Lifeful Coordination & Management Pty Ltd and National Disability Insurance Scheme
[2023] AATA 155
•15 February 2023
Lifeful Coordination & Management Pty Ltd and National Disability Insurance Scheme [2023] AATA 155 (15 February 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2023/0457
Re:Lifeful Coordination & Management Pty Ltd
APPLICANT
AndNational Disability Insurance Scheme
RESPONDENT
Decision
Tribunal:Senior Member K. Parker
Date:15 February 2023
Place:Melbourne
Pursuant to s 31 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and for the reasons set out in the Reasons for Decision below, the Tribunal decides that the Applicant, Lifeful Coordination & Management Pty Ltd (Lifeful C&M), is not a person whose interests are affected by a decision made on 2 November 2022 by a delegate of the Chief Executive Officer of the NDIA under s 33 of the National Disability Insurance Scheme Act 2013 (Cth), to approve a statement of participant supports to form part of its client’s NDIS plan. The Tribunal decides that Lifeful C&M does not have standing under s 27(1) of the AAT Act to bring this application and that there is no valid application for review before it.
........................[sgd]................................................
Senior Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – Applicant is a NDIS plan manager – participant paid for medium-term accommodation (MTA) – MTA was not an approved support under participant’s NDIS plan – plan manager made a claim for this payment and reimbursed the participant – NDIA cancelled claim for payment – plan manager does not wish to seek recovery of amount from participant – plan manager wants NDIA to approve further funding under the participant’s plan for this amount – whether the participant’s plan manager has standing under s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether plan manager is a person whose interests are affected by the decision to approve the participant’s statement of participant supports – no valid application before the Tribunal
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
REASONS FOR DECISION
Senior Member K. Parker
15 February 2023
Lifeful Coordination & Management Pty Ltd (Lifeful C&M) is a registered National Disability Insurance Scheme (NDIS) service provider under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In late-November 2022, Lifeful C&M was engaged by an NDIS participant (Participant) to provide plan management services.
On 30 November 2022, the Participant made a payment of $1,737.90 to a real estate agent in respect of medium-term accommodation for the Participant (Rental Amount). On behalf of the Participant, Lifeful C&M made a claim from the NDIA for the Rental Amount and reimbursed the Rental Amount to the Participant.
The National Disability Insurance Agency (NDIA) subsequently cancelled the claim for this payment. This means that Lifeful C&M will be required to seek reimbursement from the Participant for the Rental Amount in order to pay it back to the NDIA.
Lifeful C&M has made this application to the Tribunal because it does not consider, in the circumstances, that the Participant should have to pay back the Rental Amount to the NDIA. Lifeful C&M made this application with the best of intentions in respect of its client.
Essentially, Lifeful C&M challenges the decision to approve the Participant’s statement of participant supports (SOPS) in his NDIS plan on 2 November 2022 (Decision) because it does not approve funding for MTA (that is, the Rental Amount).
The Tribunal asked the representative for Lifeful C&M who appeared at the hearing, why the Participant’s representative, his mother, was not in attendance at the hearing before the Tribunal. He said that his understanding was that she was busy working.
The Tribunal has considered whether, pursuant to s 31 of the AAT Act, Lifeful C&M is a person whose interests are affected by the decision under review, and therefore, whether it has standing under s 27(1) of the AAT Act to bring this application. The Tribunal has also considered whether a decision has been made by the NDIA which the Tribunal has the power to review under s 103 of the NDIS Act. The Decision is a decision made under s 33 of the NDIS Act in respect of the Participant. However, no internal review has been sought under s 100 of the NDIS Act of the Decision; and consequently, no decision has been made by a “reviewer” under that provision.
At the interlocutory hearing, the Tribunal asked Lifeful C&M how it was affected by the Decision (to approve the Participant’s SOPS), which, in application, meant that the Participant was unable to use his NDIS funding to pay for the Rental Amount. Lifeful C&M indicated that it did not wish to seek reimbursement from the Participant for this amount because it does not consider it appropriate that the Participant be required to repay it. This is an issue about what supports the Participant should or should not be funded for under his NDIS plan.
If Lifeful C&M makes a decision that it will not seek reimbursement from the Participant, this is a private matter as between Lifeful C&M and the Participant. The Tribunal considers that any loss consequent upon this foreshadowed private arrangement between Lifeful C&M and its client, cannot be characterised as Lifeful C&M’s interests having been “affected” by the Decision to approve the Participant’s SOPS. The Tribunal is satisfied that Lifeful C&M’s role is to manage the NDIS funding in accordance with the Participant’s SOPS in his NDIS plan. This does not extend to Lifeful C&M having any interest in what supports are or are not included in that plan.
The Tribunal acknowledges that Lifeful C&M is concerned for the interests of the Participant, and this is commendable. However, Lifeful C&M’s intentions do not give rise to a conclusion that its interests are affected by the Decision, thereby entitling it to make an application to this Tribunal as to matters going to the question of whether the Participant should be funded under his NDIS for the Rental Amount. This is a matter for the Participant or his mother to pursue upon review under s 100 (and then, s 103) of the NDIA Act, if they wish to. The prescribed time under the NDIA, within which the Participant may seek a review under s 100 of the NDIS Act, has not yet expired. The Tribunal therefore notes that this is an option that remains open to the Participant.
For present purposes, the Tribunal is not satisfied that Lifeful C&M’s interests are affected by the Decision; and for this reason, it does not have standing to bring this application. The Tribunal concludes there is no valid application before it.
As mentioned to the parties at the interlocutory hearing, the Tribunal does not have any inherent jurisdiction. Its jurisdiction or power to review a particular decision is derived from the express provisions of the relevant enactment operating in conjunction with s 25(1) of the AAT Act.
The relevant enactment in this case is section 103 of the NDIS Act. Subsection (1) states that (emphasis added):
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
A decision made by a reviewer under s 100(6) of the NDIS Act, will be made when a review of a “reviewable decision” under s 100(2) of the NDIS Act takes place, at the request of a person directly affected by that reviewable decision. A person who is directly affected by a reviewable decision may, within three months of receiving a notice from the person who made the “reviewable decision”, request a review of that decision.[1]
[1] NDIS Act, s 100(2).
The Tribunal explored with the parties whether there were any other decisions that Lifeful C&M relied upon as falling within the definition of reviewable decision in s 99 of the NDIS Act, from which Lifeful C&M might seek review in these circumstances. Some decisions were explored, but Lifeful C&M ultimately agreed there were none for which it might seek review.
Further, the Tribunal notes that even if it had concluded that Lifeful C&M had standing to bring this application, or that there was another decision which was a “reviewable decision” under s 99 of the NDIS Act, the Tribunal still would not have the power to review those decisions because an internal review under s 100 of the NDIS Act has not yet been sought, and no decision by a “reviewer” of the NDIA has yet been made under that provision.
CONCLUSION
Pursuant to s 31 of the AAT Act, and for the reasons set out in the Reasons for Decision above, the Tribunal decides that Lifeful C&M is not a person whose interests are affected by a decision made on 2 November 2022 by a delegate of the Chief Executive Officer of the NDIA under s 33 of the NDIS Act to approve a statement of participant supports to form part of its client’s (that is, the Participant’s) NDIS plan. The Tribunal decides that Lifeful C&M does not have standing under s 27(1) of the AAT Act to bring this application. There is no valid application before the Tribunal. Accordingly, there is no necessity for the Tribunal to address Lifeful C&M’s request for an extension of time to lodge this application.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
........................[sgd]................................................
Associate
Dated: 15 February 2023
Date of hearing: 10 February 2023 Advocate for the Applicant: Self-represented - Mr Anthony Woodrow & Ms Monika Konski
Advocate for the Respondent: Mr Leo Nguyen, NDIA lawyer
1
0
0