Klewer and National Disability Insurance Agency (NDIS)
[2025] ARTA 155
•21 February 2025
Klewer and National Disability Insurance Agency (NDIS) [2025] ARTA 155 (21 February 2025)
Applicant/s: Robert Klewer
Respondent: National Disability Insurance Agency
Tribunal Number: 2018/4118
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:21 February 2025
Decision:The Tribunal cannot in these proceedings, include in any statement of participant supports it approves, supports which were provided to the applicant prior to 7 June 2021.
Damien O’Donovan
........................................................................Deputy President O'Donovan
Catchwords
National Disability Insurance Scheme – approval of statement of participant supports – matter remitted from Federal Court – Federal Court decided that the matter before the Tribunal was the supports in the plan approved on 7 June 2021 – both parties contended that the matter before the Tribunal was whether the Tribunal should approve a statement of participant supports dating from 31 May 2018 - whether the finding of the Federal Court was obiter dicta – whether the Federal Court’s finding could be ignored for the purposes of determining the reasonable and necessary supports that would be funded – Federal Court’s decision could not be ignored – Tribunal’s power limited to determining whether to included and fund reasonable and necessary supports on and from 7 June 2021
Legislation
Administrative Appeals Tribunal Act 1975 ss 42D, 44
Administrative Review Tribunal Act 2024 ss 9, 185
National Disability Insurance Scheme Act 2013Cases
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16.
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Klewer and National Disability Insurance Agency [2022] AATA 566.
Klewer and National Disability Insurance Agency [2023] FCA 630.
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Minister for Immigration and Border Protection v Makasa [2021] HCA 1NSDW and National Disability Insurance Agency [2024] AATA 1432
Pavlakis and National Disability Insurance Agency [2023] AATA 2485.
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189WNLL and National Disability Insurance Agency [2024] AATA 3374.
Statement of Reasons
The National Disability Insurance Scheme Act 2013 (NDIA Act) provides a scheme to support the independence and social and economic participation of people with disabilities. In broad terms, the National Disability Insurance Scheme (Scheme) admits participants who meet certain thresholds, including a disability threshold. Once a person is admitted to the scheme, the National Disability Insurance Agency (NDIA) is required to put together a plan for the participant. A plan consists of two components – a participant’s statement of goals and aspirations and a statement of participant supports. The statement of participant supports (Statement) must specify the reasonable and necessary supports (if any) that will be funded under the Scheme and a date by which the plan will be re-assessed. The plan commences when the CEO of the respondent approves the Statement.
The applicant is a participant in the Scheme. He is currently 36 years old. He has numerous impairments which result in seizures, vision impairment, anxiety and other disabilities. His impairments are the result of surgery he underwent at the age of four to remove a brain tumour.
He lives at home with his mother and works with her in her business. A considerable amount of the care that he receives is provided by her. For more than six years, the applicant has been seeking approval of a Statement that includes funding of reasonable and necessary supports which his mother provides. One of the contested issues is whether, as a result of his seizures, the applicant requires overnight care.[1] If he does, an issue arises as to whether overnight care, which may have been provided by his mother for many years, should be funded as a reasonable and necessary support.
[1] Applicant’s statement of facts, issues and contentions dated 29 January 2024 at [57]-[77]; Respondent’s statement of facts, issues and contentions dated 16 April 2024 at [15]-[21].
The Administrative Appeals Tribunal (AAT) made a decision in 2022 affirming a reviewable decision to approve a Statement that did not include overnight care as a reasonable and necessary support.[2]
[2] Klewer and National Disability Insurance Agency [2022] AATA 566.
That decision was appealed to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The appeal was successful on a procedural fairness ground and the matter was remitted to the Tribunal for determination according to law.[3]
[3] Klewer and National Disability Insurance Agency [2023] FCA 630. (Klewer)
However, before the substantive matter could be re-determined, the parties identified a legal issue. How that issue is resolved will determine the scope of the evidence that is relevant to any substantive hearing and it may affect, as a practical matter, whether there is much benefit in the applicant persisting with the review in its current form. Both parties are in agreement that the issue should be determined before the matter progresses to a substantive hearing.
The legal issue emerged out of the following series of events.
The applicant lodged an application with the AAT. The application sought review of a decision dated 23 July 2018 to approve a Statement that did not include overnight care funding. The plan which the Statement was attached to, started on 31 May 2018 and had a review date of 31 May 2019. As this application progressed through the AAT processes, it was remitted back to the NDIA for reconsideration.
At the relevant time, the practice of the AAT was to routinely remit matters to the NDIA to approve new Statements, when, as a result of the conferencing process or discussions between the parties, additional supports were agreed to be appropriate. The AAT would also remit matters to the respondent when the reassessment date was coming up and it was considered inappropriate to have a new plan created by the NDIA[4] when the existing plan’s Statement was still the subject of review.
[4] Which it was legally required to at the relevant time by section 48(5). A similar obligation is contained in section 49 of the NDIS Act in its current form.
In Mr Klewer’s case, remittals back to the Agency for fresh decisions were made on 27 November 2019, 4 June 2020 and 31 May 2021, under section 42D of the AAT Act. Following the remittal on 31 May 2021, the respondent made a decision that, on its face, appeared to result in the creation of a new plan for the applicant commencing on 7 June 2021. When fresh decisions were made pursuant to section 42D, by virtue of subsection 42D(4), the application before the AAT was ‘taken to be an application for review of the new decision’.
The matter was heard by the AAT in November 2021. On 30 March 2022, the AAT determined that it was not satisfied that Mr Klewer required overnight care. The Tribunal was satisfied that overnight care did not constitute a reasonable and necessary support and affirmed the decision under review.
The applicant appealed to the Federal Court pursuant to section 44 of the AAT Act. The appeal raised six appeal grounds.
The appeal succeeded on the basis that the Tribunal’s decision was affected by a denial of procedural fairness. In the course of the Federal Court hearing, a separate appeal ground (which I will refer to as ‘ground three’) was considered by the Federal Court and dismissed. That ground was expressed as follows:
Whether the Tribunal misapplied the relevant legal test in deciding that as at the date of the Tribunal decision (30 March 2022) it was not satisfied that Mr Klewer required overnight care… rather than deciding the matter (whether also or instead) as at the period the subject of the relevant Statement of the Participant Supports under review, being 31 May 2018 to 31 May 2019.[5]
[5] Klewer at [3].
The Federal Court considered and dismissed that ground. In the course of doing so, the Court endorsed several legal propositions relevant to the scope of the AAT’s jurisdiction. In particular, the Federal Court found that the AAT was reviewing a ‘plan’ which commenced on 7 June 2021, following remittal to the respondent pursuant to section 42D.[6] If this finding is accepted, this Tribunal (the Administrative Review Tribunal (Tribunal)) no longer has jurisdiction to consider whether any overnight care provided from 31 May 2018 to 7 June 2021 qualifies as a reasonable and necessary support that can be funded in a Statement. The Court found that the only supports that the AAT could consider, and that this Tribunal can now consider, for inclusion in the Statement, are those provided after 7 June 2021.[7]
[6] Klewer at [196].
[7] Klewer at [196]-[199].
Before the matter was relisted for hearing in the AAT, there were developments in the NDIS jurisdiction that cast doubt upon the correctness of the legal analysis that underpinned ground three.
Following the Federal Court appeal, an almost identical scenario cropped up in a number of AAT matters. The first was Pavlakis and National Disability Insurance Agency[8] (Pavlakis). The member who heard that matter formed the view that the Federal Court’s conclusions concerning ground three were obiter, non-binding and contrary to existing Federal Court and High Court authority.[9] The member concluded that a remittal pursuant to section 42D and a fresh decision pursuant to that remittal did not have the effect of creating a new plan and limiting the period which the AAT could consider when deciding what supports to include in a Statement.
[8] [2023] AATA 2485.
[9] Pavlakis at [34], citing: QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189; McGarrigle v National Disability Insurance Agency [2017] FCA 308; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
Other AAT decisions along similar lines followed.[10]
[10] NSDW and National Disability Insurance Agency [2024] AATA 1432 at [59]-[60] and WNLL and National Disability Insurance Agency [2024] AATA 3374 at [6].
Eventually, the views expressed in Pavlakis were adopted generally by the respondent as the correct approach to the legal effect of a remittal pursuant to section 42D. The adoption of those views involves a rejection of the approach taken by the Federal Court in dealing with ground three.[11]
[11] Respondent’s Submissions on the Tribunal’s Jurisdiction dated 2 November 2023 at [3].
The adoption of this approach is reflected in the submissions that have been made by the respondent concerning the scope of my powers on remittal. The respondent has submitted as follows:
The Agency’s position, in respect of the Tribunal’s jurisdiction following remittal under section 42D of the AAT Act, can be summarised as follows:
(a)a remittal under section 42D of the AAT Act does not create a new ‘participant’s plan’ (within the meaning of the NDIS Act);
(b)the relevant power being exercised on remittal under section 42D of the AAT Act is the power to affirm, to vary, or to set aside the decision under review. In exercising that power, the decision-maker (reviewer) is tasked with reconsidering the decision under review (subject to any limitations placed on the decision-maker pursuant to the NDIS Act);
(c)that reconsideration does not involve creating a new plan because the reviewer is not conducting a reassessment within the meaning of section 48 of the NDIS Act—which is (relevantly) the only way a new plan can come into effect for an existing participant;
(d)to the extent that her Honour Justice Raper suggested otherwise in Klewer, her Honour was, respectfully, incorrect;
(e)Senior Member Buxton was correct in Pavlakis at [24] that, although a different Statement of Participant Supports (SOPS) may be inserted into the plan already in existence under section 37 of the NDIS Act, it is not a ‘new plan’ that is generated by the remaking of the SOPS on review. Further, in respect of the specific consequences of a remittal under section 42D of the AAT Act, Senior Member Buxton was correct in Pavlakis at [25] and [30], and the consequences of a decision under paragraphs 42D(2)(b) or (c) is a varied—or substituted—SOPS that specifies the supports that are included in the plan;
(f)further, changing the review date in a plan does not create a new plan, because that is not one of the events prescribed in subsection 37(3) of the NDIS Act as ceasing the effect of a plan—again, her Honour Justice Raper (in Klewer) was wrong to suggest otherwise, and Senior Member Buxton (in Pavlakis) was correct to that extent;
(g)even if the Tribunal varies the decision under review, or sets aside the decision under review and substitutes a new decision, the plan continues until it ceases under subsection 37(3) of the NDIS Act;
(h)following a decision on remittal, the Tribunal’s jurisdiction is reengaged by reason of subsections 42D(3) and (4) of the AAT Act—and not by section 103 of the NDIS Act—because the powers under sections 47A, 48 and 49 of the NDIS Act are not engaged (and no new plan comes into effect under section 37 of the NDIS Act); and
(i)while the reviewer’s decision takes effect from the date the reviewable decision had effect (being the time the CEO approved the SOPS)—it is open to the reviewer to determine that any or all supports are changed following a review from any given date within the plan period. It follows that whilst a reviewer is able to make changes to the SOPS with effect from the start date of the plan, the reviewer may also do so from any other date within the plan period.
The parties are now in agreement as to how the matter should be approached. They say I should proceed on the basis that, provided I was satisfied that it was a reasonable and necessary support, I could include the support in the applicant’s Statement and fund the overnight care provided by the applicant’s mother for any period after May 2018.[12] This is contrary to the approach outlined by the Federal Court in the appeal concerning this matter. The respondent submits that I am not bound to apply the approach adopted by the Federal Court in respect of ground three.[13]
[12] Respondent’s submissions on preliminary question dated 14 November 2024 at [3]. Applicant’s statement of facts, issues and contentions dated 29 January 2024 at [48]-[55].
[13] Respondent’s submissions on preliminary question dated 14 November 2024 at [4].
The applicant is a little more circumspect. He agrees with the approach urged on the Tribunal by the respondent concerning the scope of the Tribunal’s power.[14] However, he is unwilling to incur the expense associated with establishing that supports provided by the applicant’s mother between May 2018 and June 2021 constitute reasonable and necessary supports, in circumstances where there is a risk that the Tribunal will conclude that it has no power to consider such matters in light of the Federal Court’s findings in relation to ground three and the terms of the remittal to the Tribunal.
[14] Applicants Submissions dated 23 November 2023 at [2]-[3].
In those circumstances, I decided that I should adopt a procedure which enables the question of the scope of the Tribunal’s power to be resolved prior to a final hearing in relation to the substantive question of the reasonable and necessary supports that should be included in the Statement and funded by the NDIA.
Question of law referral or ‘preliminary question’
At a directions hearing on 17 September 2024, the Tribunal advised the parties that it would determine the following question as a preliminary question:
Whether in the circumstances of this particular application, the Tribunal has power to approve a statement of participant supports which includes funding for a support which consists of any overnight care that may have been provided to the applicant:
(a)Between 31 May 2018 to 31 May 2019; or
(b)Between 31 May 2019 to 7 June 2021; or
(c)Between 8 June 2021 to 7 June 2022; or
(d)Between 7 June 2022 and the present.
Both parties made submissions on that issue, and the matter was listed for a hearing on 5 February 2025.
On the day of the hearing, the applicant submitted a question of law for referral to the Federal Court and made an application that the question be referred to the Federal Court under section 185 of the Administrative Review Tribunal Act 2024 (ART Act).[15] The proposed question is annexed to these reasons.
[15] Applicant’s outline of argument dated 4 February 2025; Applicant’s draft question of law dated 5 February 2025.
I have decided not to accede to the request to refer that question of law to the Federal Court. The Tribunal’s objective is set out in section 9 of the ART Act. The objective is as follows:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c)is accessible and responsive to the diverse needs of parties to proceedings; and
(d)improves the transparency and quality of government decision - making; and
(e)promotes public trust and confidence in the Tribunal.
In my assessment, it will be quicker and more efficient if I deal immediately with the preliminary question previously articulated. When I have determined that question, if either party is of the view that I have determined the scope of my powers incorrectly, then an application for judicial review can be made to correct any error in approach. If neither party discerns any error in the approach (or chooses to pursue other methods of bringing the substantive issues in dispute before me[16]), then the matter can proceed to a hearing. In my assessment, this is likely to be the quickest way of dealing with the issue and preferable to a referral to the Federal Court on a question of law.
[16] See paragraph [8] of the respondent’s submissions dated 14 November 2024.
Federal Court remarks confining scope of jurisdiction
The passages in the Federal Court’s judgment in Klewer that set out her Honour’s reasoning for dismissing ground three are as follows:
[194] The effect of remittal under s 42D of the AAT Act, and a subsequent decision by a respondent decision-maker (such as the NDIA), is that “the application is taken to be an application for review of the decision as varied” (s 42D(3)(a) of the AAT Act) or “of the new decision” (s 42D (4)(a) of the AAT Act).
[195] I do not accept that s 42D was not engaged in this case. I accept the submission of the NDIA that the effect of the multiple remittals and subsequent plans, referred to above, demonstrate that s 42D was engaged in this case – particularly on 31 May 2021 when the Tribunal made the final order under s 42D prior to the hearing of this matter … Therefore, the consequence of the remittals was that the “matter before the Tribunal” was not the “NDIS plan for the period 31 May 2018 to 31 May 2019” but, rather, as the Tribunal observed, the supports still “in contention” under the extant plan at the time of its decision.
[196] As a consequence of the operation of s 42D(4)(a) of the AAT Act, the application for review before the Tribunal was taken to be an application for review of the statement of participant supports contained in that statement of participant supports approved on 7 June 2021 … The application was therefore no longer an application for review in relation to the superseded plan. If, alternatively, the new plan is a variation of the previous plan, then s 42D (3)(a) would operate with a similar effect…
…
[202]…s 33(2)(c) requires an NDIS plan to include “the date by which, or the circumstances in which, the Agency must review the plan”. Given the review is part of a plan, upon remittal (under s 42D) the NDIA had the power to change the review date of the plan. Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied.
Her Honour was satisfied that the effect of the various remittals was that a new plan commencing on 7 June 2021 with a review date of 7 June 2022 was now the subject of review by the AAT. Consequently, the AAT was correct to focus on the more recent evidence concerning the applicant’s seizures. On this basis, no error was disclosed in the reasons of the AAT and ground three was dismissed.
Submissions on how I should treat the dismissal of ground three
Both parties take the view that the conclusions reached by her Honour were not correct. They both urge me to treat the remittals under section 42D as resulting in newly approved Statements, but not in an entirely new plan.[17] The consequence is that I have jurisdiction to approve Statements that include funding for reasonable and necessary supports from 31 May 2018, which is the date the original plan commenced.
[17] Respondent’s submissions on the Tribunal’s jurisdiction dated 2 November 2023 at [41]-[46]; Applicant’s statement of facts, issues and contentions dated 29 January 2024 at [52]-[54].
The respondent contends that the statements made by her Honour, extracted at paragraph 28 of these reasons, are obiter dicta and are non-binding.[18] Consequently I am entitled to take the approach adopted in Pavlakis and can consider including supports in the Statement on and from 31 May 2018.
[18] Respondent’s submissions on preliminary question dated 14 November 2024 at [3]-[5].
Despite the views expressed by the respondent, I am not satisfied that the result in this matter is determined by asking whether her Honour’s remarks can be classified as obiter dicta or not. The concepts of ratio decidendi and obiter dicta are essential to determining the binding nature of a precedent within a court hierarchy. The Tribunal (like the AAT before it) sits outside that hierarchy. The relationship between a Federal tribunal and the Federal Court is governed by the acts of Parliament that establish the relevant tribunal. It is clear from the structure of the ART Act (which reflects the distribution of powers within the Federal constitution), that the Tribunal has no power to authoritatively determine what the law is. To the extent that the Tribunal expresses a view on a question of law for the purposes of deciding an application, it is subject to correction by the Federal Court.
There is a clear division of responsibilities discernible in both the AAT Act and the ART Act – the Tribunal is, in almost all circumstances, the authoritative determiner of fact, and (if relevant) the entity responsible for exercising any statutory discretion. The Federal Court on the other hand is the conclusive determiner of questions of law which may arise in the course of determining a review.
Given this arrangement of responsibilities, I am satisfied that it would not be appropriate for me to depart from the clearly expressed views of the Federal Court on what is undoubtedly a question of law.
I say this in circumstances where I am not merely considering how to apply a decision of the Court in a similar context. I am being asked to determine exactly the question that was addressed by the Federal Court in the same matter.
The Full Federal Court has expressed its displeasure in the past when Commonwealth statutory office holders have failed to implement the law as determined by the Court. In Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd[19] (Indooroopilly) the Commissioner had expressed the view that he was not compelled to follow a decision of a single judge of the court in a similar matter. Justice Allsop made the following comments on this approach:
I wish, however, to add some comments about the attitude apparently taken by, and some of the submissions of, the appellant. From the material that was put to the Full Court, it was open to conclude that the appellant was administering the relevant revenue statute in a way known to be contrary to how this Court had declared the meaning of that statute. This, taxpayers appeared to be in the position of seeing a superior court of record in the exercise of federal jurisdiction declaring the meaning and proper content of a law of the Parliament, but the executive branch of the government, in the form of the Australian Taxation Office, administering the statute in a manner contrary to the meaning and content as declared by the Court; that is, seeing the executive branch of government ignoring the views of the judicial branch of government in the administration of a law of the Parliament by the former. This should not have occurred. If the appellant has the view that the courts have misunderstood the meaning of a statute, steps can be taken to vindicate the perceived correct interpretation on appeal or by prompt institution of other proceedings; or the executive can seek to move the legislative branch of government to change the statute. What should not occur is a course of conduct whereby it appears that the courts and their central function under Ch III of the Constitution of the Commonwealth are being ignored by the executive in carrying out its function under Chapter II of the Constitution, in particular its function under s 61 of the Constitution of the execution and maintenance of the laws of the Commonwealth.[20]
[19] [2007] FCAFC 16.
[20] Indooroopilly at [3].
While strictly speaking, the Tribunal is not exercising executive power under section 61 of the Constitution, as its powers are derived from a conferral by the Parliament, his Honour’s point is still instructive as to the approach that the Tribunal should take to such issues. It would show a distinct lack of respect for the respective tasks that the Parliament has assigned to the Tribunal and to the Federal Court to simply ignore the considered decision of the Federal Court on a legal question vital to the resolution of this particular case.
Consequently, in circumstances where a question of law which arises in these proceedings has been considered and resolved by the Federal Court, I should treat the question as settled for the purposes of these proceedings and apply the facts to the law as determined by the Court. Consequently, I cannot in these proceedings include in any Statement I approve, supports which were provided to the applicant prior to 7 June 2021.
In reaching this conclusion, I make no criticism of other decisions of the Tribunal which have taken a different course. The decision makers in other cases were, in their assessment, confronted with competing authorities between which it was necessary to choose. In the present matter, I am subject to a specific order of the Court, to determine the matter according to law, in circumstances where the legal issue which confronts me has been resolved in clear terms by the Court prior to making the remittal order.
Decision
I am satisfied that I cannot in these proceedings, include in any Statement I approve, supports that were provided to the applicant prior to 7 June 2021.
I will schedule a directions hearing on 20 March 2025 to receive an update from the parties and will either put in place a timetable to hear and determine the substantive issues in the case or delay further consideration of the matter pending resolution of any judicial review proceedings.
Date(s) of hearing:
5 February 2025
Date final submissions received: 5 February 2025 Solicitor for the Applicant: Pier Paolo Parisi Solicitor for the Respondent: Julian Pinder of Mills Oakley Annexure 1: applicant’s proposed question of law dated 5 February 2025
Where:
(i)the Chief Executive Officer (the CEO) of the Respondent was satisfied that the Applicant met the access criteria, and the Applicant was accepted as a participant, in the National Disability Insurance Scheme;
(ii)on 1 June 2018, the CEO made a decision, under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), to approve a statement of a participant's supports (the SOPS) in a participant's plan, for the Applicant, with effect from 31 May 2018 (the Reviewable Decision);
(iii)on 17 July 2018, a request was made, by the Applicant, under s 100(2) of the NDIS Act, for a review of the Reviewable Decision;
(iv)on 23 July 2018, a decision was made, under s 100(6) of the NDIS Act, to affirm the Reviewable Decision (the Decision);
(v)on 23 July 2018, an application was made to the Administrative Appeals Tribunal (the AAT), to review the Decision;
(vi)on 30 May 2019, a decision was made, by consent, under s 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), (the AAT Act), altering the Decision (the 30 May 2019 Extension);
(vii)on 16 December 2019, a decision was made, under s 42D(2) of the AAT Act, altering the Decision (the 16 December 2019 Extension);
(viii)on 17 June 2020, a decision was made, under s 42D(2) of the AAT Act, altering the Decision (the 17 June 2020 Extension);
(ix)on 7 June 2021, a decision was made, under s 42D(2) of the AAT Act, altering the 17 June 2020 Extension (the 7 June 2021 Extension);
(x)on 30 March 2022, the AAT affirmed the Decision (the AAT's Decision);
(xi)on 15 June 2023, the Federal Court of Australia set aside the AAT's Decision, and remitted the application back to the AAT, for redetermination according to law;
could the AAT, on the remitter, and the Administrative Review Tribunal, from 14 October 2024:
(xii)review, and alter, the SOPS in the participant's plan, with effect from 31 May 2018, and / or review, and alter, the SOPS, with effect from any later time, or times; and
(xiii)if so, for what period, or periods, could any alteration, or alterations, be made to take effect in?
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