Hughes and National Disability Insurance Agency

[2018] AATA 4572

Hughes and National Disability Insurance Agency [2018] AATA 4572 (10 December 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2018/5763

Re:Anthony Hughes

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:10 December 2018

Place:Sydney

The Tribunal has jurisdiction to hear the application made by Anthony Hughes on 5 October 2018.

..........................[sgd] ..............................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – whether the Tribunal has jurisdiction to determine application – whether the NDIA made a decision – decision made as a consequence of decision-making process – exercise of power to review applicant’s eligibility – Tribunal has jurisdiction to hear application

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865

REASONS FOR DECISION

Dr L Bygrave, Member

10 December 2018

1. The applicant, Mr Anthony Hughes, is a participant in the National Disability Insurance Scheme (the NDIS); his NDIS plan for the period 27 June 2018 to 27 June 2019 was approved on 28 June 2018 (NDIS plan).

2. On 29 June 2018, the applicant lodged an application for review of a reviewable decision with the National Disability Insurance Agency (the NDIA or the Agency) pursuant to subsection 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) because his NDIS plan did not include provision for Specialist Disability Accommodation (SDA).

3. On 7 September 2018, Ms ‘D’ (Planner – Service Delivery (Supported Accommodation) NDIA) emailed the applicant’s nominee with ‘advice from our SDA Advisor’ in relation to the applicant’s eligibility for SDA.

4. On 5 October 2018, the applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) for review of the decision made by Ms ‘D’ on 7 September 2018.

5. In an interlocutory hearing on 27 November 2018, after considering written and oral submissions from the applicant’s advocate and the solicitor representing the NDIA, I decided the Tribunal has jurisdiction to hear the application made by the applicant on 5 October 2018.

6. These are my reasons for that decision.

   RELEVANT LEGISLATION AND ISSUE

7. The Tribunal does not hold a general power to review administrative decisions. Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) states the Tribunal may only review a decision in which jurisdiction has been conferred on it by enactment.

8. Section 103 of the NDIS Act provides that applications may be made to the Tribunal for ‘review of a decision made by a reviewer under subsection 100(6)’. Provisions for the review of reviewable decisions are set out in section 100 of the NDIS Act; relevantly, subsection 100(6) states:

   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.

9. The issue for consideration by the Tribunal is whether the email from Ms ‘D’ to the applicant’s nominee on 7 September 2018 is a decision made by a reviewer under subsection 100(6) of the NDIS Act.

   CONSIDERATION

10. Written submissions on behalf of the applicant dated 9 October 2018 set out the following:

    While the email response with regards to the SDA is indeed poorly framed as per the clear s 100 Reviewable Decision Request, the applicant has no control over the respondents [sic] method of correspondence.

    The applicant can only rely on the time line and the knowledge that he has completed all of himself [sic] as per the requirements of the [NDIS] Act.

    He should not be prejudiced by the respondent’s inability to comply with the requirements of s100 [of the NDIS Act].

11. The Agency contended in a written submission dated 29 October 2018 that when the applicant made an application to the Tribunal on 5 October 2018, a decision had not been made under subsection 100(6) of the NDIS Act in response to the applicant’s request for an internal review made on 29 June 2018. The NDIA submitted that the email from Ms ‘D’ on 7 September 2018 was not an internal review decision because Ms ‘D’ did not have delegated authority under paragraph 100(5)(c) of the NDIS Act to make an internal review decision. The Agency submitted that:

    Section 100(5)(c) of the [NDIS] Act provides that an internal review must be made by a person to whom the CEO’s powers and functions are delegated.

    Section 202 of the [NDIS] Act allows the Respondent’s CEO to delegate powers and functions to Agency Officers, which is defined in s 9 of the Act to be a member of staff of the Agency (per s 169) or a person assisting the Agency under s 170.

    Section 169 of the [NDIS] Act provides that staff of the Agency must be engaged under the Public Service Act 1999 and s 170 provides that a person assisting the Agency is an employee of a Commonwealth, State or Territory body who has been ‘made available’ to the Agency to assist in the performance of its functions.

12. The NDIA advised that the employment position of Ms ‘D’ is described by the NDIA as ‘external’. This means that Ms ‘D’ is not an employee of the NDIA (or an agency officer as described in the NDIS Act) and so has no powers under section 100 of the NDIS Act to make an internal review decision. The Agency submitted that the Tribunal should therefore dismiss the application for review made by the applicant on 5 October 2018 for want of jurisdiction.

13. I have regard to the following documents before the Tribunal:

    ·A NDIA Technical Advice Request Form dated 6 August 2018 completed by Ms ‘D’ requesting information about the applicant’s SDA eligibility due to an unscheduled plan request.

    ·A NDIA Technical Advisory Team Advice Form dated 6 September 2018, setting out an assessment of the applicant’s eligibility for SDA in accordance with the SDA Rules.

    ·The email sent by Ms ‘D’ on 7 September 2018 to the applicant’s nominee. This email was sent from the email address ‘D’@ndis.gov.au. It contained statements including ‘advice from our SDA Advisor’ and the applicant ‘is not eligible for SDA’, and considered whether the applicant met (or did not meet) relevant criteria in the SDA Rules. The signature block at the end of the email was Ms ‘D’, Planner – Service Delivery (Supported Accommodation), National Disability Insurance Agency, and the Agency’s office address.

14. Based on the Agency’s submission dated 29 October 2018, I accept that Ms ‘D’ is not an employee of the NDIA or an agency officer as described in the NDIS Act. However, I find that this fact is not evident from the information contained in the documents before the Tribunal set out in paragraph 13 above. Indeed, I am satisfied that no person of reasonable mind could read the information in these documents and conclude that Ms ‘D’ is not an employee of the NDIA; the email address used in the email dated 7 September 2018 is ‘[email protected]’, the email signature block describes an employment position at the NDIA, and the email refers to ‘our SDA advisor’ (with ‘our’ presumably referring to the Agency).

15. On 27 November 2018, the day of the interlocutory hearing and almost five months after the applicant’s request for an internal review on 29 June 2018, the NDIA provided the Tribunal with the Agency’s ‘internal review decision’. This decision is dated 20 November 2018 and the accompanying letter to the applicant is dated 26 November 2018. Confusingly, this decision on 20 November 2018 refers to the ‘decision under review’ as the decision made by the NDIA on ‘07/09/18’ that SDA supports ‘were not reasonable and necessary’. This decision therefore appears to incorrectly refer to the decision under review as being the email by Ms ‘D’ on 7 September 2018 rather than the decision made by the NDIA on 28 June 2018.

16. For the purposes of whether the Tribunal has jurisdiction to hear the application made by the applicant on 5 October 2018, I simply note that there are apparent errors with both the email dated 7 September 2018 and the internal review decision dated 20 November 2018.

17. In considering whether the email by Ms ‘D’ on 7 September 2018 is a ‘reviewable decision’ by the Tribunal, I have regard to the leading authorities in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 per Brennan J (Brian Lawlor) and (on appeal to the Full Court) Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[1979] FCA 21; (1979) 2 ALD 1. His Honour Brennan J concluded in Brian Lawlor at [180] that a:

    ‘decision’...used in the provisions of the AAT Act relating to a right to apply for review…is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made.

18. This approach was essentially upheld by the Full Federal Court; Bowen CJ (with whom Smithers J agreed) stated it was enough if a decision was made in the purported exercise of the power in the relevant enactment: at [16]-[17].

19. In the recent Tribunal decision, Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865, Deputy President McCabe and I confirmed at [25]:

    There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right. [emphasis added]

20. In view of these authorities, I am satisfied the email by Ms ‘D’ on 7 September 2018 was a decision made as a consequence of a decision-making process, which purported to exercise the power to review the applicant’s eligibility to SDA. I therefore find the Tribunal has jurisdiction to hear the application made by the applicant on 5 October 2018.

    CONCLUSION

21. For the reasons set out above, I am satisfied the Tribunal has jurisdiction to hear the application made by Anthony Hughes on 5 October 2018.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................

Associate

Dated: 10 December 2018

Date(s) of hearing:	27/11/2018
Advocate for the Applicant:	Mr M Hampton, Synapse
Solicitors for the Respondent:	Ms S Leembruggen, Sparke Helmore