Isherwood and National Disability Insurance Agency - [2024] AATA 2956

Isherwood and National Disability Insurance Agency [2024] AATA 2956 (20 August 2024)
ReviewNumber: 2019/7660, 2020/2025
Division:GENERAL DIVISION
File Number(s): 2019/7660 and 2020/2025
Re:Felicity Isherwood
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
The Tribunal grants the application for Senior Member Illingworth and Member Hallwood to be recused.
Tribunal:Senior Member B J Illingworth and Member G Hallwood
Date:20 August 2024
Place:Adelaide

………………[SGND]…………………….
Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE – Remittal by Federal Court of Australia on ground of failure to afford natural justice – Tribunal made adverse finding as to the credibility of a witness –request that the Federal Court remit the hearing to differently constituted Tribunal declined because the evidence forming the basis of that credibility finding would not be revisited – the witness the subject of the adverse finding now relied on including further evidence – witnesses credibility will be revisited – whether apprehended bias is enlivened – application granted
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
Johnson v Johnson [2000] HCA 48
REASONS FOR DECISION
Senior Member B J Illingworth Member G Hallwood
20 August 2024
INTRODUCTION

This within matter relates to two applications for review of participant supports made by the Applicant who is a participant in the National Disability Insurance Scheme (NDIS). The two reviewable decisions were dated 11 November 2019 and 30 March 2020 made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA).
On 27 August 2021 the Administrative Appeals Tribunal (the Tribunal) published a decision (the Decision) in relation to the applications for review. Both reviewable decisions were affirmed.
Relevantly, within that decision the Tribunal made adverse findings about the credibility of the Applicant’s general practitioner Dr Jenkins in respect of her medical report and oral evidence.
The Decision was the subject of an appeal to the Federal Court of Australia (the Federal Court) and on 28 July 2023 the Federal Court remitted the hearing to the Tribunal. The amended notice of appeal sought an order that the matter be remitted to the Tribunal differently constituted. The Federal Court noted that no submissions were directed to whether an order in those terms should be made and also noted that the only adverse finding by the Tribunal as to credibility was in respect to the contents of a report and evidence of Dr Jenkins. There having been no attempt to impugn that finding on appeal, the Federal Court was satisfied it would not be necessary on remitter for the Tribunal to revisit that finding. The Federal Court identified that the Tribunal would be dealing with new material rather than revisiting affirmative findings already made.
Based on the above circumstances, the Federal Court remitted the matter to the Tribunal leaving it to the President of the Tribunal to make such directions considered appropriate as to the future hearing of the matter. The President constituted the remittal hearing to the same members.
After constitution and during directions hearings the Applicant advised that she would be relying on the original medical report of Dr Jenkins, was obtaining a further medical report from her, and would be leading further oral evidence from Dr Jenkins.
Due to the evidence the Applicant intended to lead at the remittal hearing the Tribunal raised with the parties whether a question of apprehended bias might now arise that was not apparent when the Federal Court declined the application that the Tribunal be reconstituted or when the matter was reconstituted to us. The Applicant was given the opportunity to consider her position. She subsequently invited the current Tribunal members to recuse themselves on the basis of apprehended bias.
The Tribunal heard an interlocutory application that the Tribunal members recuse themselves on the basis of apprehended bias. The Applicant was represented by her mother Ms Isherwood and the Respondent was represented by counsel Mr d’Assumpcao of Howard Zelling Chambers.
The Issues
The issue before the Tribunal is whether we should recuse ourselves on the basis of apprehended bias, and the Tribunal should be differently constituted.
What is Apprehended Bias?
The legal test for apprehended bias
The High Court set out the test for recusal based on apprehended bias in Ebner v Official Trustee in Bankruptcy.[1] More recently, the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (QYFM) confirmed that the test in Ebner still represented the law.[2] The test was summarised by Justice Gordon at [67] as follows:
As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and actual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
[1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[2] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 437 [67].
The hypothetical fair-minded lay observer
In applying the legal test set out in Ebner, the Tribunal must consider the characteristics attributed to the hypothetical fair-minded lay observer. The courts have provided guidance on this, noting the challenges in definitively defining attributes to a hypothetical person.
In QYFM, Steward J quotes Johnson v Johnson [2000] HCA 48 at [53] in describing many of the necessary attributes of the fair-minded lay observer:[3]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. …The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality…Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[3] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 461 [197] (Stewart J), quoting Johnson v Johnson (2000) 201 CLR 488, 509 [53].
In QYFM Jagot J at 294 also explained that that the apprehension of bias does not involve a personal criticism of a judge or trier of fact. Nor does it involve an assessment of that person’s ability to deal with the case fairly and without pre-judgement, and then said:
The law so closely guards the principle that justice must be seen to be done that the relevant fact, in this context, is not lack of impartiality. It is the reasonable perception of the possibility of lack of impartiality that is determinative.
CONSIDERATION OF CLAIM OF APPREHENDED BIAS AND EVIDENCE
We will revisit some of the background of the original decision made by the Tribunal and the Federal Court’s decision on appeal.[4]
[4] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852.
The Decision and Expert Reports
The Applicant’s primary disabilities may be summarised as Dravet syndrome, epilepsy, intellectual disabilities, and autism spectrum disorder. The Respondent advised the Tribunal that the Applicant’s plan supports, which provided funding of approximately $93,000, had not been utilised since it was approved on 30 March 2020.
The applications for review in summary referred to errors and omissions in the plan supports including the wish to self-manage the plan and requested numerous additional supports including home modifications both internal and external, a swimming pool, a seizure response dog, and a new motor vehicle with modifications.[5]
[5] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraphs [11],[17],[36].
Expert Reports
The expert reports in support of the applications were: property construction reports of Rocksolid Construction Pty Ltd and Dolphin Homes; a Home Modification Report of occupational therapist Wayne Allen dated 7 June 2018; a short report of the Applicant’s general practitioner Dr Jenkins dated 4 March 2020 confirming the Applicant’s disabilities referred to above and her need for home modifications and maintenance, a car, personal support at all times and a seizure dog;[6] and a twelve page report of Dr Jenkins dated 19 October 2020 detailing the Applicants various conditions, medications and associated issues and the reasons for the requested funding.[7]
[6] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [124].
[7] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [126]-[128].
We will deal with the medial expert reports which give rise to the issue to be considered in the request for the Tribunal members to recuse themselves from the remitted hearing.
Mr Allen’s Report
Mr Wayne Allen, an Occupational Therapist, did not perform a functional capacity assessment of the Applicant and he did not examine her. The home modifications referred to in his report dated 7 June 2018 were those described to him by Ms Isherwood and the Applicant’s sister, and Mr Allen’s description of the Applicant’s medical background was taken from a medical summary dated 17 November 2016 from Dr Clarke which summary was not before the Tribunal.
The Tribunal decided that Mr Allen’s report was of little weight because it was underpinned by Ms Isherwood and her family’s opinions and observations, and the report did not assist the Tribunal in deciding the Applicant’s functional capacity and whether in particular the home modifications were reasonable and necessary in accordance with s 34 of the National Disability Insurance Scheme Act 2013 (the Act).
Dr Jenkins
Dr Jenkins’ report dated 4 March 2020 was short and confirmed the Applicant’s primary disabilities and the need for the requested supports as referred to above.
The report dated 19 October 2020 was a 12-page report titled “AAT Doctors Assessment/report’ which report provided a diagnosis and issues associated with the Applicant’s medical conditions. Further the report detailed common issues associated with the Applicant’s conditions.
Dr Jenkins was scheduled to give oral evidence on 22 March 2021 at 11.00am. The Tribunal attempted to telephone her surgery on 8 occasions between 11.00am and 11.30am but the telephone number provided was engaged. During that time the Tribunal sent the surgery an email advising that the Tribunal was endeavouring to contact Dr Jenkins but received no reply. Ms Isherwood was also unable to contact Dr Jenkins by telephone during that same time. When the Tribunal finally spoke to Dr Jenkins, and due to difficulties arranging with her a time to give evidence she was summonsed to give evidence and appeared in person before the Tribunal on 18 May 2021.
24.When Dr Jenkins appeared before the Tribunal, she did not bring the Applicant’s consultation notes with her. The Tribunal had some serious concerns with her evidence. In summary Dr Jenkins told the Tribunal that all consultations she held with the Applicant were attended by the Applicant’s family members; the Applicant did not respond to Dr Jenkins question verbally but used gestures and she ‘indicates her responses to her family members who then interpret’; Dr Jenkins could not provide the Tribunal with any satisfactory evidence of any consultation with the Applicant in the preceding 22 years including the last consultation that had occurred only two weeks earlier. In cross-examination Dr Jenkins conceded she did not author the report dated 19 October 2020. She said the majority of the report was prepared by the Applicant’s sister. She said she checked it, turned her eye over the report, and applied her stamp to it, but did not contribute to its content.
Further Dr Jenkins admitted she had not observed the Applicant’s behaviour at home for many years and since she was a child. She said the diagnosis contained in the report dated 4 March 2020 was not hers and such diagnosis was usually made by a paediatric neurologist or psychologist and that she had received reports over the years confirming the diagnosis and referred to reports from Dr Harbord and Dr Norton, which were not before the Tribunal.
The Tribunal found that the medical evidence was wholly unsatisfactory and failed to address the issues in dispute, in particular the evidence regarding the Applicant’s functional capacity and claims for supports was provided in entirety by the Applicant’s family.
During the hearing, Ms Isherwood declined invitations for her daughter to be medically examined which might have assisted the Tribunal in its decision. The Tribunal was concerned about the welfare of the Applicant. The home needed repair and the Applicant had not had a functioning bathroom for six years which was a concern, but there was an absence of any independent reliable evidence about the Applicant’s functional capacity relevant to the requested supports.
After the close of the hearing the Tribunal requested the production of the reports of Dr Harbord, Dr Norton and Dr Clark to determine if they were relevant to the applications and provide assistance to the Tribunal in respect of the Applicant’s conditions or functional capacity.
The Applicant provided a report of Dr Harbord dated 9 May 2013, a report of Dr Norton addressed to Dr Jenkins dated 8 April 2020, and a joint report of Dr Meyers and Professor Scheffer dated 17 November 2016 addressed to Dr Clarke, the Applicant’s former treating GP, which the Tribunal inferred was the report incorrectly referred to by Mr Allen, as the medical summary of Dr Clarke.[8] These reports did not assist the Tribunal.
[8] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [112]-[128].
In its decision the Tribunal found that Dr Jenkins was unable to give evidence of any consultation with the Applicant in the preceding 22 years. The contents of her 12-page report did not contain factual observation made by Dr Jenkins of the Applicant in her day-to-day life. Dr Jenkins had not observed the Applicant at home and, by her own description, her principal role as GP to the Applicant was to write scripts and fill in forms. One example given by Dr Jenkins was a Special Olympics form which occurred several years earlier.
Dr Jenkins made no medical diagnosis of the Applicant and relied on the opinions of other specialist medical practitioners to whom we have referred. Dr Jenkins’ report was merely the signing off, of information given to her by the Applicant’s mother and family and not observations she made or medical opinions she reached in diagnostic setting. The Tribunal’s decision read “To sign a report that she had not authored, in relation to factual circumstances about which she made no observation, was wholly unsatisfactory. The report was not Dr Jenkins’ report, and was not an informed medical opinion.”[9]
[9] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [182]-[183].
The Tribunal found that Dr Jenkins must have known of the report and opinion of Dr Norton dated 8 April 2020 when signing the 12-page report dated 19 October 2020. Dr Norton’s diagnosis was inconsistent with the contents of Dr Jenkins’ report and raised doubt about the Applicant’s medical condition. Dr Norton’s report opined that the various epileptic seizures of the type described for a number of years were arguably functional and behavioural. Dr Jenkins by merely signing off on the report prepared by the Applicant’s family, without reference to Dr Norton’s report was considered by the Tribunal to be wholly unsatisfactory and apt to mislead the Tribunal.[10]
[10] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [181]-[184].
The Tribunal did not accept Dr Jenkins as an expert witness upon whose opinion the Tribunal could rely,[11] and decided that there was a lack of independent, objective and current evidence upon which the Tribunal could be satisfied that the claimed supports were reasonable and necessary.[12]
[11] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [188].
[12] AAT Decision dated 27 August 2021, File Numbers 2019/7660 and 2020/2025, paragraph [199].
Federal Court Appeal
In the grounds of appeal to the Federal Court as originally filed, the Applicant pleaded actual and apprehended bias on the part of the Tribunal. That ground of appeal was subsequently abandoned and an amended notice of appeal included that the Applicant was not afforded procedural fairness to make submissions or otherwise regarding those reports received by the Tribunal after the conclusion of the evidence, upon which ground the appeal was successful.[13]
[13] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852.
The amended notice of appeal also sought an order that the matter be remitted to the Tribunal differently constituted. Justice Colvin in his reasons said at [163] – [165]:
[163] “… The only adverse finding as to credibility has been in respect of the contents of the report of Dr Jenkins. As has been observed, there was no attempt to impugn that finding in the appeal. Therefore, on remitter it would not be necessary for the Tribunal to revisit that finding etc.
[164] As has been explained, the Tribunal has formed views about an insufficiency in the evidence of functional capacity. If further evidence is received then the Tribunal will be dealing with new material rather than simply revisiting affirmative findings that it has already made. No adverse finding has been made as to the credibility of the evidence of other witnesses.
[165] In the above circumstances, in my view the appropriate course is simply to allow the appeal and to remit the matter and to leave it to the President of the Tribunal to make such directions as may be considered appropriate as to the future hearing of the matter: see the consideration of the issues that arise in such cases in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 at [89]‑[95] (Tracey and Flick JJ).”[14]
[14] Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852, paragraphs [163]-[165] (Colvin J).
Directions Hearings and Interlocutory application for recusal
The matter was remitted to the Tribunal as originally constituted for hearing. A number of directions hearings occurred in an endeavour to progress the matter to hearing and identify what, if any, further evidence the Applicant intended to rely, whether she had provided copies of the post hearing reports to her existing medical experts which she said she had done, and to consider what further evidence would be called.

In the course of those directions hearings Mrs Isherwood said she again intended to rely on the 12-page report of Dr Jenkins dated 19 October 2020, that she was seeking a further report of Dr Jenkins and she would be calling Dr Jenkins to give evidence at the remittal hearing. She was unable to contact the authors of the additional reports received by the Tribunal post hearing as they had retired. Mrs Isherwood also advised that she was endeavouring to have the Applicant examined by neurologist Dr Frasca, with the first available appointment in August 2024, but was on a waiting list should there be an earlier cancellation. She declined the Respondent’s invitation to arrange another neurologist who the parties might agree was acceptable.
Subsequently the Tribunal was advised that no earlier appointment was available with Dr Frasca, and the assessment would occur in August with a report to follow. The Respondent advised that they had contact details for the retired doctors, but the Tribunal has not been advised whether further reports will be required or whether they will be asked to give evidence at the hearing.
As we have said, given the adverse finding of the Tribunal in regards the credibility of Dr Jenkins to which we have referred, and conscious of the reasons of Justice Colvin not to remit the matter to a differently constituted Tribunal, and the reliance to be placed on Dr Jenkins at the further hearing, the Tribunal raised with the parties whether an argument in respect of apprehended bias was now enlivened. The parties were given the opportunity to consider their respective positions and obtain instructions and legal advice.
Mrs Isherwood subsequently requested the Tribunal be reconstituted. Written submissions were provided by the parties. Mrs Isherwood submitted that because she intended to rely upon Dr Jenkins’ original and subsequent report along with further oral evidence, the Tribunal would be unable to reach an informed and impartial decision in regards her evidence.
The Respondent in written submissions remained neutral on the question of recusal but referred the Tribunal to QYFM, and although taking a neutral stance requested the opportunity to make further oral submissions before the Tribunal decided the question of recusal. A hearing date was set for further submissions.
Prior to the interlocutory recusal hearing the Applicant filed and served a further 1 sentence report of Dr Jenkins dated 16 April 2024 which said, “I confirm that any reports I have written in the past are still current and valid” and attached a document headed ‘Doctor’s Report’ relating to the Applicant, which comprised handwritten answers to typed questions and dated 21 September 2021 which was approximately 3 weeks after the Tribunal’s decision. In that attachment the opinions expressed echo the contents of the previous reports from Dr Jenkins.
At the hearing the Applicant relied on the submissions provided. The Respondent referred to QYFM and that in regards the question of apprehended bias submitted that minds may differ, as was discussed in QYFM. Counsel noted the decision of the court at first instance to decline the recusal request, and the different view expressed by the High Court that apprehended bias was enlivened. The Respondent submitted that in this matter there remained a risk that should the Tribunal refuse the application for recusal an appellate court might determine otherwise, but nonetheless remained neutral.
CONCLUSION
The decision of Colvin J to remit the matter without a direction that the Tribunal be reconstituted, was because the Tribunal had reached its decision based upon the insufficiency of evidence of functional capacity that was before it, and because no issue had been taken on appeal challenging the Tribunals adverse finding as to the credibility of Dr Jenkins and the contents of her report which finding would not be revisited at the remitted hearing.
It is now clear that despite the Tribunal’s expressed ‘serious concerns’ about Dr Jenkins and the finding with regards Dr Jenkins’ report and lack of credibility, Ms Isherwood will again be relying on the contents of the reports previously received from Dr Jenkins, has now provided a further report of Dr Jenkins reaffirming the contents of the earlier report, and will be calling Dr Jenkins as a witness. That will require an assessment of the reliability and credibility of Dr Jenkins which has already been impugned by the members currently constituted to hear this matter. It will be necessary for the Tribunal to revisit the earlier finding in respect of Dr Jenkins.
Given the earlier findings we have made about Dr Jenkins and the need to revisit those findings in the remittal hearing, we are of the view that a fair minded lay observer might reasonably apprehend that the Tribunal, as currently constituted, might not bring an impartial mind to the resolution of Dr Jenkins’ evidence, which might impact on the ultimate decision about the reasonable and necessary supports to which the Applicant is entitled, within the meaning of s 34 of the Act.
Accordingly, for the reasons expressed above the Tribunal is satisfied that the legal test for apprehended bias is satisfied and that we should recuse ourselves.
DECISION
48.The Tribunal grants the application for Senior Member Illingworth and Member Hallwood to be recused.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth and Member G Hallwood

…...............[Sgnd]..............................
Feng Jiang, Associate
Dated: 20 August 2024

Date of hearing: 27 May 2024

Advocate for the Applicant:
Ms Belinda Isherwood

Counsel for the Respondent
Mr Paul d’Assumpcao

Date of hearing:	27 May 2024
Advocate for the Applicant:	Ms Belinda Isherwood
Counsel for the Respondent	Mr Paul d’Assumpcao