Johns and National Disability Insurance Agency

[2022] AATA 1518

Johns and National Disability Insurance Agency [2022] AATA 1518 (7 June 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/2840

Re:Joshua Luke Johns

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:7 June 2022

Place:Adelaide

The application for Request for Stay Order dated 12 April 2022 is dismissed.

...................[Sgnd].................................................

Senior Member B J Illingworth

Catchwords

PRACTICE AND PROCEDURE – Application for Stay - Consideration of principles – whether there is merit in the substantive application – purpose of application misconceived – no utility in application – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASON FOR DECISION

Senior Member B J Illingworth

7 June 2022

INTRODUCTION

1. The Applicant has filed in the Administrative Appeals Tribunal (the Tribunal), a Request for Stay Order dated 12 April 2022 in relation to a decision by the Respondent that changed the management of a National Disability Insurance Scheme Act (NDIS Act) plan and reduced the Applicant’s funded supports.

2. At the hearing, the Applicant was self-represented, and the Respondent was represented by Mr Tom Galvin of Minter Ellison.

   BACKGROUND

3. The Applicant is a participant in the NDIS. He has had, over time, a number of NDIS Act plans which were self-managed by the Applicant.

4. On 14 July 2021 a new plan came into effect which provided total funded supports of $221,795.08 being $193,972.08 self-managed care supports, and $27,823.00 self-managed capacity building support. Those supports were for a two-year period from the commencement of the plan.

5. The Respondent submitted that on about “16 February 2022, nearly 7 months after the plan was approved by the respondent, the respondent identified that the funds in that plan had been exhausted.” The Applicant rejected that submission and said his total funded supports were not exhausted. After hearing the substantive argument on the Request for Stay Order, I gave the Applicant the opportunity to provide to the Tribunal a copy of his financial record that he said supported his argument that the funded supports were not exhausted. The Applicant provided the financial record, and the Respondent received a copy. No further submissions were made. The financial record did not assist the Tribunal in relation to the question of the stay application. Whether or not the funds had been exhausted is a matter to be ventilated on a review application.

6. On 17 February 2022, the Respondent conducted a plan review pursuant to s48(4) of the Act. A new plan was approved for the Applicant which it is argued by the Respondent, materially replicated the level of support provided in the previous plan, again, for a period of 24 months, but changing the plan from self-managed to plan-managed. The Applicant was notified that day of the new plan.

7. By email, dated 17 February 2022, the Applicant wrote to the Respondent and asked that there be an internal review of the 17 February 2022 plan.

8. Before the requested internal review took place, and on 21 February 2022, a new plan was created, generally replicating the level of support in the preceding plan, including that it be plan-managed but reducing the period of the plan to 12 months.

9. By letter dated 1 April 2022, the Respondent advised the Applicant of the outcome of the internal review request referable to the plan approved on 21 February 2022 (the internal review). The author of the internal review referred to the Applicant’s request that there be a review of (i) the amount of funding in the plan and (ii) to change the management of the plan from plan-managed to self-manage. The author affirmed the original decision.

10. On 6 April 2022, the Applicant filed with the Tribunal an Application for Review of the internal review decision dated 1 April 2022.

11. On 12 April 2022, the Applicant filed a Request for Stay Order in which he described the reviewable decision as a “change of plan management and reduced plan funding of supports”. He sought a “stay order to keep plan as self-managed allowing me to manage my own NDIS supports. Funding of supports to stay at amount prior to decision on 17 February 2022.” The Applicant said the reduced funding was insufficient to support his disabilities and the change to the plan management restricted his ability to engage appropriate supports amongst other things.

12. It became apparent during the course of argument that the Applicant misunderstood which plan was the subject of the Application for Review. He referred to an email dated 17 February 2022 that he sent to the Respondent and asked that there be an internal review of the 17 February 2022 plan. The Applicant believed it was that plan that was the subject of both the internal review and the Application for Review before the Tribunal. That was not correct.

    LEGISLATIVE SCHEME

13. Section 37(3)(a) of the NDIS Act relevantly provides as follows;

    (3)A participants plan ceases to be in effect …

    (a) When it is replaced by another plan under Division 4

14. Section 101 of the NDIS Act provides as follows:

    101 Variation of reviewable decision before review completed

    If:

    (a) a request is made for review of a reviewable decision; and
    (b) before a decision on the review is made, the reviewable decision is varied;
    the request for review is taken to be for review of the reviewable decision as varied.

    CONCLUSION

15. The Applicant’s intention behind the application for stay of the internal review decision was to reinstate the funding of 14 July 2021 supports, and to permit the Applicant to self-manage those funds which he said had not been exhausted.

16. However, by operation of section 37(3)(a) of the NDIS Act, the Applicant’s plan dated 14 July 2021 ceased when the plan dated 17 February 2022 replaced it, and that plan ceased when it was replaced by the plan dated 21 February 2022.

17. By operation of s 101 of the Act, as no internal review of had taken place of the plan dated 17 February 2022 prior to the new plan dated 21 February 2022, the request for internal review dated 17 February 2022 was taken to be a review in respect of the new plan dated 21 February 2022.

18. Section 43(1) of the Administrative Appeals Tribunal Act (the AAT Act) provides that the Tribunals power on review, is to affirm, vary or set aside the decision under review and (i) make a decision in substitution for the decision, or (ii) remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal. The decision under review is the internal review decision dated 1 April 2022, not the plan dated 21 February 2022 to which the internal review decision relates, or any plan that preceded it.

19. Hence, any decision made by the Tribunal with respect to the question of a stay of the reviewable decision, only relates to the internal review decision dated 1 April 2022.  The plan dated 21 February 2022 would continue to remain in force.

20. The application for the stay cannot achieve the outcome sought by the Applicant. It is only by undertaking the review process that the Applicant can be heard in relation to his complaint about the level of funded supports and the self-management of those supports. At this time, the Applicant can then raise the financial record provided to the Tribunal for consideration in support of his submission that the funds in respect of the 14 July 2021 had not been exhausted and that his plan ought return to being self-managed. The request for a stay is misconceived and has no utility in resolving the dispute between the Applicant and the Respondent and accordingly the application for a stay should be dismissed.

    DECISION

21. For the reasons outlined above, the application for a stay is dismissed.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

......................[Sgnd]........................................

Associate

Dated: 7 June 2022

Dates of interlocutory hearing:	19 May 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Tom Galvin, Minter Ellison