LQMG and National Disability Insurance Agency
[2019] AATA 4975
•26 November 2019
LQMG and National Disability Insurance Agency [2019] AATA 4975 (26 November 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Numbers: 2019/2714 and 2019/6815
Re:LQMG
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 26 November 2019
Place:Melbourne
The Tribunal sets out options for the future conduct of these matters.
................[sgd]....................................................
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – outline of path open to the parties to ensure applications for review of 2018 and 2019 participant’s plans heard at same time when Agency has not reviewed earlier, but had reviewed latter, under s 100(6).
Legislation
Administrative Appeals Tribunal Act 1975; ss 25(5) and 29(1), (2) and (3)
National Disability Insurance Scheme Act 2013; ss 99(1), 100(6) and 103
Administrative Appeals Tribunal Regulation 2015; ss 22 and 23
Cases
NAIS v Minister for Immigration and Multicultural Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 88 ALD 257
Re FJKH and National Disability Insurance Agency [2018] AATA 1294; (2018) 74 AAR 469
Re KRGB and National Disability Insurance Agency [2019] AATA 144
Re LQTF and National Disability Insurance Agency [2019] AATA 631
Re Simpson and National Disability Insurance Agency [2018] AATA 1326
REASONS FOR DECISION
Deputy President S A Forgie
On 24 May 2018, the National Disability Insurance Agency (Agency) completed its review of LQMG’s participant’s plan and its Chief Executive Officer (CEO) approved a new plan for the 2018/2019 year (2018 participant’s plan). It did so under the National Disability Insurance Act 2013 (NDIS Act). On 31 May 2018, LQMG made a request to the Agency under s 100(2) for review of the plan on the basis that, even though his goals had changed, it had reduced his funding and a number of items had been deleted or overlooked on the one hand or included but not funded on the other. The Agency took his request as a request to review the CEO’s decision to review the statement of participant’s supports included in the 2018 participant’s plan.[1]
[1] For the purposes of the provision of supports to an applicant, the statement of participant’s supports is the operative document. If the request were taken to be a request made under s 48(1) for review of the participant’s plan, the applicant would not be able to apply to the Tribunal for review of any decision made by the CEO on that review. That is so because a decision made by the CEO under s 48(2) is not a reviewable decision under s 99(1) and, therefore, an application may not be made under s 100(2) for its review. The CEO’s decision to approve a statement of participant supports, on the other hand, is a reviewable decision – Item 4 if s 99(1) – and a request may be made for its review under s 99(2).
Once LQMG’s request had been received, s 100(6) of the NDIS Act required a reviewer to review the decision to approve the statement of participant supports and to make a decision on it as soon as reasonably practicable. When he lodged his application for review in the Tribunal on 14 May 2019, the reviewer was yet to make a decision. Section 103 of the NDIS Act provided that an application could be made to the Tribunal for review of a decision made by a reviewer under s 100(6). Therefore, in the absence of a decision by the reviewer and unless the reviewer was deemed to have made such a decision having regard to s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act), LQMG’s application was made prematurely and the Tribunal had no jurisdiction. Whether s 25(5) operated in this way in the context of s 100(6) was a question that had been considered by the Tribunal In in Re NNXF and National Disability Insurance Agency (NNXF). As the Tribunal is yet to deliver its decision on the question and in response to the Agency’s request that any jurisdiction hearing be deferred until it does so, I adjourned the matter.
Since then, LQMG’s 2018 participant’s plan has come to an end. On 27 May 2019, the CEO approved a new plan for LQMG (2019 participant’s plan). LQMG lodged an application for review of that new plan on 26 August 2019. A reviewer made a decision under s 100(6) and LQMG applied to the Tribunal for its review under s 103 of the NDIS Act. In his application for review, he noted that he had yet to hear when the review of the decision made on 24 May 2018 would be completed.
Whether or not the review of the earlier decision continues to have any benefit to LQMG will depend upon whether or not he incurred out of pocket expenses in relation to supports that were not approved in relation to his 2018/2019 participant’s plan or that he incurred over and above the level at which the supports were approved. I understand that he has incurred such expenses. If, on review, the statement of participant supports were varied, or a new statement substituted, to include those supports for which he incurred out of pocket expenses, I understand that the Agency would reimburse those expenses.[2]
[2] The Tribunal does not have power to order that the Agency reimburse them.
The question remains as to how best to deal with both applications so that the issues raised in respect of both plans may be considered and reviewed together. This is in the interests of both LQMG and the Agency. Normally, I would put my views to the parties orally at a directions hearing but LQMG has been very unwell and hospitalised. He would appreciate having a written document that he can study when he is able. With that in mind, I have prepared a written outline for the parties’ consideration as to the paths that may be able to be taken to achieve that outcome regardless of whether or not the decision in NNXF has been delivered.
This can be done because, putting aside nuances such as the terms of any decision that may be deemed to have been made, there would seem to be only two broad answers that may present themselves in NNXF. The first is that, where a reviewer has not made a decision under s 100(6) of the NDIS Act “as soon as reasonably practicable”, s 25(5) of the AAT Act has the effect of deeming a decision to be made. That answer also requires that deemed decision to be a decision confirming the reviewable decision so that an application for review may be made under s 103 of the NDIS Act. The second is that the period identified in s 100(6) by reference to its being “as soon as reasonably practicable” is not a “period prescribed” for the purposes of s 25(5) of the AAT Act. Even if it were, the decision that is deemed to have been made under s 100(6) would be a decision not to make a decision at all under s 100(6). It would not be a decision to conform, vary or set aside and substitute a decision under s 100(6). As a decision not to make a decision under s 100(6) cannot be regarded as a decision made under that provision, an application may not be made to the Tribunal in respect of it.
If the first broad answer is correct, it is arguable that a decision will not be deemed to have been made until the Tribunal makes a determination that the reviewer has, indeed, not made a decision “as soon as reasonably practicable”. The outcome of the Tribunal’s determination may be that the reviewer’s decision is deemed to have been made at an earlier time, whether before or after LQMG made his application for review of the 2018 participant’s plan. Until that determination is made, however, the reviewer’s power will remain unexercised. He or she will be able to make a decision under s 100(6) and an application may be made to the Tribunal for its review under s 103. The time within which that application may be made is determined by either s 29(2) or s 29(3)(b) of the AAT Act.[3] That is the situation in which the parties find themselves in this case.
[3] The time limit determined by s 29(3)(b) will apply if a determination is ultimately made that the reviewer was deemed to have made a decision before LQMG lodged his application on 31 May 2018. A new application will have to be made within the time limits prescribed by s 29(2) if the reviewer is deemed to have been made at a time after LQMG lodged his first application.
If the second broad answer is correct, it is arguable that the reference in s 100(6) to the decision’s being made “as soon as reasonably practicable” is not a reference to a “period prescribed” as that term is used in 25(5) of the AAT Act. Therefore, the deeming provisions of s 25(5) of the AAT Act do not apply. The reviewer continues to have the power to make a decision. When that decision is made, an application may be made to the Tribunal within the time prescribed by s 29(2) of the AAT Act.
In summary, it is arguable that, as the matter stands at the moment and regardless of the outcome in NNXF, it is open to the reviewer to make a decision under s 100(6). LQMG could then make an application for review of the decision that the reviewer makes. That application may be made in accordance with the time limit prescribed by s 29(3)(b) if the view is taken that the reviewer had been deemed to make a decision under s 100(6). Alternatively, if the view is taken that s 25(5) of the AAT Act has no role to play in deeming a decision to be made under s 100(6), LQMG may lodge an application for review of the decision that is actually made having regard to the time prescribed by s 29(1). In either case, once an actual decision has been made under s 100(6) of the NDIS Act, any argument that a decision is deemed to have been made by virtue of the operation of s 25(5) of the AAT Act when read with s 100(6) must fall away. The power can only be exercised once and, having been exercised by the Agency, it is exhausted.
MAKING AND REVIEWING A DECISION TO APPROVE A STATEMENT OF PARTICIPANT SUPPORTS
I will start with the matters that have led to this point.
Making a decision to approve a participant’s plan
LQMG had satisfied the CEO that he met the access criteria and became a participant in the National Disability Insurance Scheme (NDIS).[4] Once he became a participant, the CEO became obliged to facilitate the preparation of a participant’s plan in accordance with the National Disability Insurance Scheme rules (NDIS rules).[5] LQMG’s participant’s plan had to specify his goals, objectives and aspirations and the environmental and personal context in which he lived.[6] It also had to include a statement of participant’s supports prepared with LQMG and approved by the CEO. Section 33(2) stated that the statement had to specify:
[4] NDIS Act; s 28
[5] NDIS Act; s 32
[6] NDIS Act; s 33(1)
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for the supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”
These requirements are developed elsewhere in s 33 and in Division 2 of Part 2 of the NDIS Act as well as in the NDIS rules.
Review of a participant’s plan by review of a statement of participant’s supports
Part 6 of the NDIS Act does not provide for review of a participant’s plan. Rather, it provides for review of the CEO’s decision made under s 33(2) to approve the statement of participant supports in that plan.[7] The CEO’s decision is one of a group of decisions identified elsewhere in s 99(1) as “reviewable decisions”. A person directly affected by a reviewable decision may request the decision-maker, in this case the CEO, to review that reviewable decision.[8] Once that request has been made in accordance with s 100(3), the decision-maker must cause the reviewable decision to be reviewed by a reviewer, who was not involved in making it.[9]
[7] NDIS Act; s 99(1), Item 4
[8] NDIS Act; s 100(2)
[9] NDIS Act; s 100(5)(c) and (d)
The obligation that rests on the reviewer is set out in s 100(6):
“The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.”
Review of the reviewer’s decision by the Tribunal
A. Application to the Tribunal when reviewer has made a decision
Section 25(1) of the AAT Act provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[10]
[10] AAT Act; s 25(1). Regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment: AAT Act; s 25(2).
Section 103 of the NDIS Act is such a provision when it states:
“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.”
B. What if the reviewer has not yet made a decision?
The question I have posed in the heading is the question that is to be decided in NNXF. I do not propose to answer the question in any way but I will set out at least some of the context in which the deliberation must take place. The context is s 25(5) of the AAT Act and it provides:
“Failure of decision-maker to meet deadline
For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”
The only other provision in the AAT Act that might add another dimension to that context is s 29. That section sets out the manner of applying for review. Section 29(1) specifies the criteria that an application to the Tribunal must satisfy. Among them is s 29(1)(d), which provides:
“if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) – shall be lodged with the Tribunal within the prescribed time.”[11]
[11] Section 25(5A) of the AAT Act reflects the terms of s 25(5) but applies them for the purposes of regulations making provision for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
Sections 29(2), (3) and (4) specify the prescribed times. Of these, s 29(4), which must be read with ss 29(5) and (6), provides for the situation in which no prescribed time has been made for making applications. It is of no relevance in these proceedings.
Section 29(2) is concerned with the general situation when a decision has been made. Subject to s 29(3), the general situation is that the prescribed time for the purposes of s 29(1)(d) is the period commencing on the day on which the decision is made and ending on the 28th day after one or other of the following two events has occurred. The first event occurs if the decision sets out the findings on material questions of fact and the reasons for decision. The period ends on the 28th day after the day on which a document setting out the terms of the decision is given to the person.[12] The second event occurs if the decision does not set out those findings and reasons. Section 29(1)(b) then stipulates three circumstances in which to calculate the 28th day. One is the day on which a statement of setting out findings and reasons is given to the applicant otherwise than in response to a request under s 28(1) of the AAT Act.[13] The second circumstance arises if the applicant has requested a statement of reasons under s 28(1) but has been notified in accordance with s 28(3A) that a statement would not be given.[14] In any other case where the decision does not set out the findings and reasons for its being made, the prescribed time for the purposes of s 29(1)(d) is the 28th day after the day on which a document setting out the terms of the decision is given to the applicant.[15]
[12] AAT Act; s 29(2)(a)
[13] AAT Act; s 29(2)(b)(i)
[14] AAT Act; s 29(2)(b)(ii)
[15] AAT Act; s 29(2)(b)(iii)
Section 29(2) is subject to the qualification in s 29(3), when it provides:
“Prescribed time for making applications – decision-maker’s failure to meet deadline
In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:
(a)in a case to which paragraph (b) does not apply – on the twenty-eighth day after that day; or
(b)in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant – on the twenty-eighth day after:
(i)if the decision sets out the findings on material questions of fact and the reasons for decision – the day on which a document setting out the terms of the decision is given to the applicant; or
(ii)if the decision does not set out those findings and reasons – the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision.”
TWO BROAD RESPONSES TO THE QUESTION POSED IN NNXF
There have been varying responses to the question posed in NNXF but, very broadly speaking, there have been two set out in the cases.[16] The starting point of one is that the period defined in s 100(6) of the NDIS Act by reference to what is “as soon as reasonably practicable” is a “period prescribed by” the NDIS Act as a period within which the reviewer must make a decision. Failure to make that decision within a period that is “as soon as reasonably practicable” is deemed by reference to s 25(5) to constitute the reviewer’s making a decision to confirm the reviewable decision. In this case, the reviewable decision would be the CEO’s decision approving a statement of participant supports under s 33(2). The deemed decision would then be taken to be a decision under s 100(6) so that an application for its review might be made to the Tribunal under s 103.
[16] See, for example, Re FJKH and National Disability Insurance Agency [2018] AATA 1294; (2018) 74 AAR 469; Deputy President Bean and Re Simpson and National Disability Insurance Agency [2018] AATA 1326; Deputy President Humphries and my own decisions in Re KRGB and National Disability Insurance Agency [2019] AATA 144 and Re LQTF and National Disability Insurance Agency [2019] AATA 631.
The essence of the other response is that the starting point is to work out what is meant by the reference to the “period prescribed” by the enactment. That task is undertaken by looking at the structure and provisions of the AAT Act. In particular, it is undertaken by reference to the way in which the “prescribed time” is determined under s 29(3) as the time within which an application may be made to the Tribunal when a decision-maker has failed to meet a deadline. When the task is completed, the conclusion is that the “period prescribed”, to which s 25(5) refers, must be a period that is either a defined period of time or a period whose length can be determined by an applicant by reference to criteria specified in the NDIS Act.
A period of time that is determined by what is “as soon as reasonably practicable” is not such a period for it can only be determined in each case. That determination can only be made after having regard not only to factors that are relevant to the particular application made by a particular applicant but also much wider factors that have an impact on the Agency and its statutory obligations to all who seek review. Each decision is very likely to be but one of a great many that reviewers will be asked to make under the NDIS Act in the course of a year. That fact alone brings into play the resources of the Agency to provide reviewers to review reviewable decisions and the number of requests for review of reviewable decisions that must be reviewed. Also relevant will be the complexity of the matters that must be reviewed as a result of the particular request for review but so too will be the complexity of the other matters that must be reviewed as a result of the other requests that are waiting to be reviewed. Regard would need to be had to the order in which requests for review were received but that order may not be determinative as some requests will no doubt require more immediate attention than others.
As the period of time that is regarded to be is “as soon as reasonably practicable” may only be determined having regard to all of these factors,[17] it cannot be regarded as a “period prescribed” by the NDIS Act in the way in which those words are used in s 25(5) of the AAT Act. Therefore, s 25(5) has no application and failure by the reviewer to make a decision “as soon as reasonably practicable” does not lead to the conclusion that the reviewer is deemed to have made a decision of any sort.
[17] See, for example, NAIS v Minister for Immigration and Multicultural Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 88 ALD 257; Gleeson CJ, Kirby, Callinan and Heydon JJ; Gummow and Hayne JJ dissenting at [17]-[20]; 478-479; 176-177; 262-263 per Gummow J dissenting but not on this point
The second response also addresses the decision that would be made should it be incorrect in its conclusion that, when a reviewer is required to make a decision in a period that is “as soon as reasonably practicable”, that reviewer is not failing to make a decision within the “period prescribed” by s 100(6) as the expression “period prescribed” is used in s 25(5). If s 25(5) applies, the decision that the reviewer is deemed to make is a decision “not to do that act or thing” that he or she was required to do “within the period prescribed by” s 100(6) of the NDIS Act. What the reviewer was required to do was to make a decision confirming the reviewable decision, varying the reviewable decision or setting aside the reviewable decision and substituting a new decision. The “act or thing” is to make a decision to do one or other of those three things. Section 25(5) does not give scope to deem the reviewer to have selected one of the three decisions the reviewer could choose from when exercising power under s 100(6).
Each of the responses to the question posed in NNXF is underpinned by analysis but, as I have said, it is not the occasion to delve into the relative merits of each. What it is time to do is to search for a practical solution to enable LQMG and the Agency to deal with the issues arising from his two applications for review in the most efficient way for each of them.
THE PRACTICAL CONSEQUENCES OF EACH BROAD RESPONSE
Response 1: reviewer’s failure to make a decision as soon as reasonably practicable constitutes a decision under s 100(6) confirming the CEO’s decision under s 33(2)
If this is the correct response to the question in NNXF, the practical consequence will be that the Tribunal will need to consider whether, at the time that LQMG lodged his first application, the reviewer had failed to make a decision as soon as reasonably practicable. In order to do so, the Tribunal will need to give both LQMG and the Agency an opportunity to lead evidence and make submissions. Various outcomes are possible under the first response to the question addressed in NNXF and in the context of a reviewable decision made under s 33(2). They are not determined simply by a determination of whether the decision was made under s 100(6) “as soon as reasonably practicable” but also by reference to other actions that might be taken by the parties in the meantime, I will summarise them:
(1)The application has been lodged but the Tribunal has not yet heard and determined whether or not the reviewer has, or has not, made a decision under s 100(6) “as soon as reasonably practicable”.
(a)The reviewer has neither exercised power under s 100(6) nor, in the absence of a determination by the Tribunal, been deemed to have done so.
(b)Therefore, in the absence of a decision, deemed or otherwise, the reviewer may exercise power to make a decision under s 100(6).
(i)Section 29(3) of the AAT Act expressly recognises that a decision-maker may make, or purport to make a decision after the expiration of the period within which he or she was required to do so and makes provision for it.
(c)An applicant may lodge an application for review of the reviewer’s decision (as described in [(1)(b)]) within the prescribed time set out in s 29(3) of the AAT Act.
(i)No fee for the second application will be payable where, as in the case of a decision made under the NDIS Act, none is payable or where, if it is payable in respect of the first application, the fee has already been paid.[18]
[18] Administrative Appeals Tribunal Regulation 2015; ss 22 and 23
(ii)The parties and the Tribunal would need to consider whether there continues to be any merit in pursuing the first application in order to determine whether or not a decision had been deemed to have been made under s 100(6) at an earlier time.
(iii)If there is merit, the two applications can proceed together.
(2)The Agency has not made any subsequent decision and the Tribunal determines that the reviewer had not, at the time of lodgement of the application, made a decision “as soon as reasonably practicable”.
(a)A decision confirming the CEO’s reviewable decision is deemed to have been made under s 100(6) by virtue of the operation of s 25(5).
(b)The application for review was properly lodged and the matter proceeds in the Tribunal in the usual way.
(c)The reviewer’s powers of review are exhausted and the deemed decision confirming the CEO’s decision is the decision under review.
(3)The Tribunal determines that the reviewer had not, at the time of lodgement of the application, made a decision but was not in breach of the duty imposed by s 100(6) to do so “as soon as reasonably practicable”.
(a)No decision is deemed to have been made under s 100(6) because the reviewer has not failed to make a decision within the period prescribed by s 100(6).
(b)The application for review was not properly lodged and the application must be dismissed.
(i)It was not properly lodged because s 103 of the NDIS Act only permits applications to be made to the Tribunal for review of a decision made (or deemed to have been made) by a reviewer under s 100(6).
(4)The Tribunal determines the following: the reviewer had not, at the time of lodgement of the application, made a decision; the reviewer was not at the time of lodgement in breach of the duty imposed by s 100(6) to do so “as soon as reasonably practicable”; the reviewer was in breach of that duty at a point in time between the date of lodgement and the date of the Tribunal’s hearing or decision to determine the issue.
(a)As the reviewer had not failed to make a decision “as soon as reasonably practicable”, no decision is deemed to have been made under s 100(6) by virtue of the operation of s 25(5) of the AAT Act.
(i)The application for review was not properly lodged because no decision is deemed to have been made under s 100(6) at the time the application was lodged. Section 103 of the NDIS Act only permits applications to be made to the Tribunal for review of a “decision made by a reviewer under subsection 100(6).” (emphasis added) It does not permit an application to be made for review of a decision that may be made (or deemed to have been made) at some time in the future.
(ii)An applicant may lodge an application for review of the decision that the Tribunal determines was not made “as soon as reasonably practicable” and so is deemed to have been made at a later time.
Response 2: reviewer’s failure to make a decision as soon as reasonably practicable does not enliven s 25(5) of the AAT Act and does not constitute a decision under s 100(6)
As no decision has been made under s 100(6), no application may be made under s 103 of the NDIS Act. LQMG’s application for review is premature as the Tribunal does not yet have jurisdiction. When the reviewer exercises the power to make a decision under s 100(6), LQMG may make an application under s 103 for its review having regard to the prescribed time set out in s 29(2) of the AAT Act.
CONCLUSION
In summary, it is arguable that, if the reviewer makes a decision under s 100(6) reviewing the CEO’s approval of the statement of participant supports included in the 2018 participant’s plan and LQMG chooses to make an application for its review, that application can be considered together with his most recent application. It would reflect the Agency’s current thinking on the issues raised by the 2018 participant’s plan. That would seem to be the most efficient use of the parties’ resources as well as those of the Tribunal for the reviewable decisions made in 2018 and 2019 would seem to raise similar issues.
| I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
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Associate
Dated: 26 November 2019
| Applicant: | Ms Fiona Downing Disability Justice Advocacy Inc |
Solicitor for the Respondent: | Mr Chris Herscovitch |
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