Hoyt and National Disability Insurance Agency

[2021] AATA 2580

Hoyt and National Disability Insurance Agency [2021] AATA 2580 (26 July 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):               2021/3113

Re:Ashe Hoyt

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:26 July 2021

Date of written reasons:        29 July 2021

Place:Sydney

The application is dismissed in accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[SGD]..................................

Dr L Bygrave, Member       

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – whether internal review conducted pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) – Tribunal does not have jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

National Disability Insurance Scheme Act 2013 (Cth) s 100, 103

REASONS FOR DECISION

Dr L Bygrave, Member

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 26 July 2021. At the request of the applicant, the following paragraphs also set out the reasons for the Tribunal’s decision.

   INTRODUCTION

2. The applicant, Ms Ashe Hoyt, is a participant in the National Disability Insurance Scheme (the NDIS).

3. On 13 May 2021, Ms Hoyt’s (then) coordinator of supports lodged an application for review of a decision with the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). This application identified the decision to be reviewed was made by a NDIS planner on 19 April 2021.

4. The National Disability Insurance Agency (the NDIA) stated in an email dated 4 June 2021 that the Tribunal did not have jurisdiction to hear Ms Hoyt’s application. At the direction of the Tribunal, the NDIA filed written submissions and further evidence on 22 July 2021.

5. The interlocutory (jurisdiction) matter was heard by the Tribunal on 26 July 2021 by teleconference: Ms Hoyt attended the hearing and was supported by her (current) coordinator of supports, and the NDIA was represented by a legal officer.

   RELEVANT LEGISLATION

6. Part 6 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) sets out the review of decisions. Relevant to this matter, section 103 of the NDIS Act provides:

   103 Applications to the Administrative Appeals Tribunal

   Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer [of the NDIA] 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.

7. Subsection 100(6) of the NDIS Act states:

   100 Review of reviewable decisions

   …

   (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.

   CONSIDERATION

8. The chronology of pertinent events as set out in documents filed with the Tribunal and confirmed at the interlocutory hearing is:

   ·3 February 2021: the NDIA sent Ms Hoyt a letter dated 3 February 2021 that included her approved NDIS plan for the period from 3 February 2021 to 3 February 2022.

   ·24 February 2021: Ms Hoyt contacted the NDIA to request a review of her current plan.

   ·7 March 2021: an NDIA ‘interaction note’ stated Ms Hoyt’s request for review was ‘incorrectly recorded as s 100’ and the request was ‘for a change of plan management only’.

   ·19 April 2021: the NDIA sent Ms Hoyt a letter dated 19 April 2021 that included her approved NDIS plan for the period from 19 April 2021 to 19 April 2022. This plan significantly reduced Ms Hoyt’s funding for core supports and capacity building supports.

   ·4 May 2021: an NDIA ‘interaction note’ stated that Ms Hoyt contacted the NDIA advising she had been told ‘plan funding would not change due to the request only for the plan management to change’.

   ·13 May 2021: an application for review was lodged with the Tribunal.

9. At the interlocutory hearing, the NDIA legal officer confirmed the information in the NDIA ‘interaction note’ dated 7 March 2021 that the request made by Ms Hoyt on 24 February 2021 was not a request for review under section 100 of the NDIS Act. The legal officer also stated that Ms Hoyt’s request for review made on 4 May 2021 was taken to be a request under section 100 of the NDIS Act; however, the NDIA has not yet finished an internal review pursuant to subsection 100(6) of the NDIS Act.

10. In view of this situation, I am satisfied that no decision has been made in accordance with subsection 100(6) and consequently, section 103 of the NDIS Act, which allows applications to be made to the Tribunal, has not been enlivened.

11. For these reasons, the application of Ms Hoyt is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because I am satisfied the decision is not reviewable by the Tribunal.

    DECISION

12. The application is dismissed in accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[SGD].....................................

Associate

Dated: 29 July 2021

Date(s) of hearing:	26 July 2021
Advocate for the Applicant:	Ms Brianna Blick
Solicitors for the Respondent:	Mr Nick Crawford, National Disability Insurance Agency