that she informed the Respondent in November 2023 that she would resist any attempt by the Respondent to recover any amount from her compensation payment; the Respondent cannot be trusted; the circumstances of her matter warrant consideration by the Tribunal. She further submitted that the ‘special circumstances’ request related to the amount that the Respondent was seeking to recover from her compensation payment, and her concern that supports the Respondent sought to recover the cost of had not in fact been approved or received.

7. The Tribunal informed the parties that on the material currently before it, the Tribunal’s preliminary view was that the decision to which Ms Hoolachan’s review application relates is the Respondent’s decision dated 26 February 2024, which is not an internal review decision and therefore is not reviewable by the Tribunal. However, the Tribunal suggested that in circumstances where Ms Hoolachan had not had an opportunity to read the Respondent’s chronology and associated attachments, the interlocutory hearing would be adjourned. The Tribunal suggested it would be helpful if Ms Hoolachan could put in writing what she had spoken to at the interlocutory hearing, so that the Tribunal could properly understand and consider that. Directions were made giving the Applicant an opportunity to file written submissions regarding jurisdiction; and the Respondent an opportunity to file further submissions in reply.

8. Ms Hoolachan filed submissions with various attachments on 7 June 2024. A number of those attachments relate to events in 2018 and 2021. The Respondent filed further submissions in reply on 13 June 2024. A resumed interlocutory hearing was listed on 14 June 2024. Shortly before that resumed interlocutory hearing commenced, Ms Hoolachan filed further submissions.

9. At the resumed interlocutory hearing, the Respondent informed the Tribunal that Ms Hoolachan had, after the interlocutory hearing on 5 June 2024, requested that the Respondent internally review the decision made on 26 February 2024 which related to her special circumstances application; and that that internal review process will be expedited if the Tribunal determines it does not have jurisdiction to conduct this review. With respect to the Tribunal’s jurisdiction, the Respondent maintained their position that the decision made 26 February 2024 to which this review application relates, is an original decision regarding ‘special circumstances’ and does not enliven the Tribunal’s jurisdiction.

10. Ms Hoolachan made oral submissions at the resumed interlocutory hearing. In summary, Ms Hoolachan’s written and oral submissions were to the effect that the Respondent’s conduct has been contrary to s 51 of the Australian Constitution; both special circumstances and a review to the Tribunal are ‘events’ within the meaning of s 51 of the NDIS Act, and in circumstances where the Respondent was notified of such an event in the manner approved under s 52 of the NDIS Act, the Tribunal should proceed to conduct a review; the Respondent provided incorrect information to her; the internal review process established under the NDIS Act is not good practice; she has no confidence the Respondent will complete a timely internal review; the Respondent’s recovery from her compensation payment was unlawful; in any event an internal review request was made on 29 December 2023, and a further internal review request was made after the interlocutory hearing on 5 June 2024, meaning there are now 2 contemporaneous internal review requests for the same thing.

    CONSIDERATION

11. The issue for determination by the Tribunal is whether the decision to which the review application relates is reviewable by the Tribunal.

12. The Tribunal can only review those decisions in relation to which it has been given jurisdiction. Section 25 of the AAT Act enables an enactment to provide for the review of decision made under that enactment. Section 103(1) of the NDIS Act provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act. Decisions made under s 100(6) of the NDIS Act are often referred to as internal review decisions.

13. Based on documents filed with the Tribunal on 5 June 2024, it is apparent that:

    a)    In an email dated 4 December 2023, the Respondent informed Ms Hoolachan’s legal representative that it had been determined that the supports provided to Ms Hoolachan from 25 November 2017 to 16 November 2023 relate entirely to a compensable event; and that a full recovery of $35,500.64 is appropriate. That email also stated:

    ‘If you disagree with the above intended recoverable amount, please provide me with further evidence to consider as soon as possible. I will assess any further information you provide and advise you of the final recovery decision’.

    b)    In an email dated 15 December 2023 to Ms Hoolachan’s legal representative, the Respondent confirmed that a decision had been made to recover $35,500.64 from Ms Hoolachan’s compensation payment; and advised that Ms Hoolachan could request an internal review of that decision with the prescribed time limit. In that email, the Respondent also advised that if there are special circumstances that may apply in Ms Hoolachan’s case, a special circumstances application could be submitted. An internal review request and a special circumstances application were 2 different processes, of which Ms Hoolichan could choose to initiate one, both or neither.

    c)    On 29 December 2023, the Applicant lodged 2 forms with the Respondent. The first of those forms was a ‘Request for a Review of a Decision’ form in relation to a decision dated 20 December 2023 described as ‘having to repay you for 6yrs of abuse’. The second of those forms was a Special Circumstances Application Form which suggests Ms Hoolachan was applying for consideration of special circumstances in relation to a range of matters, including the compensation recoverable amount.

    d) In a letter dated 26 February 2024, the Respondent notified Ms Hoolachan that her request under s 116 of the NDIS Act had been accessed, and her application for special circumstances had been unsuccessful. That letter informed Ms Hoolachan that she could request an internal review of that decision within the prescribed time-limit. Emails exchanged between the parties between 26 February 2024 and 6 March 2024 suggest there were issues with Ms Hoolachan receiving the special circumstances outcome letter electronically, and it was subsequently sent to her by post.

14. Having considered the Respondent’s emails dated 4 December 2023 and 15 December 2023 referred to above, it is apparent that the Respondent’s email dated 15 December 2023 relates to a decision having been made under s 111 of the NDIS Act to recover an amount of $35,500.64 from Ms Hoolachan’s compensation payment; and cannot be construed as a decision made under s 116 of the NDIS Act in relation to a special circumstances application. Notably, the Respondent’s email dated 4 December 2023 refers to a Pre-existing impairment (PEI) assessment having been completed; the outcome of that PEI assessment; an updated Estimate of Recoverable Amount and a Breakdown of Supports being attached; and an opportunity for Ms Hoolachan to submit further material for consideration before the final recovery decision would be made, if she did not agree with the intended recoverable amount. Further, the Respondent’s email dated 15 December 2023 confirms the decision of a full recovery had been made and advised of internal review rights.

15. Ms Hoolachan subsequently lodged 2 forms with the Respondent, which the Tribunal finds were an internal review request in relation to the decision made under s 111 of the NDIS Act; and an application for consideration of special circumstances in relation to the compensation recoverable amount. Accordingly, the Tribunal finds Ms Hoolachan initiated 2 distinctly different processes on 29 December 2023, using 2 distinctly different forms, each with a specific purpose.

16. The Tribunal finds that Ms Hoolachan’s internal review request lodged 29 December 2023 cannot be construed as an internal review request regarding a special circumstances decision. This is because the Tribunal is not satisfied that any special circumstances application was made before 29 December 2023; nor that any original decision had been made in relation to such an application as at that date.

17. The Respondent has acknowledged that as at 24 May 2024, it had not made a decision in relation to the internal review request Ms Hoolachan lodged on 29 December 2023 in relation to the decision made under s 111 of the NDIS Act to recover an amount from her compensation payment. The Respondent’s email to the Tribunal and the Applicant dated 24 May 2024 sets out their view in relation to an option available to Ms Hoolachan regarding this.

18. On the review application form lodged with the Tribunal on 18 March 2024, Ms Hoolachan recorded the date of the decision she wants the Tribunal to review as 26 February 2024; and described that decision as ‘special circumstances review of compo claim’. During the interlocutory hearing on 5 June 2024, Ms Hoolachan agreed she was asking the Tribunal to review the Respondent’s decision dated 26 February 2024. Accordingly, the Tribunal finds that the decision to which Ms Hoolachan’s review application relates is the Respondent’s decision dated 26 February 2024. The Tribunal further finds that the Respondent’s decision dated 26 February 2024 is an original decision made under s 116 of the NDIS Act.

19. In circumstances where the Tribunal has found that the decision to which the review application relates is a decision made by the Respondent under s 116 of the NDIS Act, not an internal review decision made under s 100(6) of the NDIS Act, it follows that the decision to which the review application relates is not reviewable by the Tribunal.[1]

    [1] s 103(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

20. Ms Hoolichan has raised a concern that she was given incorrect information by the Respondent. The Respondent has acknowledged that it incorrectly advised Ms Hoolachan that she could make an application to the Tribunal for review of the decision regarding her special circumstances application; and apologised for that error. The Tribunal finds that error does not enliven the Tribunal’s jurisdiction because it does not change the fact that the decision to which the review application relates was not made under s 100(6) of the NDIS Act.

21. With respect to grievances raised by Ms Hoolachan concerning her dealings with the Respondent since becoming a participant of the NDIS, the Respondent’s conduct over time, whether the internal review process is good practice, and the lawfulness of the Respondent’s recovery of an amount from her compensation payment, the Tribunal does not consider those grievances bear upon the discreet issue this Tribunal is required to determine, that being whether the decision to which Ms Hoolachan’s review application relates is reviewable by the Tribunal. Further, the Tribunal agrees with the Respondent’s contention that such complaints fall outside of the Tribunal’s jurisdiction.

22. The Tribunal has found that the decision to which the review application relates is not reviewable by the Tribunal. Accordingly, pursuant to s 42A(4) of the AAT Act, the Tribunal dismisses the application for review made on 18 March 2024.

I certify that the preceding twenty-two (22)

paragraphs are a true copy of the reasons

for the decision herein of Member L Proske

…[sgnd]…………………………..
Associate

Dated: 18 June 2024

Date of hearing:  5 and 14 June 2024

Advocate for the Applicant:      Tracey Hoolachan

Self-Represented

Advocate for the Respondent:  James Vercoe

AAT Dispute Resolution & Litigation Branch
National Disability Insurance Agency

Self-Represented