Lamb and National Disability Insurance Agency

[2021] AATA 3373

Lamb and National Disability Insurance Agency [2021] AATA 3373 (17 September 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/8066

Re:Pauline Lamb

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K Buxton

Date:17 September 2021

Place:Brisbane

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Member K Buxton

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – appointment, cancellation or suspension of nominee – nominee’s duty to consult – previous conduct of nominee – impact on participant’s funded supports - event or change of circumstances likely to affect the ability of the nominee to act - decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Guardianship and Administration Act 2000 (Qld) ss 12, 33

National Disability Insurance Act (2013) (Cth) Chapter 4 Part 5 - ss 78, 83, 86, 87, 88, 89, 90

National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) rules 3.13, 3.7, 4.6, 4.7, 4.8, 5.4, 5.7, 6.3, 6.4, 6.5 

REASONS FOR DECISION

Member K Buxton

17 September 2021

Introduction

1. Mrs Pauline Lamb (the Applicant) is the sister of Mr Charles Caruana (Mr Caruana) who is a participant in the National Disability Insurance Scheme (‘the NDIS’). This review application concerns a decision made by the National Disability Insurance Agency (‘the Respondent’) to cancel the Applicant’s appointment as the plan nominee for Mr Caruana under provisions of the National Disability Insurance Act (2013) Cth (‘the NDIS Act’).

   Background

2. Mr Caruana is a gentleman aged in his 50’s who has been diagnosed with an intellectual disability, schizophrenia and has other health issues. He lives in private rental accommodation and receives a range of supports funded through the NDIS. Financial decisions for Mr Caruana are made by his appointed financial administrator, the Public Trustee of Queensland (‘the Public Trustee’).[1] Other key decisions are made by his appointed guardian, the Office of the Public Guardian, Queensland (‘the Public Guardian’).[2]

The Public Guardian was first appointed as Mr Caruana’s guardian for some decisions in 2012[3] and this appointment was revoked in 2013.[4] The Public Guardian was again appointed as Mr Caruana’s guardian for a one-year period for some decisions in July 2017,[5] and was re-appointed in August 2018,[6] for a two year period, for decisions with respect to contact, health care and the provision of services (including in relation to NDIS).[7]  On 31July 2020 the Public Guardian was appointed as Mr Caruana’s guardian for a five year period to make decisions in respect of the following matters:[8]

(a)Accommodation;

(b)With whom he has contact and/or visits;

(c)Health Care; and

(d)Provision of services, including in relation to NDIS.

[1]     Exhibit 1, T7.

[2]     Exhibit 1, T3 and T7.

[3]     Exhibit 2, R6, “CM-1”.

[4]     Ibid.

[5]     Ibid.

[6]     Ibid.

[7]     Ibid.

[8]     Ibid.

1. Therefore, since at least August 2018, the Public Guardian has had responsibility for decisions made for Mr Caruana in relation to various matters including his health, his support services and his participation in the NDIS.[9]

   [9]     Exhibit 1, T3.

2. In arriving at the decision on 31 July 2020 to re-appoint the public Guardian for a five year period, the Queensland Civil and Administrative Tribunal (‘QCAT’), also considered an application from the Applicant to be appointed as Mr Caruana’s guardian.[10] That application was refused and reasons were given, a copy of which were included in the evidence provided to the Tribunal by the Respondent in this case.[11] It is not the role of this Tribunal to re-consider any question before QCAT in relation to its decision to re-appoint the Public Guardian as Mr Caruana’s guardian and to refuse the Applicant’s application to instead be appointed in that capacity. Different statutory questions were answered by QCAT and it is not the role of the Tribunal, in this review, to go behind those statutory findings or to re-consider the appropriateness of the Applicant to act as guardian to Mr Caruana. The published reasons for the decision made by QCAT on 31 July 2020 plainly enunciate why Mr Caruana required a guardian and why the Applicant was not an appropriate person to undertake that role, either informally or formally.[12] The learned Member’s relevant findings are set out in the following passage (in which the Applicant is identified as LMP and Mr Caruana is identified as CC):[13]

   It is clear that LMP, and I accept the evidence from the Public Guardian and other independent parties, who is the family member most involved in CC’s life, has intervened to his detriment in regard to his healthcare, his accommodation and service provision. Due to tactics of making malicious complaints and sending large numbers of emails she has alienated service providers, supports co-ordinators (putting CC’s supports at risk) and also his real estate agent (putting his accommodation at risk). While LMP is supported by one of her sisters and her immediate family she is not supported by her other siblings nor any of the independent providers in CC’s life. Even in regard to health care, which the public guardian allowed her to get involved in after their appointment, she gave inaccurate information to the doctors and did not tell service providers of appointments. For these reasons there needs to be formal appointment of decisionmakers so that LMP is not able to act informally as I do not consider that she is appropriate. While I accept that she has a strong desire for the best outcomes for her brother her methods and tactics only alienate the people she deals with on behalf of CC and that cannot be in his best interests, in particular where that puts his support services and accommodation at risk.

   [10]    Exhibit 1, T7.

   [11]    Exhibit 2, R6 “CM2”.

   [12]    Ibid.

   [13]    Ibid per Member Allen at [34].

3. When a person such as Mr Caruana has become a participant in the NDIS, the NDIS Act allows for a nominee to be appointed, either to correspond for the participant (‘a correspondence nominee’), or to be a more broadly empowered ‘plan nominee’, who may do anything that may be done by a participant under the NDIS regarding:[14]

   (a)Preparation, review or replacement of the participant’s plan; and

   (b)Management of funding for supports under the participant’s plan.

   [14]    NDIS Act s 78(1); National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) cl 3.7.

4. On 23 May 2017 (at a time when Mr Caruana did not have an appointed guardian) the Applicant was appointed as Mr Caruana’s plan nominee under section 86 of the NDIS Act.[15] On 27 February 2018 the Applicant’s appointment as plan nominee was cancelled, but this decision was set aside as a result of an internal review decision made on 27 March 2019 in which the decision-maker determined that the statutory requirements for valid cancellation had not been met.[16] In the interim (that is, between the initial cancellation and the decision setting that cancellation aside) the Public Guardian had been re-appointed as Mr Caruana’s guardian and had responsibility for health and NDIS decisions.[17] Subsequently, during 2020, the Respondent again purported to cancel the Applicant’s appointment as Mr Caruana’s plan nominee.[18] This led to a number of applications made by the Applicant to this Tribunal and resulted in the Respondent accepting that the 2020 cancellation had been beyond power.[19]

   [15] Exhibit 3, para [23].

   [16]    Exhibit 1, T1D.

   [17]    Exhibit 1, T3.

   [18]    Exhibit 1, T8.

   [19]    Ibid.

5. On 29 January 2020 the Respondent appointed a delegate of the Public Guardian as Mr Caruana’s correspondence nominee under section 87 of the NDIS Act.[20] The Applicant remained as Mr Caruana’s plan nominee at that time. The Applicant submitted that she had been appointed as both plan nominee and correspondence nominee for Mr Caruana from 2016[21] but there seems to have been some genuine confusion on her part in this regard as the material before the Tribunal indicates that the 29 January 2020 appointment was the first time a correspondence nominee had been appointed for Mr Caruana.[22]

   [20]    Exhibit 2, R1.

   [21]    Exhibit 1, T1A.

   [22]    Exhibit 2, R1.

6. On 29 October 2020 the Respondent gave notice to the Applicant, under subsection 83(1) of the NDIS Act, to provide relevant information about an event or change of circumstances that is likely to affect the ability of the Applicant to act as the plan nominee for the participant (‘the Notice’).[23] The Applicant’s response to the Notice are discussed below. On 24 November 2020 the delegate of the Respondent decided to cancel the Applicant’s appointment as Mr Caruana’s plan nominee under subsection 90(4) of the NDIS Act, having regard to the Applicant’s response to the Notice.[24] The Applicant sought internal review of that decision and, on 4 December 2020, an internal review affirmed the decision.[25] The Applicant applied to the Tribunal for review of that decision.

   [23]    Exhibit 1, T8.

   [24]    Exhibit 1, T18.

   [25]    Exhibit 1, T1A.

7. The initial decision, made on 24 November 2020, related only to cancellation of the Applicant’s appointment as plan nominee. That decision was internally reviewed by the Applicant and the reasons for the decision of the reviewer, made on 4 December 2020, refer to cancellation of the Applicant’s appointments as both plan nominee and correspondence nominee.[26] This seems to be an error as the Respondent has confirmed that the Applicant has not ever been appointed as Mr Caruana’s correspondence nominee.[27] This is one of a number of errors and missteps by the Respondent that are evident from a review of the history of the Applicant’s appointment as plan nominee for Mr Caruana and the various decisions relating to cancellation of that appointment that were purported to have been made, and were subsequently set aside or withdrawn, during 2018, 2019 and 2020. The error does not alter the Tribunal’s review jurisdiction which, in this case, is limited to the decision to cancel the Applicant’s appointment as plan nominee only.

   [26]    Ibid.

   [27]    On 23 May 2017 the Applicant signed a document indicating her agreement to become both plan nominee and correspondence nominee for Mr Caruana (Exhibit 5, A28) but the relevant instrument of appointment dated 5 June 2017 dealt only with her appointment as plan nominee (Exhibit 6, R8). The Tribunal is satisfied that subsequent references to the Applicant as correspondence nominee for Mr Caruana are erroneous.

8. A hearing took place on 31 August 2021 and 1 September 2021. The Applicant was assisted by her advocate, Ms Dallas, and both she and her husband, Mr Trevor Lamb, gave oral evidence. The Respondent was represented by Mr Nolan of Counsel and Ms Meacham, of the Public Guardian, also gave oral evidence. The written evidence made available to the Tribunal consisted of documents produced by the Respondent to the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), documents produced by the Applicant (marked Exhibit 2, A1 to A27) and documents produced by the Respondent (marked Exhibit 2, R1 to R7).

9. A number of potential additional witnesses were identified by the Applicant prior to the hearing and the Applicant has provided written statements of evidence from some of those witnesses in accordance with directions that had been made by the Tribunal prior to hearing. The Applicant initially sought to adduce oral evidence from each of these witnesses and the Tribunal discussed this issue with the parties at the commencement of the first day of hearing. These witnesses fell into three broad categories; firstly, members of the Applicant’s immediate or extended family, secondly, members of the community who were able to speak to the Applicant’s good character and finally, Mr Caruana himself. Where written statements of evidence had been prepared by the potential witnesses those statements were accepted into evidence and the Respondent did not require the witnesses for cross-examination. Those witnesses did not, therefore, attend the hearing and give oral evidence. Where statements of evidence had not been prepared and the potential witness was to give character evidence only, the Tribunal determined that it was not necessary to hear from those witnesses on the basis that the Applicant’s character is not in question in this case and that further positive character witnesses would not further advance the Applicant’s case. Where statements of evidence had not been prepared by immediate or extended family members the Applicant submitted, and the Tribunal accepted, that they would have given evidence broadly in accordance with, and in support of, the Applicant’s case. The Tribunal determined that it was not necessary to hear from those witnesses on the basis that the Tribunal accepted that members of the Applicant’s family would give evidence that was broadly consistent with hers, and that it would not advance the Applicant’s case to have additional family members give identical, or substantially similar, evidence to that of the Applicant and her other family members whose written statements were in evidence.

10. In relation to Mr Caruana himself, on 22 June 2021 he signed two written statements that had been prepared by the Applicant. The first[28] stated that he wished to give oral evidence at the hearing and the second[29] stated that he wanted the Applicant to be his NDIS plan nominee and correspondence nominee. Based on the available evidence as to Mr Caruana’s disabilities and capacity issues the Tribunal expressed some concerns about whether Mr Caruana’s participation in the hearing would advance the case for the Applicant, and whether it may be detrimental to Mr Caruana’s health to give oral evidence. The Applicant agreed with these concerns and submitted that she did not want her brother “stressed” by giving evidence, (although the Tribunal notes that she did, at various times during her evidence, invite the Tribunal to “ask him” when questions were put to her about factual matters involving Mr Caruana).[30] The Tribunal sought the view of Mr Caruana’s Guardian, Ms Meacham, who expressed the view that it was not in the best interests of Mr Caruana for him to participate in the hearing and give oral evidence. The Respondent did not require Mr Caruana for cross-examination. The Tribunal determined that it was not necessary to hear from Mr Caruana on the basis that the Tribunal accepted that he was likely to give evidence consistent with the views he expressed in his written statement, being that, to the extent that he was able to express a meaningful view, he wanted the Applicant to be his nominee. Further, the Tribunal determined that it was not appropriate that he do so, having regard to the relevant concerns expressed by the Applicant and the Public Guardian.

    [28]    Exhibit 2, A8.

    [29]    Exhibit 2, A9.

    [30]    Transcript P-33, lines 6 – 7; P-45, lines 27 – 29.

    Statutory Provisions

11. Chapter 4, Part 5 of the NDIS Act provides for the appointment, suspension and cancellation of plan and correspondence nominees for participants in the NDIS, such as Mr Caruana. A participant’s plan nominee may do any act that relates to the preparation, review or replacement of the participant’s plan or the management of the funding for supports under the participant’s plan.[31] The plan nominee may perform those acts on behalf of the participant, but only if the plan nominee considers that the participant is not capable of doing, or being supported to do, under the NDIS Act.[32]

    [31]    NDIS Act s 78(1).

    [32]    NDIS Act ss 78(1), (2) and (5).

12. By virtue of the appointment of a guardian under the Guardianship and Administration Act 2000 (Qld) (‘the GA Act’), in circumstances where Mr Caruana lacks the capacity to make such decisions himself, it is his guardian that becomes empowered to make such decisions.[33] Therefore, in this case, it is not the ‘participant’, Mr Caruana, who makes decisions about the contents of his participant’s plan or the management of his funded supports. Section 12 of the GA Act provides:

    [33]    Guardianship and Administration Act 2000 (Qld) s 12.

    (1)     The tribunal [QCAT] may, by order, appoint a guardian for a personal matter,

    or an administrator for a financial matter, for an adult if the tribunal is satisfied-

    (a)       the adult has impaired capacity for the matter; and

    (b)       there is a need for a decision in relation to the matter or the adult is

    likely to do something in relation to the matter that involves, or is likely

    to involve, unreasonable risk to the adult’s health, welfare or property;

    and

    (c)       without an appointment-

    (i)      the adult’s needs will not be adequately met; or

    (ii)      the adult’s interests will not be adequately protected.

    (2)       The appointment may be on terms considered appropriate by the tribunal.

    (3)       The tribunal may make the order on its own initiative or on the application

    of the adult, the public guardian or an interested person.

    (4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.

13. Subsection 33(1) of the GA Act provides:

    (1)       Unless the tribunal orders otherwise, a guardian is authorised to do, in

    accordance with the terms of the guardian’s appointment, anything in

    relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.

14. The NDIS Act allows for the enactment of Rules with respect to nominees and these are contained in the National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) (‘the Nominee Rules’). The provisions in Chapter 4, Part 5 of the NDIS Act and the Nominee Rules are intended to apply so as not to affect any obligations or restrictions arising under State or Territory law (including provisions with respect to court-appointed decision-makers).[34] It follows from this that the efficacy of the appointment of the Public Guardian as guardian for Mr Caruana, with respect to health, disability services and NDIS decisions is not intended to be affected by the provisions with respect to the appointment of a nominee under the NDIS Act.

    [34]    Nominee Rules cl 5.7.

15. Such intent is evident in the express provisions enacted for the appointment, by the CEO, of a person to be a plan nominee of a participant under subsection 86(1) of the NDIS Act. Subsections 86(2) and (3) of the NDIS Act, read with clause 5.4 of the Nominee Rules, provide that the appointment may be made either at the request of the participant or on the initiative of the CEO. Subsection 88(4) of the NDIS Act provide that the CEO must have regard to whether there is a person who, under a law of a Commonwealth, a State or a Territory:

    (a)         has guardianship of the participant; or

    (b)is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.

16. Various considerations set out in clauses 4.6 to 4.8 of the Nominee Rules inform the CEO’s decision to appoint a nominee. These are focussed upon the wishes of the participant, their carers and others who provide support, any existing arrangements and supports, the suitability of the person and any potential conflicts of interest. Nominee Rule clause 4.8(a) requires the CEO to have regard to:

    (a)the presumption that, if the participant has a court-appointed decision-maker or a participant-appointed decision-maker, and the power and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee.

1. If the Applicant had sought to become Mr Caruana’s plan nominee after the Public Guardian’s appointment as guardian with respect to his health and NDIS decisions, the mandatory requirement to ensure that no conflict exists with a court-appointed decision-maker, and the presumption that the appointed decision-maker should be the plan nominee,  would lead to the inevitable conclusion that the she would not be so appointed. That is a reflection of the required mandatory application of those relevant considerations, rather than a reflection on the appropriateness or otherwise of the Applicant. However, here, the Applicants appointment as plan nominee pre-dated the appointment of the Public Guardian.

2. An appointed nominee has a duty to consult, in relation to doing acts under, or for the purposes of, the NDIS Act, with any court-appointed decision-maker or any participant-appointed decision-maker and any other person who assists the participant to manage their day-to-day activities and make decisions (for example, a person who cares for the participant).[35]

   [35]    Nominee Rules cl 5.8.

3. The statutory power to cancel a nominee’s appointment is set out in subsection 90(4) of the NDIS Act, which states:

   The CEO may, by written instrument, suspend or cancel one or more of

   a nominee's appointments if:

   (a)       the CEO gives the nominee a notice under section 83; and

   (b)in response to the notice, the nominee informs the Agency that an event or change of circumstances has happened or is likely to happen; and

   (c)having regard to that response, the CEO is satisfied that it is appropriate to do so.

4. A notice under section 83 of the NDIS Act may be given by the CEO to a nominee requesting information about an event, or change of circumstances, that is likely to affect the ability of the nominee to act as the nominee for the participant. Subsection 83(1) of the NDIS Act provides:

   (1)       The CEO may give a nominee of a participant a written notice that requires

   the nominee to inform the Agency if:

   (a) either:

   (i)      an event or change of circumstances happens; or

   (ii)     the nominee becomes aware that an event or change of circumstances is likely to happen; and

   (b)     the event or change of circumstances is likely to affect:

   (i)      the ability of the nominee to act as the plan nominee or correspondence nominee of the participant (as the case may be); or

   (ii)      the ability of the CEO to give notices to the nominee under this Act; or

   (iii)     the ability of the nominee to comply with notices given to the nominee by the CEO under this Act.

5. The Nominee Rules make further provision for the circumstances in which the CEO may cancel the appointment of a nominee.[36] Nominee Rule clause 6.5 sets out the criteria to which the CEO is to have regard when cancelling or suspending the appointment of a nominee:

   (a)any breach of a duty of the nominee to the participant under the Act or these Rules;

   (b)the previous conduct of the nominee in relation to the participant;

   (c)the results of any review of the participant’s plan;

   (d)the views of the participant, and of any person who cares for or supports the participant;

   (e)the impact on the participant of any cancellation or suspension of appointment;

   (f)whether the nominee has been convicted of a criminal offence that is reasonably likely to compromise the ability of the person to act as nominee;

   (g)whether the participant still needs a nominee, having regard to the considerations mentioned in paragraph 3.14(b).

   [36]    Nominee Rules cls 6.3- 6.5.

6. The considerations in clause 3.14 of the Nominee Rules relate to the circumstances to be considered in the decision whether to appoint of a nominee, rather than in the decision whether to cancel an appointment, but, through this somewhat circuitous statutory pathway, both the fact that a participant has a court-appointed guardian and the wishes of that court-appointed guardian become relevant factors in relation to the question of cancellation.

   Consideration

7. The only question for consideration by the Tribunal is whether cancellation of the Applicant as the plan nominee for Mr Caruana under the NDIS Act is the correct or preferable decision. When the Applicant was appointed as plan nominee for Mr Caruana the Public Guardian had not yet been appointed. As this did not occur until a few months after the Applicant’s appointment as plan nominee, the mandatory provisions in relation to the presumption of appointment of his guardian as plan nominee did not then apply. However, Chapter 4, Part 5 of the NDIS Act, when read with the Nominee Rules, does provide a clear pathway for replacement of an existing plan nominee where a guardian is appointed under State or Territory legislation.

8. The starting point is the Notice given on 29 October 2020 by the delegate of the CEO to the Applicant under section 83 of the NDIS Act.[37] The Respondent submitted that the relevant changes in circumstances were the appointment on 1 August 2018, and reappointment on 31 July 2020, of the Public Guardian as the Mr Caruana’s guardian.

   [37]    Exhibit 1, T8.

9. The obligation on the recipient of a notice given under paragraph 83(1)(a) and 83(1)(b)(i) of the NDIS Act is to inform the Agency of an event or change of circumstances, where that event or change of circumstances is likely to affect the ability of the nominee to act. Where a notice is given, the question is whether an event or change of circumstances has occurred of the relevant nature, that is, of the kind that, objectively, is likely the affect the nominee’s ability to discharge her duties.

10. The Respondent submitted that those relevant circumstances were the appointment of Mr Caruana’s guardian in 2018 and the re-appointment in 2020. It is apparent from the evidence made available to the Tribunal by the Respondent, and from the Respondent’s submissions, that the CEO also considered as relevant the circumstances leading to that appointment and re-appointment and the nature of the working relationships between the Applicant and the Public Trustee, and between the Applicant and Mr Caruana’s service providers, which was described in the NDIS Act section 83 Notice as “unproductive”.[38]

    [38]    Exhibit 1, T8.

11. The Tribunal must simply consider whether:

    (a)The notice meets the requirements of paragraph 83(1)(a); and

    (b)In response to the notice, the Applicant has informed the Respondent of an event or change of circumstances of the kind contemplated by paragraph 83(1)(b); and

    (c)Having regard to that response, it is appropriate to cancel the Applicant’s appointment as Mr Caruana’s plan nominee.

12. The Notice dated 29 October 2020:[39]

    [39]    Ibid.

    (a)was in writing;

    (b)referred to section 83 of the NDIS Act;

    (c)required the Applicant to inform the Respondent of stated events;

    (d)those stated events were:

    (i)The appointment of the Public Guardian as guardian to Mr Caruana on 1 August 2018 and again on 31 July 2020;

    (ii)That those appointments were likely to affect the Applicant’s ability to act as nominee for Mr Caruana;

    (e)required the Applicant to provide information about the Applicant’s working relationship with the Public Guardian and with Mr Caruana’s service providers; and

    (f)Notified the Applicant that her appointment as Mr Caruana’s plan nominee may be suspended or cancelled if, having regard to her response to the notice, the Respondent was satisfied that it was appropriate to do so, or if the Applicant did not respond to the notice.

13. The Tribunal is therefore satisfied that the letter from Ms Cahill to the Applicant, dated 29 October 2020, constituted notice properly issued to the Applicant under paragraph 83(1)(a) of the NDIS Act.

14. In response to the Notice, the Applicant sent an email to Ms Cahill, and copied to other recipients, dated 30 October 2020, which contained the following information (Ms Cae-Maree Meacham, who is referred to in that email, is the representative of the Public Guardian with carriage of Mr Caruana’s guardianship appointment): [40]

    [40]    Exhibit 1, T10 and T11.

    (a)The Applicant’s response indicated that:

    (i)Ms Meacham rings the Applicant fortnightly;

    (ii)The Applicant was appointed as a plan nominee for Mr Caruana before the Public Guardian was appointed;

    (iii)The Applicant was no longer permitted to attend various meetings related to Mr Caruana’s health;

    (iv)The Applicant’s relationship with service providers has been productive in the past. However, when the Applicant has disagreed with medication, chemical restraints and the behaviour of support workers, she has called and emailed her concerns and “got rid” of previous service providers for Mr Caruana;

    (v)The Public Guardian “put a blind eye” to wrongful conduct by Wellways;

    (vi)Mr Caruana has too many new support workers; and

    (vii)The Applicant has done nothing wrong and wants her nominee status restored.

15. The Applicant provided further responses to the Notice in emails date, 2 November 2020, 9 November 2020, 10 November 2020 and 19 November 2020.[41]

    [41]  Exhibit 1, T12, T13, T14 and T17.

16. The Tribunal notes four aspects to the Applicant’s responses:

    (a)The Applicant confirms that the Public Guardian has been appointed for Mr Caruana;

    (b)The Applicant discloses sufficient information from which the Respondent could reasonably conclude that challenges exist with respect to the Applicant’s working relationships with service providers and with the Public Guardian;

    (c)The Applicant discloses sufficient information from which the Respondent could reasonably conclude that the Applicant does not accept that decisions in relation to Mr Caruana’s health and his NDIS plan are matters for the Public Guardian, and has instead sought to make decisions about such issues; and

    (d)The Applicant discloses sufficient information from which the Respondent could reasonably conclude that challenges exist with respect to the Applicant’s working relationship with the Public Guardian and that the Applicant does not support the Public Guardian in its decision-making role.

17. The appointment of the Public Guardian to make decisions for Mr Caruana in relation to all aspects of his health and his participation in the NDIS is a fact that is likely to affect any nominee’s ability to discharge the same functions. Where, as here, the Applicant has disclosed in her response to the Notice that she does not accept the correctness of the Public Guardian’s decision-making and that challenges exist with respect to the Applicant’s working relationships with key service providers and with the Public Guardian, it is clear that the appointment of the Public Guardian is likely to, and does, affect the Applicant’s ability to act as Mr Caruana’s plan nominee as contemplated by paragraph 83(1)(b)(i) of the NDIS Act.  The Tribunal notes that the Applicant’s continued appointment as plan nominee in such circumstances is also likely to impact the effective giving and receiving of notices as contemplated by paragraphs 83(1)(b)(ii) and (iii). Therefore, the Tribunal is satisfied that the Applicant’s response to the Notice has informed the Respondent of an event or change of circumstances of the kind contemplated by paragraph 83(1)(b).

18. Finally, the Tribunal will consider, having regard to that response, whether it is appropriate to suspend the Applicant’s appointment as Mr Caruana’s nominee.

19. The provisions relevant to both appointment and removal of plan nominees in Chapter 4 Part 5 of the NDIS Act, when read together with the Nominee Rules, contemplate that where, as here, a guardian is appointed under state law to make decisions for a participant that are relevant to the NDIS, it is proper and desirable that the appointed guardian also be the participant’s plan nominee. However, where an existing plan nominee is appointed and a guardian is appointed later, the cancellation of the existing plan nominee’s appointment is not mandated. Instead, a discretion is to be exercised as to whether or not that ongoing nominee status is appropriate.

20. The Applicant’s case is that only she can speak for Mr Caruana in a way that ensures his best interests are protected. The Applicant stated that she is the “voice, ears and eyes” for her brother and the she wishes to “support him in every way”.[42] The Applicant has been critical of many aspects of Mr Caruana’s care, which is substantially funded through his NDIS plan and has expressed criticisms in emails, telephone calls and during meetings with various stakeholders. Some of these are explored in more detail below. The Respondent asserted, and the Applicant did not refute, that a substantial volume of email communications relating to the care of Mr Caruana have been sent by her to the Public Guardian, support co-ordinators, service providers, Mr Caruana’s real estate agent and health care providers.

    [42]    Transcript, P-23, lines 15 – 18; P-27, lines 33 – 35.

21. The Applicant has asserted that the Public Guardian does not respond quickly enough to concerns that she raises about Mr Caruana’s care, and that the officers are located too far away, in Townsville, to meet his immediate day to day care.[43] She also asserted that service providers have, in the past, over-medicated Mr Caruana and have not delivered quality care. The most serious of the concerns and complaints raised by the Applicant in the material before the Tribunal related to the choice of health or service providers for Mr Caruana and the discharge of various guardianship functions. Those choices and functions rest with the Public Guardian. This Tribunal does not have jurisdiction to revisit the issue of guardianship or to supervise the discharge of a guardian’s duties. Other issues were described in the evidence of Ms Meacham as falling outside the realm of the Public Guardian’s delegated decision-making function, and examples were given such as minor repairs being required at Mr Caruana’s home, suggested derelictions by Mr Caruana’s caregivers like leaving towels on the floor, the lid to his washing machine open, or providing food choices for Mr Caruana of which the Applicant did not approve. Ms Meacham stated that the appropriate pathway for Mr Caruana, or the Applicant on his behalf, to raise such concerns would be to have Mr Caruana’s carer assist him to resolve such matters, and to raise concerns with the manager of the relevant service provider if the issue related to the conduct of the carer. Complaints could be escalated using procedures within the NDIA, and externally to the Ombudsman, and Ms Meacham stated that she was aware that the Applicant had availed herself of both processes in relation to various issue related to care for Mr Caruana.

    [43]    Exhibit 2, A11.

22. It is apparent from the substantial volume of material before the Tribunal that the Applicant has devoted herself to the pursuit of any issue that may intersect with what she considers to be in the best interests of Mr Caruana. The Applicant produced various written endorsements of her good character and her suitability to be an advocate for Mr Caruana. For example, she submitted a reference provided by Ms Grace Borg, a support worker who worked with the Applicant in relation to her late brother, John, when he required services funded under the NDIS.[44] The reference does not relate to the Applicant’s conduct in relation to Mr Caruana and his funded supports, and reference from the Applicant’s local priest, Father Kevin Johnson, who spoke to the good character of the Applicant and her “desire to maintain a constant caring support for Charles”.[45]

    [44]    Exhibit 2, A13.

    [45]    Exhibit 2, A17.

23. However, the question before the Tribunal cannot be answered by determining that the Applicant is devoted to her brother, or that she is his keen advocate, or that she loves him dearly. That the Applicant is all of those things was plainly evident during the course of the hearing and was not questioned by the Respondent. Instead, the Tribunal must focus more narrowly on whether it is proper for the Applicant to continue to act as the plan nominee for Mr Caruana in relation to the contents of his NDIS plan and the management of his funded supports, as contemplated in section 78 of the NDIS Act.

24. Nominee Rule 6.5 identifies factors relevant to cancellation of the appointment of a nominee, including the conduct of the nominee in relation to the participant, any breach of the nominee’s duties and the likely impact on the participant.

25. The Respondent relies on an affidavit sworn in these proceedings on 10 June 2021 by Ms Meacham of the Public Guardian,[46] together with the oral evidence given by Ms Meacham during the hearing. Ms Meacham’s affidavit contains the following statements:

    (a)Mr Caruana had his guardianship appointment extended to accommodation decisions in July 2020 because his accommodation and services were not stable. Family and service providers have reported that Mr Caruana displays challenging behaviours when he has unexpected interactions with people, including family members. There is dissent and acrimony among family members about his personal matters;

    (b)Mr Caruana’s support services, health and accommodation are at risk as a result of the Applicant’s interference in the co-ordination and delivery of his provision of services;

    (c)Due to the Applicant’s interactions, extensive advocacy has been required to clarify and correct the negative consequences of her interference in the delivery of support services;

    (d)The delegate guardian provides a fortnightly phone call with the Applicant and follows up on any concerns as appropriate. However, a communication plan is in place to limit other contact due to the quantity of communications and disproportionate complaints made by the Applicant; and

    (e)The delegate guardian has ad-hoc contact with Mr Caruana’s other siblings when views are required for service provision.

    [46]    Exhibit 2, R6.

26. The Respondent also relies on submissions prepared by the Public Guardian on 25 June 2020 and lodged in an earlier application to the Tribunal to which the Public Guardian had been joined as a party.[47] A variety of documents were appended to those submissions and counsel for the Respondent put key parts of those documents to the Applicant during the hearing.

    [47]    Exhibit 2, R5.

27. On 15 June 2020 Ms Plater, Independent Disability Advocate, provided a statement for the QCAT hearing.[48] Ms Plater identified what she described as “significant” and “grave” risks in the continuity of Mr Caruana’s accommodation and service providers as a result of the those service provider’s being unwilling to work with Mr Caruana if the Applicant continued to be involved with Mr Caruana’s supports, and noted the “impact” of the Applicant when involved.[49] She stated that the Applicant had been making and ceasing service bookings without the consent of the appointed guardian which was negatively impacting management of those services, that this conduct caused difficulties in maintaining services and managing funds available under the NDIS plan and had required service providers to be managed so that they did not accept unauthorised changes to services requested by the Applicant.  Ms Plater and the support co-ordinator had to re-negotiate Mr Caruana’s living arrangements as the property owner did not want to renew the lease due to constant emails and phone calls from the Applicant, although this had been resolved by Ms Plater and the support co-ordinator. Ms Plater described the Applicant as “consistently putting up barriers for Mr Caruana to achieve what he requires”.[50] The Applicant accepted during the hearing that she had contacted the real estate agent and that she was required to “do accommodation” for Mr Caruana at that time.[51] The Applicant stated that she had been following the orders of Mr Caruana’s doctor and that she had tried to contact the Public Guardian for approval to make further medical appointments but had not heard back. She also stated that she didn’t know at that time medical decisions were for the Public Guardian to make, which is difficult to reconcile with her stated attempts to contact the Public Guardian.

    [48]    Exhibit R5, Annexure 16.

    [49]    Ibid.

    [50]    Ibid.

    [51]    Transcript, P-28, line 36; P-105, line 33. 

1. Ms Bright, support co-ordinator for Mr Caruana, also prepared a statement (undated) for use in the QCAT proceedings, in which she echoed the sentiments of Ms Plater, and added that in the preceding six months she had received in excess of 300 emails from the Applicant which she described as “ranging from defamation and false allegations” to “abuse and harassment” and described the Applicant’s “seemingly malicious inability to work with a variety of service provisions to provide the best possible result for Charles”.[52] Ms Bright described the impact of the Applicant’s “volley or harassment and behaviours” and her interventions generally as “catastrophic” upon the quality of supports and services available to Mr Caruana.[53] During the hearing the Applicant did not accept that she had sent the suggested volume of emails and did not accept that, had that been the case, it would have been difficult for a support co-ordinator to deal with her concerns.

   [52]    Exhibit 2, R5, Annexure 17.

   [53]    Ibid.

2. Identical witness statements were signed by the Applicant’s siblings Andrew and Jason Caruana, Karen Thompson and Clare Edwards in June 2020 and prepared for the QCAT hearing opposing the Applicant being appointed guardian and administrator.[54] The statement identifies the Applicant as having “harassed and bullied carers to the point that they opt not to care for Charles”, having been “forceful” in her choice of carers, including by making false accusations against them, and having been “aggressive” and “arguing and walking out” during stakeholder meetings and “causing chaos”.[55] These statements were not put to the Applicant during the hearing and the Tribunal notes that the Applicant stated that her unsupportive siblings had become disgruntled when she, and not they, had been appointed as executor of the estates of their late parents. The Tribunal does not find it necessary to form a view about the veracity of these statements, other than to note that they were taken into account in the QCAT decision.

   [54]    Exhibit 2, R2, R3, R4 and R5.

   [55]    Ibid.

3. A number of other documents prepared for the QCAT and annexed to the Public Guardian’s submissions were also discussed with the Applicant during the hearing, the most noteworthy of which were:

   (a)Email from Ms Gundmundson, social worker, dated 14 August 2018 in which the Applicant’s conduct at a scheduled review for Mr Caruana was described as “hostile”, “loud” and “angry”.[56] The Applicant refuted any hostility but accepted that she had attempted to make or influence decisions about medical matters for Mr Caruana at the relevant time that were not hers to make.

   (b)Email from Ms Reeves, senior case manager at Mr Caruana’s previous service provider, Wellways, dated 12 September 2018, in which the Applicant’s conduct during a telephone call, in which she “wouldn’t let (Ms Woods) speak” and demanded that Mr Caruana’s funds were released from Wellways, was described as “abusive and bordering on slanderous”.[57] The Applicant refuted the allegations, or stated that she did not recall them. She further stated that she was aware at this time of the appointment of the Public Guardian but stated that she was the plan nominee that that her role as plan nominee had to be “accepted” so that she and the Public Guardian could “work together”.[58]

   (c)Email from Ms Woods, of Ideal Placements, dated 21 November 2018, in which the Applicant’s conduct at a stakeholders meeting was described as “vocal” and “disruptive” with “constant negative comments” from the Applicant and her sister, Gail.[59] The Applicant refuted the accuracy of all of those observations but accepted that she had voiced disagreement with the need for various services being provided for Mr Caruana.

   (d)Email from Ms Lee, Counsellor in Specialist Behaviour Intervention, dated 16 November 2018, in which the stakeholders meeting that had been held that day (likely the same as that described by Ms Woods) was described by her as the “most negative and disrespectful meeting I have ever been involved with”.[60] She stated that the presence of the Applicant and her sister, Gail, in such meetings was inflammatory and was restricting the aims of such meetings, being to improve Mr Caruana’s quality of life.[61] The Applicant stated that she did not recall aspects of the statement in this email and explained that Ms Lee was motivated by keeping her and others in a job and that the authors of such comments were “in on it together”.[62]

   [56]    Exhibit 2, R5, Annexure 2.

   [57]    Exhibit 2, R5, Annexure 3.

   [58]    Transcript, P-27, lines 1 – 7; P-55, lines 38 – 39; P-102, lines 38 – 42.

   [59]    Exhibit 2, R5, Annexure 4.

   [60]    Ibid.

   [61]    Ibid.

   [62]   Transcript, P-31, lines 30 – 31; P-75, lines 15 – 16.

4. These provide a sample of the criticisms that non-familial stakeholders who have been involved in the care of Mr Caruana across the past three years have exchanged with one-another contemporaneously in the course of discharging their respective professional roles. The Applicant did not accept the accuracy of any of the criticisms of her, and showed little insight into how others may view, and be affected by, her actions and communication style. The Applicant stated that the Public Guardian “tries to rubbish me and they tell lots of lies about me and make up negative things about me character”.[63] However, the source of such criticisms of the Applicant was not limited to the Public Guardian. In most cases, her response to the negative assertions was, either, that the conduct had not occurred as described or, if it had, that it was not negative but was what she was supposed to be doing to best support the needs of Mr Caruana. 

   [63]    Exhibit 2, A13.

5. The Tribunal has reviewed the evidence, having regard to the Applicant’s explanations that those who disagree with her do not have Mr Caruana’s best interests at heart and are pursuing a corrupt agenda of their own.

6. The Applicant’s contentions are generally supported by her immediately family and her sister, Gail, who each insist that the Applicant has Mr Caruana’s best interests at heart. The Respondent’s contentions are supported by Ms Meacham, of the Public Guardian, and are consistent with views expressed by Mr Caruana’s Independent Disability Advocate, his support co-ordinator, his social worker, two independent service providers, his counsellor specialising in behavioural management, his accommodation provider and various doctors and allied health specialists whose concerns are referred to in Ms Meacham’s affidavit.

   
   

   They broadly accord with the views expressed by the Applicant’s four other siblings, although these carry less weight given the familial discord described by the Applicant.

7. The Tribunal considers that the evidence overwhelming paints a picture of conduct on the part of the Applicant that is consistent with Ms Meacham’s evidence. The Tribunal notes that similar factual findings were arrived at in the QCAT guardianship proceedings. The Tribunal is satisfied that the Applicant’s inappropriate communication style and actions outside the scope of her decision-making authority are likely to affect her ability to act as plan nominee, no matter how genuine her motives might be to act in the best interests of her brother, Mr Caruana. This past conduct is relevant to the ongoing appropriateness of the Applicant to be plan nominee for Mr Caruana and to the question whether the cancellation of that appointment is the correct and preferable decision.

8. The parties were invited to make submissions as to what functions, if any, would remain to be undertaken by the Applicant as NDIS plan nominee given the Public Guardian had been given delegated decision-making in respect of Mr Caruana for health and NDIS purposes but neither party was able to articulate any such function. This is relevant to both whether a plan nominee is needed and whether it is appropriate that the Applicant be the plan nominee. The Applicant submitted that she could still be “a voice for Charles” and to provide checks and balances to assist the Public Guardian to identify where support providers were not discharging their functions adequately.[64] Ms Meacham gave evidence to the effect that the Public Guardian did not personally attend at medical appointments and NDIS planning meetings, but that Mr Caruana was supported on such occasions by carers and support co-ordinators. If such activities fall outside the delegated function of the appointed guardian then it is reasonable to determine that those are activities that Mr Caruana could undertake himself with respect to his NDIS plan. These would therefore fall within the scope of the  role of a plan nominee to undertake as contemplated by section 78 of the NDIS Act. However, the Applicant did not demonstrate a clear understanding of the delineation of such roles or satisfy the Tribunal that she could discharge the role of plan nominee without overstepping the relevant decision-making boundaries in a way that may adversely impact Mr Caruana’s continuity of funded supports.

   [64]    Transcript, P-23, line 15; P-25, lines 2, 8 and 9; P-27, line 34.

9. The Respondent made following submissions about the appropriateness of the Applicant as plan nominee, having particular regard to the factors identified in Nominee Rules clause6.5:

   (a)The Respondent contended that the Applicant has breached her duties as a nominee, in particular in failing to consult with the Public Trustee as required, and submitted that Mr Caruana’s former and current support co-ordinators, treating behaviour management specialist, accommodation support provider, personal advocate and the Public Guardian have all expressed concern about whether the Applicant’s conduct in relation to Mr Caruana’s affairs is having an impact on his personal well-being.

   (b)The Respondent accepted that the Applicant may not have intended to breach her duties and may not have intended to adversely impact Mr Caruana’s access to services. However, the Respondent submitted that the breach of the duty to consult has continued throughout periods when the Public Guardian was clearly responsible to decisions with respect to Mr Caruana’s health and services, including through the NDIS.

   (c)The Applicant’s conduct in dealing with relevant stakeholders has resulted in Wellways (the Participant’s former support co-ordinator under the NDIS) withdrawing from providing services and in Mr Caruana receiving a notice to leave from his private rental accommodation (although the Tribunal notes that he did, ultimately, retain this accommodation).

   (d)It is the view of Mr Caruana’s current support co-ordinator, personal advocate and the Public Guardian that the Applicant be removed as plan nominee. The delegate who made the reviewable decision interviewed Mr Caruana 1 December 2020 in the presence of his advocate.[65] Mr Caruana is recorded as having stated that he was happy to work with both the Applicant and the Public Guardian and did not express a particular preference at that time.

   (e)The removal of the Applicant as nominee is likely to have a positive impact on the relevant stakeholders being able to manage Mr Caruana’s needs without the Applicant’s intervention.

   (f)Mr Caruana does not require the Applicant to be a nominee because the Public Guardian has been appointed by QCAT to manage his affairs under the NDIS.

   (g)The current orders of QCAT are that the Public Guardian is Mr Caruana’s guardian for decisions as to whom he has contact with and/or visits, his health care and provision of services, including in relation to the NDIS. The continuation of the Applicant as a nominee has the potential of providing a conflict with those orders. It is contended that this conflict ought to be resolved by exercising the discretion to remove the Applicant as nominee.

   [65]    Exhibit 1, T2.

10. As to the exercise of discretion, and the desirability to avoid conflict with the orders made by QCAT, it is appropriate to note that the learned QCAT Member determined that the Public Guardian had been competent in the discharge of its duties to date and was an appropriate guardian for Mr Caruana, and that the Applicant was not, noting that the Applicant had “demonstrated that she is divisive and puts [Mr Caruana]’s position at risk in regard to service provision and accommodation”.[66] The learned Member noted that the Public Guardian had the support of many of Mr Caruana’s close family and other service providers, although not the support of the Applicant.

    [66] Exhibit 2, R6, “CM2”, at [34].

11. In this case, there is clear evidence before the Tribunal that supports each of the Respondent’s contentions and leads to the conclusion that is not appropriate for the applicant to continue as Mr Caruana’s plan nominee. The evidence leads the Tribunal to make the following findings:

    (a)Mr Caruana lacks the capacity to make certain decision for himself and has a guardian appointed for this purpose. The Applicant is not Mr Caruana’s appointed guardian, and a Tribunal of competent jurisdiction has determined that she is not an appropriate person to discharge that function.

    (b)The Public Guardian has been appointed since at least August 2018 as Mr Caruana’s guardian for a range of decisions including, critically, for his health and for the provision of his services, including those under the NDIS, and additionally, from July 2020, with respect to accommodation. A plan nominee can do anything that a participant can do with respect to his NDIS plan and management of funding for supports. However, Mr Caruana cannot make relevant decisions with respect to his NDIS plan, and once a guardian was appointed to do so for him, it was proper for the CEO to consider whether it was appropriate for the Applicant’s nominee appointment to be cancelled. The residual role of a plan nominee would be minimal, and it is desirable that such role not cause conflict or confusion in the application of the guardianship orders made for Mr Caruana by QCAT.

    (c)Since appointment of the Public Guardian, various steps have been taken by the Respondent to have the Applicant removed as Mr Caruana’s nominee in order to remove this conflict. However, prior to October 2020, the CEO had not initiated the process under section 90(4) of the NDIS Act by giving the Applicant proper notice under section 83 of the NDIS Act. This has now been remedied through the Notice sent on 29 October 2020.[67]

    (d)In the interim, confusion has reigned. The Applicant has been notified on three separate occasions between 2018 and 2020 that earlier decisions cancelling her appointment as Mr Caruana’s plan nominee would not be enforced. The Public Guardian was not empowered to make decisions in relation to Mr Caruana’s accommodation between August 2018 and June 2020. The Applicant interpreted this to mean that she was entitled to make decisions in relation to Mr Caruana’s accommodation during that period, although the Tribunal notes that there is no evidence that the Applicant had any delegated authority at that time, nor that the accommodation was a funded support that might fall to be managed by a plan nominee under section 78 of the NDIS Act.

    (e)In the ensuing confusion, the Applicant has breached her duty as a nominee to consult, in relation to doing acts under, or for the purposes of, the NDIS Act, with the Public Trustee and with others who assist Mr Caruana to manage his day-to-day activities and make decisions. When the Applicant did not receive the co-operation from the Public Guardian that she expected, or to which she thought she was entitled, contemporaneously created emails created by various stakeholders documented the Applicant’s escalating behaviour whilst she sought to have her views heard. This placed pressure on all the key relationships that an NDIS nominee would be expected to maintain with a participant’s service providers, co-ordinators, plan managers and treating specialists and state-appointed guardian. In Mr Caruana’s case all key stakeholders formed the view that the Applicant was difficult to work with and that his supports were compromised as a result. Further, the Applicant’s failure to consult has had clearly documented adverse impacts on the continuity of services for Mr Caruana.

    (f)Leaving aside any unnecessary findings of fault or blame, those key relationships remain compromised. Various stakeholders continue to provide services and care for Mr Caruana and the Tribunal is not satisfied that it is appropriate that Mr Caruana’s stakeholders views are overlooked in a way that may require them to elect whether to continue to work with the Applicant in difficult circumstances or, instead, to withdraw services. Cancellation of the Applicant’s appointment as plan nominee is likely to impact positively on the consistent management of Mr Caruana’s NDIS plan and funds, and on the continuity of those funded services.

    (g)Mr Caruana was not recorded as expressing strong wishes as to the identity of his plan nominee, other than in the letter prepared by the Applicant and signed by Mr Caruana whilst in her presence,[68] The Tribunal is prepared to accept that, if asked, Mr Caruana would express the view that he would wish the Applicant to be his plan nominee for the purpose of his NDIS supports. This is not an insignificant factor, and the objects of the NDIS Act make clear that people with a disability should be enabled to exercise choice and control.[69] The objects of the NDIS Act also extend to ensuring that reasonable and necessary supports are provided.[70] Whilst Mr Caruana’s expressed wishes are important, they are not determinative in this case.

    (h)The statutory scheme neither expressly envisages nor expressly excludes a plan nominee continuing to hold that appointment after appointment of a guardian who differs in identity to the plan nominee. Where a previously appointed plan nominee develops a highly effective working relationship with a subsequently appointed guardian there may be scenarios in which such an arrangement would be facilitated by the statutory scheme and would be in the best interests of the participant. This is not such a scenario.

    (i)The Applicant’s contention that the Public Guardian makes decisions that are not in the interests of Mr Caruana is simply not supported by any evidence, and these allegations are contained only in voluminous written communications authored by the Applicant herself, and sent to the Public Guardian, to Mr Caruana’s service providers and, most recently, to the registry of this Tribunal. Even if the Tribunal were to accept that the Public Guardian is not discharging its duties adequately (which it does not) that would still not assist the Tribunal in reaching a conclusion that the Applicant is an appropriate person to act as plan nominee for her brother.

    (j)In any event, due to the high volume of communications, particularly by email, it would be difficult for any service provider, the Public Guardian or other stakeholder to meaningfully manage legitimate concerns expressed by the Applicant and to separate those from other complaints that have been misdirected, exaggerated or repeated. The Applicant, through her advocate, submitted that she could change and that she would no longer write as many emails as she had previously if her review application were to succeed. However, given the lack of insight shown by the Applicant during the hearing as to the difficulties caused by her communications, the Tribunal is not satisfied that this is likely, and notes in any event that her past conduct has already caused strained relationships that may adversely impact Mr Caruana’s interests.

    (k)Mr Caruana has a large family and a large support network of service providers and professionals. The Applicant is supported in her views by her immediate family and one of her sisters. Mr Caruana’s various health service providers, the Public Guardian and those who provide accommodation and employment services, together with four of Mr Caruana’s siblings, have each expressed concerns about both the substance and the form of the Applicant’s communication with them and the efficacy of her advocacy for her brother.  

    (l)The Applicant provided various character references in support of her review Application, but her character is not relevant to the question before the Tribunal, neither are her good intentions towards her brother. The relevant question is whether the Applicant is an appropriate person to act as plan nominee for Mr Caruana, and to discharge functions in his stead that relate to his NDIS plan and management of his funded supports (in the circumstances of this case, where a guardian has been appointed for Mr Caruana). The Applicant submitted, through her advocate, that she could provide transparency and accountability in the delivery of NDIS services where that function is otherwise divided between Mr Caruana’s guardian and his service providers and co-ordinator. However, the Applicant has demonstrated that she does not communicate with key stakeholders in an appropriate and effective manner, and that she does not respect the duty to consult with the Public Guardian or the boundaries of the Public Guardian’s decision-making functions. It is therefore unlikely that the Applicant’s retention of the appointment of plan nominee would achieve the stated goals of transparency and accountability for Mr Caruana. Certainly, there is nothing preventing the Applicant from continuing in her role as a dedicated and loving sister. However, the Tribunal is not satisfied that it is appropriate that the Applicant remain as the appointed plan nominee for Mr Caruana.

    [67]    Exhibit 1, T8.

    [68]    Exhibit 2, A9.

    [69]    NDIS Act s 3(1)(e).

    [70]    NSIS Act s3(1)(d).

    Conclusion

1. For the reasons expressed, the Tribunal is satisfied that it is proper to cancel the Applicant’s appointment as Mr Caruana’s plan nominee under section 90(4) of the NDIS Act. As the Tribunal has reached the same decision as that under review, it is proper to affirm that decision.

   Decision

2. The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

   I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for decision of Member K. Buxton.

   ……………[SGD]………………
   Associate
   Dated: 17 September 2021

   Dates of the hearing:  31 August and 1 September 2021     
   Date of final closing submissions:            1 September 2021                 

   Representative for the Applicant:             Ms Christine Dallas

   Counsel for the Respondent:  Mr Philip Nolan          

   Solicitors for the Respondent:                  Ms Hailey Musgrove, HWL Ebsworth Lawyers