KGWD and National Disability Insurance Agency
[2024] AATA 430
•15 March 2024
KGWD and National Disability Insurance Agency [2024] AATA 430 (15 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1480, 2023/0461
Re:KGWD
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member D Connolly
Date:15 March 2024
Place:Sydney
The internal review decision of 25 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:
- the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 24 September 2021, the commencement of Plan A:
(i)Level 2 transport support at the higher rate, per year.
- The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date).
- All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.
- The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.
....................[SGD]....................................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant has autism spectrum disorder (Level 2), a severe intellectual disability, joint hypermobility syndrome, persistent vocal tic disorder and Attention Deficit Hyperactivity Disorder (ADHD) - reasonable and necessary supports – whether transport support should be included in the Applicant’s plan or in his mother’s plan – whether the Tribunal has jurisdiction to order the Respondent to reimburse or backpay the Applicant for past transport supports – decision remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Hill and National Disability Insurance Agency [2023] AATA 3626XXWC by his mother and National Disability Insurance Agency [2020] AATA 923
SECONDARY MATERIALS
The National Disability Insurance Scheme – Operational Guidelines –
Planning, (web page)Including Specific Types of Supports in Plans Operational Guideline - Transport (web page)
REASONS FOR DECISION
Senior Member D Connolly
BACKGROUND TO REVIEW
The Applicant is aged 12 and has been diagnosed with autism spectrum disorder (Level 2), a severe intellectual disability, joint hypermobility disorder, persistent vocal tic disorder and attention deficit hyperactivity disorder. He became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of the impairments associated with these conditions.
The Applicant lives with his mother, KGCW, and two of his siblings, MVGS and SMYG, in regional New South Wales. He is home-schooled. He has an older adult sister, who no longer lives with the Applicant’s mother. The Applicant’s mother and siblings also have disabilities and are NDIS participants.
The National Disability Insurance Agency (the Respondent or the Agency) has approved plans, the subject of these reviews, as follows:
(a)Plan A, approved on 24 September 2021, for the period to 24 September 2022 (total funding $59,616.41);[1]
(b)Plan B, approved on 21 September 2022, for the period to 20 September 2024 (total funding $221,517.79);[2]
(c)Plan C, which varied Plan B, approved on 18 November 2022, for the period to 17 November 2024 (total funding $223,661.89).[3]
[1] 2023/0461 T21, NDIS Plan, p 124.
[2] 2023/0461 T22, NDIS Plan, p 138.
[3] 2023/0461 T23, NDIS Plan, p 152.
None of the plans included funding for transport supports.
On behalf of the Applicant, the Applicant’s mother sought internal review of the Plan A decision, seeking various additional supports. On 25 January 2022 the internal reviewer confirmed the original decision.
The Applicant’s mother also sought internal review of the Plan B decision, seeking various additional supports. On 18 November 2022 the internal reviewer varied the original decision resulting in Plan C.
On 22 February 2022 and 24 January 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewers’ decisions.[4]
[4] 2022/1480 T1, AAT Application for Review of Decision, p 1. and 2023/0461 T1, AAT Application for Review of Decision, p 1.
The hearing was conducted by videoconference and telephone on 6 December 2023. The Applicant was represented in relation to the review by his mother.
ISSUES IN DISPUTE
The Respondent set out in its statement of facts, issues and contentions that the two issues in dispute relate to whether transport support for the Applicant, which was agreed on in principle, should be included in his or his mother’s plan; and, whether the Tribunal has the power to direct the Agency reimburse transport supports for the periods of Plans A, B and C during which the Applicant was not being funded for transport supports.[5]
[5] Respondent's statement of facts, issues and contentions (RSFIC), para 9 – 10.
LEGISLATIVE FRAMEWORK
A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules).
Subsection 33(2) of the NDIS Act requires that a participant’s plan must include a statement of participant supports prepared with the participant to be approved by the CEO. The statement of participant supports must specify the general supports, reasonable and necessary supports, the date by which the Agency will reassess the plan and the management of the funding.
In deciding whether to approve a statement of participant supports the Tribunal must be satisfied the supports are reasonable and necessary.[6]
[6] NDIS Act, s 33(5)(c).
Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guidelines are Planning (the Planning Guidelines) and Including Specific Types of Supports in Plans Operational Guideline - Transport (the Transport Guidelines).
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
With respect to jurisdiction, the Tribunal’s power to review decisions is relevantly addressed in paragraph 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment.
The NDIS Act is such an enactment. Section 103 of the NDIS Act provides that applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6) of the NDIS Act. Decisions that a reviewer may make under subsection 100(6) are made after a person directly affected by a reviewable decision asks the decision-maker to review that decision. Reviewable decisions are those set out in section 99 of the NDIS Act.
Relevantly, included in section 99 of the NDIS Act, as a reviewable decision, is a decision to approve the statement of participant supports, made under subsection 33(2) of the NDIS Act.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has considered the parties’ submissions, the evidence filed with the Tribunal, and the oral evidence provided at the hearing.
The Tribunal notes the statement of participant supports included in the Applicant’s Plans A, B and C did not include transport support.
At the hearing the Tribunal was informed that the Respondent had agreed funding should be provided for transport supports for the Applicant. The issues in dispute were whether the Applicant’s transport supports should be included in his plan or in his mother’s plan; and, whether the Tribunal has the power to direct the Agency to reimburse monies for transport supports for the periods of Plans A, B, and C during which the Applicant was not being funded for transport supports.[8]
[8] Transcript, p 8.
The Applicant’s mother argued that the Tribunal should consider the supports for each individual participant. She questioned whether the legislation requires that transport supports for children under 18 should be included in their parent’s plan. She submitted that each individual participant has an entitlement to have their supports included in their own plan. She raised the possibility that to put a child’s support into their parent’s plan would be age discrimination.[9]
[9] Ibid, p 9.
The Applicant’s mother told the Tribunal that she has been transporting the Applicant on a regular basis since the commencement of Plan A, to various therapy appointments. Those appointments are often not available from local providers and she and the Applicant cannot use public transport. She had been receiving transport support for the Applicant in previous plans, but it was removed in September 2021. Prior to Plan A being approved, on 14 September 2021, the planner informed the Applicant’s mother that the Applicant would be funded for transport, $2,676 (per year) for 2 years.[10] The Applicant’s mother said that the planner indicated however that she was not going to include transport support in his sister’s plan. The Applicant’s mother questioned why the Agency would do this and the result was the planner took transport support out of the Applicant’s plan.[11]
[10] Email from the planner to the Applicant’s mother dated 14 September 2021, filed by the Applicant’s mother on 18 September 2023.
[11] Transcript, pp 10 – 11.
The Applicant’s mother explained that the Applicant is home-schooled because of his disabilities and there are behavioural issues in the local schools.
The Applicant’s mother stated that the reason she is seeking back payment for transport supports is that “this has been a drawn-out process and I have – I originally applied to the Tribunal to make orders on the plans issued in September of 2021. And we are now November 2023.”[12]
[12] Ibid, p 13.
The Respondent asked the Applicant’s mother about whether she had used Uber rides or taxis to transport her children to their various therapies. She responded “I can drive. And there is nothing in the legislation that says that it is not for people to be driving themselves.”[13] She indicated that she has always driven her children, including to Sydney, except for a couple of times when she was very unwell, and she got a hire car, driven by someone else. She looked up what it would cost to have a support worker drive her to Sydney for appointments and they were charging a dollar a kilometre. It was only supposed to be 97 cents. She decided it was more reasonable to have a hire car, with a driver, because that worked out cheaper. The driver helped her in and out of the car when she was struggling. The driver waited for her, and then drove them home. They did not go anywhere else.[14]
[13] Ibid, p 14.
[14] Ibid, p 15.
The Applicant’s mother confirmed the Applicant had never travelled in a hire car, a taxi or an Uber by himself.
The Respondent asked the Applicant’s mother what practical difference it would make if the Applicant’s transport supports were included in her plan, given the payments would be made into her bank account fortnightly, as the Applicant’s plan nominee. The Applicant’s mother stated that she breaks the funding for supports down into separate sections. She separates money for each of the children’s costs. She makes sure that each of the children have their needs met. For her budgeting purposes, she needs to know whose money is for what. It also makes a difference because it is a record that transport support has been funded for the children. The Applicant’s mother was also concerned about it being misleading, for future reference, if the support is not in the individual child’s plan.[15]
[15] Ibid, p 18.
The Applicant’s mother stated that every now and then she gave private support workers a fuel card using her transport support which goes into her account. Sometimes they do not charge her for transporting her children. She gives them the card to help them because they are not charging her to drive at times when she has doubled up and cannot be in two places at once. When asked to clarify this further, she said “So if these kilometres are, you know – if there’s large amounts of kilometres, and they’re like, ‘No, no, no. It’s fine, you know.’ I – you know, sometimes I want to give them a fuel card and go, ‘Hey, go fill up your car, you know, like’ – they’re not charging the NDIS…. I just go and buy them a fuel gift card so – you know, that I can help them cover the cost of transporting my children when I’m supposed to be in two places at once and I physically can’t be.”[16]
[16] Ibid, p 19.
The Applicant’s mother explained “I have some support workers who are independent who do not charge me kilometres at all. So they duck down to the shops for me when I’m not well and get some groceries. They don’t actually charge me…. There’s a couple of them that don’t like to drive my car because they – they get anxious in case they crash it and how that’s going to affect my ability to get around. And how it’s going to affect my finances if they have a crash and, you know, that ups my premium for the next year…. So they’re driving their car, they’re not charging their kilometres or they’re taking, you know – I’ve got to be in two places. And they go, ‘That’s fine, that’s fine. We’ll take that child there.’ They don’t – the kids don’t have a transport budget. I’ve got to try and budget out these core supports to be the hours that the kids need the support. So adding in, you know, unknown kilometres at random, it doesn’t help budgeting a plan. And while the Agency thinks that my children have massive plans and massive support budget, it’s not a lot when I have to try and divide myself into two places. Or three places.”[17]
[17] Ibid, pp 19-20.
The Applicant’s mother explained that she had previously been to the Tribunal for her now adult daughter. In that case the Agency had agreed to reimburse for transport and the matter was settled pursuant to section 42C of the AAT Act, as the parties agreed on terms.[18]
[18] Ibid, p 23.
The Tribunal also noted that in another matter before the Tribunal (differently constituted)[19], albeit with different facts, Member Webb found that transport supports were to be funded in periods of the plan under review. The Tribunal asked for the Respondent’s view as to whether it would be appropriate to do so in this case.
[19] Hill and National Disability Insurance Agency, [2023] AATA 3626 (Hill).
The Respondent submitted that the Tribunal has the power to direct that a support should be included in a statement of participant supports from a particular date, but the amount of reimbursement is a matter for the Agency to determine. The Respondent submitted that in this case that would probably be determined on the basis of evidence such as receipts. As to why this approach is taken rather than merely back paying the equivalent amount of transport support based on the level of support to be funded, the Respondent submitted that transport supports are funded differently to other supports in a participant’s plan as a fortnightly deposit is paid into a participant’s bank account. Given this practice, the Applicant’s mother would need to satisfy the Agency that the transport funding for those supports have, in fact, been used.[20]
[20] Transcript, pp 24 – 25.
The Respondent argued that the Tribunal does not have jurisdiction to make any notations that the Agency must reimburse a participant an amount for costs incurred during a particular period as that would be outside the scope of the review, but the Tribunal does have power to state that particular supports were reasonable and necessary from a particular date.[21]
[21] Ibid, p 26.
With respect to the adult daughter having received back payment, the Respondent explained that the Agency agreed to it in that case because it was a “cents-per-kilometre” method used, it was something that was highly specific to the adult daughter’s case.[22]
[22] Ibid, p 32.
With respect to Hill, the Respondent submitted it can be distinguished from the Applicant’s case. Firstly, the decision in Hill was based on logbooks and cogent evidence that the Applicant had produced to the Tribunal. Also Mr Hill’s matter was quite different factually, because of his disabilities. It was a “cents-per-kilometre case” as the usual Level 1, 2, 3 of transport was deemed unsuitable, and so there needed to be a calculation based on how much transport was actually undertaken to support the particular participant.
The Tribunal notes in Hill, transport funding was provided for Mr Hill’s emotional regulation, as part of a behaviour support plan, designed to manage his emotional dysregulation. That plan specified that a lot of time during the day was to be spent driving. Mr Hill, an adult, has Level 3 autism spectrum disorder and a severe intellectual disability and he liked to be driven in a car as a calming strategy.[23] The Tribunal also notes Mr Hill’s representative was able to file contemporaneous logbooks which assisted Member Webb to calculate the number of kilometres travelled per day.
[23] Hill, para 180.
The Respondent indicated the Agency is likely to reimburse the Applicant’s mother to the extent that she can provide evidence supporting expenditure for transport supports from the start date of Plan A. The Respondent submitted that the Agency is able to reimburse for those particular expenses.[24]
[24] Transcript, p 33.
The Applicant’s mother confirmed that KGWD continues to be home-schooled but he attends home education groups, every fortnight. They also go to different social meetups, for example he might do science with a group, not just for education development, but also for social and emotional engagement.[25]
[25] Ibid, pp 39 – 40.
The Respondent explained that it agreed that KGWD should be funded for transport supports because he is studying. Initially it held the view that he should be funded for Level 1 transport supports and the transport support should be included in his mother’s plan. However, during the course of the hearing the Respondent submitted that it no longer had an issue with transport support itself being stated in a particular plan.
At the hearing, the Applicant’s mother agreed to the Applicant receiving Level 1 transport support but she wanted that level of funding backdated to Plan A and reimbursed.[26]
[26] Ibid, p 37.
The Tribunal asked the Applicant’s mother to provide some record of the transport needs for the Applicant. She provided to the Tribunal and the Respondent a table of transport needs for the Applicant, setting out the destination, distance and frequency of trips.
The Respondent stated that, having considered the requisite amount of travel required to transport the Applicant, the Agency had agreed to fund his and MVGS’s transport at Level 2, at the higher rate. It also agreed for the transport support to be included in the Applicant’s plan, not in his mother’s plan.[27]
[27] Ibid, p 47.
With respect to the issue of reimbursement, the Respondent submitted that the Tribunal has no jurisdiction to order the Agency to reimburse an amount. However if the Tribunal states that Level 2 transport support at the higher rate should be included in the Applicant’s plans, from the start date of Plan A on 24 September 2021, then the Agency agrees to contact the various providers and do the necessary work to ascertain which of those appointments were undertaken in person. The Respondent submitted that once the Agency confirms which sessions were held in person, the finance team will organise reimbursement for travel undertaken to those providers from the commencement of Plan A.[28]
[28] Ibid, pp 47 – 48.
The Applicant’s mother raised her concern that the Respondent was trying to negate its responsibility for wrongfully omitting transport supports from the Applicant’s plan in September 2021. She stated “while I understand that there has been COVID-19 and that’s maybe where they’re coming from, if that was put into the plan originally on 21 September – the original plan that brought us to this place, that would have been paid during that time. So why am I being penalised because the Agency has taken two years to come to this and to finally recognise that this is a reasonable and necessary support for the children to be stated in the children’s plan.”[29] Essentially in her view she is being penalised because the Agency failed to include transport supports in Plan A, approved on 24 September 2021.
[29] Ibid, p 48.
At this point, the hearing was adjourned so the Applicant could consider the Respondent’s offer to settle the matter. During the adjournment the parties exchanged correspondence regarding their respective positions. After reconvening, the Respondent confirmed its view that the Tribunal can find that a support was a reasonable and necessary support from a particular date, or from the beginning of Plan A; but it cannot direct the Agency to reimburse a particular amount of money.
The Applicant’s representative referred to an email sent to the registry during the adjournment and asked that the Tribunal read it, as it reflects the Applicant’s position. That email relevantly states as follows:
to reimburse (not backpay) what should have been available to (the Applicant’s mother) and her family over the past two years, the Agency is stating they will return to each individual provider engaged, over a two-year period, to determine what appointments were attended face to face verses not.
This is absurd. That task is going to take endless hours on the agencies behalf, it’s going to take significant time and effort on the providers behalf (some of whom are no longer engaged), and there’s no guarantee that the results will be accurate. For example, how does the agency expect a no longer engaged Occupational Therapist to say for certain if an appointment on the 7 November 2021 was attended face to face? The children attend allied health appointments weekly. Does the agency truly expect each engaged provider over the past 24 months to invest time in auditing their own records to determine if approximately 104 weeks of appointments were face to face or not? More importantly, how does the agency think this style of investigation reflects on (the Applicant’s mother)?
Whether the tribunal has jurisdiction over reimbursement or not is irrelevant. The agency is clearly in a position to negotiate a reimbursement for supports the family has unjustly had to go without, due to errors and inconsistencies on their own behalf. The agency is simply going about it in the hardest way possible, and in a way that is only going to cause ongoing detriment to the participant.
The offer of Level 2 transport is accepted.
The offer of returning to each provider engaged over a two-year period to determine a reimbursement figure is not.
It remains unclear to both (the Applicant’s mother) and I if the Tribunal can rectify errors from plans issued dating back to September 2021. If so, that is the outcome sought.[30]
[30] Email dated 6 December 2023 sent by the Applicant’s representative.
The Applicant’s mother asked if the Agency’s system can automatically pay the transport support that should have been in the Applicant’s plans from September 2021, stating that, if the Agency chose to not reimburse or “back pay”, she plans to take the matter to the High Court of Australia. She believes she should not be penalised because of COVID-19 when no other participant was penalised.
The Tribunal explained that its powers to make decisions are set out in the relevant law. It explained that reviewable decisions are listed in the NDIS Act (section 99) and that the relevant power in this case is the power to review a statement of participant supports. It indicated it may find it does not have jurisdiction to order the Agency to reimburse a particular amount.
CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL
The Tribunal notes the parties have agreed that Level 2 transport support at the higher rate is a reasonable and necessary support. Having regard to the table of transport needs for the Applicant, and the Applicant’s mother’s oral evidence at the hearing, the Tribunal is also satisfied this is a reasonable and necessary support, that should be included in Plans A, B and C. There is nothing before the Tribunal to indicate that any of the other supports provided in Plans A, B and C are not reasonable and necessary supports.
The Tribunal has considered the Applicant’s request that the Tribunal order the Agency to reimburse the Applicant the equivalent amount that would have been paid if the transport support had been included in the Applicant’s statements of participant supports since the commencement of Plan A. It is apparent that, had the Level 2 transport support been included in Plans A, B, and C a fortnightly deposit would have been paid for the support. Essentially the Applicant’s mother is now requesting that the Tribunal make an order that the Agency reimburse the equivalent amount.
The Tribunal appreciates why the Applicant’s mother is making this request. However for the following reasons the Tribunal has concluded it does not have the power to make such an order.
As was explained at the hearing the Tribunal’s powers to review the decisions in this case, being decisions to approve the statements of participant supports, are set out in the relevant law; paragraph 25(1)(a) of the AAT Act and section 99 of the NDIS Act.
The review of a decision made by the CEO under subsection 33(2) of the NDIS Act to approve a statement of participant supports is provided for by item 4 of subsection 99(1). Such decisions were made by the CEO on 24 September 2021 and 18 November 2022. The internal reviewer confirmed the CEO’s decision of 24 September 2021, made pursuant to subsection 33(2) of the NDIS Act, to approve the statement of participant supports included in Plan A, which did not include transport support. The Applicant then made an application to the Tribunal for review under paragraph 100(6)(a) of the NDIS Act.
A similar request for reimbursement was made in XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 (XXWC), in which DP Forgie was asked by XXWC’s mother to make an order that the Agency reimburse the costs of early intensive behavioural intervention (EIBI) supports that had not been included in the statement of participant supports under review but were found by DP Forgie to be reasonable and necessary. DP Forgie decided she could not make the order noting that the decision affecting XXWC’s rights was the decision by the CEO to approve a statement of participant supports. She explained with respect to the decision to approve a statement of participant supports that:
It is the operative decision that affected XXWC’s rights. It is not the decision made by the reviewer for the decision simply confirmed the CEO’s decision that was already operative.
Once an applicant has lodged an application for review of a decision, the Tribunal has power to review that decision…
For the purposes of reviewing a decision, the Tribunal “... may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.” This is subject to any qualification made by the enactment conferring the right to make an application for review of a decision. The CEO’s powers in deciding whether to approve, or not approve, a statement of participant supports under s 33(2) of the NDIS Act must be made having regard to criteria set out in provisions such as ss 33(5), 34 and 35. …
There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.[31]
(Emphasis added)
[31] XXWC, para 121 – 124.
The internal reviewer reviewing the Plan B decision decided to vary the original decision. DP Forgie noted that in applying the principles in Gee and Yolbir[32] where a decision is varied by the reviewer, “the operative decision would be the CEO’s decision under s 33(2) as varied by the reviewer under s 100(6)”[33]. In other words, it remains the CEO’s decision which affects the Applicant’s rights. The Tribunal is satisfied that the reviewer’s decision to vary the CEO’s decision does not give the Tribunal any further power to order reimbursement. Its only power is to review a decision to approve the statement of participant supports in the Applicant’s plan. That being said, the Agency still has the power to reimburse the Applicant. What it requires to authorise reimbursement is a matter for the Agency and its auditors.
[32] Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347 (Gee) at 139-141; 355-357; Davies J, President, Mr Cusack and Mr Prowse, Members and cited with approval in Yolbir v Administrative Appeals Tribunal and Anor [1994] FCA 910; (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 (Yolbir) at 248-249; 10; 17-18; Davies J, Burchett and O’Connor
[33] XXWC, footnote 69
The issue of reimbursement was also considered in Hill. While in that case Member Webb identified with some detail the reasonable and necessary transport support to be funded from a period before his decision, on the issue of reimbursement Member Webb stated:
Where approval of a contested support for a participant is initially refused and on review it is found to meet the thresholds in s 34(1) of the NDIS Act, questions of practicality or utility might arise when considering funding the support from the earliest date the reviewable decision had effect in the past. There may also be questions for the NDIA or a plan manager about the crystallization of funding approval into entitlement to payment or reimbursement of previously incurred costs in the particular circumstances of and related claim. Nevertheless, such questions should not be confused with a participant’s statutory entitlements to review. Once a participant’s statutory entitlement to review is enlivened by request under s 100(2) or by subsequent application to the Tribunal under s 103(1), such questions of utility may readily be dealt with in the review. Such considerations do not curtail the participant’s statutory entitlement to review, and they do not limit the scope of the review, which runs from the date the original decision had or could have had effect under applicable provisions of the NDIS Act.[34]
…
(S)ubmissions put on the basis of cost recovery by Mr Hill’s representatives must be rejected. Recovery in the form of reimbursement is a secondary consideration which might arise for Mr Hill and the NDIA consequent to approval of reasonable and necessary supports which will be funded from 21 May 2019, albeit determined on review, in retrospect.[35]
[34] Hill, para 86.
[35] Ibid, para 246.
While this Tribunal is not bound by the decisions in XXWC and Hill, it finds the approaches persuasive and correct. The Tribunal is also of the view that it does not have the power to order the Agency to reimburse the equivalent amount of transport support, had it been included in Plans A, B and C from the start dates of those plans.
CONCLUSION
The Tribunal is satisfied that Level 2 transport support is a reasonable and necessary support, from the start date of Plan A, 24 September 2021.
Any reimbursement for monies expended on transport support prior to the implementation of this decision, and the way in which any amount to be reimbursed is calculated, is a matter for the Agency.
DECISION
The internal review decision of 25 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:
a.the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 24 September 2021, the commencement of Plan A:
(i)Level 2 transport support at the higher rate, per year.
b.The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date).
c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.
d.The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.
62.
63. I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.
........................[SGD].................................
Associate
Dated: 15 March 2024
Date(s) of hearing: 6 December 2023 Date final submissions received: 11 January 2024 Advocate for the Applicant: Ms K Matheson, Support Coordinator Solicitors for the Respondent: Ms A Wong, Mills Oakley
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