Kakakios and National Disability Insurance Agency

[2024] AATA 216

Kakakios and National Disability Insurance Agency [2024] AATA 216 (14 February 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/5887

Re:Maria   Kakakios

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P. Hunter

Date:14 February 2024

Place:Sydney

The application for an order staying the decision of the Respondent pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.

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

Member P. Hunter

Catchwords

PRACTICE AND PROCEDURE – stay application – whether staying the proceedings would assist –utility in granting order - ultra vires – inconsistent with Tribunal objectives – not in the interest of the party – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 2B, 18B, 41(2), 33(1AB)

National Disability Insurance Scheme Act 2013 (Cth) ss 100(6), 103

REASONS FOR DECISION

14 February 2024

INTRODUCTION

1. The Applicant is a 66 year old woman who has made a request to become a participant in the National Disability Insurance Scheme (the NDIS) administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). On 2 March 2022, a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) decided that the Applicant did not meet the access criteria. The Applicant sought an internal review and on 21 June 2022, a decision was made under section 100 of the NDIS Act, confirming the decision to refuse her access request (the Internal Review decision).

2. On 19 July 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision. This review is ongoing before the Tribunal.

3. The Applicant is represented in the review application by her daughter. Pending the determination of the review application, an application was made by the Applicant’s representative for an order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975(Cth) (AAT Act) to simultaneously stay the decision of the Respondent, and request the Tribunal impose an order on the Respondent to grant the Applicant temporary, conditional access to the NDIS (interlocutory application).

4. The interlocutory application was listed for hearing before the Tribunal on 8 February 2024.

   Submissions

5. It was submitted on behalf of the Applicant at hearing that the Applicant was unable to access a number of support packages such as Short Term Restorative Care Programme (STRC), Community Packages (ComPacks), Safe and Supported at Home (SASH), Transitional Care or Older Persons Mental Health Services (OPMH), pending the outcome of the substantive review application. For this reason, conditional access to the NDIS was sought. It was argued that the Respondent and the Tribunal would not be prejudiced in any way, as there would still be a hearing in the matter, and it would be consistent with the objectives of the Act as the Applicant would still be supported pending the outcome of the review application. It was argued that the Applicant’s health was deteriorating and that she did not have the support that she needed. The Applicant believed that the Tribunal had the discretionary power to act if it wanted,  or, in the alternative, the matter should be referred to the President of the Tribunal to grant this power, if he were willing to make an exception, having regard to the particular circumstances of the Applicant.

6. A lengthy written submission was also filed by the representative of the Applicant. This was not received  by the Tribunal until after the hearing had commenced, and was not before the Tribunal when it began hearing arguments from the parties.

7. The Respondent in their submissions opposed the application. The Respondent argued that there was no power for the Tribunal to grant the Applicant interim access to the NDIS under the NDIS Act. The Respondent further argued that the decision of the Respondent was not preventing the Applicant from accessing other services, stating that she was free to access whatever services she needed. The Applicant was electing not to receive other services pending the outcome of the review application.

   CONSIDERATION

8. Section 41(2) of the AAT Act provides that:

   (2)  The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

9. The relative decision is that the Applicant does not meet the criteria to access the NDIS. If this decision were stayed or temporarily halted from implementation, it is of no utility to the Applicant. Staying the decision is a separate matter to implementing a new decision, and stay order of the Tribunal does not have the effect of granting access to the NDIS for the Applicant. A stay would not have any operative benefit in assisting the Applicant to access the NDIS.  

10. The Tribunal is granted the power to review the decisions of the Respondent under s 103 of the NDIS Act. This is limited to a review of a decision made by the reviewer of the Respondent pursuant to s 100(6) of the NDIS Act, which includes access to the scheme and a decision that relates to a statement of participants supports in a participant’s plan.

11. The reason advanced for the Applicant to seek a stay is so that a separate interim decision can be made. However, there is no provision in the NDIS Act for a person to be granted interim access to the NDIS. This is not a decision that the Respondent can make. Consequently, it is not a decision that the Tribunal could review or substitute as an operative decision. Were the Tribunal to make such an order granting access to the Applicant, it would be acting ultra vires, or beyond its power and outside the legislation.

12. The ability of the President to give written directions under s 18B of the AAT Act, does not extend to granting the President a power to unilaterally re-write legislation, with retroactive applicability, so that the discretionary orders being requested by the Applicant can be granted. That is a matter for the Parliament to address, and in this respect the application is misguided.

13. Furthermore, the Tribunal does not consider that it is desirable in the interest of the Applicant, the person affected by the review, and on the evidence provided, that a general stay be ordered, and the matter temporarily halted from progressing. If there are health and safety concerns for the Applicant, and she is not accessing other available services pending the outcome of the review application, it is in her interest that these proceedings be resolved as expeditiously as possible. A stay is not compatible with the objectives of the Tribunal pursuant to s 2A of the AAT Act, particularly in providing a mechanism of review that is quick and promotes public trust in the decision-making of the Tribunal. The reasons advanced by the Applicant for a stay order are arguably reasons why the matter should proceed to a final determination as quickly as possible. In this regard, the AAT Act in s 33(1AB) also imposes on the parties, and their representatives in proceedings before the Tribunal, an obligation to use their best endeavours to assist the Tribunal to fulfil its objective(s) in s 2A. To achieve this, the parties are expected to assist the Tribunal to progress the matter quickly, and timely compliance with directions and the provision of evidence without delay is essential.

14. For these reasons the Applicant’s application is refused.

    DECISION

15. The application for an order staying the decision of the Respondent pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.

16.                 I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Member P Hunter

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

Associate

Dated: 14 February 2024

Date of hearing:

Date of reasons

8 February 2024

14 February 2024

Applicant

Jennifer Kakakios

Solicitor for the Respondent

Ms Meenal Selvaratnam, Makinson D’apice Lawyers