JWVH and National Disability Insurance Agency - [2022] AATA 82

JWVH and National Disability Insurance Agency [2022] AATA 82 (25 January 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/2296
Re:JWVH
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Member K. Parker
Date:25 January 2022
Place:Melbourne

For the reasons set out in the attached Reasons for Decision, the Tribunal has decided not to grant the Applicant's request that the Tribunal invite the Australian Human Rights Commission to intervene in the present application.

Further, and in accordance with s 33 of the Administrative Appeals Tribunal Act1975 (Cth), the Tribunal has made a number of procedural directions as set out in Annexure A to this Decision, to progress this application to a substantive hearing on 26 May 2022 and to deal with other matters including establishing an alternative process by which to identify the supports in dispute.

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

Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Applicant suffers borderline personality disorder and complex post-traumatic stress disorder – litigant in person – Tribunal proceeding has been on foot for 19 months – Applicant has been unable to identify requested supports – Applicant’s request that the Tribunal invite the Australian Human Rights Commission (AHRC) to intervene in this proceeding not granted – whether s 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) applies – application for review before Tribunal does not require determination of human rights issues –procedural directions made to timetable this application for substantive hearing and to establish an alternative process by which to identify supports in dispute

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Human Rights Commission Act 1986 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR INterlocutory DECISION

Member K. Parker

25 January 2022

INTRODUCTION

On 17 April 2020, the Applicant, JWVH,[1] lodged an application to the Tribunal seeking review of a decision by a delegate of the CEO of the National Disability Insurance Agency (NDIA) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) dated 25 March 2020 (Internal Review Decision). The Internal Review Decision relates to a decision by a different delegate of the NDIA on 13 September 2019 to approve a statement of participant supports for JWVH forming part of her National Disability Insurance Scheme (NDIS) plan.
[1] On 20 January 2022, the Tribunal made a confidentiality order, of its own volition, under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) by which the pseudonym “JWVH” will be used in place of the Applicant’s name. Any other information that would lead to the identification of the Applicant has been omitted or de-identified.
The Tribunal’s jurisdiction to review this decision arises under s 103 of the NDIS Act. The Tribunal will refer to a statement of participant supports in these Reasons for Decision as a SOPS.
On 12 November 2020, the Tribunal (differently constituted) remitted this matter pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). During the remittal, a delegate of the CEO of the NDIA made a decision on 17 November 2020 to approve a new SOPS for JWVH, with a review date of 17 November 2021.
Pursuant to s 42D(4) of the AAT Act, the remittal decision made on 17 November 2020 is taken to be the reviewable decision in this proceeding (Decision Under Review).
JWVH’s SOPS dated 17 November 2020 provides total funded supports of $111,243.64. The NDIA informed the Tribunal on 18 January 2022 that JWVH’s “NDIS plan was not able to be extended as there are funds remaining within the plan that can be used”. The NDIA’s legal representative confirmed at the hearing on 20 January 2022 that no new SOPS or NDIS plan was issued, and that JWVH currently had access to NDIS funds arising from her plan dated 17 November 2020. The funding presently available to JWVH under the NDIS includes the following:
(a)$6,008.40 per annum for services from a Level 2 support coordinator;
(b)$64,801.22 per annum for core supports, which would include engaging a support worker to assist with daily activities; and
(c)$29,644.80 for mentoring, peer support and skill development.
On 20 January 2022, JWVH requested that the Tribunal invite the Human Rights Equal Opportunity Commission (HREOC), now known as the Australian Human Rights Commission (AHRC), to intervene in this proceeding before the Tribunal (AHRC Request).
The Tribunal has decided not to grant the AHRC Request for the reasons set out below.
Further to this request, a significant procedural difficulty has prevented this application from progressing in the usual manner, since lodgement in April 2020. JWVH has been unable to identify the supports she would like included in her SOPS. The Tribunal will address this issue and make a set of procedural directions attached as Annexure A to this Decision, to establish an alternative process by which the Tribunal will identify the supports in dispute, so that this matter may progress to a substantive hearing which has been timetabled to take place in May 2022.

AHRC REQUEST

JWVH requests that the Tribunal invite AHRC to intervene in this proceeding. The NDIA opposes this request and contends that there is no basis for any such request. The NDIA contends that any complaint that JWVH wishes to make to the AHRC can be made separately to that organisation and dealt with accordingly.
In JWVH’s letter to the Tribunal sent by email on 20 January 2022 (JWVH’s Letter), JWVH relies upon an extract from a paper by the then President of HREOC arising from an Administrative Appeals Tribunal National Conference in October 2007, stating that, “The HREOC Act empowers HREOC to intervene, and special purpose Commissioners to appear as amicus curiae, with the leave of a court or tribunal in proceedings that involve discrimination or human rights issues”.
Subsection 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) provides that where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, the Commission may intervene in proceedings that involve a human rights issue.
In JWVH’s Letter, JWVH contends that the NDIA and the Department of Families, Fairness and Housing (formerly known as the Department of Health and Human Services), have breached JWVH’s human rights “in multiple and serious ways” and that she has experienced “disability discrimination and victimisation” since her first engagement with the NDIA in November 2018.
JWVH is at liberty to make a formal complaint to AHRC about the alleged human rights breaches, disability discrimination and victimisation against her. However, those matters are not relevant to the issues arising for determination by the Tribunal in this proceeding, because this case involves a consideration of the supports to be included in JWVH’s SOPS. It does not involve the determination of any human rights issues. For this reason, the Tribunal has decided not to grant the AHRC Request.

PROCEDURAL DIRECTIONS

This application was lodged on 17 April 2020 and has had a complex and protracted procedural history. A procedural difficulty has arisen in relation to identifying what supports require consideration by the Tribunal as part of this review. Without doing so, the Tribunal or the parties will have no sense of what this case is about. The Tribunal has endeavoured, on a number of occasions, to ascertain from JWVH what aspects of the SOPS she would like to have considered as part of this proceeding. Those endeavours have not resulted in clarifying the supports in dispute. For an extended period now, JWVH has indicated to the Tribunal that she is unable to attend this task, unless she is provided with support by a service provider to do so.
At various times during this proceeding, JWVH lodged correspondence with the Tribunal from her treating general practitioner, Dr J, reporting that JWVH is unable to prepare for, or to participate in, this review proceeding, for instance:
(a)in Dr J’s letter dated 24 May 2021 she states that JWVH will not improve until she can undertake an appropriate treatment program; and
(b)in Dr J’s letter dated 5 October 2021 she explains that JWVH had been attempting to facilitate an inpatient admission to address JWVH’s complex mental health needs but had been unable to find a psychiatrist who is willing to oversee her inpatient treatment. Dr J states in her report as follows:
For [JWVH] to get closer to being ready to negotiate with the NDIA as part of the AAT appeal process, it requires [JWVH] to finally be linked in with appropriate mental health services, as well as an independent NDIS support planning service, as she has significant trauma from the previous plan development for herself and [JWVH’s son] by the NDIA as described above.
This application was listed for a Directions Hearing before the Tribunal on 13 January 2021. The Tribunal (differently constituted) heard from the parties and directed, among other things, that on or before 3 February 2021 JWVH must lodge a list of supports being requested by her and a bundle of relevant documents pertaining to this review application. The Tribunal also referred this matter to Registry to be listed for a Case Conference.
JWVH did not comply with the Tribunal’s direction to lodge a list of requested supports and bundle of relevant documents. On 22 February 2021 and 4 March 2021, JWVH informed the Tribunal that she was awaiting admission to hospital, and that she would like this matter placed on hold, explaining that she would not be able to comply with the Tribunal’s directions. The Case Conference was vacated.
On 20 May 2021 the Tribunal sought an indication from JWVH as to whether she was ready to proceed. The Tribunal suggested that JWVH provide an approximate timeframe and that the Tribunal would follow up with her at that nominated time. On 27 May 2021 JWVH replied to the Tribunal, indicating her mental health was still quite poor and explaining that she had been rejected for admission at all in-patient private facilities. JWVH indicated that she was finding the process overwhelming.
On 9 August 2021, JWVH contacted the Tribunal, and it was agreed with JWVH that this application would be listed for a Directions Hearing in two months.
This led to a further Directions Hearing by telephone before the Tribunal, as currently constituted, on 11 October 2021. The Tribunal enquired of JWVH whether she had prepared the list of requested supports. JWVH asked the Tribunal whether she could be assisted to find a “service provider of last resort”. The Tribunal enquired of the NDIA’s legal representative present at this hearing whether the NDIA would be able to provide JWVH with assistance to find a “service provider of last resort”. The NDIA’s legal representative said she would seek instructions from the NDIA. This matter was adjourned for a period of ten days to provide an opportunity for that to take place and was relisted for a Directions Hearing before the Tribunal, as presently constituted, on 21 October 2021.
On 18 October 2021, the NDIA’s legal representatives wrote to the Tribunal and JWVH advising that the NDIA “typically recommends that applicants receive support from legal aid or a disability advocate”. The NDIA’s legal representatives considered it would be beneficial to provide JWVH with a list of advocates, and JWVH could search for an advocate by following the link provided to the disability advocacy finder website established by the Department of Social Services.[2]
[2] Refer to: >
On 20 October 2021, the Tribunal received lengthy correspondence from JWVH addressing a range of matters and highlighting the psychological distress that she was in, stating that she was “emotionally exhausted and struggling to cope with daily living”. The Tribunal was also informed that no “service provider of last resort” had been engaged by JWVH.
On 20 October 2021, the Registry of the Tribunal wrote to the NDIA and relayed a request by the Tribunal that the NDIA make telephone contact with JWVH to provide her with active assistance. The NDIA replied on the same day stating that a representative of the NDIA had made contact with JWVH on 20 October 2021. In a follow up email dated 20 October 2021 sent by the NDIA to JWVH, the NDIA representative states that an NDIA planning team had advised that:
…Melbourne City Mission have supported participants with complex circumstances and interfaces across multiple mainstream systems. Please let me know if you would like the NDIA to send MCM a Request for Service or whether you would like assistance to link with a different support coordination provider.
NDIS Specialist Support Coordination Provider | Melbourne City Mission (mcm.org.au)
During our conversation you raised challenges in support coordinators understanding the AAT process. In our experience most support coordinators have limited involvement and experience with AAT proceedings and applicants are generally supported by legal aid and or disability advocates. As we discussed, it may be beneficial to be linked with a support coordinator initially to assist with the draft plan and then assist you to connect with disability advocate you are comfortable with for the AAT proceedings.
>
In response to JWVH’s email on 20 October 2021, and out of concern for JWVH’s mental health, the Tribunal agreed to adjourn the Directions Hearing on 21 October 2021 until 20 January 2022, to allow a further lengthy period of three months for JWVH to take the steps to engage a service provider, support coordinator and/or disability advocate or lawyer (whether through the NDIS Appeals program delivered by the Department of Social Services or otherwise), to assist her to compile a list of requested supports, and to take whatever steps were appropriate, as had been recommended by Dr J, to seek to improve her mental health.
The Tribunal received further correspondence from the parties leading up to the Directions Hearing scheduled to take place on 20 January 2022. Notably, JWVH lodged a further letter by Dr J dated 17 January 2022, opining that JWVH’s mental health will not improve to the point where she will be able to participate in the NDIS planning process, and that JWVH will require significant support for this to progress. Dr J states in her letter that JWVH would benefit from being put in touch with an experienced NDIS service provider who is able to cope with the psychosocial complexities of her situation. Dr J also states that unfortunately JWVH had not been able to find such a provider despite trying many different avenues.
JWVH considers that she is not capable of identifying the requested supports unless she has engaged a service provider who is able to assist her with this process. As set out above in paragraph [23], the NDIA provided JWVH with details of a service provider, Melbourne City Mission (MCM), who may have been able to assist her. JWVH explained to the Tribunal on 20 January 2022 that she had contacted MCM, but that this service provider did not agree to assist her. JWVH was also provided with links to disability advocates and lawyers. The Tribunal will include a Direction in the attached Annexure A requiring the NDIA to provide details to JWVH of some further options for prospective support coordinators or service providers who may be able to assist JWVH.
The Tribunal considers that it is possible that the difficulty being experienced by JWVH in engaging service providers lies not in her being able to identify prospective service providers, but instead, in what transpires once initial contact is made. JWVH explained to the Tribunal at the Directions Hearing on 20 January 2022 that her conditions of borderline personality disorder and complex post-traumatic stress disorder can cause her to become aggressive. It is possible that the NDIA may have options available to it, of which the Tribunal is unaware, to assist participants in these complex circumstances. The Tribunal encourages the NDIA to actively consider ways in which the agency might be able to assist JWVH.
Otherwise, the Tribunal can only suggest that JWVH ask her general practitioner, Dr J, whether she would be prepared to assist JWVH with those initial discussions with prospective service providers until the engagement of their services has been achieved. Ultimately, these are matters for JWVH to seek to resolve. The Tribunal’s task is to undertake merits review, and as sympathetic the Tribunal is to JWVH’s plight, its function does not extend to assisting NDIS participants to engage services providers under their NDIS plans.
The Tribunal observes that JWVH has prepared a 209-page document and JWVH’s Letter, comprising a further 11-page letter, both sent to the Tribunal by email on 20 January 2022, (referred to collectively as JWVH’s Submissions), comprising complex submissions and other matters including the AHRC Request. The Tribunal considers that the act of JWVH preparing the JWVH’s Submissions demonstrates that she is capable of extensively documenting her thoughts and requests. Importantly, the Tribunal considers that the complexity of the matters addressed by JWVH in her extensive submissions, far exceeds the complexity of the task being requested of JWVH to prepare a list of requested supports, likely to comprise one or two pages. The act of JWVH preparing JWVH’s Submissions also appears to be inconsistent with the medical opinion expressed by Dr J on 17 January 2022 about JWVH’s purported incapacity to participate in proceedings, and JWVH’s assertion that she is unable to independently prepare a list of requested supports.
However, in an endeavour to assist the parties to move past this sticking point, so this matter may progress, the Tribunal will issue the Directions as set out in Annexure A, establishing an alternative process to identify the supports in dispute. If the Tribunal does not ultimately receive an indication from JWVH, or by some other person on her behalf, for instance, Dr J, about the supports JWVH would like considered as part of this proceeding, the Tribunal will proceed to identify for itself the supports in dispute based upon the information presently before the Tribunal.
The Tribunal has a statutory obligation under the AAT Act to deal with applications before it in a timely manner. The Tribunal’s statutory objectives are set out in s 2A of the AAT Act. This provision requires the Tribunal (among other things) in carrying out its functions to provide a mechanism of review that is, “fair, just, economical, informal, and quick”. The objectives under s 2A of the AAT Act also require the mechanism of review to be “accessible”. Further, subsection 33(1)(b) of the AAT Act requires a proceeding before the Tribunal to be “conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and every other relevant enactment and a proper consideration of the matters before the Tribunal permit”. The Tribunal acknowledges that JWVH has expressed that she is feeling overwhelmed by the process. However, this application has been before the Tribunal for over 19 months. The Tribunal has allowed a number of lengthy adjournments over the course of this proceeding, providing JWVH with ample opportunity to prepare a list of requested supports or to obtain assistance to do so.
Despite the lengthy adjournments, it would appear to the Tribunal that the position of the parties and the progress of this proceeding has not changed since at least January 2021. There is still no list before the Tribunal of requested supports. The Tribunal does not consider that the answer lies in providing JWVH with another lengthy adjournment so that she can continue her search to find assistance from a service provider, disability advocate and/or lawyer under the NDIS appeals process or otherwise, or for her to seek further treatment in relation to her mental health.

The Tribunal notes that following the approval of JWVH’s SOPS and plan dated 13 September 2019, JWVH prepared a written List of NDIS Plan Goals in October 2019.[3] The Tribunal also has before it a written transcript of a lengthy conversation that took place between an NDIA planner and JWVH on 28 October 2019.[4] These documents refer to different supports being requested by JWVH at the time. The Tribunal will refer to these two documents as the October 2019 Documents. Further, an “interaction note” of an interaction between JWVH and a representative of the NDIA on 25 March 2020,[5] and the Internal Review Decision,[6] both refer to certain supports not in JWVH’s current SOPS, specifically, transport funding, short term accommodation (STA) for 21 days, and a request for additional 25 hours per week for Level 2 high intensity support worker. JWVH’s Submissions refer, again, to transport funding. These documents may be used as a starting point from which the NDIA can provide a Draft List of Supports in Dispute, following which JWVH will be provided with ample opportunity to make any changes or additions to the list to create a List of Supports in Dispute, in accordance with the Tribunal’s Directions in Annexure A to this Decision.
[3] Refer T-Documents TI(C). The T-Documents are a set of documents lodged by the NDIA pursuant to its obligations under s 37 of the AAT Act.
[4] Refer Audi Transcript dated 28 October 2019 lodged with the Tribunal by JWVH on 17 April 2020.
[5] Refer T-Documents T6
[6] Refer T-Documents T2
As this case proceeds to a substantive hearing, it is critical that both parties understand the scope of the review so they can each properly prepare for the hearing and to ensure procedural fairness. With this in mind, the Tribunal foreshadows that it will make an order under subsection 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) (Section 25(4A) Order) after it receives the List of Supports in Dispute from JWVH. If JWVH does not produce this document in compliance with Direction 3 of Annexure A to this Decision, the Tribunal will base the foreshadowed Section 25(4A) Order on its own assessment of the supports in dispute, based on the documents before it, including a consideration of the Draft List of Supports in Dispute provided by the NDIA.
The Tribunal has timetabled this application for a substantive hearing to take place on 26 May 2022 in accordance with the Directions in Annexure A to these Reasons for Decision.

I certify that the preceding 35 (thirty-five paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

......................[Sgd]..........................

Associate

Dated: 25 January 2022

Date of interlocutory hearing:	20 January 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Peta Heffernan
Solicitors for the Respondent:	Australian Government Solicitors

ANNEXURE A

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/2296
National Disability Insurance Scheme Division	)

Re: JWVH
Applicant

And: National Disability Insurance Agency
Respondent

DIRECTION

TRIBUNAL:	Member K. Parker
DATE:	25 January 2022
PLACE:	Melbourne

For the reasons set out in the Reasons for Decisions dated 25 January 2022, the Tribunal DIRECTS that:

on or before 27 January 2022, the NDIA must provide details to JWVH of some further options for prospective support coordinators or service providers, who may be able to assist JWVH to prepare a list of the supports that she would like included in her SOPS to assist her to comply with Direction 3 below, to the extent that JWVH requires assistance;
on or before 1 February 2022, the NDIA’s legal representative must lodge with the Tribunal and give to JWVH, a Draft List of Supports in Dispute which is to include the following supports: (a) transport funding; (b) short term accommodation; and (c) increased services from a support worker; and any other supports referred to by either JWVH, or the planner (which are not already included in JWVH’s SOPS dated 17 November 2020), following a comprehensive review by the NDIA of the October 2019 Documents, JWVH’s Submissions, Internal Review Decision and 25 March 2020 interaction notes (as referred to in paragraph [33] of the Reasons for Decision). To the extent possible, the type and level of support is to be particularised. If they cannot be particularised, the Tribunal will accept a bare reference to the type of support in dispute;
on or before 23 February 2022, JWVH must inform the Tribunal in writing whether she agrees with the Draft List of Supports in Dispute or if she wants to make changes to it; and if so, JWVH must lodge with the Tribunal and give to the NDIA her adjusted List of Supports in Dispute. JWVH may wish to ask her general practitioner, Dr J, to help her attend to this task or Bethany Whitters, a support coordinator. JWVH informed the Tribunal on 20 January 2022 that she still spoke to Ms Whitters over the telephone;
the Tribunal foreshadows that on or before 28 February 2022, it will make an order under s 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) (Section 25(4A) Order) after it receives the List of Supports in Dispute from JWVH. If JWVH does not produce this document in compliance with Direction 3 above, the Tribunal will base the foreshadowed Section 25(4A) Order on its own assessment of the supports in dispute based on the documents before it, including a consideration of the Draft List of Supports in Dispute provided by the NDIA in accordance with Direction 2 above;

on or before 30 March 2022, the NDIA must lodge with the Tribunal and give to JWVH its Statement of Facts, Issues and Contentions in relation to the supports referred to in the Section 25(4A) Order, once made;
on or before 27 April 2022, JWVH must lodge with the Tribunal and give to the NDIA her Statement of Facts, Issues and Contentions in relation to the supports referred to in the Section 25(4A) Order, once made. If JWVH is unable to comply with this direction, the Tribunal will proceed with this case on the basis of all documentary evidence lodged with the Tribunal including JWVH’s Submissions lodged on 20 January 2022 and any further evidence or submissions lodged by the NDIA; and
the Tribunal will refer this application to the Registry to be listed for a one-day substantive hearing on 26 May 2022. The hearing is to take place by video conference. If JWVH would prefer a telephone hearing, the Tribunal will accommodate any request to this effect.

…………[SGD]………………………
Member K. Parker

NOTES TO DIRECTION

The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.

If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.

If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.