FEDERAL COURT OF AUSTRALIA
Klewer v National Disability Insurance Agency [2023] FCA 630
Appeal from: Klewer and National Disability Insurance Agency [2022] AATA 566 (30 March 2022) File number: NSD 298 of 2022 Judgment of: RAPER J Date of judgment: 15 June 2023 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm the respondent’s decision to not provide overnight care (provided by the appellant’s mother) to the appellant under the National Disability Insurance Scheme – whether the Tribunal erred by taking into account irrelevant considerations, denied the appellant procedural fairness in a number of respects, or applied the wrong legal test – whether the Tribunal erred in determining whether overnight care was a reasonable and necessary support at the time of its review as opposed to during the period of the applicable plan which was the subject of the initial reviewable decision – effect of variation and remittal – appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 26(1)(b), 42D, 42D(1), 42D(2), 42D(3)(a), 42D(4)(a), 42D(5), 42D(6), 44, 44(1)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4(3), 9, 31(a), 31(b), 31(c), 34(e), 31(f), 31(g), 31(i), 31(j), 32, 32(1), 33, 33(2), 33(2)(a), 33(2)(b), 33(2)(c), 33(3), 33(5)(b), 33(5)(f), 34, 34(1), 34(1)(a), 34(1)(b), 34(1)(c), 34(1)(d), 34(1)(f), 37, 37(1), 37(1)(b), 37(3)(a), 44, 47, 47(2), 48, 49, 99, 100, 100(6), 101, 103(2), 103(2)(d), 103(2)(e)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Cases cited: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825
BZW16 v Minister for Immigration and Border Protection [2019] FCA 395
CMA19 v Minister for Home Affairs [2020] FCA 736
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577
Commonwealth v Ford (1986) 65 ALR 323
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250
Grain Elevators Board (Victoria) v Shire of Dunmunkle (1946) 73 CLR 70
Klewer and National Disability Insurance Agency [2022] AATA 566
Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86
McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417
QZHH and National Disability Insurance Agency [2018] AATA 1465
Rogers and National Disability Insurance Agency [2022] AATA 2809
RTRH and National Disability Insurance Agency [2022] AATA 205
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
Syddall and National Disability Insurance Agency [2022] AATA 3738
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105
Williamson and National Disability Insurance Agency [2019] AATA 2944
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 229 Date of hearings: 5 April 2023, 23 May 2023 Counsel for the Applicant: Ms C Burnett SC Counsel for the Respondent: Mr P Knowles SC with Mr T Liu Solicitor for the Respondent: Minter Ellison ORDERS
NSD 298 of 2022 BETWEEN: ROBERT KLEWER
Applicant
AND: NATIONAL DISABILITY INSURANCE AGENCY
Respondent
ORDER MADE BY:
RAPER J
DATE OF ORDER:
15 JUNE 2023
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal be set aside.
3.The matter be remitted to the Tribunal for determination according to law.
4.The respondent pay the applicant’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RAPER J
Introduction
The applicant (Mr Klewer) experiences seizures, vision impairment, anxiety and other disabilities. These impairments stem from surgeries Mr Klewer underwent at age four to remove a brain tumour. Mr Klewer sought various forms of support from the National Disability Insurance Agency. Mr Klewer appeals a decision of the Administrative Appeals Tribunal, made on 30 March 2022: Klewer and National Disability Insurance Agency [2022] AATA 566 (T). By this decision, the Tribunal affirmed a decision of the NDIA to not provide funding under the National Disability Insurance Scheme for Mr Klewer that would be used to pay Mr Klewer’s mother (Ms Klewer) to provide Mr Klewer with overnight care (specifically, 10 hours per night for seven nights each week): at T[11]. The Tribunal affirmed the NDIA’s decision on the basis that the requested support was not “reasonable and necessary” within the meaning of s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
By way of amended notice of appeal filed on 21 October 2022, Mr Klewer “appeals” from the entirety of the Tribunal’s decision on the basis that the Tribunal: (a) took into account an irrelevant consideration (ground 1), (b) failed to take into account a relevant consideration (ground 6), (c) failed to afford procedural fairness to Mr Klewer (grounds 2 and 4) and (d) failed to apply the correct legal test in making certain findings (grounds 3 and 5).
Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides for an “appeal” from a decision of the Tribunal “on a question of law”. Such proceedings engage this Court’s original jurisdiction, hence why Mr Klewer is described as the “applicant” rather than “appellant”: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 (Bowen CJ and Deane J); Committee of Direction of Fruit Marketing v Australian Postal Commission (1980) 144 CLR 577 at 585 (Mason and Wilson JJ).
For the following reasons, I have determined to allow the appeal on the basis that the second ground is made out.
Background
Relevant to this appeal is Mr Klewer’s NDIS plan which commenced on 31 May 2018. Mr Klewer submitted a “Plan Review Request Form” dated 13 July 2018, which would require a delegate of the CEO of the NDIA to re-assess Mr Klewer’s NDIS plan. Mr Klewer requested that his NDIS plan be varied such that (1) his plan can be self-managed, and (2) extra funding be provided so that Ms Klewer (as opposed to a support worker) can provide overnight care support to Mr Klewer (the internal review request).
On 23 July 2018, a response to the internal review request was provided, in which the NDIA affirmed the original NDIS plan under s 100 of the NDIS Act (internal review decision). The delegate was “not satisfied that self-management poses no risk” to Mr Klewer, noting the requirement that a participant should not self-manage a plan where the CEO is satisfied that self-management would present an unreasonable risk to the NDIS participant (pursuant to s 44 of the NDIS Act and the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)). The delegate also appears to not have been satisfied that the additional requested supports were consistent with the criteria contained within s 34 of the NDIS Act.
Also on 23 July 2018, Mr Klewer lodged an application for review of the delegate’s decision before the Tribunal. Mr Klewer described his perceived errors in the delegate’s decision as follows:
1. The decision to refuse me to self-manage my NDIS plan is wrong because there was enough evidence to support that we [my nominee], can perfectly manage the plan. I need an urgent hearing for this as at the moment my NDIS Plan is dormant and service providers who provided services per plan need to get paid.
2. The decision to refuse NDIS payment for certain services by way of Family Support, dlivered [sic] by my nominee mother was wrong as there was sufficeint [sic] evidence toward the required criteria regarding the Exceptional Circumstances case and further evidence was ignored and requests to acknowledge such further evidence were also not responded to.
Overview of the legislation
There are two legislative schemes relevant to this appeal: first, the NDIS Act and, secondly, the AAT Act. The parties agreed that the applicable compilations of both the NDIS Act and the AAT Act were those in force at the time of the Tribunal’s decision on 30 March 2022.
With respect to the NDIS Act, s 3 sets out the objects of the NDIS Act, and s 4 identifies the general principles that guide actions taken under the NDIS Act. Both provisions are extracted as follows:
3 Objects of Act
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( These objects are to be achieved by:
(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and
(b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.
(3) In giving effect to the objects of the Act, regard is to be had to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and
(ii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
4 General principles guiding actions under this Act
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c) maximising independent lifestyles of people with disability and their full inclusion in the community.
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The matters that must be included in an NDIS participant’s plan are set out in s 33 of the NDIS Act:
33 Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and (e) the management of other aspects of the plan.
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:
(a) for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or
(b) otherwise—a registered provider of supports.
(7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.
Note: Section 38 requires a copy of a participant’s plan to be provided to him or her.
When determining whether a requested support is “reasonable and necessary”, regard must be had to the factors set out in s 34 of the NDIS Act, which is extracted as follows:
34 Reasonable and necessary supports
(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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Summary of the Tribunal’s reasons
The Tribunal began by noting that, when Mr Klewer’s application for review was lodged, there were other supports in issue and that these had been resolved prior to the hearing before the Tribunal (namely whether Mr Klewer’s plan could be managed by Ms Klewer and whether other identified supports are to be funded by the NDIS: see T[10]. The Tribunal also noted that since Mr Klewer’s application for review before the Tribunal was lodged, there had been several further decisions made by the NDIA pursuant to s 42D of the AAT Act: at T[11].
With respect to Mr Klewer himself, the Tribunal noted that during the hearing, he “did not give oral evidence”; however, the Tribunal did not draw an adverse inference against Mr Klewer for not giving oral evidence: at T[24].
The Tribunal then identified the primary issue to be determined as being “whether overnight care for 10 hours per night 7 days per week is a reasonable and necessary support for Mr Klewer, and, if so, whether Ms Klewer should be funded to provide that support”: at T[28].
The Tribunal summarised the contentions for each party: at T[29]–[33]. In short, Mr Klewer claimed that because he suffers from frequent and serious seizures which may lead to injury, he requires overnight monitoring and medication, and the only person who can provide that overnight care is Ms Klewer: at T[29]–[30]. The NDIA submitted that the Tribunal cannot be satisfied that overnight care provided by Ms Klewer is reasonable and necessary for the purposes of s 34(1) of the NDIS Act, given the lack of evidence regarding the nature and seriousness of Mr Klewer’s seizures and the lack of “exceptional circumstances” which would allow family members of NDIS participants to provide paid support: at T[31].
The Tribunal proceeded to summarise the evidence and its findings, including the evidence of Mr Klewer (at T[41]–[45]) and Ms Klewer (at T[46]–[51]). The Tribunal noted that Mr Klewer referred to reports from various neurologists (at T[52]). The neurologists, according to the Tribunal, accepted that Mr Klewer had epilepsy resulting from the surgery he had as a child to remove a brain tumour, and due to an accident which occurred in 2006: at T[55]. The Tribunal also noted the evidence of Professor Somerville (at T[55]), which confirmed that in certain circumstances stress could provoke Mr Klewer’s seizures. The Tribunal also summarised the evidence of Dr Spira (one of the neurologists) as follows (at T[56]):
The reports indicate that Mr Klewer was involved in an altercation with the police in January 2015, and according to Dr Spira ‘[I]t does not appear that there are any immediate sequalae to that incident but I was informed that in August, September and October of that year [Mr Klewer] suffered a string of seizures which [Ms Klewer] outlined was of the order of 6 attacks’. While Ms Klewer described Mr Klewer as experiencing tonic-clonic seizures at that time, Mr Klewer himself told Dr Spira that he was awake during the episodes which Dr Spira considered ‘very difficult to reconcile with tonic-clonic convulsions’. Dr Spira noted that Mr Klewer attributed the seizures to stress and observed that when he sought further detail as to what Mr Klewer was referring to in that regard, Mr Klewer responded that ‘[Ms Klewer] pisses me off at times’. Ultimately Dr Spira concluded that he would ‘never associate’ Mr Klewer’s consciousness during the seizures with tonic-clonic seizures and ‘that there appears to be very powerful psychological triggers to the attacks’, that he ‘wonders whether some of the episodes may be psychogenic rather than representing epilepsy’, and that it is important to resolve the nature of the seizures by administering EEG telemetry.
(Footnotes omitted.)
The Tribunal found that an EEG was administered between 12 and 14 March 2018. This test was done following uncertainty as to whether Mr Klewer was experiencing seizures or pseudo-seizures: see T[57]. The time required to complete this test was seven days, however Mr Klewer discharged himself after two days, and refused to cease taking anticonvulsant medication prior to the test. No seizure activity was recorded during the period of observation: at T[58]. The Tribunal also found that Mr Klewer had no regular or scheduled appointments with a neurologist: at T[65]. Ms Klewer provided other evidence to demonstrate the frequency and intensity of Mr Klewer’s seizures, including diary entries (at T[66]), hospital and ambulance records (at T[67]), and several other documents including from the Pharmaceutical Benefits Scheme and Medicare, NSW Ambulance, the Coffs Harbour Health Clinic, and a “Seizure Action Plan” (at T[68]).
The Tribunal also summarised the evidence of Ms Burford (Epilepsy Nurse Specialist) (at T[79]–[87]), Mr Lucas (Psychologist) (at T[88]–[99]), Dr Wong (Clinical Neuropsychologist) (at T[100]–[101]), Ms Evans (Occupational Therapist) (at T[102]–[104]) and Dr Choi (Psychiatrist) (at T[105]–[107]).
The Tribunal placed weight on evidence given by Dr Ashkar (Neuropsychologist). Dr Ashkar provided evidence on behalf of the NDIA and gave oral evidence at the hearing before the Tribunal (at T[108]). The conclusion contained in paragraph [28] of Dr Ashkar’s report was extracted by the Tribunal as follows (at T[110]):
Anxiety is common in seizure disorders and Mr Klewer’s anxiety in relation to his seizures (if indeed he is having seizures) is closely tied to his very limited sense of self-efficacy (i.e., his limited sense of control over his seizures and/or his life more generally). Increasing his sense of self-efficacy will be an important focus of his psychological treatment in helping him to manage his anxiety. [Ms Klewer’s] dominance and control (I do not use these words lightly) of his care needs (no matter how well intentioned she may be) limits his sense of self efficacy (and ultimately his dignity by compromising his independence) and this will have serious implications for his psychological health into the future if not addressed today. Mr Klewer and [Ms Klewer] are therefore encouraged to engage in counselling that fosters a healthy and mutual understanding of his need to achieve greater autonomy and independence into the future, with or without [Ms Klewer] or a partner to take care of him.
Taking all the evidence into account, the Tribunal made the following findings:
(a)The Tribunal and the NDIA accepted that Mr Klewer experiences seizures; however, there was not sufficient evidence before the Tribunal to identify the precise type of seizures that Mr Klewer suffered: at T[117].
(b)Mr Klewer has not experienced serious seizure activity since a medication change took effect in May 2021: at T[118].
(c)Given that a change in medication dosage recommended in November 2020 did not take effect until May 2021, coupled with the fact that Mr Klewer does not participate in a regular regime of neurology review, the Tribunal questioned the “rigour with which Mr Klewer’s impairments are managed”, and whether his seizures do pose the level of risk and are as serious as claimed by Ms Klewer: at T[119].
(d)Almost all the evidence of Mr Klewer’s seizures came from Ms Klewer, who does not have qualifications to appropriately assess the nature and frequency of Mr Klewer’s seizures: at T[120].
(e)The Tribunal took issue with the evidence of practitioners who had treated Mr Klewer. With respect to Ms Burford and Mr Lucas, the Tribunal found that neither of them had witnessed Mr Klewer experiencing a seizure, and that Mr Lucas was not qualified to comment on the nature or frequency of Mr Klewer’s seizures: at T[121]. The Tribunal also found that Ms Evans, Dr Choi or Mr Lucas were not qualified to assess the nature and severity of Mr Klewer’s seizures, nor the treatment he requires: at T[124].
(f)The reports, taken together, show that reporting of Mr Klewer’s seizure activity has not been consistent over time: at T[122].
(g)The Tribunal accepted that evidence from hospital records indicates that Mr Klewer was admitted to hospital between 2017 until before 2021, however the only evidence of hospital admissions in 2021 was from Ms Klewer’s diary. The Tribunal found that the ambulance records record only five separate seizure episodes witnessed by paramedics or hospital staff between 21 March 2017 and 14 November 2020. It was not possible for the Tribunal to verify the other seizures recorded in Ms Klewer’s diary: at T[126].
(h)There was evidence before the Tribunal which suggested that a seizure monitoring device should be trialled: at T[127].
Given the above, the Tribunal concluded that it was not satisfied as to the nature or frequency of Mr Klewer’s seizures, and as such, it was not possible to be satisfied that Mr Klewer required overnight care: at T[128].
The Tribunal then made findings regarding whether the requested support satisfied the criteria in s 34(1) of the NDIS Act.
Section 34(1)(a): Whether the support will assist Mr Klewer to pursue the goals, objectives and aspirations included in his statement of goals and aspirations
With respect to s 34(1)(a), Mr Klewer’s goals included the following (at T[129]):
•I would like to learn daily living skills and be as independent as I am able in all daily living tasks
•I would like to be more social and build relationships with people in my community.
•I would like to access the therapies and equipment that I need so that I can live a healthy and supported life.
•I would like to reduce my seizures and live functionally without epilepsy.
•I would like to live a safe and healthy life where my health is managed properly.
The Tribunal did not consider that Ms Klewer’s evidence regarding independence was consistent with Mr Klewer’s goals. The Tribunal, amongst other evidence, accepted Dr Ashkar’s findings regarding “the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”: at T[130].
With respect to Mr Klewer’s goal to reduce his seizures, the Tribunal noted that the evidence from Mr and Ms Klewer suggested that stress and anxiety contribute to Mr Klewer’s seizures. The Tribunal noted Dr Spira’s report as follows (at T[133]):
Dr Spira’s report dated 12 October 2017 includes that Mr Klewer stated that ‘stress is an important trigger to the turns’, and that when asked by Dr Spira to specify what he meant by that Mr Klewer responded, ‘my mother pisses me off sometimes’. Dr Spira went on to report that ‘it appears that when he is angry, he suffers the episode [sic] and [Mr Klewer] stresses his heart races on each occasion’.
(Footnotes omitted.)
The Tribunal again considered the evidence of Dr Ashkar in considering whether the requested support would help reduce Mr Klewer’s seizures:
135. Dr Ashkar considers that Mr Klewer’s ‘anxiety in relation to his seizures is closely tied to his very limited sense of self-efficacy’, and that ‘increasing his sense of self efficacy will be an important focus of his psychological treatment in helping to manage his anxiety’. Dr Ashkar links Ms Klewer’s ‘dominance and control’ of [Mr Klewer’s] care needs to a diminution of his sense of self efficacy ‘and ultimately his dignity by compromising his independence’ and considers that this will have serious implications for his psychological health into the future if not addressed today. Mr Lucas also relates Mr Klewer’s anxiety at least in part to Ms Klewer’s actions, for example that some of Ms Klewer’s expressed concerns tend to provide reinforcement for Mr Klewer’s generalised anxiety disorder and his hypervigilance and Ms Klewer’s ‘regular debriefing of these struggles with [Mr Klewer] does tend to add to his fears about the world and to his anxiety levels…’ Mr Lucas also refers to Ms Klewer’s dominant parenting style. Overall Mr Lucas’s evidence is inconsistent, as in contrast to the aforementioned he agreed in oral evidence with Ms Klewer that the care she provides reduces Mr Klewer’s anxiety, which in turn reduces the incidence of seizures, thus minimising risks of injury and to Mr Klewer’s general health.
136. In this instance I place greater weight upon the evidence of Dr Ashkar than that of Mr Lucas notwithstanding that Ms Klewer considered that Dr Ashkar was not independent, and that Mr Klewer had been referred to Dr Ashkar as an expert in determining whether someone was ‘faking’. Mr Lucas gave inconsistent evidence and appeared to be impressionable to suggestions by Ms Klewer. Dr Ashkar gave consistent evidence and impressed as a reliable, objective and considered witness.
(Footnotes omitted.)
The Tribunal also found that Mr Klewer had not experienced serious seizure activity since May 2021 following adherence to an updated medication regime: at T[137]. Accordingly, the Tribunal was not satisfied that funding Ms Klewer to provide overnight care would assist Mr Klewer in pursuing his goals and aspirations.
Section 34(1)(b): Whether the support will assist Mr Klewer to undertake activities so as to facilitate his social and economic participation
The Tribunal was not satisfied that the provision of overnight care by Ms Klewer would assist Mr Klewer to undertake activities so as to facilitate his social and economic participation. The Tribunal made the following remarks (at T[140]):
The Respondent contended that if care were to be provided by Ms Klewer it reduces the opportunity for Mr Klewer to meet and form relationships with other carers which will expand his opportunities for social interactions and encourage him to think about other opportunities including employment opportunities. I note that Mr Klewer currently works at a market and with Ms Klewer at a nursery. There is no suggestion that this will be curtailed if Ms Klewer does not provide overnight care for Mr Klewer. However, undertaking further activities so as to facilitate social and economic participation will be affected by the level of independence Mr Klewer is able to achieve, which as noted in Dr Ashkar’s evidence, which I prefer, is affected by his sense of self efficacy and autonomy. Therefore, I cannot be satisfied that Ms Klewer providing overnight care for Mr Klewer will assist him to undertake further activities, so as to facilitate his social and economic participation.
(Footnotes omitted.)
Section 34(1)(c): Whether 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
The Tribunal rejected Ms Klewer’s submission that it would be more expensive for overnight care to be provided by someone else, and was likely to be of little benefit and could potentially be harmful. The Tribunal rejected this submission based on its finding that Mr Klewer does not require overnight care: at T[143]. The Tribunal accepted the NDIA’s submission that given there is no medical evidence supporting the need for overnight monitoring, should overnight care be necessary, there are lower-cost alternatives such as a seizure watch: at T[144]. The Tribunal considered that funding Ms Klewer to provide overnight care does not represent value for money, in that “the costs are not reasonably [sic] relative to both the benefits achieved and the cost of the alternative support”: at T[145].
Section 34(1)(d): Will the support be, or is it likely to be, effective and beneficial, having regard to good practice?
The Tribunal did not accept Ms Klewer’s submission that her provision of overnight care reduces Mr Klewer’s anxiety. The Tribunal noted that it preferred the evidence of Dr Ashkar, who concluded that Mr Klewer’s anxiety is “exacerbated by the lack of independence, self-efficacy, and autonomy”: at T[148].
The Tribunal also concluded that there was insufficient evidence for it to be satisfied as to the nature of Mr Klewer’s seizures, and that there was no evidence from a neurologist to support the need for overnight care: at T[150]. Further, based on Dr Ashkar’s evidence, the Tribunal found that the remaining evidence does not seem to support that having overnight care will enhance Mr Klewer’s independence in any way: at T[150].
The Tribunal also dealt with Ms Klewer’s submission that Mr Klewer’ wishes should be respected. Whilst the Tribunal acknowledged that Mr Klewer “has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer”, he also expressed to Dr Spira that his mother “pissed him off sometimes”. Given the same, the Tribunal found that, based on the evidence of Dr Askar regarding Mr Klewer’s lack of self-efficacy, coupled with the “dominance and control” exerted by Ms Klewer over Mr Klewer, it could not “be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer”: at T[151].
The Tribunal also made findings with respect to Mr Klewer’s medication: at T[152]–[153].
Given the evidence in its entirety, the Tribunal was not satisfied that Ms Klewer providing overnight care to Mr Klewer would be effective and beneficial having regard to current good practice: at T[154].
Sections 34(1)(e) and 34(1)(f): the funding takes into account what is reasonable to expect families, carers, etc. to prove, and whether the support is most appropriately funded through the NDIS
The Tribunal considered these criteria together given the way the NDIA’s submissions were structured. It observed the following with respect to s 34(1)(e):
160. As is set out above, I do not consider that Mr Klewer requires overnight care from Ms Klewer. If any overnight monitoring is needed it can occur by way of low-cost assistive technology. Mr Klewer’s submission regarding supports in other matters as set out in paragraph [158], the Tribunal does not consider the supports provided to participants in other matters is relevant. The Tribunal accepts that Ms Klewer considers that she has acted with courage and that epilepsy is a serious condition, and that generally, in accordance with Ms Burford’s evidence, there is risk. However, the evidence in this matter is that Mr Klewer’s epilepsy is now well controlled since his increase in medication and his other submissions related to these criteria are not supported by the evidence or findings.
161. Therefore, I cannot be satisfied that the funding sought by him takes account of what it is reasonable to expect families, carers, informal networks, and the community to provide, and it is accordingly not necessary to make findings about the other submissions made.
With respect to s 34(1)(f), the Tribunal found as follows (at T[162]):
Similarly, with respect to whether the support is most appropriately funded by the NDIS, and 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 – clearly if Mr Klewer requires an ambulance that is the purview of the health system. However, beyond that, given that I am not satisfied that overnight care is needed I am unable to be satisfied that the support sought is most appropriately funded through the NDIS.
Operational Guidelines
The Tribunal also dealt with Ms Klewer’s submission that cl 11.1 of the Operational Guidelines applies, and that there are exceptional circumstances which warrant the NDIA funding Ms Klewer to provide overnight care to Mr Klewer. The Tribunal reiterated its earlier finding that overnight care was not reasonable and necessary and, as such, the question of whether Ms Klewer should be funded to provide that care did not arise: at T[163].
Nonetheless, the Tribunal still considered Ms Klewer’s submissions on this point. Ms Klewer submitted that Mr Klewer’s privacy and dignity would be risked if another person provided overnight care, and that her cultural background meant that she could not allow another person to watch Mr Klewer in the evening. Ms Klewer also submitted that Mr Klewer would be at high risk of harm if others provided care for him overnight: at T[162].
The Tribunal made the following findings with respect to Ms Klewer’s submissions (at T[166]):
With respect to Mr Klewer’s submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight – if overnight care were necessary, which I have found it is not. Ms Klewer’s other submissions regarding ‘exceptional circumstances’ are already dealt with in the reasons above – that, should overnight monitoring be required, Mr Klewer’s privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the ‘strong pFersonal views’ he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer’s dominance and control and the evidence of Dr Spira as to Mr Klewer’s remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer’s vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer’s goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.
Given its findings, the Tribunal affirmed the decision under review: at T[168].
Grounds of appeal and questions of law
Mr Klewer advanced six grounds of appeal, each corresponding with a question of law as outlined in his amended notice of appeal filed on 21 October 2022:
1.Whether the Tribunal took into account an irrelevant consideration in the form of paragraph 28 of Dr Askhar’s report (at [110], [115], [130], [135], [136], [140], [148], [150], [151], [166]), which paragraph was directed at the self-management request that was an issue at the time of Mr Ashkar’s report but was not in issue in the Tribunal proceedings, as opposed to the applicant's request that his mother provide overnight care while he sleeps.
2.Whether the Tribunal denied the applicant procedural fairness, and/or disregarded ss 31(a)-(da), (g) and (i) and 33(2) of the NDIS Act, in finding:
a.that he expressed to Dr Spira that his “mother pissed him off sometimes” (at [151]);
b.that the Tribunal could not be satisfied that the applicant’s “consistently expressed views that he wants Mrs Klewer and no one else to be his night carer” was “genuinely held” by the applicant (at [151]; see also [166]); and/or
c.that Mrs Klewer impacted on the applicant’s stress (at [166]),
in circumstances where there was a live question as to whether the applicant would give oral evidence, which was resolved by the Tribunal concluding at T-76.17 that: “there’s possibly nothing to be added by way of [the applicant] giving evidence”.
3.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 ([141], see also [118], [128], [137], [167]), 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.
4.Whether the Tribunal denied procedural fairness to the applicant in failing to accept Mrs Klewer’s evidence about the frequency and intensity of the applicant’s seizures (at [126], [128], [143], [150]), in circumstances where these facts were not contested by the respondent and Mrs Klewer was not cross-examined about the veracity of these facts.
5.Whether the Tribunal applied the wrong legal test (at [150]) in requiring evidence from a neurologist, as opposed to the psychologist and other evidence available, to support the need for overnight care.
6.Whether in finding at [145] and [167] that a seizure watch would be an adequate alternative, the Tribunal failed to have regard to either or both of the relevant considerations that:
a.a seizure watch would not enable timely protection of the applicant from injury given the evidence of the nature of his seizures and his room set-up owing to his vision disability;
b.in the event of a seizure watch, Mrs Klewer would nonetheless be providing overnight care for Mr Klewer in being a person alerted by and responding to the seizure watch.
Mr Klewer seeks for the appeal to be allowed, the Tribunal’s decision to be set aside and the matter to be remitted to the Tribunal for determination according to law.
Consideration of the grounds of appeal
There is a degree of overlap between the matters requiring consideration for all grounds, save for ground 3. Accordingly, ground 3 will be addressed last, at the end of these reasons.
Ground 1: Paragraph 28 of Dr Ashkar’s report
Mr Klewer contends by ground 1 that, by taking into account paragraph [28] of Dr Ashkar’s report (at T[110], [115], [130], [135], [136], [140], [148], [150], [151], [166]), the Tribunal took into account an irrelevant consideration.
The parties agreed that, in determining whether something comprises an “irrelevant consideration”, the Court is guided by the seminal decision of Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 at [9]. In Lo, Basten JA (Beazley P agreeing) crystallised crisply the concepts of relevant and irrelevant considerations in the following way (at [9]):
… The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J), it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Lo has been cited with approval, or apparent approval, by intermediate State appellate courts (although the NDIA provided no such cases in its written submissions) and single judges of this Court (see e.g., CMA19 v Minister for Home Affairs [2020] FCA 736 at [134] per Murphy J; BZW16 v Minister for Immigration and Border Protection [2019] FCA 395 at [17] per Bromberg J).
Mr Klewer accepted the confines of an “irrelevant consideration” being a prohibited consideration but claimed that the Tribunal’s reliance on paragraph [28] of Dr Ashkar’s report fell within this limited class by reason of it being “arbitrary” or “capricious”. Mr Klewer submitted that Dr Ashkar’s report “went only to the self-management request”, which was no longer in issue when the matter was heard before the Tribunal, and “had no relevant or no probative value” in relation to Mr Klewer’s overnight care request. Given the same, Mr Klewer submitted that Dr Ashkar’s report could not be taken into account, as it was “extraneous to [whether overnight care for Mr Klewer was reasonable and necessary] and liable to lead to a decision which is arbitrary or capricious”.
Mr Klewer submits that the context in which his application to the Tribunal was made, and the way in which the case had changed by the time of the hearing before the Tribunal, must be borne in mind by this Court, by reason of the following.
Mr Klewer notes that the application was for the Tribunal to review the NDIA’s internal review decision made under s 100 of the NDIS Act. The decision that was internally reviewed was the statement of participant supports in Mr Klewer’s NDIS plan. Mr Klewer’s NDIS plan was approved on 1 June 2018, following the granting of Mr Klewer’s NDIS access request on 12 March 2018, and was for a period commencing on 31 May 2018. Mr Klewer’s NDIS plan was to be reviewed by 31 May 2019.
The internal review decision was to refuse Mr Klewer’s request to self-manage his plan’s funding based on s 44 of the NDIS Act. No decision was made regarding whether his supports were reasonable and necessary, nor was a decision made with respect to whether supports could be provided by Mr Klewer’s family members. Mr Klewer and Ms Klewer had corresponded with the NDIA regarding supports to be provided by Mr Klewer’s family between 27 April 2018 and 13 July 2018.
In Mr Klewer’s application for review by the Tribunal, he stated two grounds which are extracted above at [7].
On 23 August 2018, the NDIA’s covering letter to Mr Klewer (which it sent along with the T documents that were before the Tribunal) stated that the NDIA’s preliminary assessment was that the issues in the proceedings concerned whether Mr Klewer should self-manage his NDIS plan’s funds.
Mr Klewer then submits that on 1 November 2018, the NDIA requested that Dr Ashkar (a psychologist) answer questions (which were stated at a high level of generality) about Mr Klewer’s disabilities. Mr Klewer notes that Dr Ashkar is not a neurologist and does have any particular specialisation in epilepsy or seizures. After assessing Mr Klewer for five hours (two and a half of those hours were dedicated to psychometric testing) on 10 December 2018, Dr Ashkar wrote a report dated 14 January 2019. Mr Klewer submits that apart from the assessment, Dr Ashkar otherwise had no connection to Mr Klewer.
Dr Ashkar commenced his report as follows:
I understand your [the NDIA’s] referral relates to a request made by Mr Klewer’s mother (Lucy Klewer) to be a paid carer for him and to personally manage the funds in his NDIS plan.
(Emphasis added.)
Dr Ashkar then provided a two-page summary of opinion at the end of his report, which Mr Klewer summarised as follows:
(a)There was no objective evidence that Mr Klewer’s seizures were of the grand mal/generalised tonic-clonic variety (at [24]).
(b)Mr Klewer has permanent impairments in cognition consistent with his history of astrocytoma and epilepsy; his intellectual skills are in the low average normal range and his verbal intellectual skills are remarkable in the circumstances (at [25]).
(c)Mr Klewer requires structure and support, including to “manage his funds under the NDIS” (emphasis added), but does not appear to have severe widespread impairments (at [26]).
(d)Dr Ashkar recommends that Mr Klewer receive occupational therapy, clinical neuropsychology, speech therapy, communication and social skills training, psychology and disability employment services (at [27]).
(e)Mr Klewer’s anxiety is tied to his limited sense of self-efficacy. Ms Klewer’s dominance and control “of his care needs” (emphasis added) limits Mr Klewer’s sense of self-efficacy and will have serious implications if not immediately addressed (at [28]).
In the Tribunal proceedings, the NDIA filed its Statement of Facts, Issues and Contentions (SOFIC) on 5 July 2019. At that time, the NDIA contended that: (a) based on Dr Ashkar’s report, it is unclear whether support is required, (b) there are providers of overnight support in Mr Klewer’s area, and (c) the self-management request should be refused, including because Dr Ashkar opined in his report that it would undermine Mr Klewer’s self-efficacy. The NDIA then filed its amended SOFIC on 7 November 2019, which stated that the issues in contention had now changed to whether overnight care for 10 hours per night, seven days a week is a reasonable and necessary support and, if so, whether Ms Klewer should be funded to provide it. The self-management issue had fallen away, and it was not a matter that the Tribunal made findings about.
Despite the above, Mr Klewer submits that the Tribunal placed heavy reliance on paragraph [28] of Dr Ashkar’s report in its finding that overnight care by Ms Klewer would comprise Mr Klewer’s independence: at T[130], [135], [136], [140], [148], [150], [151], [166]. However, according to Mr Klewer, paragraph [28] of Dr Ashkar’s report was clearly directed towards the self-management request that was central to the dispute when Dr Ashkar was instructed (but not a central matter by the time of hearing). Mr Klewer submits that Dr Ashkar’s reference at [28] of his report to Mr Klewer’s self-efficacy necessarily relates to Mr Klewer’s independence in his daytime activities and his management of his NDIS plan. This submission, Mr Klewer contends, is consistent with Dr Ashkar’s oral evidence before the Tribunal, which is recorded at T[115]. It does not relate to overnight care, which takes place while Mr Klewer is either asleep or undergoing a seizure (both of which necessarily involve limited self-efficacy or opportunities for independence).
Mr Klewer therefore submits that [28] of Dr Ashkar’s report was an irrelevant consideration on the questions in issue before the Tribunal at the time of the hearing, and it should not have been taken into account.
I do not accept that [28] of Dr Ashkar’s report was only relevant to the issue of plan management and not as to whether the requested support was reasonable and necessary for the purposes of ss 33(2)(b) and 34(1) of the NDIS Act.
A fair reading of Dr Ashkar’s report appears that he understood that the NDIA’s referral was a related to a request of a dual nature (as appropriately conceded by Mr Klewer at hearing) made by Ms Klewer to be a paid carer for Mr Klewer and to personally manage the funds in his NDIS plan. This is clear from the first sentence of his report, where he notes that he has been asked to consider a request by Ms Klewer “to be a paid carer for [Mr Klewer]”. In addition, there are numerous references throughout the report to Mr Klewer’s experience of night seizures, the experience of his mother, and his wishes regarding that care: At [3], Dr Ashkar refers to Ms Klewer’s statement of lived experience, and notes that Mr Klewer “experiences seizures several times per month, mainly at night”, Ms Klewer “sleeps in the same room as Mr Klewer at night to monitor his seizures”, and that Ms Klewer states that Mr Klewer “only feels safe and happy with her as his carer … and that she will never allow others to care for him particularly at night”. At [6], Dr Ashkar refers to Dr Loiselle’s report, which makes reference to the fact that Mr Klewer experiences seizures mainly at night. At [7], Dr Ashkar notes the recommendation of Mr Lucas (Mr Klewer’s treating psychologist) that Ms Klewer provide all service provision “in light of his night-time seizure activity”. At [12], following an interview with Mr and Ms Klewer, Dr Ashkar identified that Mr Klewer “is particularly anxious about being cared for by someone other than his mother during the night”, and that one of Mr Klewer’s main difficulties and concerns was him “not wanting a stranger to watch over him at night” (at [14]).
Perhaps most critically, at [24] of Dr Ashkar’s report (which starts the section that contains the entirety of Dr Ashkar’s opinion following his review of the materials and his interview with Mr and Ms Klewer), he states that Ms Klewer “claims [Mr Klewer] continues to experience “grand mal” (or rather, generalised tonic-clonic) seizures at night, requiring her close attention and care”. Accordingly, I do not accept Mr Klewer’s submission that, when read fairly, paragraph [28] was not at all about whether overnight care should or should not be provided. It is clear that Dr Ashkar’s opinion was crafted in the knowledge of this request. It is also clear that, ultimately, Dr Ashkar did not give any concluded view on the efficacy of overnight care and whether it should be provided by Ms Klewer. He opined that he was not in a position to do so given that the cause of the seizures had not been diagnosed by experts and that that needed to be done. However, the determination of the reasonableness and necessity of supports including, inter alia, whether they will be, or are likely to be, effective and beneficial, having regard to good practice, will include consideration of the pursuit of self-efficacy and what may place a person in good stead for the longer term.
Taking the above references together, it is clear that Dr Ashkar turned his mind to the requested support in issue before the Tribunal, namely funding Ms Klewer to monitor Mr Klewer overnight. Accordingly, his report, including paragraph [28], was relevant to the Tribunal’s task.
The NDIA submitted that Dr Ashkar emphasising the importance of Mr Klewer gaining independence was relevant “to determining those matters that the Tribunal was required to consider under” s 34. Mr Klewer’s ability to provide care for himself in circumstances where Ms Klewer (or another person) cannot care for him was relevant in determining whether the support in issue would assist Mr Klewer to pursue his goals, objectives and aspirations. Whilst the NDIA accepted that Dr Ashkar did not directly profess an opinion with respect to overnight care specifically, I accept the submission of the NDIA that the issue raised by Ground 1 is whether paragraph [28] of Dr Ashkar’s report was prohibited from being considered by the Tribunal by virtue of the NDIS Act. I do not accept that there was any prohibition imposed by the NDIS Act such that Dr Ashkar’s report could not be considered by it. The purported basis for such a prohibition was premised on whether the issue of the overnight care by Ms Klewer was within the scope of Dr Ashkar’s report. For the reasons outlined above, I do not accept this.
Further, I accept the submission of the NDIA that the location of paragraph [28], under the heading “Summary and Opinion”, within the general context of the report suggests that the utility of the paragraph was not strictly limited to the issue of plan management, and related to the broader issue of whether the requested support in contest was “reasonable and necessary”. Further, in [28] of Dr Ashkar’s report, he addresses Mr Klewer’s anxiety and goes on to explain the need for Mr Klewer to achieve “autonomy” from his mother. That issue was relevant to whether Ms Klewer should be funded to provide the requested support. I do not consider that is constitutes a conflation of the issues as suggested by Mr Klewer.
I am of the view that stated goals of independence may include not only daily activities but also how a person is cared for (including overnight). Whilst I accept that a merits review analysis may consider the degree to which one overlaps with or informs the other, and that this may be the subject of debate and evidence, I am of the view that this merits review criticism is the basis for this ground and cannot fall within the species of a prohibited consideration.
Further, I accept the NDIA’s submission that the principles applicable to determining whether a consideration is irrelevant do not support Mr Klewer’s argument. As the NDIA contended, the starting point when considering the NDIS Act is the statement made by the Full Court in National Disability Insurance Agency v WRMF[2020] FCAFC 79; 276 FCR 415 (at [201]):
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision‑maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions‑maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision‑maker to form the requisite state of satisfaction on the given material.
The NDIA submits that, having regard to the abovementioned principles, I should not find that the Tribunal made an error of law by considering the opinion of Dr Ashkar at [28] of his report when assessing whether the requested support was “reasonable and necessary” for the purposes of s 34 of the NDIS Act. For example, and contrary to the allegation in ground 1, there was no error in the Tribunal finding (at T[130]), in the context of assessing the criterion in s 34(1)(a), that “I accept the evidence of Dr Ashkar regarding the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”. Section 34(1)(a) required the Tribunal to be satisfied that “the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations”. As the Tribunal pointed out (at T[129]), Mr Klewer’s statement of participant’s goals and aspirations included the goal that he “would like to learn daily living skills and be as independent as [he is] able in all daily living tasks”. I accept this submission.
Finally, the NDIA contends that the Tribunal was required (by s 33(5)(b) of the NDIS Act) to take Dr Ashkar’s report into consideration when considering s 34(1)(a) of the NDIS Act. Section 33(5)(b) requires the decision-maker “[i]n deciding whether or not to approve a statement of participant supports under subsection (2)” to “have regard to relevant assessments conducted in relation to the participant”. None of these provisions support Mr Klewer’s contention that procedural developments in the course of the Tribunal’s review, such as certain issues falling away, had the effect of making paragraph [28] of Dr Ashkar’s report an “irrelevant consideration” in the sense contemplated by the authorities. As such, ground 1 does not establish an error of law, and should be dismissed. I also accept this submission.
The Tribunal was therefore able to rely upon Dr Ashkar’s report for the purposes of determining whether this requested support was reasonable and necessary.
Ground 2: Procedural fairness – Mr Klewer not giving evidence
By ground 2, Mr Klewer submits that the Tribunal failed to afford him procedural fairness by concluding that it doubted the genuineness of Mr Klewer’s “consistently expressed views” that he wanted Ms Klewer to be his overnight carer when he did not give evidence before the Tribunal.
At T[151] and [166], the Tribunal found that Ms Klewer being Mr Klewer’s overnight carer would not be in his interests:
151. As to Ms Klewer’s submission that Mr Klewer’s wishes should be respected, I acknowledge that Mr Klewer has consistently expressed the view that he wants Ms Klewer and no one else to be his night time carer to the Tribunal in his statement and to a range of practitioners including Mr Lucas, Dr Ashkar, Dr Wong, Dr Choi and Ms Evans. He has however also expressed to Dr Spira that his ‘mother pissed him off sometimes’. I find that, based on the evidence of Dr Ashkar regarding Mr Klewer’s lack of self efficacy, and the ‘dominance and control’ exercised by Ms Klewer over him, I cannot be satisfied as to the extent to which this view is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer. I accept, based on the Respondent’s submission regarding that one of the core principles which underpins the NDIS is enhancing a participant’s sense of independence and Mr Klewer’s stated goal ‘to be as independent as I am able in all daily living tasks’, and the evidence regarding independence which has already been canvassed, that in this case, Mr Klewer’s wishes are best served by developing independence. If necessary, this can be achieved by the use of a low-cost assistive technology alternative.
…
166. With respect to Mr Klewer’s submissions I make the following observations. There is no independent evidence regarding the cultural considerations Ms Klewer raises. There is no objective evidence that Mr Klewer would be at risk of harm or neglect if not attended by Ms Klewer overnight – if overnight care were necessary, which I have found it is not. Ms Klewer’s other submissions regarding ‘exceptional circumstances’ are already dealt with in the reasons above – that, should overnight monitoring be required, Mr Klewer’s privacy and dignity can be preserved by the use of assistive technology. Based on the findings set out in paragraphs [136] and [137], I am not satisfied that Ms Klewer provides the best care for Mr Klewer, in terms of the impact she has upon his stress. I am also not satisfied as to the extent to which the ‘strong pFersonal views’ [sic] he expresses are genuinely his, particularly in view of the evidence of Dr Ashkar regarding Ms Klewer’s dominance and control and the evidence of Dr Spira as to Mr Klewer’s remarks to him regarding Ms Klewer. I am unable to be satisfied as to Mr Klewer’s vulnerability on the basis of the evidence before me. I accept that Mr Klewer feels safe and comfortable with Ms Klewer, but as set out above, do not accept that that is consistent with Mr Klewer’s goals of independence and to live a healthy and supported life, particularly in terms of his psychological health. I also observe that many of the matters raised by Ms Klewer as amounting to exceptional circumstances are issues regularly, routinely, or normally encountered with respect to the provision of supports for participants in the NDIS, and thus are not within the circumstances contemplated in the cases referred to above.
(Footnotes omitted.)
The Tribunal made this finding despite Mr Klewer’s consistently expressed views “that he wants Mrs Klewer and no one else to be his night carer”: at T[151]. This occurred in circumstances where the NDIA did not challenge Mr Klewer’s credit before the Tribunal, nor did it seek to cross-examine him.
Mr Klewer also relies upon the fact that the Tribunal took into account a hearsay statement from 2017 (at T[56], [133] and [151]), in that Dr Spira’s report to Dr Ajuyah includes a suggestion that Mr Klewer stated that “[his] mother pisses [him] off at times”. However, neither Mr or Ms Klewer were asked about this during the Tribunal proceedings.
Mr Klewer contends that it was procedurally unfair for the Tribunal to doubt the genuineness of Mr Klewer’s views, and to prefer a hearsay phrase from 2017, where Mr Klewer’s evidence was not challenged and he did not give oral evidence at the Tribunal. According to Mr Klewer, the Tribunal should have told Mr Klewer that not giving oral evidence may be adverse to his case, because the Tribunal doubted the genuineness of his stated views. Mr Klewer submits that the failure of the Tribunal to alert Mr Klewer to this constituted a denial of procedural fairness: see WRMF at [66]. This failure was said to be heightened by the Tribunal telling the parties during the hearing that “there’s possibly nothing to be added by way of [Mr Klewer] giving evidence”, which according to Mr Klewer was relied upon by him in his election not to give evidence.
Mr Klewer submits that, to have observed procedural fairness, the Tribunal should either have disclosed the risk to Mr Klewer during the hearing, or failing such a disclosure, should not have made the finding that it doubted the genuineness of Mr Klewer’s views. Mr Klewer was denied the possibility of a different outcome of his review application before the Tribunal: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145, 147; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60].
For the following reasons, this ground is made out.
It was common ground as between the parties that a species of procedural unfairness includes where a decision-maker deprived a party of a fair opportunity to be heard by failing to alert the party of an issue (not considered by the parties) which it considers important: WRMF at [66]. Put differently, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [39], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591.
It is apparent from a review of the SOFIC, the submissions of the parties and the transcript, that the Tribunal’s finding at T[151] that it “[could not] be satisfied as to the extent to which this view [Mr Klewer’s view that he wanted Ms Klewer and no one else to be his night time carer] is one genuinely held by Mr Klewer, rather than one imposed upon him by Ms Klewer” (emphasis added) did not arise as an issue raised by either party.
Mr Klewer’s view regarding him wanting his mother, and no one else, to be his night time carer, was set out in Mr Klewer’s statement relied upon by him before the Tribunal. The relevant portions are extracted as follows:
2. …
b) I only want my mother to look after me for as long as she can and I hope I will be lucky enough to find a partner in the near future so she can be trained by my mother to look after me when my mother can no longer look after me.
…
e) I am very fearful of even the thought of having someone watching my sleep. I will never allow for that. My anxiety levels are so bad that any additional stress results in seizures.
f) My mother does her best to reduce my stress levels. She loves me and I love her very much and she will do anything for me to keep me well. She has done this all my life.
g) The risk of harm and neglect to myself are very high if my mother was not there for me especially at night time. I am terrified about my condition and I worry a lot each time I go to bed at night as I don't know if I am going to suffer seizure [sic]. I am aware most times when these episodes occur and they are very scary. My heart rate is so fast and my jaw starts shaking then my whole body starts shaking and I try to talk and I can’t. I tap my leg real hard to get mum’s attention, she sleeps across the room, I feel like I am going to die.
h) My head twists one way and then I start falling toward the left and to the ground, my mother stops me from falling but at times she can’t so she lets me fall on the pillows on the floor she places there. At times she injects me with medication if I have more seizures or if the seizure is too long. Such medication always stops the seizures.
3. I am entitled to have my wishes and decisions respected by NDIS after all such Scheme was created to provide me with the services I choose, to assist me to access other services which improve my life. My mother and myself and my GP and treating specialists are all on the same page and we wish to continue as we are.
4. The most important issue is my safety and peace of mind and stress reduction. I am very satisfied with the great services from my current psychologist Charles Lucas whom I have seen for 4 years. He understands me fully, just like my mother does and he listens to me.
5. I hope one day my seizures will be better controlled by better medications. I also hope that my anxiety and panic disorders are reduced so I can better enjoy my life. Dealing with NDIS and ther [sic] poor attitude and dealing with these legal issues have caused me significant stress and I truly believe that NDIS do not care about the harm they caused.
The NDIA’s submission was, in effect, that first the Tribunal ought not be satisfied that overnight care was necessary. There was a lack of objective medical evidence that epilepsy monitoring was required as there was “no evidence of a definitive diagnosis that the seizures currently experienced by [Mr Klewer] are of an epileptic nature” and nor was there evidence from a treating doctor confirming the requirement of epileptic monitoring at all, let alone overnight. To the extent that the seizures were psychogenic non-epileptic seizures, there was no evidence from a treating doctor confirming the requirement for overnight monitoring of such seizures.
To the extent that overnight care was required, the NDIA submitted that there was insufficient medical evidence to establish the level of care required and, in particular, whether the care ought to be active or passive, including by use of a seizure watch (which constituted a low cost alternative support).
As to whether Ms Klewer should be funded to provide overnight care, the NDIA disputed that “exceptional circumstances” justified that a family member provide the care, as required under the NDIS Operational Guidelines. The NDIA acknowledged Ms Klewer’s position, in its amended SOFIC, as to “exceptional circumstances” arising where, as provided in Chapter 11.1 of the Operational Guidelines:
•there is a risk of harm or neglect to the participant;
•there are religious or cultural reasons for funding a family member to provide supports; or
•the participant has strong personal views, for example in relation to their privacy or dignity.
Notably, the third identified exceptional circumstance refers to account being taken of whether the “participant has strong personal views, for example in relation to their privacy or dignity”. Flowing from this, the NDIA noted Mr Klewer’s view in its amended SOFIC:
As to his expressed wishes, the Applicant states that “I want my mother to look after me for as long as she can”; “I am very fearful of even the thought of having someone watching my sleep. I will never allow that”; ‘The [sic] risk of harm and neglect to myself are [sic] very high if my mother was not there for me especially at night.”
(Footnotes omitted.)
The NDIA made no submission, at all, ever, that Mr Klewer’s view was not “genuine” and should not be accepted. Rather, for other reasons, in part identified above, it contended that the circumstances did not warrant overnight support or, if they did, they were not such that there were exceptional circumstances which warranted it being provided by Ms Klewer. The NDIA identified, as part of its amended SOFIC, that there were reasons why, despite Mr Klewer’s view, the circumstances did not constitute “exceptional circumstances” where a family member would be funded to provide the requisite support:
91. In response to the Applicant’s contentions as to the “exceptional circumstances” that exist in this matter, the respondent’s position is as follows:
a. The Tribunal should not accept that the Applicant is at risk of neglect or harm if he is cared for by an external support worker or is especially vulnerable. There is no objective evidence to support that contention;
b. An appropriately qualified external provider can provide care that is of high quality and that will ensure the safety of the Applicant. There are available within the Coffs Harbour area in which the Applicant resides, providers of overnight support of the kind requested;
c. Concerns about privacy are common to participants in the scheme receiving personal care. The Applicant’s concern may be addressed by the use of passive monitoring, utilising assistive technology;
d. There is no medical evidence that “stress” is causing the seizures. On the available medical evidence, the “triggers” for the seizures are unclear. The Applicant and his mother have reported to treating doctors that stress is a factor rather than the treating doctors opining that stress is a factor;
e. Finally, it is unclear that it is Ms Klewer’s cultural background that precludes her from allowing others to care for the applicant as opposed to her personal and strongly held views that she will never allow anyone else to care for the Applicant.
92. As to the Applicant’s fear of having someone watching him sleep, again this may be addressed by the use of passive monitoring, utilising assistive technology.
93. The Respondent’s contention is that there are not “exceptional circumstances” in this case to warrant the funding of the Applicant’s mother to provide overnight care to the Applicant.
The NDIA did submit as well, noting Mr Klewer’s view that reliance should also be placed on his stated goal of “independence”, the following:
The Tribunal should find there are not “exceptional circumstances” warranting a determination that Ms Klewer, a family member, be funded to provide overnight care to the Applicant, given the Applicant’s failure to demonstrate that “exceptional circumstances” exist; the goals stated in the Applicant’s plan; and the psychologists evidence as to the nature of the relationship between the applicant and his mother and the need for the Applicant to develop independence.
The NDIA, in a similar vein, when addressing the s 34 criteria in relation to s 34(1)(a) (whether the support would assist the participant to pursue their stated goals and aspirations), submitted that overnight support (if required) should be provided by an external provider rather than Ms Klewer “given the objectives of the Applicant’s plan and Dr Ashkar’s evidence as to the detriment flowing from Ms Klewer’s dominance and control of the Applicant’s care needs”.
To the extent that the NDIA relied upon Dr Ashkar’s opinion, and particularly paragraph [28] of his report, it was as referred to in the amended SOFIC in the following way:
The Tribunal cannot be satisfied that funding the Applicant’s mother to provide overnight care would be beneficial for the Applicant. Funding the Applicant’s mother to provide overnight care would further reinforce a degree of control that presents a risk to the Applicant. As noted above, Dr Ashkar opines that the applicant’s mother’s “dominance and control (I do not use these words lightly) of his care needs (no matter how well intentioned she may be) limits his sense of self efficacy (and ultimately his dignity by compromising his independence) and this will have serious implications for his psychological health into the future if not addressed today”
(Emphasis in original, footnotes omitted.)
Indeed, the NDIA’s submission before the Tribunal remained consistent, in opening, when counsel for the NDIA submitted that Mr Klewer’s evidence (which would include not only his evidence but of course all evidence upon which he relied) “at its highest” would not satisfy the Tribunal that the support was justified. There was no challenge by the NDIA of Ms Klewer, under cross-examination, as to whether she had imposed her views on Mr Klewer. Dr Ashkar gave evidence, under cross-examination, to the effect that he agreed with what Mr Lucas (Mr Klewer’s treating psychologist) had stated regarding Mr Klewer’s feelings of comfort and safety under his mother’s care:
In relation to (indistinct)?---No, in relation to the Charles Lucas opinion regarding that your son feels - referring to the information in that Charles Lucas report where he says that your son, [Mr Klewer], feels comfortable and safe in your care throughout the night, and I agreed that that would be the case, and it’s natural and it’s understandable. That’s what I was agreeing to.
Section 42D of the AAT Act provides:
42D Power to remit matters to decision-maker for further consideration
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and make a new decision in substitution for the decision set aside.
Note: For time limits, see subsection (5).
(3) If the person varies the decision:
(a)the application is taken to be an application for review of the decision as varied; and
(b)the person who made the application may either:
(i)proceed with the application for review of the decision as varied; or
(ii)withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b)the person who made the application may either:
(i)proceed with the application for review of the new decision; or
(ii)withdraw the application.
Time limits
(5)The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
Mr Klewer submitted that s 42D is an “ancillary machinery provision” in the AAT Act, and that it would be “very surprising” if it had the “momentous” consequences for the NDIS that the NDIA contends that it does. Mr Klewer contended that all the Tribunal is reviewing is the 2018–2019 plan. Mr Klewer described the use of s 42D as merely an administrative practice ordinarily used by the Tribunal when it is of the view that the NDIA has not given consideration to a particular issue, or if it is more efficient for the NDIA to make a decision about a particular issue and then send it back to the Tribunal. Mr Klewer submitted that the purported remittals under s 42D “were not legally necessary” and are “probably not remittals at law” due to the inconsistency between the application for a remittal and what the relevant orders say is the decision that is being remitted to the NDIA. Mr Klewer submitted that s 42D was not engaged. This was said to be supported by the fact that, at T[12], the Tribunal referred to the numerous s 42D orders that had been made “to ensure the continuity of funding for Mr Klewer of the reasonable and necessary supports not in contention”. Mr Klewer contended that there was no remission of the “actual decision” and, even if there was, the decision by the NDIA to order that “so-called remission” was not setting aside the 2018–2019 plan. The 2018–2019 plan has not disappeared “into the ether”. Mr Klewer submitted that the effect of the construction argued for by the NDIA would result in previous plans dissolving, and along with them, an applicant’s right to challenge an earlier decision.
For the following reasons, I do not accept Mr Klewer’s submissions.
The effect of a 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).
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 (orders are extracted at [188] above). 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.
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. This effect has been recognised in Syddall and National Disability Insurance Agency [2022] AATA 3738 at [6] per Meagher J. 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.
I accept the submission of the NDIA that, because the applicant’s notice of appeal did not challenge the validity of the order made on 31 May 2021 under s 42D (which the NDIA submitted could not, in any case, be the subject of an appeal under s 44 of the AAT Act, citing Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444 at [18]–[21]), there was no basis not to give effect to the operation of s 42D.
Mr Klewer submitted that there was no “temporal aspect” to s 42D, and that it is a remittal power which only applies with respect to the original decision itself. Further, Mr Klewer submitted that, when you have a statutory regime (such as the NDIS Act) where a decision applies for a particular period and then you have a new decision coming into effect for a later period, s 42D does not have the effect of expanding the period of time that is the subject of review by the Tribunal. The plans made after the 2018-2019 plan were not, by virtue of s 42D, brought within the Tribunal’s jurisdiction.
I do not accept this submission. The below review of the legislative scheme reveals that Parliament contemplated various forms of review, variation and alteration of the plan, including replacement by way of a change of the participant’s statement of goals and aspirations (s 47) or, where a variation is made when a review is on foot, the request for the review “is taken to be for a review of the reviewable decision as varied”, as s 101 provides. Accordingly, there is specific contemplation under the Act of the review becoming of the decision as varied. Here, there were a number of orders remitting the 23 July 2018 decision and subsequent decisions for reconsideration. By way of example, following the 31 May 2021 orders to remit the 17 June 2020 decision for consideration, that decision was remitted and varied or a new decision was made with effect from 7 June 2021 and a review date of 7 June 2022.
Mr Klewer also submitted that the remittal of the impugned decision under s 42D “had no legal effect”, because the period which covered the 2018–2019 plan had passed by the time the first s 42D order was made. If, however, the s 42D orders did have some legal effect, Mr Klewer submitted that it must have been “to leave untouched” the 2018–2019 plan, and to have “some effect on later plans”. I do not accept this submission. Section 42D permits, at any stage in a proceeding for review of a decision, the Tribunal to remit the decision for reconsideration. If the decision is so remitted, the person to whom it is remitted may reconsider the decision and may affirm, vary or set aside the decision and make a new decision in substitution for the decision set aside (s 42D(2)). It is clear that a number of the remittals involved changing the review date in the plan and led to the creation of a new plan which was the subject of a further remittal.
Mr Klewer’s counsel submitted that s 42D’s purpose was not to have the effect that the decision that was the subject of the review application would “completely disappear” and be replaced by later decisions. I do not accept this submission. The possible consequences of remittal are clearly stated in s 42D(2) and, if there is variation or the decision is set aside and a new decision is made, then the application is taken to be an application for review of the decision as varied (s 42D(3)(a)) or the new decision (s 42D(4)(a)). It is clear that the effect of the power under s 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan. For Mr Klewer to contend that this would be “extraordinary” and would go against the entire notion of remittal, which involves remitting for reconsideration a decision which had already been made, flies in the face of the clear power to do so under s 42D and as contemplated under the NDIS Act. Furthermore, for the reasons set out below, I am of the view that the operation and effect of the NDIS Act supports this view. The machinery of s 42D gives effect to the intention of the NDIS Act to operate a forward-looking funding scheme. An effect is that the review is a contemporaneous one.
As contended by the NDIA, which I accept, 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.
Contrary to Mr Klewer’s submission, he is not able to rely on other decisions in which the Tribunal have considered a plan which has expired (such as QZHH and National Disability Insurance Agency [2018] AATA 1465). They are distinguishable given there was no remittal under s 42D. Nor was there a remittal used in the impugned decision which was considered by this Court in McGarrigle.
Mr Klewer also submitted that the later plans made by the NDIA were not the subject of any application for review by Mr Klewer, which is the precondition for giving the Tribunal jurisdiction. However, it is my view that the effect of s 42D is such that it allowed, by variation or substitution of a new decision, for the 2021 plan to be a reviewable decision in the way that both Mr Klewer and the NDIA presented their cases to the Tribunal.
Statutory indicators
As submitted by Mr Klewer, the time dimension of administrative decisions is divined by an analysis of the statute itself. Some administrative decisions, for example those associated with occupational registration and whether a person is fit and proper, will be decisions where facts post-dating the decision under review are relevant to the Tribunal’s task.
Whether a statute requires a review decision to be made with reference to a past point in time or the time of the review depends on the statutory context: see Shi at [46] (per Kirby J), [99] (per Hayne and Heydon JJ) and [145] (per Kiefel J, as her Honour then was); Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [14]–[15] (per Kiefel CJ, Keane and Nettle JJ). Two distinct limitations on the review include whether the statute requires that a review decision be confined to material that was before the primary decision-maker or confined its consideration to events that had occurred up to the time of that decision: Shi at [43], citing Commonwealth v Ford(1986) 65 ALR 323 at 328. Mr Klewer appeared to propound that both limitations applied in this case. In both Shi and Ford, the High Court and Federal Court respectively held that the applicable legislation in each case allowed for the review be more broad-ranging and allowed for both a consideration of material beyond what was before the decision-maker and to rely on events after the fact and make the preferable decision as applicable as at the time of the review.
Despite how Mr Klewer ran his case before the Tribunal, Mr Klewer submitted before me that here Mr Klewer’s statement of participant supports was for a specific period of time (as it was required to be). As a consequence, “only facts relevant to that period of time, and within that period of time”, were probative of the issue before the Tribunal.
Mr Klewer submitted, by operation of ss 32, 33(2)(c), 33(5)(f), 34 and 37, the participant’s plan was not a “platonic, indefinite concept” but time-limited.
Section 32(1) requires that the CEO facilitate the preparation of the participant’s plan.
Section 33 sets out the matters which must be included in the plan:
33 Matters that must be included in a participant’s plan
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and (b) the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:
(a) for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or
(b) otherwise—a registered provider of supports.
(7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.
Note: Section 38 requires a copy of a participant’s plan to be provided to him or her.
Relevantly for the purpose of this ground of appeal, the chapeau to s 33(2) requires that the statement of participant supports must be “approved by the CEO”. The consideration is pointedly forward-looking by deployment of the future tense in s 33(2)(a) and (b) and s 33(3).
Section 34 also directions attention to the future provision of supports (extracted at [11] above). Similarly, the CEO must be satisfied, for the purpose of determining the funding or provision of each support, whether the support “will assist the participant to pursue the goals, objectives and aspirations” (s 34(1)(a)), whether the support “will” assist the participant to undertake activities (s 34(1)(b)), and whether the support “will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice” (s 34(1)(d)).
Section 37 prescribes when the plan takes effect:
37 When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a) received the participant’s statement of goals and aspirations from the participant; and
(b)approved the statement of participant supports.
(2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(3) A participant’s plan ceases to be in effect at the earlier of the following times:
(a) when it is replaced by another plan under Division 4;
(b) when the participant ceases to be a participant.
A decision to approve the statement of participant supports in a participant’s plan constitutes a reviewable decision under s 99 of Pt 6 of ch 4 of the Act.
Section 100(6) provides what a reviewer must do upon undertaking a review.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
Section 101 is of some significance, and is extracted as follows:
101 Variation of reviewable decision before review completed
If:
(a)a request is made for review of a reviewable decision; and
(b)before a decision on the review is made, the reviewable decision is varied;
the request for review is taken to be for review of the reviewable decision as varied.
It provides that if a request for a review is made and, before the decision on the review is made, the reviewable decision is varied, the request for review “is taken to be for review of the reviewable decision as varied”. Accordingly, the legislation specifically contemplates variation whilst a review is on foot, and deems the review to be of the reviewable decision as varied. Mr Klewer made a passing reference to this section in his oral submission but did not acknowledge the importance of this provision in the legislative context.
In addition, div 4 of Pt 2 of ch 3 contains provisions concerning the review and changing of participants’ plans. Section 47 provides relevantly:
47 Participant may change participant’s statement of goals and aspirations at any time
(1) A participant may give the CEO a changed version of the participant’s statement of goals and aspirations at any time.
Note: The participant may also request a review of his or her plan at any time under subsection 48(1) and the CEO may review a participant’s plan at any time under subsection 48(4).
(2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the plan is taken to be replaced by a new plan comprising:
(a) the changed version of the participant’s statement of goals and aspirations; and
(b) the statement of participant supports in the existing plan.
(3) The Agency must provide a copy of the new plan to the participant within 7 days of receiving the changed version of the participant’s statement of goals and aspirations.
In addition, a review of a participant’s plan may be conducted “at any time”, as requested by the participant of it. The CEO’s initiative is envisaged in s 48, which is extracted as follows:
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
(4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
(5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.
(6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.
Section 49 provides:
49 Outcome of review
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
A review of these provisions reveals a number of matters. First, the participant plan is time-limited. Secondly, it mandates that the statement of participant supports must contain a review date (s 33(2)(c)). Thirdly, by operation of s 37(1), a plan comes into effect from the date the CEO approves the statement of participant supports. Fourthly, the Act contemplates various circumstances for review, variation and alteration of the plan, including replacement by change in the participant’s statement of goals and aspirations (s 47), where a review is conducted under s 48, the CEO must “facilitate the preparation of a new plan” (s 49) or where a variation is made when a review is on foot (s 101).
Accordingly, there is nothing arising from a consideration of the statute which precluded the parties from, by operation of s 42D, varying or substituting the 2018 decision with the 2021 decision and then asking the Tribunal to review that decision.
Lastly, Mr Klewer also advanced an alternative argument which would only be necessary if the Court found that the version of the NDIS Act applicable at the relevant time was ambiguous. For the reasons set out above, I am of the view that the NDIS Act is not ambiguous and therefore the principle in Grain Elevators Board (Victoria) v Shire of Dunmunkle (1946) 73 CLR 70 is not engaged. That principle may permit the Court to use a later legislative amendment to shed light on the meaning of earlier legislation.
Section 103 of the NDIS Act was amended by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), which added a new sub-s (2) to s 103. The new s 103(2)(d) has the effect that, if a new plan comes into effect, then the application is also taken to be an application for review of the decision to make the variation. In the case of s 103(2)(e), if there has been a new plan, the application is also taken to be an application for review of the new plan. By making these amendments, Mr Klewer submitted that Parliament did not consider that the NDIS Act in its previous form permitted for later plans to be considered by the Tribunal in its review task.
For the reasons set out above regarding the operation of the legislative scheme, I do not consider that the amended s 103 provision provides any indication that the scheme operated (prior to amendment) in any way other than I have found (when dealing with a review occurring subsequent to variation and remittal).
Conclusion
For the reasons set out above, Mr Klewer’s appeal has been successful in part.
The matter must be remitted to the Tribunal for redetermination according to law by a different Tribunal member given the Deputy President is no longer a member of the Tribunal.
I will also order that the NDIA pay Mr Klewer’s legal costs.
I acknowledge the very skilful assistance the Court received from the legal representatives for both parties. In particular, I acknowledge the assistance from Mr Klewer’s counsel, Ms Burnett SC who accepted a pro bono assistance referral from this Court. The Court is indebted to those from the Bar and in the legal profession who are willing to provide this assistance.
I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. Associate:
Dated: 15 June 2023
- AGLC
- Klewer v National Disability Insurance Agency [2023] FCA 630
- Case
- [2023] FCA 630
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the Tribunal had erred in its decision to affirm the NDIA's decision not to provide overnight care to Mr Klewer under the NDIS. The court considered the applicant's arguments regarding the Tribunal's consideration of irrelevant factors, denial of procedural fairness, and application of the wrong legal test. Additionally, the court examined the applicant's argument that the Tribunal had erred in determining whether overnight care was a reasonable and necessary support at the time of its review, rather than during the period of the applicable plan.
The court found that the second ground of appeal was made out, leading to the conclusion that the appeal should be allowed. The court found that the Tribunal had erred in its consideration of the applicant's wishes regarding overnight care and had failed to give proper weight to the evidence provided by Dr Ashkar regarding the applicant's lack of self-efficacy and the impact of the mother's dominance and control on the applicant's independence. Furthermore, the court found that the Tribunal had not adequately considered the impact of the mother's care on the applicant's stress levels and anxiety, which in turn affected his seizures.
Based on these findings, the court determined that the appeal should be allowed, the decision of the AAT should be set aside, and the matter should be remitted to the Tribunal for determination according to law. Additionally, the respondent was ordered to pay the applicant's costs as agreed or assessed.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The matter be remitted to the Tribunal for determination according to law.
4. The respondent pay the applicant’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal then made findings regarding whether the requested support satisfied the criteria in s 34(1) of the NDIS Act. Section 34(1)(a): Whether the support will assist Mr Klewer to pursue the goals, objectives and aspirations included in his statement of goals and aspirations With respect to s 34(1)(a), Mr Klewer’s goals included the following (at T[129]): •I would like to learn daily living skills and be as independent as I am able in all daily living tasks •I would like to be more social and build relationships with people in my community. •I would like to access the therapies and equipment that I need so that I can live a healthy and supported life. •I would like to reduce my seizures and live functionally without epilepsy.•I would like to live a safe and healthy life where my health is managed properly. The Tribunal did not consider that Ms Klewer’s evidence regarding independence was consistent with Mr Klewer’s goals. The Tribunal, amongst other evidence, accepted Dr Ashkar’s findings regarding “the importance of Mr Klewer developing independence and the barriers in that regard presented by Ms Klewer”: at T[130]. With respect to Mr Klewer’s goal to reduce his seizures, the Tribunal noted that the evidence from Mr and Ms Klewer suggested that stress and anxiety contribute to Mr Klewer’s seizures. The Tribunal noted Dr Spira’s report as follows (at T[133]): Dr Spira’s report dated 12 October 2017 includes that Mr Klewer stated that ‘stress is an important trigger to the turns’, and that when asked by Dr Spira to specify what he meant by that Mr Klewer responded, ‘my mother pisses me off sometimes’. Dr Spira went on to report that ‘it appears that when he is angry, he suffers the episode [sic] and [Mr Klewer] stresses his heart races on each occasion’.(Footnotes omitted.) The Tribunal again considered the evidence of Dr Ashkar in considering whether the requested support would help reduce Mr Klewer’s seizures:135. Dr Ashkar considers that Mr Klewer’s ‘anxiety in relation to his seizures is closely tied to his very limited sense of self-efficacy’, and that ‘increasing his sense of self efficacy will be an important focus of his psychological treatment in helping to manage his anxiety’. Dr Ashkar links Ms Klewer’s ‘dominance and control’ of [Mr Klewer’s] care needs to a diminution of his sense of self efficacy ‘and ultimately his dignity by compromising his independence’ and considers that this will have serious implications for his psychological health into the future if not addressed today. Mr Lucas also relates Mr Klewer’s anxiety at least in part to Ms Klewer’s actions, for example that some of Ms Klewer’s expressed concerns tend to provide reinforcement for Mr Klewer’s generalised anxiety disorder and his hypervigilance and Ms Klewer’s ‘regular debriefing of these struggles with [Mr Klewer] does tend to add to his fears about the world and to his anxiety levels…’ Mr Lucas also refers to Ms Klewer’s dominant parenting style. Overall Mr Lucas’s evidence is inconsistent, as in contrast to the aforementioned he agreed in oral evidence with Ms Klewer that the care she provides reduces Mr Klewer’s anxiety, which in turn reduces the incidence of seizures, thus minimising risks of injury and to Mr Klewer’s general health.136. In this instance I place greater weight upon the evidence of Dr Ashkar than that of Mr Lucas notwithstanding that Ms Klewer considered that Dr Ashkar was not independent, and that Mr Klewer had been referred to Dr Ashkar as an expert in determining whether someone was ‘faking’. Mr Lucas gave inconsistent evidence and appeared to be impressionable to suggestions by Ms Klewer. Dr Ashkar gave consistent evidence and impressed as a reliable, objective and considered witness. (Footnotes omitted.)