Kupara and National Disability Insurance Agency

[2022] AATA 3091

Kupara and National Disability Insurance Agency [2022] AATA 3091 (16 September 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/9590

Re:Tariro Kupara

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member, P. Smith

Date:16 September 2022

Place:Sydney

The reviewable decision made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) on 9 December 2021 is remitted to the Chief Executive Officer of the National Disability Insurance Agency pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) for further consideration on the basis that the parties are in agreement that level 3 public transport funding and hydrotherapy and yoga are reasonable and necessary supports within the meaning of section 34 of the National Disability Insurance Scheme Act 2013 (Cth) to be funded under the National Disability Insurance Scheme.

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

Member, P. Smith

Catchwords

National Disability Insurance Scheme – The Tribunal’s power under section 42D – Reasonable and necessary supports – Agreed supports – Agreed supports should be Remitted – Remittal – Purpose of Respondent’s Statement of Issues – Admissibility of Statement of Issues – Inadmissibility of Statement of Issues – Alternative Dispute Resolution – ADR – Part IV Division 3 – Section 34E – Section 34A – Duplicated supports – Narrowing the issues in dispute – Without Prejudice

Legislation

National Disability Insurance Scheme Act 2013 (Cth), ss 3(1), 4, 33(2), 34, 48(5), 100(6)
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33(1AB), 33, 33(2A), 34A, 34E

40A(1)(b), 42D

Cases

GBNR and National Disability Insurance Agency [2022] AATA 1323
Dorrington and National Disability Insurance Agency [2022] AATA 1714
Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2010] AATA 935
Negi and National Disability Insurance Agency [2022] AATA 1423
N1112 v Minister for Immigration and Multicultural Affairs [2000] FCA 1597

Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140

Secondary Materials

Administrative Appeals Tribunal: Alternative Dispute Resolution (ADR) Guidelines, June 2006

National Disability Insurance Scheme (Supports for Participants) Rules 2013, r 5.1(c)

REASONS FOR DECISION

Member, P. Smith

INTRODUCTION

1. Tariro Kupara (the Applicant) is a 35-year-old woman and a participant of the National Disability Insurance Scheme (the NDIS).  She has a diagnosis of multiple sclerosis for which she receives supports funded under the NDIS.

2. The Applicant made an application to the Tribunal on 9 December 2021 for a review of an internal review decision made by the National Disability Insurance Agency (the Respondent) on 9 December 2021.  The internal review decision confirmed a decision made by a delegate of the Chief Executive Officer (the CEO) of the Respondent on 12 November 2021 to approve a statement of participant supports in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a 12 month period starting on 12 November 2021 and ending before 12 November 2022, the date by which the Applicant’s Plan must be reviewed.

3. For the purposes of this review, the Applicant is seeking an increase to the current level of funding in her Capacity Building Supports Budget for physiotherapy and funding for three additional supports: massage therapy, psychological therapy, and hairdressing.  These supports are the substantive issues that remain in dispute (the remaining supports in dispute). If the parties are unable to resolve these issues, it will fall to the Tribunal to determine whether those supports are reasonable and necessary within the meaning of section 34 of the NDIS Act.

4. The Applicant also requested consideration of other supports which are now no longer in dispute.  This included a request to increase the current level of funding in the Applicant’s Core Supports Budget for transport from level 2 to level 3, and that she receives funding for hydrotherapy and yoga supports (the agreed supports). It is noted that, the Respondent is now satisfied that those agreed supports are reasonable and necessary within the meaning of section 34 of the NDIS Act and has agreed to fund them under the NDIS[1].  The Applicant also requested that she receive funding for speech recognition software; however, this support is no longer sought by the Applicant for the purpose of this review[2]. 

   [1] See paragraphs [22] and [26] of the Respondent’s updated Statement of Issues dated 13 May 2022 and lodged with the Tribunal on 13 May 2022 in accordance with direction 2 of the Directions given by the Tribunal on 11 April 2022.

   [2] See paragraph [12] of the Respondent’s updated Statement of Issues dated 13 May 2022 lodged with the Tribunal on 13 May 2022.  The Tribunal notes that the Applicant’s written submissions dated 9 August 2022 lodged with the Tribunal on 9 August 2022 confirm that the Applicant no longer seeks funding for speech recognition software for the purposes of this review.

5. Whilst the parties have reached an agreement in respect of the agreed supports identified above at paragraph [4], a dispute has arisen between the parties in relation to whether the Tribunal should remit the reviewable decision to the Respondent’s delegate under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for further consideration, so that the Applicant can begin to access those supports as soon as practicable  without having to wait for the remaining supports in dispute to be resolved. 

6. The Tribunal held a Telephone Interlocutory Hearing (the TIH) on 11 August 2022 to give the parties the opportunity to make any submissions on whether the Tribunal should remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act. The Applicant’s solicitor, Suzanne Russel, appeared at the TIH via telephone and made submissions to the Tribunal. The Respondent’s solicitor, Andrew Dillon, appeared at the TIH via telephone and also made submissions to the Tribunal.

   CHRONOLOGY

7. The Tribunal considers the following chronology is relevant to the determination of whether the Tribunal should remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration.

8. On 25 March 2022, the Respondent lodged with the Tribunal and provided to the Applicant their Statement of Issue (SOI).  The SOI set out the Respondent’s position regarding all supports sought by the Applicant in respect of her application for review.  

9. On 7 April 2022, the parties and their representatives attended a Case Conference with a Conference Registrar of the Tribunal. 

10. On 11 April 2022, the Conference Registrar who conducted the Case Conference on 7 April 2022, directed that on or before 22 April 2022 the Applicant is to use her best endeavours to give to the Respondent and the Tribunal further evidence and any submissions on which the Applicant seeks to rely on in the proceeding.  The Conference Registrar also directed that the Respondent, only if the matter did not resolve by consent, to lodge with the Tribunal and provide to the Applicant an updated SOI, on or before 13 May 2022.

11. Also, on 11 April 2022, in accordance with direction 1 of the Directions given by the Tribunal on 11 April 2022, the Applicant lodged with the Tribunal and provided to the Respondent additional evidence and information relating to the supports the Applicant seeks in respect of her application for review.  The additional evidence included a supplementary report from the Applicant’s treating Clinical Psychologist, Dr Tracey Muscat dated 4 April 2022 and a supplementary report from the Applicant’s treating Physiotherapist, Alec Cornelius dated 5 April 2022.   The additional information included a written reply from the Applicant in respect of her request to receive funding for hairdressing and her request to increase the current level of funding in the Applicant’s Core Supports Budget for transport from level 2 to level 3.

12. On 22 April 2022, the Applicant provided a revised supplementary report of Mr Cornelius. A revised supplementary report was provided to the Tribunal and the Respondent on 22 April 2022 because the version provided on 11 April 2022 did not make any reference to the likely costs involved if the Applicant were to receive funding for hydrotherapy and yoga supports.

13. On 13 May 2022, after considering the Applicant’s additional evidence and information, the Respondent lodged with the Tribunal and provided to the Applicant an updated SOI.  The updated SOI set out the Respondent’s position regarding all of the supports sought by the Applicant in the proceeding.

14. At paragraph [13] of their updated SOI, the Respondent stated that they had considered the additional evidence and the submissions the Applicant lodged with the Tribunal and provided to the Respondent on 11 April 2022 in accordance with direction 1 of the Directions given by the Tribunal on the same day.

15. At paragraph [22] of their updated SOI, the Respondent stated that ‘yoga and hydrotherapy are reasonable and necessary supports’ and that the ‘respondent agrees to fund the requested $981.50 for the Applicant to access weekly yoga and hydrotherapy for 12 months’. 

16. In relation to the Applicant’s request to change the amount of funding and level of transport allocated to the Applicant’s Core Supports Budget, the Respondent stated at paragraph [26] of their updated SOI that ‘Level 3 transport is reasonable and necessary’.  The Respondent also states that they agree to increase the Applicant’s transport funding to Level 3 for two reasons, namely, the Applicant’s Occupational Therapist, Anne Biddlecombe, reported that the Applicant’s disability prevents the Applicant from using public transport.  Furthermore, the Applicant had clarified that the statement made by her support co-ordinator was incorrect and that she indeed cannot use public transport.

17. After reviewing the Respondent’s updated SOI, the Applicant proposed to the Respondent that the matter be remitted by consent to the Respondent’s delegate under section 42D of the AAT Act for further consideration. The basis of the Applicant’s proposal is because the Respondent is satisfied that an increase to the current level of funding included in the Applicant’s Core Supports Budget for transport from level 2 to level 3, and funding for hydrotherapy and yoga supports are reasonable and necessary within the meaning of section 34 of the NDIS Act and has agreed to fund them under the NDIS.

18. On 3 June 2022, the parties and their representatives attended a second Case Conference with a Conference Registrar of the Tribunal. 

19. On 5 June 2022, the Respondent was directed by the Conference Registrar, who conducted the two Case Conferences, to advise the Applicant and the Tribunal on or before the close of business on 17 June 2022 of the Respondent’s position regarding the proposed section 42D remittal order.

20. On 17 June 2022, the Respondent emailed the Applicant and the Tribunal to communicate their position regarding the Applicant’s proposed order under section 42D of the AAT Act. In their email, the Respondent advised the Applicant and the Tribunal that they did not consider a remittal of the reviewable decision is required because the application for review has not yet resolved by consent and the Applicant’s Plan does not expire until 12 November 2022.

21. On 22 June 2022, the Tribunal issued a Summons to produce to Dr Muscat, pursuant to subsection 40A(1)(b) of the AAT Act, to produce the Applicant’s medical files to the Tribunal by 20 July 2022. Dr Muscat provided the material on 1 July 2022. The Applicant and her representatives have inspected the material.

22. In an email to the Respondent and to the Tribunal dated 4 July 2022, the Applicant requested that the Tribunal remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration.

23. On 6 July 2022, the Respondent emailed the Applicant and the Tribunal and confirmed that the Respondent’s position regarding the Applicant’s proposed section 42D order remained unchanged. The Respondent stated in their email that they objected to the Applicant relying on the Respondent’s updated SOI in support of their request for an order under section 42D because their updated SOI was prepared for the purposes of Alternative Dispute Resolution (ADR) under Part IV, Division 3 of the AAT Act. The Respondent stated that the Respondent’s position was provided in their updated SOI for the purpose of negotiating a resolution of the application by agreement in ADR. The Respondent stated that any document prepared for, or discussions held at, a Case Conference, are ‘Without Prejudice’ and are not admissible as evidence at any hearing without the consent of both parties[3].  The Respondent stated also that they do not consent to their updated SOI, any associated correspondence, or the contents of Cases Conferences being admissible as evidence at any hearing of a remittal application.

    [3] See subsection 34E(1)(c) of the AAT Act.

    THE APPLICANT’S CASE

24. The Applicant’s case is that there is a basis for the Tribunal to remit the reviewable decision without the consent of the parties to the Respondent’s delegate under section 42D of the AAT Act for further consideration. This is because the parties have reached an agreement in respect of the Applicant’s request to increase the current level of funding in the Applicant’s Core Supports Budget for transport from level 2 to level 3 and her request to receive funding for hydrotherapy and yoga supports. Further, this is so the Applicant can begin to access those agreed supports as soon as practicable without having to wait for the remaining issues in the dispute to be resolved or determined by the Tribunal.

25. It was submitted for the Applicant that the Tribunal should remit the reviewable decision under section 42D of the AAT Act to the Respondent’s delegate for further consideration. It was argued that this would be consistent with the Tribunal’s objectives under section 2A of the AAT Act and the objects under section 3 of the NDIS Act.

26. It was submitted for the Applicant that section 2A of the AAT Act requires the Tribunal to pursue the objective of providing a mechanism of review that is accessible, economical, informal, and quick. It was submitted for the Applicant that parties to a proceeding before the Tribunal and their representatives, must under subsection 33(1AB) of the AAT Act, use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT Act.

27. In reference to the Applicant’s submission that the objects under section 3 of the NDIS Act would be consistent if an order were made under section 42D of the AAT Act, the Applicant identified four of the objects listed in section 3 of the NDIS Act as having particular significance to the determination of the present issue in dispute. These included subsection 3(c) to support the independence and social and economic participation of people with disability; subsection 3(d) to provide reasonable and necessary supports, including early intervention supports, for participation in the NDIS; subsection 3(e) to enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports; and subsection 3(g) to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

28. It was submitted for the Applicant that the general principles in section 4 of the NDIS Act that guide actions of the Respondent under the NDIS Act are also of particular significance to the determination of the present issue in dispute. These included the principle under subsection 4(1), that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; the principle under subsection 4(2), that people with disability should be supported to participate in and contribute to social and economic life; subsection 4(3), that 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; subsection 4(4), that 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; and subsection 4(5), that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

29. Noting that the parties to the proceeding have, under section 34A of the AAT Act, been referred to ADR to assist the parties in the resolution of the dispute, it was submitted for the Applicant that the parties have an obligation to act in good faith in relation to the conduct of the ADR processes of the Tribunal[4].  It was also submitted for the Applicant that the Tribunal’s Alternative Dispute Resolution Guidelines[5] sets out the objectives of the ADR processes of the Tribunal that parties to a proceeding and their representatives should follow when engaging with that process.  It was submitted for the Applicant that the objectives are to resolve or limit the issues in dispute, be accessible, and to use resources efficiently, resolve disputes as early as possible, produce outcomes that are lawful, effective, and acceptable to the parties and the Tribunal and to enhance the satisfaction of the parties.

    [4] See subsection 34A(3) of the AAT Act.

    [5] See Administrative Appeals Tribunal, Alternative Dispute Resolution (ADR) Guidelines, June 2006.

30. It was submitted for the Applicant that, in the present case, the parties have reached agreement that level 3 transport, hydrotherapy and yoga are reasonable and necessary supports for the purposes of section 34 of the NDIS Act to be funded under the NDIS. This is stated with particular reference to the Respondent’s submission in respect to those agreed supports set out in the Respondent’s updated SOI. It is the Respondent’s case that this document was prepared and lodged with the Tribunal for the purposes of negotiating a resolution of the application for review by agreement via the ADR processes of the Tribunal. It was submitted for the Applicant that the words stated by the Respondent at paragraphs [22] and [26] in their updated SOI are unequivocal, and the supports were said to be reasonable and necessary in accordance with the criteria under section 34 of the NDIS Act. It was submitted for the Applicant that this is particularly so in the case of level 3 transport where the Respondent’s position is explained by reference to the evidence in the T-documents.

31. It was submitted for the Applicant that there is no legislative power for the Respondent to rely on to fund a support for the purpose of negotiating a resolution of a review application before the Tribunal, given that section 34 of the NDIS Act states that the Respondent must be satisfied that a support satisfies each of the criteria before it can be specified and included in a statement of participants support.

32. In the circumstances set out above at paragraphs [30] and [31], it was submitted for the Applicant that a remittal order under section 42D of the AAT Act would be consistent with both the objectives under section 2A of the AAT Act and the objects under section 3 of the NDIS Act. This is because it would narrow the substantive issues in dispute and also allow the Applicant to begin to access the additional reasonable and necessary supports as soon as possible. It was submitted for the Applicant that, given the availability of section 42D of the AAT Act, the Applicant should not have to wait for the remaining substantive issues to be resolved before accessing the additional supports that the parties both agree are reasonable and necessary. Particularly, given the circumstances here, where the Respondent has come to its current position on the basis of the evidence that was before it when the internal review was being conducted, as is the case with level 3 transport.

1. With particular reference to the Respondent’s submission that the Respondent’s updated SOI was prepared for the purposes of the ADR processes of the Tribunal, it was submitted for the Applicant that the Respondent’s updated SOI was prepared pursuant to a direction made by the Tribunal on 11 April 2022.  Therefore, it was submitted for the Applicant that the updated SOI is admissible.

2. It was submitted for the Applicant that the Tribunal has the power to give directions in relation to a proceeding before the Tribunal under section 33 of the AAT Act. It was submitted for the Applicant that subsection 33(2) of the AAT Act gives the President and authorised Members and officers the power to give directions as to the procedure to be followed at, or in connection with, the hearing of a proceeding. It was submitted for the Applicant that subsection 33(2A) of the AAT Act sets out a non-exhaustive list of the directions that may be given by the Tribunal, which include:

   (a)  require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

   (b)  require the person who made the decision to provide a statement of the

   grounds on which the application will be resisted at the hearing; or

   (c)   require any person who is a party to the proceeding to provide a statement of

   matters or contentions upon which reliance is intended to be placed at the

   hearing.

3. It was submitted for the Applicant that section 33 of the AAT Act gives the Tribunal the power to give directions in connection with hearings. It was submitted for the Applicant that section 33 does not give the Tribunal the power to make directions solely in relation to its ADR processes. It was submitted for the Applicant that the directions set out in subsection 33(2A) of the AAT Act, while non-exhaustive, envisage statements provided by the parties pursuant to a direction of the Tribunal being admissible at the hearing of the proceeding. It was submitted for the Applicant that it would be inconsistent with the objectives in section 2A of the AAT Act to interpret this provision in a manner which would, in effect, prevent parties from relying on positions set out in writing by other parties.

4. It was submitted for the Applicant that section 34E of the AAT Act prevents the admission of evidence of anything said, or any act done, at an ADR process, but does not capture documents filed by parties outside of that process. Therefore, it was submitted for the Applicant that the words of section 34E of the AAT Act should be given their ordinary meaning.

   THE RESPONDENT’S CASE

5. The Respondent’s case is that there is no basis for the Tribunal to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration. Therefore, it was submitted for the Respondent that the request made to the Tribunal by the Applicant on 4 July 2022 for an order under section 42D of the AAT Act should be dismissed.

6. It was submitted for the Respondent that in considering whether or not to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration, the Tribunal cannot have regard to the Respondent’s updated SOI because it was prepared by the Respondent for the purpose of ADR under Part IV, Division 3 of the AAT Act[6].  It was argued that the Respondent’s position in respect of the supports sought by the Applicant was provided in the updated SOI for the purpose of negotiating a resolution of the application by agreement in ADR.  It was submitted for the Respondent that any document prepared for, or discussions held at, a Case Conference are ‘Without Prejudice’ and are not admissible as evidence at any hearing without the consent of both parties[7]. The Respondent does not consent to their updated SOI and any associated correspondence, or the contents of Case Conferences, being admissible as evidence at any hearing of the Applicant’s request to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration.

   [6] See paragraph [4] of the Respondent’s updated Statement of Issues dated 13 May 2022.

   [7] See subsection 34E(1)(c) of the AAT Act.

7. It was submitted for the Respondent that a remittal at this stage of the proceeding is unnecessary to ensure the continuity of supports because the Applicant’s Plan does not cease until 12 November 2022.

8. It was submitted for the Respondent that there is no evidence before the Tribunal that demonstrates that the Applicant’s disability support needs have materially changed such that an urgent review of her supports is required.

9. It was submitted for the Respondent that in these circumstances a remittal under section 42D of the AAT Act would result in planning resources within the Agency being expended which alternatively could be allocated more appropriately elsewhere to participants in more urgent need.

10. It was submitted for the Respondent that for the purpose of this proceeding, the Respondent is continuing to investigate whether the other supports sought by the Applicant that remain in dispute (as referred to above at paragraph [3]) are reasonable and necessary within the meaning of section 34 of the NDIS Act. It was submitted for the Respondent that there is at least a theoretical possibility that the remaining supports in dispute could resolve by way of agreement between the parties after the parties’ access to the documents produced under summons by Dr Muscat in August 2022.

11. It was submitted for the Respondent that a remittal under section 42D of the AAT Act would not necessarily narrow the issues in dispute, because an order made under that section does not permit the Tribunal to give any direction in the order as to the way in which the reconsideration of the decision is to be undertaken[8]. It was submitted for the Respondent that if the matter is remitted to the Respondent under section 42D of the AAT Act, the Respondent’s delegate may affirm the decision under review pursuant to subsection 42D(2)(a) of the AAT Act. It was submitted for the Respondent that if the matter is remitted to the Respondent, the Respondent’s delegate may, alternatively, vary or set aside and substitute a decision that is less favourable to the Applicant pursuant to subsections 42D(2)(b) or (c) of the AAT Act.

    [8] Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2010] AATA 935 at [3]; Negi and National Disability Insurance Agency [2022] AATA 1423 at [24].

12. It was submitted for the Respondent that the supports the Applicant seeks needs to be examined in their totality by reference to rule 5.1(c) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules)[9] to avoid the duplication of other supports which cannot be funded under the NDIS.

    [9] National Disability Insurance Scheme (Supports for Participants) Rules 2013, r 5.1(c).

    THE LAW

13. Section 42D of the AAT Act sets outs the power to remit matters to decision-makers for further consideration. Relevantly, subsection 42D(1) of the AAT Act provides that 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.

14. Subsection 42D(2) of the AAT Act provides that if a decision is remitted by the Tribunal to the person who made it, 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.

15. Subsection 42D(3) of the AAT Act provides that if a person varies the decision the application is taken to be an application for review of the decision as varied, and the person who made the application may either proceed with the application for review of the decision as varied or withdraw the application.

16. Subsection 42D(4) of the AAT Act provides that if the person sets the decision aside and makes a new decision in substitution for the decision set aside, the application is taken to be an application for review of the new decision and the person who made the application may either proceed with the application for review of the new decision or withdraw the application.

17. Subsection 42D(5) of the AAT Act provides that if an order is made under section 42D 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.

18. Subsection 42D(6) of the AAT Act provides that the Tribunal, may on the application of the person, extend the period applicable under subsection (5).

19. Subsection 42D(7) of the AAT Act provides that 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.

20. Subsection 42D(8) of the AAT Act provides that if the person affirms the decision, the proceeding resumes.

    DISCUSSION

21. The Tribunal referred this proceeding to an ADR process under section 34A of the AAT Act to help the parties resolve the issues in dispute. The parties and their representatives attended their first Case Conference on 7 April 2022 in an attempt to resolve the issues in dispute. No agreement was reached between the parties or their representatives in relation to the proceeding in the course of that ADR process. Neither party nor their representatives, have for the purposes of the Applicant’s request for a remittal order, disclosed to the Tribunal, either orally or in writing, any confidential communications or discussions that may have taken place between the parties and their representatives at the ADR Case Conference of 7 April 2022, nor have they identified any documents that may have been discussed at that event.

22. The Applicant provided additional evidence and information to the Respondent and to the Tribunal in accordance with direction 1 of the Directions given on 11 April 2022.  The Applicant’s additional evidence included two versions of a supplementary report by the Applicant’s treating physiotherapist, Mr Cornelius, had prepared.  Mr Cornelius’ supplementary report was prepared in response to the Respondent’s position, as set out in their SOI dated 25 March 2022, in respect of the Applicant’s request to receive additional funding for physiotherapy and funding for hydrotherapy and yoga supports.  Dr Muscat’s supplementary report was also prepared in response to the Respondent’s position, as set out in their SOI dated 25 March 2022, in respect of the Applicant’s request for psychological therapy support.

23. The Applicant also provided a written response in respect to the Applicant’s request to receive funding for hairdressing, and her request to increase the current level of funding included in the Applicant’s Core Support Budget for transport from level 2 to level 3.  In her response, the Applicant referred to the statement made by her support co-ordinator, Mr Sankoh,[10] about whether the Applicant uses public transport.  The Applicant submitted that the statement Mr Sankoh made is incorrect.  The Applicant also referred to the report of her Occupational Therapist, Ms Biddlecombe, dated 22 October 2021[11] where it states that the Applicant is unable to catch public transport[12].  The Applicant submitted that for the purpose of her request to increase the current level of funding included in the Applicant’s Core Support Budget for transport from level 2 to level 3, she relied on the report of Ms Biddlecombe and not the statement of Mr Sankoh.

    [10] See page 54 of T7 of the T-documents.

    [11] See pages 19 to 28 of T1F of the T-documents.

    [12] See page 28 of T1F of the T-documents.

24. At paragraph [13] of the Respondent’s updated SOI, the Respondent confirmed that they had considered the additional evidence and information the Applicant provided to the Respondent and the Tribunal on 11 April 2022 and 22 April 2022.    

25. Turning to the Applicant’s request to receive funding for hydrotherapy and yoga supports, the Respondent stated at paragraph [22] of their updated SOI that ‘hydrotherapy and yoga are reasonable and necessary supports’. The Respondent stated further that the ‘respondent agrees to fund the requested $981.50 for the applicant to access weekly hydrotherapy and yoga for 12 months’.  In relation to the Applicant’s request to increase the current level of funding in her Core Support Budget for public transport from level 2 to level 3, the Respondent stated at paragraph [26] of their updated SOI that ‘Level 3 transport is reasonable and necessary’.  The Respondent stated further that the ‘respondent agrees to increase the Applicant’s transport funding to level 3’ for two reasons.  The first reason is because ‘the applicant’s occupational therapist reported that the applicant’s disability prevents her from using public transport’[13].  The second reason is because ‘the applicant has clarified her support coordinator’s statement that she uses a train[14] is incorrect and she does not use a train’.  

    [13] See page 28 of the report of Anne Biddlecombe identified as T1F of the T-documents.

    [14] See page 54 of the statement identified as T7 of the T-documents.

26. In reference to progressing the matter, the Respondent at paragraph [27] of their updated SOI, stated that ‘[t]he respondent proposes that the application be resolved on the basis that the applicant receive additional funding for yoga and hydrotherapy, as well as level 3 transport’.  And further at paragraph [28], the Respondent stated that ‘[i]f the applicant does not agree to resolve the application on this basis, and continues to press the other supports discussed above, the respondent considers that the Tribunal would be assisted by having access to the applicant’s records from Dr Muscat (and any other treating psychologist/psychiatrist), and proposes a summons be issued to Dr Muscat (and any other relevant treater) for the production of documents concerning the applicant which will assist the respondent and the Tribunal understand the relationship between the applicant’s psychiatric conditions and her disability.’

27. The Respondent’s altered position, insofar as it relates to the agreed supports, was emailed to the Applicant and to the Tribunal on 13 May 2022 in accordance with direction 2 of the Directions given by the Tribunal on 11 April 2022.

28. The parties and their representatives made a further attempt to resolve the issues in dispute by attending a second Case Conference held on 3 June 2022.  No agreement was reached between the parties or their representatives in relation to the remaining issues in dispute in the course of that ADR process.  Neither party nor their representatives, have for the purposes of the Applicant’s request for a remittal order, disclosed to the Tribunal, either orally or in writing, any confidential communications or discussions that may have taken place between the parties and their representatives at the ADR Case Conference of 3 June 2022, nor have they identified any documents that may have been discussed at that event. 

29. The Tribunal does not accept the submission made for the Respondent that it cannot have regard to the Respondent’s updated SOI in considering whether to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act for further consideration, for the following four reasons.

30. Firstly, direction 2 of the Directions given by the Tribunal on 11 April 2022 under subsection 33(2A) of the AAT Act provided that, ‘[o]n or before 13 May 2022, assuming the matter has not resolved, the Respondent will give to the Tribunal and the Applicant an Updated Statement [of] Issues’. This Direction did not specify nor state that the updated SOI to be prepared and lodged by the Respondent on or before 13 May 2022, assuming that the matter had not resolved, was to be prepared by the Respondent for the sole purpose of ADR.

31. Secondly, the Tribunal observes that the term ‘Without Prejudice’ was not applied to the Respondent’s updated SOI, nor the email of 13 May 2022 that accompanied the updated SOI.  The Tribunal observes that the Respondent’s updated SOI does not refer to any confidential communications or discussions that may have taken place between the parties and their representatives and the Conference Registrar in the course of the ADR process, in respect of any of the supports sought by the Applicant that would evoke the privilege the Respondent now seeks.  The Tribunal observes also that the Respondent’s updated SOI did not identify any documents that may have been available to the parties and their representatives and the Conference Registrar at the Case Conferences held on 7 April 2022 and 3 June 2022 for consideration and discussion in the course of that ADR process in respect of any of the supports sought by the Applicant that would evoke the privilege the Respondent now seeks.

32. Thirdly, the altered position of the Respondent in respect of hydrotherapy and yoga, as set out in their updated SOI at paragraph [22], and funding for level 3 transport, as set out in their updated SOI at paragraph [26], was not an offer made to the Applicant on a ‘Without Prejudice’ position to settle the application for review that would evoke the privilege the Respondent now seeks.

33. Fourthly, the agreement reached between the parties in respect of the agreed supports, as set out in the Respondent’s updated SOI at paragraphs [22] and [26], was based on the additional evidence and information given by the Applicant after the first Case Conference was held and before the subsequent one that followed as stated at paragraph [13] of the Respondent’s updated SOI.

34. The Tribunal is being asked by the Applicant to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT Act, for further consideration without the consent of the Respondent, in circumstances where the parties have reached agreement in respect of the agreed supports identified above at paragraph [4], so that the Applicant can begin accessing them as soon as practicable without having to wait for the remaining supports in dispute to be resolved.

35. Section 42D of the AAT Act is a discretionary power that can be exercised by the Tribunal at any stage of a proceeding for review. The consent of both parties is not necessary for the Tribunal to remit a reviewable decision under section 42D of the AAT Act for further consideration[15]. Section 42D of the AAT Act does not specify or limit the circumstances in which the Tribunal may exercise the discretion to remit a reviewable decision to the Respondent’s delegate for further consideration. The Tribunal regularly exercises the power under section 42D of the AAT Act to ensure continuity of supports for participants while their case is being reviewed by the Tribunal[16].   This is usually necessary in cases where the end date specified in a participants Plan has elapsed before the Tribunal review has been finalised. 

    [15] N1112 v Minister for Immigration and Multicultural Affairs [2000] FCA 1597 at [17], per Emmett J.

    [16] GBNR and National Disability Insurance Agency [2022] AATA 1323; Dorrington and National Disability Insurance Agency [2022] AATA 1714.

36. Section 42D of the AAT Act does not permit the Tribunal to give any direction as to the way in which the Respondent’s delegate undertakes his or her reconsidered decision[17]. Whilst it is true the Tribunal does not have any the power under section 42D of the AAT Act to give any direction to the Respondent’s delegate as to how he or she undertakes their reconsidered decision, in the circumstances of this case, the Tribunal is of the view that it would be inappropriate, if, on remittal, the Respondent’s delegate made a reconsidered decision that was less favourable to the Applicant in respect of the agreed supports – as the Respondent submits can happen – given that the Respondent has, in the course of this proceeding, already determined that the agreed supports are reasonable and necessary within the meaning of section 34 of the NDIS Act and agreed to fund them under the NDIS.

    [17] Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2010] AATA 935 at [3]; Negi and National Disability Insurance Agency [2022] AATA 1423 at [24]; Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140 at [15].

1. The Tribunal does not accept the submission made for the Respondent that an order under section 42D of the AAT Act would not narrow the issues in dispute. The Applicant has, for the purpose of her application, sought the approval of eight supports. The parties have reached agreement in respect of the three agreed supports identified above at paragraph [4]. The Applicant has confirmed that she is no longer seeking funding for speech recognition software. The three agreed supports identified above at paragraph [4] are no longer issues in dispute for the parties to resolve by way of agreement, or issues for the Tribunal to determine failing resolution between the parties. The Applicant’s request for speech recognition software is also no longer an issue in dispute for the parties to resolve by way of agreement or an issue for the Tribunal to determine. The only remaining issues in dispute are the four supports identified above at paragraph [3].

2. The Tribunal considers it appropriate at this stage of the proceeding to remit the reviewable decision to the Respondent’s delegate under section 42D of the AAT for further consideration for the following reasons.

3. The parties reached an agreement on 13 May 2022 in respect of three supports which the Respondent says they are satisfied are reasonable and necessary within the meaning of section 34 of the NDIS Act. The Respondent has also agreed to fund those agreed supports under the NDIS.

4. The Tribunal is conscious that some four months has passed since the parties reached agreement in respect of the agreed supports where the Applicant has not had the benefit of the continuity of those supports.  This is a particularly significant period to wait to receive an increase to an existing support and two new supports the Respondent is satisfied are reasonable and necessary to be funded under the NDIS, especially for someone who has a diagnosis of multiple sclerosis and is dependent on those supports to meet her disability support needs, and to achieve her goals including maintaining a degree of independence.

5. Turning to the question relating to the expiration of the Applicant’s Plan, the Tribunal observes that the CEO of the Respondent must undertake a scheduled review of the Applicant’s Plan before the review date of 12 November 2022 as required by subsection 48(5) of the NDIS Act. If the parties are unable to resolve the remaining issues in dispute before 12 November 2022, or the Tribunal has not determined the substantive issues before that date, it is unlikely that a scheduled review of the Applicant’s Plan will be conducted by the CEO of the Respondent before 12 November 2022 as required under subsection 48(5) of the NDIS Act.

6. If the remaining issues in dispute are not resolved by agreement between the parties or by the Tribunal before the review date, consideration of a further remittal order under section 42D of the AAT Act will be necessary to ensure continuity of supports for the Applicant while her application for review remains on foot before the Tribunal.

7. The Respondent has indicated that they are presently undertaking investigations into whether the four remaining supports in dispute are reasonable and necessary within the meaning of section 34 of the NDIS Act. The Respondent is a party to the proceeding and is entitled to undertake those investigations to assist the Tribunal by ensuring that there is sufficient evidence and information before the Tribunal to make the correct or preferable decision in respect of the remaining issues in dispute.

8. The Respondent is confident that the remaining issues in dispute can be resolved by agreement between the parties on or before 12 November 2022, after the Respondent has had the opportunity to inspect the summonsed material that Dr Muscat produced to the Tribunal on 1 July 2022.

9. It is not clear to the Tribunal whether the parties will resolve the remaining issues in dispute, and if so, when. It is also not clear to the Tribunal how long the Respondent’s investigations will take to complete, and whether those investigations, insofar as they relate to the Applicant’s request for psychological therapy, will involve an independent assessment being conducted to assess the Applicant for the purpose of considering whether the request for psychological therapy is a reasonable and necessary support within the meaning of section 34 of the NDIS Act. This is something that is being considered by the Respondent[18]. 

   [18] See paragraph [29] of the Respondent’s updated Statement of Issues dated 13 May 2022.

10. The Respondent’s ongoing investigations, including any possible independent assessment, will no doubt delay the matter from progressing to finalisation more quickly, only adding to the significant time that has already passed where the Applicant has been without supports the Respondent says are reasonable and necessary within the meaning of section 34 of the NDIS Act.

11. The Tribunal does not accept the basis of the submission made for the Respondent that a remittal order should not be made at this stage of the proceeding because there is no evidence before the Tribunal that shows that the Applicant’s disability support needs have materially changed in such a way that an urgent review of her supports is required. 

12. The Applicant is not seeking an urgent review of supports insofar as they relate to the three agreed supports on the basis of there being a material change to her disability support needs.  The Applicant has provided additional evidence and information seeking an increase to her existing public transport funding and funding for hydrotherapy and yoga on the basis of them being reasonable and necessary to meet her disability support needs.  That material has been considered by the Respondent in the course of this proceeding.[19] The Respondent, after considering that material, agreed that those supports are reasonable and necessary within the meaning of section 34 of the NDIS Act and agreed to fund them. As the Respondent is satisfied that those supports are reasonable and necessary and has agreed to fund them, the Respondent has an obligation to give effect to that agreement and implement the agreed supports and fund them under the NDIS.

    [19] See paragraph [13] of the Respondent’s updated Statement of Issues dated 13 May 2022.

13. The Tribunal does not accept the Respondent’s submission that a remittal order should not be made at this stage of the proceeding because it would result in the Agency’s planning resources being expended which could be allocated more appropriately elsewhere to participants in more urgent need. 

14. To the extent that this is even a relevant consideration, the Tribunal observes that the Respondent is a Commonwealth Agency with ample resources available to it to implement and fund reasonable and necessary supports to all participants, something the Respondent has done since its inception as the Agency responsible for the administration of the NDIS.

15. The Tribunal does not accept the submission made for the Respondent that a remittal order should not be made at this stage of the proceeding because the supports the Applicant seeks needs to be examined in their totality by reference to rule 5.1(c) of the Rules referred to above at paragraph [44]. This is, because rule 5.1(c) of the Rules prohibits the duplication of other supports delivered under alternative funding through the NDIS.

16. The Tribunal considers that the making of a remittal order under section 42D of the AAT Act is an approach consistent with the Tribunal’s statutory objectives and the objects and principles as set out in the NDIS Act.

17. Accordingly, for the reasons given above, the Tribunal considers it appropriate to remit the reviewable decision to the CEO of the Respondent for further consideration on the basis that the parties are in agreement that level 3 public transport funding, hydrotherapy and yoga are reasonable and necessary supports within the meaning of section 34 of the NDIS Act to be funded under the NDIS.

    decision

18. The reviewable decision made under subsection 100(6) of the NDIS Act on 9 December 2021 is to be remitted to the CEO of the National Disability Insurance Agency, pursuant to subsection 42D(1) of the AAT Act, for further consideration on the basis that the parties are in agreement that level 3 public transport funding, hydrotherapy and yoga are reasonable and necessary supports within the meaning of section 34 of the NDIS Act to be funded under the NDIS.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member, P. Smith

........................................................................

Associate

Dated: 16 September 2022

Date(s) of hearing:	10 August 2022
Date final submissions received:	9 August 2022
Solicitors for the Applicant:	Ms S. Russell
Solicitors for the Respondent:	Mr A. Dillon