KCBW and National Disability Insurance Agency

[2022] AATA 629

KCBW and National Disability Insurance Agency [2022] AATA 629 (1 April 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/6448

Re:KCBW

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K. Parker

Date of Interlocutory Decision:           1 April 2022

Date of Reasons for Interlocutory Decision:           1 April 2022

Place:Melbourne

The Applicant’s recusal application is refused. Senior Member K. Parker has decided not to recuse herself and proceeds to hear and decide this application for review.

..................[sgd]............................................
Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – recusal application – National Disability Insurance Scheme – adult participant – no actual or apprehended bias – recusal application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

AJH Layers v Careri (2011) 34 VR 236
Clenae v ANZ Banking Group [1999] 2 VR 573
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gascor v Ellicott [1997] 1 VR 332
Hodgson v County Court of Victoria [2004] VSC 501
Honda Australia Motorcycle v Johnstone [2005] VSC 387
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re JRL; Ex parte CJL (1986) 161 CLR 342
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Webb & Hay v R (1994) 181 CLR 41

REASONS FOR INTERLOCUTORY DECISION

Senior Member K. Parker

1 April 2022

BACKGROUND

1. The Applicant, KCBW, is a 30-year adult participant of the National Disability Insurance Scheme (NDIS) who has been diagnosed with complex mental health and physical medical conditions including (but not limited to) complex post-traumatic stress disorder, unspecified psychosocial disorders, acquired brain injury, anxiety, depression, and fibromyalgia. KCBW describes herself as having 20 disabilities.[1]

   [1] Refer KCBW’s email addressed to certain Senators dated 6 January 2022 which was sent to the Registry of this Tribunal.

2. On 10 December 2021, the Tribunal, differently constituted by a male Member of the Tribunal, decided that the Tribunal had jurisdiction to hear this matter. KCBW requested that a female Member of the Tribunal hear this case. This request was accommodated, and the matter was reconstituted to me, a female Member of the Tribunal.

3. KCBW is seeking that certain supports (Requested Supports), including those listed below, be added to her statement of participant supports (SOPS):

   (a)medium term accommodation (MTA);

   (b)supported independent living supports (SILS);

   (c)funding to pay for removalists;

   (d)specialist disability accommodation (SDA); and

   (e)a relocatable home.

4. Funding is presently available in KCBW’s SOPS which may be used for short term accommodation.

5. KCBW also requests that “restricted access” settings be applied in relation to her file and information held by the NDIA. This is not a matter that forms part of a SOPS and instead, is an administrative matter that KCBW should pursue directly with the NDIA. It is not an issue that will form part of this review as the role of the Tribunal in this application is to review the matters contained within the SOPS. It does not extend to other more general administrative settings that are employed (or not) by the NDIA.

6. I note that the Tribunal has made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and as a result, a pseudonym “KCBW” must be applied in place of KCBW’s name in any decisions to be published by this Tribunal so that she is unable to be identified.

7. On 17 December 2022, I conducted a case management directions hearing in this matter. KCBW did not attend this hearing. KCBW’s appointed disability advocate from Action for More Independence and Dignity in Accommodation (AMIDA) (Advocate) attended this directions hearing on behalf of KCBW. The Tribunal was informed at this directions hearing that KCBW was currently living in a bungalow. The Advocate confirmed that arrangements were in place for KCBW to undergo a functional assessment by an occupational therapist (OT), Ms G, to assess her needs, including her need for specialist disability accommodation (SDA), being one of the Requested Supports. The Tribunal requested that the assessment report produced by Ms G be lodged with the Tribunal and provided to the Respondent on the same day of receipt by KCBW or her representatives in order to avoid any delays.

8. At this directions hearing on 17 December 2022, the Tribunal made directions for the NDIA to lodge the Tribunal Documents (T-Documents) in this application pursuant to s 37 of the AAT Act, and to lodge a Statement of Issues to summarise the NDIA’s current position in relation to this application. I referred this matter to the Registry of the Tribunal to be listed for a further case management directions hearing before me on 28 March 2022.

9. On 20 December 2022, the NDIA lodged the T-Documents. On the same day, KCBW wrote to the Tribunal requesting that:

   (a)a final hearing in relation to her request for SDA and relocatable (or portable) home take place in five months: and

   (b)a final hearing in relation to her other Requested Supports take place immediately. KCBW stated she wanted the hearing to take place urgently and that it not wait until the end of March 2022, at which time she asserts the “NDIA will have proceeded to kick me out into full homelessness”.

10. I considered KCBW’s request and instructed Registry to inform the parties that I did not consider it appropriate to split the hearing in this application because the Tribunal must consider a common set of facts and law in relation to all of the Requested Supports and that I also wished to receive the updated OT report prior to making a decision in relation to each of the Requested Supports. To provide some comfort to KCBW that the substantive hearing in this application was not far away, I requested that Registry advise the parties that that it was my intention to schedule a substantive (final) hearing in this matter in relation to all Requested Supports at the case management directions hearing scheduled to take place on 28 March 2022.

11. On 6 January 2022, KCBW sent an email to the Tribunal which was addressed to certain Senators seeking law reform as outlined by her. In this correspondence, KCBW states that she has been “left homeless”.[2]

    [2] Refer second last paragraph of KCBW’s email dated 6 January 2022.

12. On 14 January 2022, the NDIA lodged a Statement of Issues in this matter.

13. On 20 January 2022, KCBW wrote to the Tribunal requesting her appeal in relation to the MTA and SIL be heard urgently. KCBW asserts that she was at high risk of dying of COVID-19 and that she has four autoimmune conditions. KCBW states in this email that the landlord of her MTA was proceeding to kick her out into homelessness while she was bedridden from all COVID-19 symptoms and would throw her belongings out onto the street while she is hospitalised with “Omicron”.  KCBW refers to having an OT report (see paragraph below) containing recommendations which support her “winning the appeal” and that it is not necessary for her to get a second OT report for those appeals (that is, for the MTA and SIL). She said she did not want her things thrown into the street and refers to living next door to “exiting prison housing”. KCBW also refers to having obtained a rental in Melbourne but states she would need to have a booster vaccination and could not move while she was bedridden. KCBW also has concerns about the suitability of this accommodation given her disability-related needs.

14. On 20 January 2022, KCBW lodged with the Tribunal a two-year old report by an occupational therapist, Ms W, dated 30 November 2020 following a functional assessment and an assessment of KCBW’s housing needs. At the time of the assessment, KCBW was living in a warehouse in a different State to where she lives now. In Ms W’s report, she states that KCBW had presented with the conditions referred to in paragraph [1], as well as neuropathic pain, Morton’s Metatarsalgia, vasovagal attacks, sleep maintenance disorder (insomnia), dyslexia and that she has been diagnosed with the following further conditions: chronic infections, for example, abscesses of the skin, bladder, sinus infections, chronic ear and chest infections; severe asthma, planar fasciitis, IGA nephropathy and elevated ANA (indicating autoimmune disorder), chronic obstructive pulmonary disease, manifesting as chronic bronchitis, chronic fatigue syndrome, bladder pain syndrome, scoliosis, Genu Valgum and Hoagland’s Deformity and that KCBW had reported intermittent paralysis upon walking in the morning.

15. Ms W states that KCBW had high support needs and that she had lived transiently in unstable accommodation arrangements for almost all of her life and had experienced developmental delays from birth.[3] Ms W records that KCBW had made numerous attempts to find suitable housing that allows for safe, hygienic, accessible, and quiet surroundings to meet her health and disability needs.[4]

    [3] Refer Ms W’s report at page 2.

    [4] Ibid.

16. Ms W assessed KCSB as having moderate to severe functional impairment impacting on her ability to complete self-care and self-management activities on a day-to-day basis.[5] Ms W states that medium term accommodation was required in KCBW’s next plan due “to long term at risk of homelessness and current accommodation arrangement exacerbating [KCBW’s] health and disability impairments”.[6] Ms W also states as follows:[7]

    SDA would not be deemed appropriate given [KCBW] has demonstrated the ability to live independently in community settings without 24 hour supports present or immediately available supports in relation to her registered disabilities. An SDA setting would likely de-skill and disempower [KCBW] given the significant support worker ratio’s present. [KCBW] requires greater autonomy to maintain existing functional skills whilst still having appropriate flexible supports in place for periods when there is exacerbation of her impairments.

    [5] Ibid at paragraph [9.1.2].

    [6] Ibid at paragraph [9.1.3].

    [7] Ibid at paragraph [9.1.3(c)].

17. On 20 January 2022, KCBW also lodged with the Tribunal:

    (a)a health summary issued on 21 November 2019 by Dr A listing her various conditions, medications, and other medical information about KCBW; and

    (b)a letter by Dr M dated 16 March 2020 stating that KCBW had complex medical condition and that she was on the waiting list to see an immunologist to be assessed for autoimmunity condition.

18. On 28 February 2022, KCBW resent a statement to the Tribunal entitled “Statement AAT hearing 10.12.2021” and requested that the Tribunal redraft this statement for her. KCBW also advised she was too sick to engage with the OT and would only do so once she was settled into stable accommodation.

19. On 2 March 2022, KCBW wrote to the Tribunal and requested to have a different female Member of the Tribunal allocated to managing her appeal. She also requested that a liaison officer work on summarising her previous statement and email, into a summary that the Member could understand. She indicated that she did not want any more case management directions hearings as she considered them a “waste of time” and that she wanted the application to go straight to a final hearing on the date set in March (that is, 28 March 2022). KCBW states in this email that she was too sick to engage with an OT and would obtain a doctor’s letter in support of that assertion. She said she wanted the SDA and relocatable home appeal dealt with a later time after she obtained an updated OT assessment.

20. On 3 March 2022, KCBW emailed the Tribunal again to say that she did not want any further case management hearings, and instead, only final hearings.

21. I did not grant KCBW’s repeated requests for this application to be split over two separate hearings, or to conduct a final hearing on 28 March 2022 in relation to her request for MTA and for SILS.

22. On 9 March 2022, KCBW sent three emails to the Tribunal. In those emails, KCBW foreshadows that she will move interstate to get “a more sensible AAT member”. KCBW asserts that:

    (a)I am colluding with the abuse of the NDIA by dragging out hearings, while disabled persons suffered immensely;

    (b)I have not listened to her or done the right things by the severities of her disabilities;

    (c)I have summarised the NDIS’s concerns and issues well, and had not summarised any issues raised in her statement to the AAT;

    (d)I have ignored the evidence that she has support for the MTA and SIL funding by the OT’s report and doctor’s report;

    (e)I have made an assumption that KCBW has a bungalow to move into (which is actually a shed or garage) and has somewhere to go;

    (f)KCBW is too unwell to engage in the AAT hearing process and to get updated OT assessments; and

    (g)I have “zero understanding” of her situation.

23. KCBW raises her concerns in those emails on 9 March 2022 that I had not agreed to a split hearing and had refused to go straight to a final hearing (in relation to the MTA and SILS) or to change her pseudonym. KCBW states she wants a different female Member who is willing to agree to those things.

24. In an email dated 10 March 2022, KCBW states, again, that she wants a different Member who would agree to two separate hearings. KCBW also states that she was too unwell to get an updated OT assessment and that she needed the first hearing to get some stable housing to improve her health, so she could then engage with an OT.

25. On 16 March 2022, the NDIA wrote to KCBW to provide her with details of the following services targeting issues of homelessness: Wombat Housing Support Services, Victorian Government Housing Support, Launch Housing and Vincent Care Access Point.

26. Subsequently, KCBW and the Advocate responded in writing explaining KCBW had made the numerous attempts to find suitable housing but that those attempts were unsuccessful due to KCBW’s specific requirements which reportedly were not met by any of those service offerings. KCBW has leased the unit near the existing prison housing (Unit), and also now a stand-alone garage of the residential house in Melbourne (Garage), but KCBW considers the Unit to be uninhabitable in relation to her needs due to mould and other issues (water damage) and that the Garage requires modification before it can be lived in. KCBW also states that there is no temperature insulation and the dogs living in the main house to which the Garage is attached, may bark, and disturb her sleep.

27. At the recusal hearing on 28 March 2022, KCBW told the Tribunal that she had moved her belongings into the Melbourne rental.

28. At the case management directions hearing on 28 March 2022, KCBW told the Tribunal that she is sleeping in a tent at the moment, but she did not wish to divulge where the tent was located for personal security reasons.

    NDIA’S POSITION

29. The NDIA’s legal representative informed the Tribunal that she was not instructed to lodge any written submissions with the Tribunal in relation to the recusal application on the basis that she considered the issue to be a matter for the Tribunal. No substantive oral submissions were made by the NDIA at the recusal hearing.

    GENERAL PRINCIPLES

30. In deciding this application, I must consider whether KCBW has established that there is actual or apprehended bias on my part in hearing her application for review.

31. Dealing first with actual bias, it would not be appropriate for me to hear this case if it was established that I am biased against KCBW and/or in favour of the NDIA.[8] Findings of actual bias are not made lightly and the party making an assertion of actual bias, in this KCBW, carries a heavy onus and such an allegation must be “distinctly made and clearly proven”.[9]  I would only disqualify myself for actual bias is KCBW is able to establish that I am so committed to a particular outcome in this case, that I will not alter that outcome, regardless of what evidence or arguments are presented.[10]

    [8] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

    [9] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 at [69] (Gleeson CJ and Gummow J), 546 at [127] (Kirby J); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 123.

    [10] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 91, 100; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123, 127.

32. Dealing with apprehended bias, I must consider whether I am satisfied that a “fair-minded lay observer” might reasonably apprehend that I might not bring an “impartial and unprejudiced mind” to the matters that I am required to decide.[11] A real, rather than remote, possibility of bias must be established, and a party is not required to establish that it is likely that the decision-make would not bring an impartial mind to the matters to be decided.[12] It is insufficient for a bare assertion that a person has an interest in the outcome of a case to establish apprehended bias. They must identify the cause and the appearance of partiality and the apprehension of bias must be reasonable.[13] Fanciful or unreasonable apprehensions of bias are insufficient.[14]

    [11] Johnson v Johnson (2000) 201 CLR 488, 492 at [11]; Webb v The Queen (1994) 181 CLR 41, 88.

    [12] Ibid; Gascor v Ellicott [1997] 1 VR 332, 342; Hodgson v County Court of Victoria [2004] VSC 501 at [35]; AJH Layers v Careri (2011) 34 VR 236 at [20]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

    [13] AJH Layers v Careri (2011) 34 VR 236, [47]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

    [14] Gascor v Ellicott [1997] 1 VR 332, 342.

33. The obligation I have to disqualify myself where I am satisfied of apprehended bias on my part, is matched by the obligation I have to hear all cases where I am not disqualified from doing so. I must not disqualify myself without good cause, too readily or lightly or allow a party to dictate who shall preside over the case.[15] KCBW is required to positively satisfy me that the test for apprehend bias is established. Where there is doubt, I should err in favour of disqualification so as to give effect to the principle that justice must be seen to be done.[16]

    [15] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

    [16] Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35, 585 [35], 591-592 [55].

    CONSIDERATION

34. Returning to the circumstances of this particular case, the Tribunal considers that the above statements made by KCBW in her correspondence (including her emails sent on 9 March 2022), or her oral submissions made at the recusal hearing, do not disclose any reason or any evidence supporting a finding of actual or apprehended bias on my part in relation to her application for review. The Tribunal has no personal connection whatsoever with any of the parties to this proceeding or their representatives. Nor has there been any suggestion by any party (or their representatives) to this application that I have a general propensity to make decisions in favour of the NDIA and against NDIA participants, in other applications for review before the NDIS Division of this Tribunal.

35. The decisions I have made in relation to the whether the hearing of this application should be split into separate hearings for the different sets of Requested Supports, or the refusal by me to immediately hear KCBW’s application in relation to her requests for MTA and SILS, do not demonstrate any actual or apprehended bias by me. They constitute the exercise of the Tribunal discretion in relation to procedural questions as a necessary part of case managing an application for review proceeding before the Tribunal. KCBW disagrees and is dissatisfied with the manner in which I have exercised my discretion, because it does accord with the manner in which KCBW considers is best that this application should proceed. This does not, however, establish any actual or apprehended bias. It merely constitutes a procedural decision which KCBW in unhappy about because it differs from the outcome she is seeking.

1. The Tribunal considers that any further concerns raised by KCBW in her written or oral submissions do not reveal any basis or bases upon which to conclude that there was actual or apprehended bias on my part. I will deal with each of her specific concerns below:

2. In relation to KCBW’s assertion that I am colluding with the abuse of the NDIA by dragging out hearings, while disabled persons suffered immensely, there is no evidence before me that I am colluding with the NDIA. Further, the history of the matter before the Tribunal is not suggestive that it is being dragged out by me. This matter is being proactively case managed by me and I have advised the parties previously that this application is due to be timetabled through to a final hearing, except that it became necessary to consider first KCBW’s recusal application.

3. In relation to KCBW’s assertion that I have not listened to her or done the right things by the severities of her disabilities. There is no specific evidence before the Tribunal to support such a finding. Instead, this matter was listed before me so I could hear from the parties. At the first case management directions hearing, KCBW did not attend. Prior to that hearing and to the hearing which follows, I familiarised myself with the documents lodged in this matter and I asked questions of the Advocate at the first hearing and of the Advocate and KCBW at the second hearing. This assertion is not made out.

4. In relation to KCBW’s assertion that I have summarised the NDIS’s concerns and issues well and had not summarised any issues raised in her statement to the AAT. The final decision and reasons for decision in this matter have not yet been made. After the first directions, I issued a very brief written direction intended to capture the outcome of the first direction hearing. For this reason, KCBW’s assertion is not made out before there has been no proper opportunity to substantively summarise the issues or indeed, the evidence, in this matter.

5. In relation to KCBW’s assertion that I have “zero understanding” of her situation, and I have ignored the evidence that she has support for the MTA and SIL funding by the OT’s report and doctor’s report, I have not ignored this evidence. I have considered it but have formed a preliminary view that I would assisted in my decision-making to receive an updated OT’s report given that the OT report presently before the Tribunal is two years old and was based on an assessment carried out while KCBW was living in a different State. I was informed at the first case management directions hearing that arrangements were made for an updated OT assessment to be carried out. I have made a procedural decision that it is appropriate to conduct a substantive hearing in relation to all Requested Supports at which all such evidence will be fully considered. My decision in this regard and specifically, not to split the hearing, does not amount to actual or apprehended bias on my part.

6. In relation to KCBW’s assertion that I have made an assumption that KCBW has a bungalow to move into, which is actually a shed or garage, and has somewhere to go, I was informed at the first case management hearing that this was the case in relation to KCBW’s living arrangements at that time. KCBW informed me at the second directions hearing that she is now living in a tent but would not say where. I have made my procedural decisions about whether to grant KCBW’s requests for a split hearing and for the first to take place straight away, bearing in mind that KCBW has access to two properties, the Unit and the Garage, but lives in the tent because she does not regard the other properties as meeting her needs. The case management of this matter by me will ensure that it proceeds to a substantive hearing without any delays.

7. In relation to KCBW’s assertion that she is too unwell to engage in the AAT hearing process and to get updated OT assessments, this is does not disclose any indication of apprehended or actual bias on my part.

8. For those reasons and after taking in account the assertions of KCBW as dealt with in the above paragraphs, the Tribunal is not satisfied that there is any proper basis upon which I should recuse myself because no actual or apprehended bias in favour of one party over the other, has been established by the matters raised by KCBW in support of the Recusal Application.

   CONCLUSION

9. Accordingly, I am not satisfied that KCBW has made out a case of either actual or apprehended bias on my part for the reasons set out above. I do not consider there to be any doubt in this regard. I have decided not to recuse myself and will proceed to hear and decide upon this application for review.

10. The next step in this proceeding will be a case management directions hearing to take place on 31 March 2022 at 2pm, at which time this matter will be timetabled for a substantive hearing in relation to all of the Requested Supports.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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

Associate

Dated: 1 April 2022

Date of recusal hearing:	28 March 2022
Advocates for the Applicant:	Litigant in person, assisted by disability advocate from AMIDA
Solicitors for the Respondent:	Ms Peta Heffernan, Australian Government Solicitors