HVYY and National Disability Insurance Agency

[2023] AATA 4248

HVYY and National Disability Insurance Agency [2023] AATA 4248 (22 December 2023)

Division:GENERAL DIVISION

File Number:          2023/7946

Re:HVYY

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:22 December 2023

Place:Melbourne

The Tribunal does not grant this application.

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

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – PRACTICE AND PROCEDURE – request for Tribunal to make a declaration under sub-s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for a statement of reasons, evidence, and findings of material facts, by the decision-maker of the reviewable decision – interpretation of s 28 of the AAT Act and whether it only applies and permits a request to be made under sub-s 28(1) before the person has lodged an application for review with the Tribunal – consideration of other mechanisms by which directions or orders may be issued or made by the Tribunal after the person has lodged an application for review with the Tribunal, to require the decision-maker to provide further information and further and better particulars, specifically, ss 33 and 38 of the AAT Act of the AAT Act – Tribunal concluded that s 28 of the AAT Act does not apply in the circumstances of this matter because the request for the s 28 declaration was made after the Applicant lodged his application for review – application not granted – Tribunal will not issue a declaration under sub-s 28(5) of the AAT Act

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 28, 33, 37, 38

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

Cases

BLZQ and National Disability Insurance Agency [2023] AATA 2629

HGLS and National Disability Insurance Agency [2022] AATA 2774

Reddish and Civil Aviation Safety Authority [1999] AATA 721

Witson and NDIA [2022] AATA 2205

REASONS FOR DECISION

Senior Member K. Parker

22 December 2023

BACKGROUND

1. The Applicant, HVYY, is a child participant in the National Disability Insurance Scheme (NDIS). He has been diagnosed with Autism Spectrum Disorder Level 3, and lives with a disability arising from this condition.

2. HVYY’s parents have requested funding of $170,573.60 per annum under the NDIS, to pay for HVYY’s attendance at an early intervention behavioural intervention (EIBI) program, specifically, the “Little Learners” EIBI program offered by Autism Partnership Australia.

3. On 7 June 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) made a decision under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (Internal Review Decision) to confirm an earlier decision made by another delegate of the CEO, to approve a statement of participant supports for HVYY which included $76,141.07 of funding for capacity building supports (which could be used for the provision of EIBI supports), instead of the requested amount of $170,573.60.

4. On 8 June 2023 and pursuant to s 103 of the NDIS Act, HVYY’s parents sought review of the Internal Review Decision by lodging an application for review with this Tribunal (AAT Application). The AAT Application is numbered 2023/4158.

5. On 20 July 2023, HVYY’s mother sent an email to the NDIA stating as follows:

   Thank you for your internal review decision, dated 7 June 2023,…

   I acknowledge that your decision record tries to set out some reasons, but they are very generally expressed, and do not help me to understand the affirm [sic] decision.

   I’ve also received legal advice that the decision record, because of its general language, does not meet the standard of adequacy set out in section 28(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

   Pursuant to section 28(1) of the AAT Act, please provide me with “a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for [your] decision…as soon as practicable…[or] within 28 days”.

6. In HVYY’s Summary Submissions, dated 13 December 2023, HVYY’s legal representatives contend that this email dated 20 July 2023 constitutes a “s 28(1) request” made by HVYY’s parents.[1] This email expressly referred to being a request for a statement under sub-s 28(1). The NDIA accepts this contention.

   [1] HVYY’s Summary Submissions, [1a].

7. As highlighted by HVYY’s legal representatives, HVYY’s parents’ “s 28(1) request” was made within 28 days of the date of the Internal Review Decision, which meant that no discretion arose by operation of sub-s 28(1A), by which the NDIA was permitted to refuse to provide the requested statement.

8. On 31 July 2023, a NDIA case manager, who was not the delegate of the CEO who made the Internal Review Decision, sent an email to HVYY’s mother, stating as follows:

   Unfortunately, as the [Administrative Appeals Branch] Case Manager, I cannot provide you with a detailed explanation as to how the previous Internal Review Delegate had reached their decision further to the explanation that has already been provided to you in the Internal Review Decision letter dated 7 June 2023…

9. HVYY’s legal representatives contend that this email constitutes the NDIA’s statement under sub-s 28(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Specifically, HVYY’s legal representatives contend as follows:[2]

   That is because the email does at least purport to give reasons. In essence, the email extract above says that the Internal Review Decision was made for the reasons given as part of the Internal Review Decision. It was also made in response to the Applicant’s mother’s request dated 20 June 2023. Also, text messages between the Applicant’s mother and a NDIA representative over 11 and 12 July 2023 show that she reiterated her request for a s 28 statement – indeed, she quoted the text of s 28(1) in a text message – and that the NDIA representative understood and acknowledged that request, indicating that “further details in a written statement” would be provided…

   [2] Ibid, [1c].

10. The NDIA refutes this contention.

11. The matter that is before the General Division of this Tribunal (as presently constituted) is application numbered 2023/7946, by which HVYY’s parents seek a declaration by the Tribunal under sub-s 28(5) of the AAT Act. It was lodged with the Tribunal on 3 August 2023 in the form of an email from HVYY’s lawyer of the same date. HVYY’s parents contend that HVYY is entitled to make such an application on the premise that an email sent by a case manager of the NDIA to them on 31 July 2023 constitutes a statement within the meaning of sub-s 28(1) of the AAT Act, being the statutory pre-condition to HVYY being able to make an application under sub-s 28(5) of the AAT Act.

12. HVYY’s parents seek a declaration from the Tribunal under sub-s 28(5) of the AAT Act that the NDIA’s email on 31 July 2023, does not contain:

    (a)adequate particulars of findings on material questions of fact;

    (b)adequate particulars of the reasons for the decision; or

    (c)the statement does not include an adequate reference to the evidence or other material on which those findings were based.

13. HVYY’s parents contend that, if the Tribunal finds that the statement and particulars are inadequate, the Tribunal must issue the declaration, or, put another way, that the Tribunal does not have a discretion to refuse to issue the declaration once it reaches a conclusion that the statement and particulars are inadequate. The Tribunal agrees with this proposition based on the wording in sub-s 28(5) of the AAT Act.[3]

    [3]           With respect, the Tribunal does not agree with the different approach taken by the Tribunal, differently constituted, in HGLS and National Disability Insurance Agency [2022] AATA 2774 of treating this question of whether a declaration should be made under sub-s 28(5), as a discretionary task. The Applicant is quite right in contending that the task of the Tribunal is to make a finding, or not, as to whether the circumstances in sub-s 28(5) of the AAT Act exist, and, once such a finding is made, the Tribunal must make the declaration under sub-s 28(5). This is of course subject to s 28 being applicable to the person who has made a request under this provision as will be addressed in further detail below.

14. The NDIA contends that HVYY is not entitled to make an application under sub-s 28(5), essentially for two reasons:

    (a)the NDIA contends that HVYY, by his parents, have already lodged an application for review by this Tribunal of the Internal Review Decision (the AAT Application, see paragraph [4] above), so the provisions made under s 28 of the AAT Act do not apply. The NDIA contends that s 28 is intended to provide for detailed reasons to be given to assist a participant in their understanding of the reasons for the reviewable decision (in this case, the Internal Review Decision) and, therefore, to aid their decision whether to seek review by the Tribunal. The NDIA contends that any declaration under sub-s 28(5) would be futile in HVYY’s circumstances, because prior to making the sub-s 28(1) request, HVYY’s parents, on HVYY’s behalf, had already lodged an application for review by the Tribunal; and

    (b)further, the NDIA contends that the NDIA case manager’s email sent on 31 July 2023 does not constitute a statement under sub-s 28(1) of the AAT Act and, for this reason, the pre-condition of sub-s 28(5) has not been met. The NDIA contends that the case manager, on 31 July 2023, had merely written to HVYY’s mother to explain that the case manager could not provide particulars of the reasons for the Internal Review Decision because the case manager was not the delegate who had made the Internal Review Decision. Instead, the case manager explained her role in relation to the AAT review proceeding that was before the Tribunal.

15. The NDIA’s counsel, at the hearing, confirmed that no other document had been given by the NDIA to HVYY’s parents in the 28-day period following the date of the sub-s 28(1) request by HVYY’s parents, which might otherwise be regarded as a statement in response to sub-s 28(1) request under the AAT Act. The NDIA’s counsel confirmed that the NDIA had failed to fulfil its statutory obligation under sub-s 28(1) of the AAT Act to provide such a statement to HVYY, as soon as possible after the sub-s 28(1) request was made on 20 July 2023, or, at the latest, within 28 days of that date (or, under sub-s 28(1AA) of the AAT Act, to provide written notice to HVYY’s parents of the NDIA’s opinion that HVYY was not entitled to receive such a statement).

ISSUE

1. The issue in this application is whether the Tribunal can and should make a declaration under sub-s 28(5) of the AAT Act.

2. This will require a consideration of the following sub-issues:

   (a)whether s 28 of the AAT Act should be interpretated in such a way that this provision only permits a person to make a request for a declaration under sub-s 28(5) of the AAT Act provided they have not yet lodged a substantive application for review with the Tribunal seeking review of the reviewable decision (in this case, the Internal Review Decision); and/or

   (b)whether the precondition set out in the preface to sub-s 28(5), that the person must have been given a statement under sub-s 28(1), has been met by HVYY, and if so, whether the Tribunal finds that any such statement does not contain:

   (i)adequate particulars of findings on material questions of fact;

   (ii)adequate particulars of the reasons for the decision; or

   (iii)the statement does not include an adequate reference to the evidence or other material on which those findings were based.

3. If the Tribunal concludes that s 28 of the AAT Act is not applicable in HVYY’s circumstances because he lodged the application for review with the Tribunal prior to making the request for a declaration under sub-s 28(5), it will not be necessary to proceed to a consideration of the sub-issues referred to in subparagraph [17(b)].

SUBMISSIONS, EVIDENCE AND HEARING

1. The following submissions have been lodged by the parties with the Tribunal:

   (a)a submission entitled “Applicant’s Submissions on Adequacy of Reasons” dated 21 August 2023;

   (b)a further submission entitled “Applicant’s Further Submissions on Adequacy of Reasons”, dated 7 September 2023;

   (c)a submission entitled “Respondent’s Submissions”, dated 7 September 2023;

   (d)a submission by HVYY’s legal representatives entitled “Summary Submissions” (together with an “Index of Attachments to Applicant’s Summary Submissions”), dated 13 December 2023; and

   (e)a final submission, dated 21 December 2023, lodged by the NDIA at the request of the Tribunal after the hearing, entitled “Respondent’s Additional Submissions”.

2. The first three submissions were lodged with the application number 2023/4158 appearing at the top of those documents. At the hearing, the parties confirmed they seek to rely upon those submissions in relation to the present application numbered 2023/7946. Accordingly, the Tribunal has received those first three submissions in this application numbered 2023/7946 and has taken them into consideration when conducting the hearing and making its decision in this matter.

3. A hearing took place in this matter on 21 December 2023, during which both parties’ representatives made oral submissions to the Tribunal. The quality of the written and oral submissions made to the Tribunal was excellent and the Tribunal acknowledged, at the hearing, the valuable assistance of the parties’ legal representatives in this regard. The Tribunal has considered the earlier Tribunal decisions, as referred to under the heading “Cases” above, touching upon s 28 and/or s 38 requests. They were referred to as “authorities”. This term may have been used in a broad sense, but for clarity, the Tribunal is not bound by the decision of another member of this Tribunal. Where those decisions discuss principles of relevance to the issues in this application, the Tribunal has addressed them below in these Reasons for Decision.

CONSIDERATION

1. As mentioned above, the Internal Review Decision was made on 7 June 2023. HVYY’s parents lodged, on HVYY’s behalf, the AAT Application the following day, on 8 June 2023.

2. No request was made by HVYY’s parents to the NDIA for a statement under sub-s 28(1) of AAT Act prior to the lodgement of the AAT Application.

3. The Tribunal will begin its consideration of this matter by deciding the first question of whether the mechanism established under s 28 of the AAT Act, of requesting a statement under sub-s 28(1), was intended to apply to a person who has already lodged an application for review before the Tribunal in relation to the reviewable decision (in this case, the Internal Review Decision). HVYY’s counsel submitted that there is no such requirement for the person to have made the request under sub-s 28(1) prior to lodging an AAT application for review, because sub-s 28(1) does not expressly stipulate this requirement. Specifically, HVYY’s legal representatives stated as follows in the Applicant’s Submissions on Adequacy of Reasons, dated 21 August 2023 (emphasis added):

   6. The fact that an application has been lodged with the AAT for review of the reviewable decision has no real relevant to the Applicant’s entitlement to adequate reasons under s 28(1), nor to the AAT’s power to make declarations and orders under ss 28(5)-(6).[4] There is no express provision in s 28 or elsewhere that states or even suggests that relief under ss 28(5)-(6) should not be granted if a review application has been made to the AAT. Instead, a contrary indication is found in the AAT’s power to order under s 38(1) that further and better particulars are to be given regarding a statement of reasons that is only lodged with the AAT after an application for review is made.

   [4] Footnote 4 from Applicant’s Submissions on Adequacy of Reasons: See also [BLZQ and National Disability Insurance Agency [2023] AATA 2629], [40]-[42].

4. Subsection 28(1) of the AAT Act is headed “Person affected by decision may obtain reasons for decision”, and is reproduced below (emphasis added):

   Request for statement of reasons

   (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the application a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.

5. The Tribunal considers that there is ambiguity arising in relation to how the mechanism established under s 28 of the AAT Act should apply. This ambiguity arises because while there is no express and unequivocal requirement, limitation or restriction arising from the wording in s 28 of the AAT Act that imposes upon the person applying for the declaration under sub-s 28(5) to have made the request under sub-s 28(1) prior to the lodgement of an AAT application for review, the Tribunal considers that it is implicit from the wording in sub-s 28(1) of the AAT Act (as emphasised in bold print above in paragraph [25]), that the prospective application for review to the Tribunal has not yet been lodged at the time of the person making the request under sub-s 28(1) for the declaration under sub-s 28(5). Consistent with this interpretation is that it was possible for Parliament to have added the words “or has applied” after the words “entitled to apply” in sub-s 28(1) but did not do so. Indeed, by extension, Parliament could have also added the words “or has been made” after the words “may be made” in sub-s 28(1) but did not do so.   

6. Given the ambiguity in the interpretation of s 28 of the AAT Act, the Tribunal has taken into account the structure of the enactment as a whole and other similar mechanisms within it.

7. In this regard, the Tribunal has considered the order in which s 28 appears in the AAT Act. As put to the parties at the hearing, s 28 appears in an early part of this enactment and, notably, immediately before s 29, which deals with the manner in which a person may initiate an application for review by the Tribunal. This would appear to suggest that the step of requesting a statement of reasons under sub-s 28(1) is something that was contemplated by Parliament to be attended to, prior to the person initiating the lodgement of an application for review with the Tribunal.

8. Further, the Tribunal has taken into consideration that the AAT Act contains alternative mechanisms by which the decision-maker may be compelled to provide a statement or additional information about the reasons, evidence, and findings of material facts in respect of the reviewable decision the subject of an application, once lodged with the Tribunal.

9. Subsection s 37(1) of the AAT Act applies to a “decision that is the subject of an application for review”, imposing an automatic and positive statutory obligation upon the decision-maker, within 28 days of receiving notice of the AAT application, to lodge a statement containing their reasons, evidence, and findings of material facts, under para 37(1)(a) of the AAT Act. The decision-maker must also lodge “every other document” that is in their possession or under their control and is relevant to the review of the decision by the Tribunal – see para 37(1)(b) of the AAT Act.

1. Subsection 38(1) of the AAT Act empowers the Tribunal, at its discretion, to order a person who has lodged a statement containing reasons, evidence, and findings of material facts, in accordance with para 37(1)(a) of the AAT Act, within the time specified in the order, to lodge an additional statement “containing further and better particulars” in relation to any one or more of the following:

   (a)particulars of findings on material questions of fact;

   (b)reference to the evidence and other material on which those findings were based; and

   (c)particulars of the reasons for the decision.

2. Separately, under sub-s 33(2) of the AAT Act, the Tribunal has the power, in a proceeding before the Tribunal, to issue directions as to the procedure to be followed at or in connection with the hearing of a proceeding, including (under sub-s 33(2A)) directions requiring any person who is a party to provide further information in relation to the proceeding, requiring the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing, or requiring any party to provide a statement of matters or contentions upon which reliance in intended to be placed at the hearing.

3. The Tribunal considers that Parliament when enacting:

   (a)s 28, on the one hand; and

   (b)the mechanisms or powers under ss 33 (specifically, sub-s 33(2A)), 37 and 38 of the AAT Act, on the other:

   intended to establish separate and distinct mechanisms by which a person could agitate so as to obtain adequate particulars of the reasons, findings, and references to evidence upon which the findings were based, by making a request under s 28 if the application has not yet been lodged with the Tribunal, but once it has been lodged, by making a request under sub-s 38(1) or by requesting that the Tribunal make directions under s 33 for such further information and particulars to be provided by the decision-maker.

4. The Tribunal accepts that that relevant legislative provisions might have been drafted in a way that made the intended purpose of s 28 of the AAT Act clear, or free from doubt. However, in consideration of the matters set out in these Reasons for Decision, the Tribunal interprets s 28 of the AAT Act in such a manner that the mechanism established under this provision was only intended by Parliament to allow a party to request a declaration under sub-s 28(5) of the AAT Act before the person has lodged their application for review with the Tribunal.

5. On 7 June 2023, the NDIA created and provided HVYY with a decision-making record when the authorised delegate made their Internal Review Decision. HVYY’s parents do not consider that the details provided in this Internal Review Decision are adequate. The Tribunal agrees with their view about this. In these circumstances, it is open to HVYY’s parents to use the mechanism under sub-s 37(1), operating in conjunction with s 38, to request that the Tribunal, in application numbered 2023/4158, order, under sub-s 38(1), that the NDIA lodge an additional statement that provides them with the level of detail which would help them to better understand the reasons why the “reviewer” made their Internal Review Decision under sub-s 100(6) of the NDIS Act.

6. HVYY’s counsel at the hearing acknowledged that this avenue is open to HVYY’s parents but informed the Tribunal that HVYY’s parents nevertheless wished to press the Tribunal for a declaration under sub-s 28(5) of the AAT Act.

7. The Tribunal is not prepared to grant HVYY’s parents’ application for a declaration under sub-s 28(5). The Tribunal has decided not to do so because as mentioned above, it is of the opinion that sub-s28(1) was not intended by Parliament to apply when an application for review by the Tribunal has already been lodged by the person seeking the declaration.

8. The Tribunal considers that the wording of sub-s 28(1) of the AAT Act implies that this provision only applies to persons who have not yet lodged their application for review with the Tribunal. The Tribunal interprets the AAT Act in such a way that once a person has lodged an application for review with the Tribunal, the person is no longer a person to whom sub-s 28(1) of the AAT Act applies, and the person should instead look to and employ sub-s 38(1), operating in conjunction with sub-s 37(1) of the AAT Act, (or indeed, seek directions under s 33 of the AAT Act to this effect), in the context of application numbered 2023/4158, to seek an additional statement from the NDIA (that is, in addition to the documentary Internal Review Decision issued on 7 June 2023), to obtain further and better particulars in relation to any one or more of the following:

   (a)particulars of findings on material questions of fact;

   (b)reference to the evidence and other material on which those findings were based; and

   (c)particulars of the reasons for the decision.

9. The Tribunal notes that HVYY’s lawyer sent an email dated 3 August 2023 to the Registry of the Tribunal requesting a declaration under sub-s 28(5) and an order under sub-s 38(1) of the AAT Act. The email subject line refers to application numbered 2023/4158. The Tribunal, as presently constituted, in not listed or constituted at present to deal with application numbered 2023/4158. Any such request for an order under sub-s 38(1) will need to be pressed by the Applicant in application numbered 2023/4158. To facilitate consideration of this earlier request, the Tribunal will refer this matter to Registry to be listed before a member to consider the Applicant’s earlier request for a direction under sub-s 38(1) in application numbered 2023/4158.

10. A further alternative avenue available to HVYY’s parents is for them to seek a procedural direction from the Tribunal, which the Tribunal is empowered to make (at its discretion) under s 33 of the AAT Act, for the NDIA to lodge a comprehensive statement of facts, issues, and contentions in the context of application numbered 2023/4158. This is a matter for HVYY and those assisting him to consider and to action (or not) in application numbered 2023/4158, as they see fit.

CONCLUSION

1. In conclusion, the Tribunal does not grant the application for a declaration to be made under sub-s 28(5) of the AAT Act because it has concluded that sub-s 28(1) of the AAT Act does not apply to HVYY in seeking a declaration under sub-s 28(5) of the AAT Act, because HVYY’s parents had already, on HVYY’s behalf, and prior to HVYY making a request under sub-s 28(1) of the AAT Act, lodged an application for review of the Internal Review Decision with the Tribunal.

2. Given this conclusion, it is not necessary for the Tribunal to proceed to a consideration of the sub-issues referred to in subparagraph [17(b)] above.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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

Associate

Dated: 22 December 2023

Date of hearing:

Date last submissions lodged:

21 December 2023

21 December 2023

Counsel for the Applicant:

Jakub Patela

Solicitors for the Applicant:

Special Voices Disability Law and Advocacy

Counsel for the Respondent:

Louise Martin

Solicitors for the Respondent:

Moray & Agnew Lawyers