LQTF and National Disability Insurance Agency
[2019] AATA 631
•2 April 2019
LQTF and National Disability Insurance Agency [2019] AATA 631 (2 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/4459
NATIONAL DISABILITY INSURANCE SCHEME DIVISION )
Re: LQTF
Applicant
And: National Disability Insurance Agency
Respondent
CORRIGENDUM TO DECISION [2019] AATA 631
TRIBUNAL: Deputy President S A Forgie
DATE OF CORRIGENDUM: 24 June 2019
PLACE: Melbourne
The Tribunal amends its decision of 2 April 2019 as follows:
1. paragraph 51 of the decision is substituted as follows:
51.The parties have both taken the events on 27 March 2018 as the starting point in the chain of decision-making. Having regard to the whole course of events, I have decided that the starting point lies in the events of 15 September 2017 when the NDIA approved a statement of participant supports. The decision is recorded in a letter dated 18 September 2017. SC followed this on LQTF’s behalf with an application for review of a reviewable decision made on 16 October 2017. She requested review of a reviewable decision i.e. the decision to approve a statement of supports on 15 September 2017 made under s 33(2) of the NDIS Act. The reasons given for making the request make it clear that LQTF was not satisfied with the level of support provided in the decisions with regard to 1:1 support and that he needed more while he was waiting for other suitable accommodation. As the request was made on 16 October 2017, it was well within the three month time limit prescribed by s 100(2).
[sgd]
S A FORGIE
Deputy President
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/4459
Re:LQTF
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 2 April 2019
Place:Melbourne
The Tribunal decides that:
it has jurisdiction to review a decision made by the respondent on 31 July 2018 under s 100(6) of the National Disability Insurance Scheme Act 2013 affirming a decision made by the respondent to approve a statement of participant supports in the applicant’s plan.
..............[sgd]........................................................
Deputy President S A Forgie
NATIONAL DISABILITY INSURANCE SCHEME – JURISDICTION – dependent upon an application’s being made for a reviewable decision – identifying reviewable decision – Tribunal has jurisdiction.
Legislation
Administrative Appeals Tribunal Act 1975 ss 3(1), 25, 25(1), 25(2), 25(3), 25(4A), 25(5), 27(1), 27A, 29(1), 29(2), 29(2)(a), 33, 34A, 34A(1), 34D, 35, 40A, 42 and 42C
Electronic Transactions Act 1999 s 14A(1)(a)
National Disability Insurance Act 2013 ss 33, 33(1), 33(2), 33(5), 34, 37(1), 37(2), 38, 47, 48, 48(1), 48(2), 48(3), 48(4), 48(5), 48(6), 49, 50(1), 50(2)(a), 50(2)(b), 50(3), 99, 99(1), 99(2), 100, 100(1), 100(1A), 100(2), 100(3), 100(4), 100(5), 100(5)(a), 100(5)(b), 100(5)(c), 100(5)(d), 100(6), 100(8), 101 and 103
Tribunals Amalgamation Act 2015 ss 3 and 25(4)
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403
Re Adams and the Tax Agents' Board (1976) 12 ALR 239
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re FJKH and National Disability Insurance Agency [2018] AATA 1294
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re Jonsson and Marine Council [No. 2] [1990] AATA 192; (1990) 12 AAR 323
Re KRBG and National Disability Insurance Agency [2019] AATA 144
Re Nairn and National Disability Insurance Agency [2017] AATA 242
Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15
REASONS FOR DECISION
Deputy President S A Forgie
1.The issue in this case is whether the Tribunal may review the statement of participant supports in LQTF’s plan or whether its power is limited to reviewing whether or not the National Disability Insurance Agency (NDIA) should conduct a review of his plan under s 48(2) of the National Disability Insurance Act 2013 (NDIS Act). For the reasons that I have set out below, I have decided that a reviewer has made a decision dated 31 July 2018 in accordance with s 100(5) of the NDIS Act reviewing a reviewable decision to approve a statement of participant supports. The Tribunal has jurisdiction to review that decision.
2.In giving these reasons, I have set out the steps that must be followed in seeking review of a statement of participant supports and review of a participant’s plan. I have done so in order to illustrate the complexity of the review process provided for in the NDIS Act. It is a process that I respectfully suggest is often too complex for a participant to navigate with any ease, let alone with any confidence, and that is not conducive to the NDIA’s being able to respond quickly to the needs of participants. It is a process that may leave both the participant the NDIA disagreeing about the proper characterisation of the decision that has been made.
3.It is important that the NDIA’s decision be characterised for it is apparent from what I have said below that the review may take a very different course depending on whether a decision is characterised as, for example, a decision not to reassess a participant’s plan, a decision to review a participant’s plan or a decision to review a statement of supports. A request may be made for review of the first and the third but not of the second. Review of the third will address what are reasonable and necessary supports. Review of the first, however, will not for it is limited to whether or not the plan should be reassessed. It may consider whether the statement of participant supports is adequate but only in the limited context of deciding whether or not to reassess the plan. If the review leads to a decision setting aside the initial decision not to reassess a participant’s plan, the practical result will be that the NDIA must review the plan.[1] Only when the plan has been approved, will a participant be able to request review by a reviewer within the NDIA of the statement of supports that the Chief Executive Officer (CEO) of the NDIA has approved in making the plan.
[1] See my earlier decision in Re Nairn and National Disability Insurance Agency [2017] AATA 242
4.These are all steps that must be considered and taken as appropriate before a matter even reaches the Tribunal. In this case, I have set out the steps that the NDIA has taken to illustrate the confusion that would seem to permeate the process of review. To a large extent, the confusion would seem to arise from the structure of the NDIS Act. One wonders why a request to review a plan could not be taken to be a request to review the statement of participant supports in a plan. It is, after all, one of the two components making up a plan. The other is the participant’s statement of goals and aspirations. As important as that statement is in the process of making the plan, it is the statement of participant supports that is approved by the CEO of NDIA and that determines the nature and level of support, to which a participant is supported. It is that level of support that is at the heart of every participant’s dissatisfaction with a plan. To distinguish between decisions regarding the plan and its reassessment and decisions regarding the substance of what it is to which a participant is entitled and which is set out in a statement of participant supports in his or her plan, seems an unnecessary distinction. It is a distinction that leads to cases such as this in which time must be spent to work out what has been decided rather than to work out what it is to which a participant is entitled.
5.That said, it is imperative that the Tribunal be confident that it has jurisdiction to consider an application and it is important to resolve any doubts before it embarks on dealing with substantive issues. That follows from the fact that the Tribunal has no power to consider a matter unless an application for review has been made to it. An application for review may only be made to it if an enactment has provided that an application may be made for review of decisions identified in that enactment.[2] That requires consideration of that other enactment, which in this case is the NDIS Act. If the decision is one in relation to which that other enactment provides that an application may be made to the Tribunal then the Tribunal will have power to review the decision provided the application is made within the prescribed time or an extension of that time. Jurisdiction itself is not a matter that can be resolved by negotiation or agreement between the parties. As was said by the Full Court of the Federal Court in McLeish v Faure,[3] and it applies equally to the Tribunal:
[2] Administrative Appeals Tribunal Act 1975; s 25
[3] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 per Sweeney, Evatt and Northrop JJ
“It is trite law that parties, by consent, cannot confer jurisdiction upon the court.”[4]
[4] [1979] FCA 38; (1979) 40 FLR 462; 25 ALR 403 at [9]; 467; 409
6.Only when an application has been made to the Tribunal do its powers arise. Such an application may only be made when an enactment has provided that applications may be made to it for review of decisions identified by that legislation. This is the effect of ss 25(1), (2) and (3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In this case, the enactment is the NDIS Act. If an application is made for review of a decision which the NDIS Act does not identify as a decision in relation to which an application may be made, the Tribunal has no power to consider the application. It has no jurisdiction to consider that application.[5]
[5] Given that the Tribunal is given powers in relation to applications made to it and in relation to the review of decisions as well as authority to determine the scope of review of a decision under s 25(4A), it must be implied that the Tribunal is given jurisdictionto consider those applications and review the decisions. Before its repeal by the Tribunals Amalgamation Act 2015 (s 3 and Schedule 1, Item 40, s 25(4)) expressly stated that this was so: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
7.If the Tribunal does not have jurisdiction, it cannot exercise any of its powers in relation to the decision of which review would otherwise be sought. Section 34A(1) of the AAT Act, for example, provides that the President may direct that a proceeding be referred to ADR if an application is made to the Tribunal. If the Tribunal cannot review the decision, to which an application relates, there is no power to engage the Tribunal’s ADR powers. Whether the Tribunal can make a decision with the consent of the parties under either ss 34D or 42C depends of whether the Tribunal has jurisdiction. In the case of s 34D, for example, whether the Tribunal may make a decision under it by consent depends on whether it had power to conduct an alternative (or additional) dispute resolution process (ADR) under Division 3 of Part IV of the AAT Act. The President only had power to direct that the proceeding be referred to an ADR process. He only had power if an application had been made to the Tribunal.
8.The same line of reasoning leads to the conclusion that, if an application has not been properly made to the Tribunal, it does not have power under, for example, s 33 to give directions or s 40A to summon a person to appear before the Tribunal or to produce documents. In both cases, the power is given to the Tribunal for the purpose of a “proceeding”. The word “proceeding” is defined in s 3(1) of the AAT Act but, apart from paragraph (g),[6] each limb of the definition is dependent upon there being an “application” either for review of a decision or an application incidental to such an application. The only exception is found in paragraph (h) when it refers to an incidental application made in the course of a proposed application. That reference would include within the meaning of “proceeding” an application for orders such as an extension of time within which to lodge an application or a confidentiality order under s 35 of the AAT Act. Asking that a matter be referred to an ADR proceeding directed by the President under s 34A of that legislation cannot be regarded as an incidental application when no application has been made for the President’s power depends upon an application’s having been made to the Tribunal.
[6] Paragraph (g) provides that “any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act” is a proceeding in relation to the Tribunal. The NDIS Act does refer any matter to the Tribunal for inquiry and/or review. It provides only for applications to be made to the Tribunal.
THE SUBMISSIONS
9.The issue in this case is whether the decision under review is a decision made under s 48(2) of the NDIS Act refusing to reassess LQTF’s plan or whether it is a decision made under s 33(2) approving a statement of participant supports. The NDIA submits that it is the former. LQTF submits that the NDIA has made a decision approving statements of participant supports. He submits that it has been reviewed under s 100(6) of the NDIS Act by a reviewer of the NDIA and that the Tribunal has jurisdiction to consider his application for its review.
10.NDIA bases its submission on the following course of events. I have described them as they are in the NDIA’s submissions:
Date
Event
15 September 2017
NDIA “… made a decision to approve a statement of participant supports in a plan, to be reviewed by 10 September 2018 (‘the first original decision’) … The first original decision was made pursuant to Chapter 3, Part 2 of the NDIS Act.”
16 October 2017
LQTF “made a request for additional supports to be included in his plan, namely, further core support funding. … “
The NDIA submits that this decision is the subject of LQTF’s earlier application lodged in the Tribunal on 3 August 2018.[7]
21 March 2018
LQTF “… accepted an offer of residency in Specialist Disability Accommodation (SDA) at … Blackburn, Victoria.”
27 March 2018
The NDIA received an email from LQTF’s Support Coordinator (SC) attaching a new Plan Review Request Form stating that LQTF had been offered an SDA placement and had accepted it.
The NDIA did not make a decision whether or not to conduct a review of the plan within 14 days of receiving LQTF’s request. Therefore, under s 48(2) of the NDIS Act, the NDIA was taken to have decided not to do so and, under s 100(5), was required to review it.
18 June 2018
A delegate of the CEO of NDIA (DOCEO) “… decided to affirm the second original decision (i.e. that a plan review would not be undertaken).”[8]
26 July 2018
LQTF “… submitted a complaint to the Respondent and requested that a new decision be made as the 18 June 2018 decision was completed by the same delegate [DOCEO] that approved the statement of participant supports on 15 September 2017.”[9]
The submission then went on to say:
“Although the Applicant appears to have incorrectly identified the original decision, this correspondence clarifies the Applicant’s understanding of his March 2018 request in that it states:
On 21 March 2018, … [LQTF] requested a plan review under section 48 of the Act for the purposes of obtaining funding fort (sic) Specialist Disability Accommodation.”
31 July 2018
“… in response to the Applicant’s complaint, a delegate of the Respondent made a further decision that a plan review would not be undertaken (albeit that there was no legal requirement to do so).”[10]
[7] Proceedings No. 2018/4394
[8] Reference is made to T documents; T22 at 132
[9] Reference made to T documents; T1 at 18
[10] Reference made to T documents; T1 at 22
11.I will set out the submissions that the NDIA has made with reference to this course of events:
“12. Pursuant to section 100(2) of the NDIS Act, a person may request a decision maker to review a reviewable decision (being a decision listed in section 99 of the NDIS Act). However, ‘the person must make the request within 3 months’ after receiving notice of the Respondent’s decision. The wording of this section is mandatory. There is no power granted to the Respondent, or to the Tribunal, standing in the Respondent’s shoes, to extend the time the Applicant has to make an application for internal review of a reviewable decision pursuant to section 100(2).
13.The relevant request for internal review in this application was made on 27 March 2018. That is, more than 6 months after the original decision and significantly more than 3 months from the date that the decision to approve a statement of participant supports was made (being 15 September 2017). Therefore, the Respondent had no power to review its decision to approve the statement of supports made 15 September 2017.
14.In the circumstances, the Applicant’s request for a review made 27 March 2018 could only have been made under section 48(1) of the NDIS Act. Section 48 of the Act allows a participant in the NDIS to request an unscheduled plan review at any time. Further, pursuant to the NDIS Operational Guidelines for Planning at 15.2, where a participant requires review of a plan (request for an unscheduled plan review), this ‘generally occurs when a participant’s circumstances have changed and their current plan no longer meets their needs or they request a change to their plan management type’.
15.The Applicant’s acceptance of an SDA placement on 21 March 2018 was precisely such a change in circumstances that a section 48 Review of a participant’s plan contemplates. The complaint from the Applicant to the Respondent dated 26 July 2018 confirms the Applicant’s understanding that his 27 March 2018 request was a request under section 48.
16.As above, as the Respondent did not decide whether or not to conduct a review of the Applicant’s plan within 14 days after receiving the request, therefore pursuant to section 48(2) the Respondent is taken to have decided not to conduct a review. Sections 48(2) and 100(5) of the NDIS Act then require the Respondent to review the decision not to conduct a review of the plan.
17.As such, in accordance with the NDIS Act, the Respondent’s decision dated 18 June 2018 must be characterised as a decision on review of a reviewable decision affirming the earlier decision (made by operation of law) not to conduct a plan review under s48(2) of the NDIS Act. The Respondent accepts that this is a reviewable decision made under sections 99 and 100(6), the Tribunal has jurisdiction to review that decision (s 103 of the Act).
12.The submissions made on behalf of LQTF are based on the following description of the sequence of events:
Date
Event
30 May 2016
LQTF became a National Disability Insurance Scheme Participant.
30 May 2016 to 16 October 2017
Both in the form of formal requests for review and in correspondence, LQTF sought further funding to move to SDA.
15 September 2017
The NDIA made a decision to approve a statement of participant supports in a plan with a review date of 10 September 2018.
16 October 2017
LQTF applied for review of a reviewable decision. “… That application specified that the funding in the plan that had been approved on 15 September 2017 was inadequate, and that the Applicant would like more funding for support worker.”[11]
30 November 2017
The NDI wrote to LQTF regarding a request to review a plan and advised that an internal review of its deemed decision to refuse to do so would be undertaken.
November 2017 to March 2018
Correspondence continued between LQTF and the NDIA but there was no resolution of his request for review dated 16 October 2017.
27 March 2018
LQTF lodged a plan review form advising that he had been advised of an SDA vacancy and requesting SDA funding.
5 April 2018
“On 5 April 2018 … VicNorth Unscheduled Review Team wrote to … a Planner at NDIS confirming the Applicant’s request for review. … [The Vic North Unscheduled Review Team] confirmed that the request to include SDA/SIL in the Applicant’s plan been assigned to … [the Planner] who was to gather information in order for the NDIA Senior Delegates to determine his eligibility for SDA.”[12]
7 May 2018
The Planner requested the Technical Advisory Team [TAT] to assess LQTF’s eligibility for SDA.
June 2018
TAT advised the Planner that LQTF had not met the eligibility for SDA.
18 June 2018
“… letter confirming that an internal review has now been conducted and a decision is made to affirm the original decision to approve the statement of participant’s supports in the Applicant’s plan was sent to the Applicant. …”[13]
“… It was later identified that that the delegate who had made the purported decision of 18 June 2018 was the same delegate who made the original decision, and that the review was therefore invalid.”[14]
31 July 2018
“… a letter confirming that a delegate had considered the Applicant’s request for review of a decision to approve the statement of participant supports in [his] plan and decided to affirm the original decision.”[15]
[11] LQTF’s submissions dated 12 February 2019 (LQTF’s submissions) at [10]
[12] LQTF’s submissions at [14] with reference to T documents; T25 at 141-142
[13] LQTF’s submissions at [16] with reference to T documents; T22 at 132-133
[14] LQTF’s submissions at [16] comparing T documents; T30 at 209 with T22 at 122-123
[15] LQTF’s submissions at [17] with reference to T documents; T2 at 22-23
13.The submissions made on behalf of LQTF followed two paths. The first path required consideration of the proper characterisation of the course of decision-making engaged in by the NDIA. LQTF accepts that the decisions refer to a request made on 27 March 2018. The form that was lodged was a Plan Review form and would ordinarily trigger a review in terms of s 48 of the NDIS Act. It is apparent, however, that the CEO’s delegate has regarded that as a request relating to the statement of participant supports. The reviewer explicitly considered matters under s 34, which are relevant to statements of participant supports, and made no reference to s 48 relating to the review of participant’s plans.
14. The second path is summarised in the following extract from their submissions:
“The Applicant contends that consideration of the legislative and factual matrix in this case is such that, even if the reviewable decision was made only in response to his request of 27 March 2018, the fact that the request was made out of time does not preclude a reviewable decision in respect of the statement of participant supports being made. That the request does was not made in the relevant timeframe does not render the application inchoate in the manner identified by Spender J in Yilmaz, when the relevant provisions are read within their statutory frameworks. The applicant contends that the decision made in fact is one which Parliament intended the Tribunal to be able to review, applying the principle in Lawlor.”[16]
BACKGROUND
[16] LQTF’s submissions at [29]
15.In order to make the course of events clearer, I will set them out in table form. The date of those events relied upon by LQTF are underlined and those relied upon by the NDIA appear in bold font. Where both rely on the same event, the date appears both in bold font and underlined.
Date
Event
30 May 2016
NDIA wrote to LQTF advising him that he had met the access requirements necessary to become an NDIS participant.[17]
16 September 2016
Funding Schedule – Client Plan commencing on 1 July 2016 and including Complex Case Management.[18]
20 September 2016
NDIS Plan approved with a review date of 20 September 2017.[19]
14 November 2016
LQTF requested a Plan Review on a form headed “Requesting a Plan Review Plan” explaining that he was worse off under the NDIS than he had been under his Individual Support Package. Before the NDIS, he had been approved for a Community Residential Unit and he wanted to be considered for that as his current accommodation in a low care facility was not meeting his needs. The form was dated 10 November 2016[20]
20 December 2016
LQTF’s advocate wrote to NDIS asking for NDIA’s consideration regarding the request for a review of the decision to deny him a plan review.[21]
15 May 2017
Letter from NDIA to LQTF noting that, on 21 December 2016, he had requested an internal review of its decision declining his request for funding for SDA and 1:1 support at the same amount as previously funded through his Individual Support Package. For reasons set out in the letter, the decision was not to change the decision regarding either SDA funding or 1:1 support and the decision was affirmed.
The letter set out avenues open to LQTF if were not happy with the decision:
“If you believe my decision is wrong you can apply for an external review by the Administrative Appeals Tribunal (AAT). You must do this within 28 calendar days of receiving this letter. Further information is available on the AAT website or you can call 1300 366 700.
Additionally, there are services that can support you in seeking a review through the National Disability Advocacy Program. More information is available on the DSS website.
If you think a decision made by the NDIA is wrong, you may request a review of this decision within three months of receiving this letter. Alternatively, if your circumstances have changed, and you believe this plan no longer meets your/participant’s name needs you can ask NDIA to review your plan.
Further information on how to request a plan review or an internal review can be found on the NDIS website.
When asking for an internal review, you should explain why you think the decision is incorrect. The staff member who works on the internal review will not have been involved in the earlier decision. They may want to talk to you directly as part of this process.
Following an internal review, if you still think the decision made about you/participants’ name [sic] is wrong, you can seek further review by making an application to the Administrative Appeals Tribunal.’[22]
6 June 2017
The NDIA wrote to LQTF acknowledging the feedback he had given on 1 June 2017 when he had raised concerns that he was “… unhappy with the outcome of … [his] request to review … [his] NDIS plan.”[23]
The letter referred to discussions at a meeting held on 16 May 2017 with LQTF, his Support Coordinator (SC) and his Advocate (A) when the reasons had been discussed. It also reproduced some of the reasons set out in the letter of 16 May 2017 and advised LQTF that he could apply for external review of the decision in the Tribunal if he so wished.[24]
18 August 2017
A Plan Review Report was completed by LQTF’s SC with him. The document describes itself as a “… pro-forma to be used by Support Coordinators to support participants to review their current NDIS plan and prepare for their next plan.”[25]
15 September 2017
NDIA decided to approve a statement of participant supports in a plan to be reviewed by 10 September 2018. The decision is not separately recorded in the T documents but found in a letter dated 18 September 2017: see following entry.
18 September 2017
Letter from NDIA to LQTF advising him that his NDIS Plan had been approved. It commenced on 15 September 2017 and was due to be reviewed by 10 September 2018.
The reviewer, whom I will call “DOCEO”, said that she had reviewed his plan to ensure that he was receiving the right supports to meet his circumstances.[26]
16 October 2017
SC emailed NDIS a document entitled “Application for review of a reviewable decision”. She described the decision as having been made in September 2017. LQTF requested review because, in summary, the supports provided for in the plan had fallen short of and did not meet his needs. He set out detailed reasons supporting his position. They included his request for 8 hours of 1:1 support worker assistance per day and 7 days per week assistance with personal care as well as community based support. LQTF said that he needed this level of care as he was living in a low care facility while he looked for other accommodation.[27]
30 November 2017
The NDIA wrote to LQTF to provide him with an update on his “request to review … [his] plan.”[28]
It advised him that the NDIA had 14 days within which to decide whether it would review a plan when requested to do so under s 48(2) of the NDIS Act. As the NDIA had not made its decision within that time, LQTF’s request to have the plan reviewed was automatically refused by the NDIA.
Despite that, the NDIA had passed his request to an internal reviewer who would decide whether or not it should review his plan. The decision would be made within 14 days. If LQTF disagreed with the decision, he could apply to the Tribunal for its review.[29]
22 January 2018
Note recording that LQTF had declined an offer of accommodation at Hotham.[30]
21 March 2018
LQTF’s acceptance of offer of accommodation at Blackburn.[31]
27 March 2018
SC wrote to the NDIA attaching a plan review request for LQTF following his acceptance of the offer of accommodation. She asked that the plan be reviewed as soon as possible so that the decision as to accommodation could be finalised. An OT living skills assessment was being undertaken and would be completed within a two week period.[32] It was completed on 4 April 2014.[33]
The Requesting Plan Review Form attached the offer and stated that LQTF “… will require funding in his NDIS plan in order to move into this vacancy.”[34]
28 March 2018
An officer of NDIA noted the request and advised that there was a current review request lodged in October 2017 that had “… not progressed to planning stage at this time.”[35] The documents had been uploaded to “… inbound docs under the original Unscheduled Review Request tab of 19/10/17.”[36] She sought unsuccessfully to transfer the request from one region to another within NDIA.
4 April 2018
The application together with some additional information was sent to another officer in the NDIA to review the decision.[37]
7 & 8 May 2018
NDIA made its enquiries, including seeking technical advice, and undertook an analysis of the information.[38]
Undated but between 7 May and 18 June 2018
NDIA’s Technical Advice Team (TAT) submitted a report regarding LQTF’s eligibility for SDA funding and concluded that he did not meet the eligibility criteria. TAT made a recommendation to that effect and also recommended that LQTF’s SC should support him to explore issues within his current accommodation setting to address his goal of increased support and community access. If his current accommodation is not sustainable following that exploration, the SC could assist LQTF to explore alternative living arrangements in non SDA settings.[39]
18 June 2018
DOCEO, an officer with the NDIA, wrote to LQTF with regard to his request dated 27 March 2018 for an internal review of its decision “… to approve the statement of participant supports in … [his] plan.”[40] In particular, LQTF had requested SDA. The NDIA advised him that it had conducted an internal review under s 100 of the NDIS Act and affirmed its decision saying.
“As you do not require overnight support and can spend periods of time on your own, it is assessed that the funds in your current plan are sufficient to meet your specific diasibiltiy [sic] support needs. In light of your requests, I encourage you to continue to work with your support coordinator to assist you in exploring non-SDA settings, and mainstream services to assist you in achieving the golas [sic] in your current plan.[41]
The letter went on to advise LQTF of his review rights:
“If you believe the decision is wrong you can apply for an external review by the Administrative Appeals Tribunal (AAT). You must do this within 28 calendar days of receiving this letter….
Additionally, there are services that can support you in seeking a review through the National Disability Advocacy Program. …”[42]
22 June 2018
NDIA wrote to LQTF with regard to his request dated 27 March 2018 for an internal review of its decision “… to approve the statement of participant supports in … [his] plan.”[43] In particular, LQTF had requested daily 1:1 personal care supports.[44]
The NDIA advised him that it had conducted an internal review under s 100 of the NDIS Act and affirmed its decision.[45]
3 July 2018
SC wrote to NDIA enquiring about the outcome of LQTF’s plan review. LQTF had told her that he did not have a letter advising him of the outcome.[46]
6 July 2018
A review officer wrote an email dated 6 July 2018 to another NDIA an officer setting out:
“Final Outcome of Review
…
s. 48 Unscheduled Review Completed – No change made participant is not eligible for SDA funding.
Date completed review/action: 18/06/18
Method of facilitation: Phone/Email – SC and participant are aware of decision and have requested an s100 review of decision be completed as a priority.
Change in plan value: $0.00
Notes: Request for SDA funding. – Declined as per TAT advice”[47]6 July 2018
The NDIA wrote an email to SC stating two avenues of review rights:
“Letter relating to s. 100 review for 1:1 supports is attached, … [LQTF’s] next avenue to appeal this decision is the AAT …
With regard to the s. 48 review request for SDA funding, as you are aware I have provided verbal and email confirmation that this request has been declined as … [LQTF] does not meet eligibility for SDA funding.
The next level of appeal against my decision on SDA funding is an s. 100 Review of Decision.”[48]
26 July 2018
LQTF lodged a complaint with the NDIA stating:
“On 18 September 2017, a delegate of the CEO, being … [DOCEO], approved a statement of participant supports under sub-section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).
On 16 October 2017, … LQTF] by his support coordinator … , submitted an application for review of the decision to approve the statement of participant supports, pursuant to section 100 of the Act. This request for review concerned … [LQTF’s] care needs.
On 21 March 2018, … [LQTF] requested a plan review under section 48 of the Act for the purposes of obtaining funding fort [sic] Specialist Disability Accommodation (‘SDA’).
By decision dated 18 June 2018, a delegate of the CEO, being … [DOCEO] purported to make a decision pursuant to section 100 of the Act to affirm the original decision regarding SDA (being the statement of participant supports approved on 18 September 2017). This was not received until 17 July 2018.
By decision dated 22 June 2018, a delegate of the CEO, being … [DOCEO] purported to make a decision pursuant to section 100 of the Act to affirm the original decision regarding personal care supports (being the statement of participant supports approved on 18 September 2017). This was not received until 6 July 2018.
We note that sub-section 100(5) provides:
…
In making these two internal review decisions, the Agency has not complied with sub-section 100(5) of the Act. Specifically, the reviewer (being … [DOCEO]) was involved in making the reviewable decision, being the decision to approve a statement of participant supports under sub-section 33(2) dated 18 September 2017. Sub‑section 100(5) explicitly requires that a person not involved in making the reviewable decision conduct the review.
…
We request that the Agency re-conduct the two separate reviews of reviewable decisions, in accordance with section 100 of the Act. We specifically request that a reviewer not involved in making the reviewable decisions conduct these reviews. … [LQTF] asks that the requests made in October 2017 and March 2018 be granted.
We request that the Agency provide acknowledgement that two fresh internal review are being conducted before 3 August 2018, being the deadline for … [LQTF] applying for review in the AAT in respect of the decision dated 22 June 2018.”[49]
31 July 2018
NDIA wrote to LQTF noting that, on 27 March 2018, he had requested an internal review of its decision to approve the statement of participant supports in his plan. Specifically, he had requested SDA funding. The letter advised LQTF that the NDIA had conducted that review and had affirmed its original decision.[50]
The letter continued:
“As you do not require overnight support and can spend periods of time on your own, it is assessed that the funds in your current plan are sufficient to meet your specific diasibiltiy [sic] support needs. In light of your requests, I encourage you to continue to work with your support coordinator to assist you in exploring non-SDA settings, and mainstream services to assist you in achieving the golas [sic] in your current plan.[51]
The letter went on to advise LQTF of his review rights:
“If you believe the decision is wrong you can apply for an external review by the Administrative Appeals Tribunal (AAT). You must do this within 28 calendar days of receiving this letter….
Additionally, there are services that can support you in seeking a review through the National Disability Advocacy Program. …”[52]
3 August 2018
AAT File No. 2018/4394LQTF lodged an application in the Tribunal for review of the NDIA’s decision that he received on 6 July 2018.[53]
The application attached:
Statement of Participant Supports dated 18 September 2017;
Application for Review of a Reviewable Decision dated 16 October 2017;
Notification of Decision email dated 6 July 2018;
Complaint to NDIA dated 26 July 2018;
Response to Complaint dated 27 July 2018.[54]8 August 2018
LQTF lodged his application in the Tribunal for review of the NDIA’s decision that he received on 2 August 2018.[55]
The application attached:
Statement of Participant Supports of Sharon Leahy dated 18 September 2017
Request for Plan Review dated 27 March 2018
Notification of Plan Review outcome dated 6 July 2018
Internal review notification email of Daniel Abdelkar dated 17 July 2018
Internal review decision of Sharon Leahy dated 18 June 2018
AAT review application in respect of another internal review outcomeComplaint to NDIA dated 26 July 2018.[56]
27 August 2018
SC wrote to the NDIA asking it to arrange a scheduled review meeting as soon as possible as LQTF’s plan was due to expire on 10 September 2018. She attached a Service Coordination Plan Review Report and associated documents relating to LQTF and his needs.[57]
11 September 2018
Letter from NDIA to LQTF advising him that his NDIS Plan had been approved. It commenced on 10 September 2018 and was due to be reviewed by 10 December 2018.[58]
[17] T documents; T5 at 57
[18] T documents; T6 at 58
[19] T documents; T29 at 201
[20] T documents; T8 at 68-69
[21] T documents; T9 at 73
[22] T documents; T10 at 78
[23] T documents; T11 at 80
[24] T documents; T11 at 80
[25] T documents; T12 at 82
[26] T documents; T30 at 208
[27] T documents; T13 at 101
[28] T documents; T15 at 109
[29] T documents; T15 at 109
[30] T documents; T16 at 111
[31] T documents; T16 at 114
[32] T documents; T18 at 116
[33] T documents; T19 at 120-124
[34] T documents; T18 at 118
[35] T documents; T25 at 143
[36] T documents; T25 at 143
[37] T documents; T25 at 142
[38] T documents; T20 and T21 at 125-131
[39] T documents; T28 at 200
[40] T documents; T22 at 132
[41] T documents; T22 at 134
[42] T documents; T22 at 134
[43] T documents; T23 at 136
[44] T documents; T23 at 136
[45] T documents; T23 at 136-139
[46] T documents; T24 at 140-141
[47] T documents; T25 at 142
[48] T documents; T24 at 140
[49] T documents; T1 at 18-19
[50] T documents; T2 at 22
[51] T documents; T2 at 24
[52] T documents; T2 at 24
[53] T documents; T1 at 9
[54] T documents; T1 at 15
[55] T documents; T1 at 1
[56] T documents; T1 at 7
[57] T documents; T26 at 145
[58] T documents; T31 at 223
LEGISLATIVE BACKGROUND
Preparation and implementation of a plan
16.Division 2 of Part 2 of Chapter 3 of the NDIS Act provides for the preparation of a participant’s plan. Section 33 provides that a participant’s plan must include two statements: a “participant’s statement of goals and aspirations” and a “statement of participant supports”. A participant’s statement of goals and aspirations specifies:
“(a) the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other supports; and
(iii)social and economic participation.”[59]
[59] NDIS Act; s 33(1)
17.A statement of participant supports is prepared with the participant and approved by the CEO specifying:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”[60]
[60] NDIS Act; s 33(2)
In deciding whether or not to approve a statement of participant supports, the CEO must comply with the criteria set out in s 33(5). Of these criteria, the CEO must be satisfied of the matters specified in s 34 in relation to the provision or funding of each reasonable and necessary supports.
18.When the CEO has received the participant’s statement of goals and aspirations and approved the statement of participant supports, the participant’s plan comes into effect.[61] Once it comes into effect, the plan cannot be varied but can be replaced under Division 4 of Part 2 of Chapter 3 of the NDIS Act.[62] A plan ceases to come into effect when it is replaced by another plan under Division 4 or the participant ceases to be a participant. The CEO must provide a copy of a participant’s plan to that participant within seven days after the plan comes into effect.[63]
[61] NDIS Act; s 37(1)
[62] NDIS Act; s 37(2)
[63] NDIS Act; s 38
Change and review of a participant’s plan within the NDIA
19.Division 4 of Part 2 of Chapter 3 of the NDIS Act is concerned with reviewing and changing participants’ plans. A participant may change a plan at any time by giving the CEO a changed version of his or her statement of goals and aspirations. The plan that was in place is taken to have been replaced by a plan comprising the new statement of goals and aspirations and the statement of participant supports in the existing plan. The Agency must give the participant a copy of the new plan within seven days of receiving the new statement of goals and aspirations.[64]
[64] NDIS Act; s 47
A. Ways in which a participant’s plan may be reviewed within the NDIA
20.There are four ways in which a participant’s plan may be reviewed. The first two are mandatory:
(1)The CEO must conduct a review in the circumstances, if any, prescribed by the National Disability Insurance Scheme rules.[65]
(2)The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.[66]
[65] NDIS Act; s 48(6)
[66] NDIS Act; s 48(5)
21.The second two ways are in the discretion of the CEO:
(1)The CEO may, on his or her own initiative, conduct a review of a participant’s plan at any time.[67]
[67] NDIS Act; s 48(4)
(2)A participant may request the CEO to review his or her participant’s plan at any time.[68]
(a)The CEO is not obliged to accede to, or grant, the request;
(b)The CEO has 14 days, or such longer period as permitted by the National Disability Insurance Scheme rules made under s 204, within which to decide whether or not to conduct the review.[69]
(c)If the CEO does not make a decision within that time period, he or she is taken to have decided not to conduct the review.[70]
B.Identifying a reviewable decision if the CEO decides to conduct a review at participant’s request or on his or her own initiative
[68] NDIS Act; s 48(1)
[69] NDIS Act; s 48(2)
[70] NDIS Act; s 48(2)
22.If the CEO decides to conduct a review under s 48, s 49 provides that he or she must facilitate the preparation of a new participant’s plan with the participant in accordance with Division 2 of Part 2 of Chapter 3.[71] The CEO may ask the participant or another person for information that is reasonably necessary for the purposes of reviewing the participant’s plan.[72] The CEO may also ask a participant to an assessment or a medical, psychiatric, psychological examination and provide a report of the assessor or examiner as appropriate.[73] The CEO may review a participant’s plan before all the information and requests have been received provided he or she has given the participant a reasonable opportunity to provide them. [74]
[71] NDIS Act; s 49
[72] NDIS Act; ss 50(1) and (2)(a)
[73] NDIS Act; ss 50(1) and (2)(b)
[74] NDIS Act; s 50(3)
23.Review of the plan means that the participant may change his or her statement of goals and aspirations or may choose not to do so. If the participant chooses not to change the statement, it remains part of the new plan just as any new statement would do so.[75]
[75] Confirmed by Note 1 to s 49 of the NDIS Act
24.The statement of participant supports is also an essential part of the plan. In reviewing the plan, the CEO may approve a new statement of participant supports. The decision to approve the statement of supports in the plan would be made under s 33(2), which is found in Division 2 of Part 2 of Chapter 3. That would be a reviewable decision of the CEO within the meaning of Item 4 of s 99.[76]
[76] Confirmed by Note 2 to s 49 of the NDIS Act
C. Identifying a reviewable decision if the CEO decides not to conduct a review
25.If the CEO decides not to conduct a review of the plan or is, under s 48(2), taken to have decided not to conduct the review, the plan is not reviewed and the statement of supports remains unchanged. The decision not to review the plan cannot, therefore, be taken to be a decision to approve the same statement of supports and there is no reviewable decision of the sort provided for in s 33(2) when read with Item 4 of s 99(1). Instead, “a decision not to reassess a participant’s plan” that is made by the CEO under s 48(2) is a reviewable decision.[77]
[77] NDIS Act; s 99(1); Item 6
Review of reviewable decisions within the NDIA
A. NDIA required to give notice of a reviewable decision
26.Section 100 provides for review of reviewable decisions. Those decisions coming within the description of “reviewable decisions” are set out in s 99(1) or in the National Disability Insurance Scheme rules.[78] The person nominated as the “decision-maker” must give a written notice of the reviewable decision to each person directly affected by the reviewable decision.[79] That person is the CEO when decisions are made under ss 33(2) or 48(2). The notice must include a statement as prescribed by s 100(1A) advising that each person directly affected by the reviewable decision may request a review in accordance with s 100. Where the decision is taken to have been made under s 48(2), the notice must state that it will be reviewed automatically. In each case, the notice must also state that the person may seek further review under s 103.[80] Failure to give the notice does not affect the validity of the reviewable decision or the right of a person directly affected to request review.[81]
[78] NDIS Act; s 99(2)
[79] NDIS Act; s 100(1)
[80] Section 103 relates to applications that may be made to the Tribunal. In complying with the requirements of s 100(1A), the NDIA’s letters often confuse recipients into thinking that they may apply to the Tribunal first without first asking the NDIA for review. It is open to wonder why the requirement to notify a person of his or her rights under s 103 is not imposed on the NDIA after it has made its decision on internal review under s 100. The CEO of the NDIA is obliged to do that in any event by virtue of s 27A of the AAT Act. That is a generic requirement on those who make reviewable decisions to take reasonable steps to give those whose interests are affected by a decision, notice of that decision and of their rights to have the decision reviewed.
[81] NDIS Act; s 100(8)
B. Right to apply for review of a reviewable decision within NDIA
27. Section 100(2) creates a right to apply for review when it provides:
“A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.”
The request may be made by sending or delivering a written request to the decision-maker or by making an oral request either in person or by telephone or otherwise.[82] The decision‑maker must make a written record of the details of the request and note on that record the day it was made.[83]
[82] NDIS Act; s 100(3)
[83] NDIS Act; s 100(4)
28.When a person directly affected by a reviewable decision has made a request for review of a reviewable decision, the reviewable decision may be varied prior to the review’s being undertaken. Should that happen, s 101 provides that the request for review is taken to be for review of the reviewable decision as varied.
C. Reviewing a reviewable decision within the NDIA
29.The CEO must cause that reviewable decision to be reviewed by another person.[84] That person is known as the “reviewer” and is a person to whom the CEO has delegated his or her powers and functions under s 100 and who was not involved in making the reviewable decision.[85] The reviewer must, as soon as reasonably practicable, make a decision confirming the reviewable decision, varying the reviewable decision or setting aside the reviewable decision and substituting a new decision.[86] Section 100(6) provides that:
[84] NDIS Act; s 100(5)(a) and (b)
[85] NDIS Act; s 100(5)(c) and (d)
[86] NDIS Act; 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.”
D.CEO’s initial decision to review a participant’s plan or refusal (or deemed refusal) to do so lead to different avenues of review within the NDIA
D.1CEO’s initial decision (or deemed decision) not to reassess participant’s plan
30.A decision which the CEO is taken to have made under s 48(2) not to “reassess a participant’s plan”[87] (emphasis added) is a reviewable decision within the meaning of Item 6 of s 99(1). If the reviewer were to decide that the participant’s plan should not have been reviewed, an application may be made to the Tribunal under s 103 for review of the decision made by the reviewer under s 100(6). Section 103 does not specify who may make the application. Section 27(1) of the AAT Act provides that it may be made by any person whose interests are affected by the decision. This is to be contrasted with the right given under s 100(2) to request review of a decision made by a reviewer under the NDIS Act for that may only be exercised by “a person who is directly affected by a reviewable decision”. The reviewer must give the persons “whose interests are affected by the decision” a notice of the review rights in accordance with s 27A of the AAT Act.
[87] Section 48(2) requires the CEO to decide whether or not to “conduct the review” of a participant’s plan (emphasis added).
31.If the reviewer were to decide that the participant’s plan should have been reviewed, that would be the full extent of the decision he or she could make. The reviewer would not be able to review the plan for the decision being reviewed is limited to a decision made as a result of the duty imposed on the CEO by s 48(2) of the NDIS Act to “… decide whether or not to conduct the review …” as requested by a participant. It does not extend to carrying out the review and so does not extend to approving, or not approving, a statement of participant supports in the participant’s plan.
32.A participant would not be able to seek review of a statement of supports that is part of his or her plan at that stage. He or she would have to wait until the CEO commenced to facilitate the review under s 48(3) and approved a statement of supports under s 33(2) of the NDIS Act as part of the review of the plan. If the participant were not satisfied with the statement of supports in the plan that follows from that review, he or she would have to follow the path of seeking internal review by a reviewer under s 100(2) before applying for review by the Tribunal.
D.2CEO’s initial decision to reassess participant’s plan
33.If the CEO’s initial decision had been to reassess the participant’s plan, he or she would have been required to commence to facilitate the review within 14 days of making that decision. He or she would have been required to complete it as soon as practicable. In reassessing the participant’s plan, the reviewer would make a decision approving a statement of participant supports whether or not he or she is simply approving the statement as it was before the review or approving another statement. That becomes a new reviewable decision under s 33(2) and within the meaning of Item 4 of s 99(1). The participant must first seek review of that under s 100(2) before applying to the Tribunal.
Review by the Tribunal
34. Section 103 provides that:
“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.”
35.Where the reviewer has made a decision under s 100(6), a participant and any person whose interests are affected by that decision may apply to the Tribunal.[88] The person has 28 days after the day on which a document setting out the terms of the decision is given to the person within which to make the application.
[88] AAT Act; s 27(1) In view of the fact that s 100(2) gives only the person directly affected by the decision the right to seek internal review of a reviewable decision, it might be thought that an application to the Tribunal could only be made by such a person. Section 27(1) of the AAT Act permits those who are affected, and not only those directly affected, by the reviewable decision. Given the note to s 103, however, it is apparent that Parliament did not intend to modify the operation of s 27(1) to limit those who might apply. It specifically refers to “persons whose interests are affected”, and so does not limit the class of applicant, when it provides that: “Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.”
36.Although s 103 provides that an application may be made for review of “a decision made by a reviewer under subsection 100(6)”, it is not the reviewer’s decision as such that is under review. If it were, the Tribunal would be limited to reviewing the decision to confirm the reviewable decision, vary it or set it aside and substitute a new decision for that is the decision made under s 100(6). What is under review is the substantive decision that is made as a result of the reviewer’s decision under s 100(6). That is to say, it is the reviewable decision that has been reviewed and either confirmed or altered or replaced on review that remains after that review. In other words, it is the reviewable decision in the form in which it remains after review and it is the decision in that form that affects a participant’s interests. That is the operative decision.
37.The Tribunal’s authority to review the operative decision is not an issue that is unique to the NDIS jurisdiction. The rationale was explained In Yolbir v Administrative Appeals Tribunal and Anor,[89] when the Full Court of the Federal Court expressly approved the following passage from the Tribunal’s decision in Re Gee and Director-General of Social Services[90] (Re Gee) when it said:
[89] [1994] FCA 910; (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15; Davies, Burchett and O’Connor JJ
[90] (1981) 3 ALD 132; 58 FLR 347; Davies J, President, and Messrs Cusack and Prowse, Members
“… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person’s interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover,… the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …”[91]
[91] (1981) 3 ALD 132; 58 FLR 347 at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18
38.It is important, therefore, to identify the operative decision for that circumscribes the scope of the Tribunal’s review. Where the reviewable decision is “a decision to approve the statement of participant supports in a participant’s plan” made under s 33(2), the operative decision remaining after the reviewer’s review will be that decision. That is so whether the statement remains in the same terms because the reviewer has confirmed the reviewable decision or whether it has been altered because the reviewer has varied it or replaced it with another. The focus of the review by the Tribunal will be the content of that statement of participant supports. Where the reviewable decision is “a decision not to reassess a participant’s plan”, the operative decision remaining after the reviewer’s decision will be that decision i.e. not to reassess the plan.
A. Reviewer has not reviewed decision
39.What if the reviewer has not made a decision under s 100(6) and the participant is of the view that he or she has not made a decision “as soon as reasonably practicable” after the CEO has received the request for review? This raises for consideration the application of s 25(5) of the AAT Act, which provides:
““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.”
40.As I said in Re KRBG and National Disability Insurance Agency,[92] whether s 25(5) of the AAT Act has a role to play depends on the way in which Parliament has identified the act or thing that a person must do within a prescribed period. In that case, the act or thing that s 100(6) of the NDIS Act required to be done as soon as was reasonably practicable, was to make a decision confirming the reviewable decision, varying it or setting it aside and substituting a new decision. If it were decided that a reviewer had not made a decision as soon as was reasonably practicable and if s 25(5) of the AAT Act were to apply, the reviewer would be deemed to have made a decision not to make a decision. It would not deem a decision to have been made either confirming the reviewable decision, varying it or setting it aside and substituting a new decision.
[92] [2019] AATA 144
41.In repeating this conclusion, I realise that it is contrary to that reached by Deputy President Bean in Re FJKH and National Disability Insurance Agency[93] when she said:
[93] [2018] AATA 1294
“However, on my analysis, this would not be likely to give rise to any real difficulties in a practical sense. A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant’s status or entitlements. Where a subsequent actual decision does change the applicant’s position, that decision will become the operative decision. …”[94]
[94] [2018] AATA 1294 at [64]
42.I respectfully disagree with Deputy President Bean that a deemed decision “will necessarily always affirm”, or confirm, the reviewable decision that has already been made. Section 100(6) of the NDIS Act gives the reviewer a choice of three decisions and I do not understand why one is to be preferred over the others. The wording of s 25(5) of the AAT Act does not permit one to be preferred over the others. If it applies to s 100(6), the effect of s 25(5) is that “failure by a person to do an act or thing” (i.e. “make a decision” confirming the reviewable decision, varying it or setting it aside and substituting a new decision) “within the period prescribed by the enactment” (i.e. “as soon as reasonably practicable”) “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” (i.e. . “make a decision” confirming the reviewable decision, varying it or setting it aside and substituting a new decision).
43.Had Parliament wished to provide that failure to make a decision as soon as reasonably practicable would be deemed to constitute the making of a decision by the reviewer to confirm the reviewable decision, it could have done so. It had chosen that path in relation to failure by the CEO to decide whether or not to conduct a review of a participant’s plan within 14 days of receiving a request to do so. Section 48(2) provided that, in those circumstances, the CEO is taken to have decided not to conduct the review. This leads me to the conclusion that failure to make a decision was squarely in Parliament’s mind when it enacted the NDIS Act. Its choice of language in s 100(6) does not lend itself to the application of the deeming provisions in s 25(5) of the AAT Act.
44.This might be thought to lead to further delay and frustration for a participant. There can be no doubt that it does but experience has shown that the NDIA has responded positively when the Tribunal has raised the issue in hearings to determine whether it has jurisdiction to review a reviewable decision that has not been reviewed by a reviewer under s 100(6) of the NDIS Act.
B.Reviewer has reviewed reviewable decision not to reassess a participant’s plan
45.If a reviewer has reviewed a decision not to reassess a participant’s plan and confirmed that decision, the Tribunal has jurisdiction to review the reviewable decision when an application is made to it. Its review will be limited to that single issue. Even if the Tribunal were to decide that that the participant’s plan should have been reassessed, it cannot take the next step to conduct the reassessment, which would include a review of the statement of participant supports. It cannot do that because to do so would be to review a decision that has been identified as a separate reviewable decision in Item 4 of s 99(1). That decision would not have been reviewed by a reviewer under s 100(6) and so could not be a decision in respect of which an application might be made to the Tribunal.
C. Tribunal’s power to review decisions when made beyond power
46.The courts have read s 25(1) of the AAT Act as permitting applications for review to be made in respect of those decisions that have not necessarily been validly made in the exercise of powers conferred by that enactment. As Bowen CJ said in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[95] (Brian Lawlor):
[95] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting
“… an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.”[96]
[96] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 317; 346; 7
47. In his judgment, Smithers J agreed saying:
“… it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.
But to be a reviewable such a decision must satisfy the criterion that it may properly be described as a decision made in the exercise of powers conferred by the relevant enactment … “[97]
[97] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 337; 370; 25
48.His Honour’s reference to the proper description of the decision is a reference to the words of s 25(1). An enactment may provide that applications may be made to the Tribunal “for review of decisions, made in the exercise of powers conferred by the relevant enactment” (emphasis added). There are three features that must be present before the Brian Lawlor principles lead to the Tribunal’s having jurisdiction. The first is that the exercise of power by the decision-maker may be either an actual or a purported exercise and may be a lawful or an imperfect, or perhaps unlawful, exercise of the power that has been conferred. The second feature that must be present is that the power that has been either actually or purportedly exercised must be a power expressly or implicitly given by the relevant enactment. The third feature is that the decision must be a decision in respect of which a person may make an application to the Tribunal.
49.The rationale for this approach was explained by Bowen CJ in Brian Lawlor. It is a practical one, as Bowen CJ explained:
“… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [AAT] Act is designed to give a simple remedy in all such cases. …”[98]
[98] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 5. Many other cases have adopted and applied the same approach e.g. Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51 at [21]; 583; 56 per Tamberlin and Besanko JJ
50.Another rationale is apparent from the dissenting judgment of Deane J in the same case. It is based on the legal principle that applies in the Commonwealth, unlike the Australian States, that there is a separation between judicial and administrative power. Courts exercise the former and bodies such as the Tribunal exercise the latter:
“ An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction. The provisions of the Act do not purport to confer any such authority upon the Administrative Appeals Tribunal. If they did, a serious question would arise as to whether, to that extent, they purported to confer part of the judicial power of the Commonwealth upon an administrative body which was not a court for the purposes of Ch III of the Constitution.”[99]
[99] [1979] FCA 21; (1979) 24 ALR 307 at 343-344. There may be exceptions as mentioned by Weinberg J in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554: “The AAT is able to decide questions of law arising in proceedings before it - Administrative Appeals Tribunal Act 1975 (Cth), s 42. Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so. Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened - Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 245 per Brennan J. The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so - Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; and Re Jonsson and Marine Council [No. 2] [1990] AATA 192; (1990) 12 AAR 323 at 335-341.”: Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 at [103]; 575
CONSIDERATION
51.The parties have both taken the events on 27 March 2018 as the starting point in the chain of decision-making. Having regard to the whole course of events, I have decided that the starting point lies in the events of 15 September 2017 when the NDIA approved a statement of participant supports. The decision is recorded in a letter dated 18 September 2017. SC followed this on LQTF’s behalf with an application for review of a reviewable decision made on 16 October 2017. She requested review of a reviewable decision i.e. the decision to approve a statement of supports on 15 September 2018 made under s 33(2) of the NDIS Act. The reasons given for making the request make it clear that LQTF was not satisfied with the level of support provided in the decisions with regard to 1:1 support and that he needed more while he was waiting for other suitable accommodation. As the request was made on 16 October 2017, it was well within the three month time limit prescribed by s 100(2).
52.The NDIA treated the request as a request for review of the plan made under s 48(2) rather than a request for review of a decision made under s 33(2). Why that was so is not apparent from the documents. The NDIA continued to be under that impression when it wrote to LQTF advising him that it had not reviewed his plan within 14 days and it would pass the matter to a reviewer who would decide whether the plan should be reviewed.
53.In the meantime, the NDIA’s review of its decision regarding his statement of participant supports remained unresolved. When SC wrote to the NDIA on 27 March 2018, she attached a Requesting Plan Review Form. What she wrote on the form was directed to the statement of participant supports that had been approved as part of LQTF’s plan. That is understandable as LQTF already had an unresolved request for review of the statement of participant supports.
54.The NDIA itself recognised that this was so when it noted on 4 April 2018 that a current review request had been lodged in October 2017 and it “had not progressed to planning stage”. What is involved in progressing a matter to planning stage is not apparent on the material I have. What is clear is that, between 7 May and 18 June 2018, the NDIA made enquiries regarding LQTF’s eligibility for SDA funding. Those enquiries could be relevant to a review of a statement of participant supports but they could also be relevant to a review of a decision not to reassess a participant’s plan.
55.When I go to the letters written by the NDIA on 18 and 22 June 2018, I find that the reviewer has characterised the task as review of the decision to approve the statement of participant supports in LQTF’s plan. The reviewer has referred to the request for that review as a request dated 27 March 2018. That is the request that the NDIA now submits must be taken as being a request for review of a participant plan as it was made more than three months after the plan was made. In my view, that submission ignores three essential matters.
56.First, it ignores the fact that the earlier application dated 16 October 2017 for review of the statement of participant supports was yet to be resolved at that time. Second, it ignores the statement by the reviewer that the request related to a decision to approve a statement of participant supports. It addressed LQTF’s request for SDA so that he could accept an offer of accommodation at Blackburn. His request for SDA was made in the context of changed circumstances being the fact that he had received that offer. Having regard to the offer in the context of a review of a statement of participant supports is consistent with the general principle of merits review that, unless the NDIS Act provides to the contrary either expressly or implicitly, merits review will be conducted on the relevant material available up to the time at which the review decision is made.[100] There is nothing in the NDIS Act that is contrary to that general principle. The third matter that the submission ignores is the fact that the reviewer herself thought that she was reviewing a reviewable decision made under s 33(2) regarding LQTF’s statement of participant supports. She described her letter as a letter relating to s 100 review and went on to advise him of his rights to apply to the Tribunal for review of her decision. Reference to the decision under review as a decision regarding his statement of participant supports is repeated in the NDIA’s letter dated 22 June 2018 and again in its letter of 31 July 2018.
[100] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 589; 68 cited with approval in Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345 at [43]-[44]; 300; 398; 477; 1156; 356-357 per Kirby J and see also [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [101]; 315; 413; 369-370; 490; 1165 per Hayne and Heydon JJ
57.On 8 August 2018, the applicant, LQTF, lodged an application for review of a decision of the NDIA he received on 2 August approving a statement of participant supports in his plan. On its face, the application may be outside the 28 day time limit set out in s 29(2) of the AAT Act. If it were, LQTF would need to apply for an extension of that time.
58.What is apparent from the complaint made by LQTF to the NDIA on 26 July 2018 was that he did not receive notice of the decision made on 18 June 2018 until sometime later. That is also supported by the enquiry SC made on 3 July 2018 advising the NDIA that LQTF did not have the outcome of what she described as his “plan review”. The NDIA responded to SC on 6 July 2018. Given that the 28 day time period does not end in this case until “the twenty-eighth day after … the day on which a document setting out the terms of the decision is given to the applicant.”[101] The document was sent by email to SC on behalf of LQTF on 6 July 2018 and that is the day on which he is taken to have received it.[102] Again, the lodgement of his application would be regarded as outside the 28 day time limit. LQTF would need to apply for an extension of time within which to lodge his application for review.
[101] AAT Act; s 29(2)(a)
[102] In the absence of any agreement between LQTF and the NDIA regarding the time at which any emails between them are taken to have been received, the email giving notice of the decision was received at the time that it became capable of being retrieved by SC, on LQTF’s behalf, at an electronic address she had designated. This is the outcome that follows from the application of s 14A(1)(a) of the Electronic Transactions Act 1999.
59.There is, however, a later decision made by the NDIA and that is the decision dated 31 July 2018 in response to LQTF’s complaint that the same person had undertaken the review as had made the reviewable decision. That is a decision that refers to LQTF’s request dated 27 March 2018 but I find that, in substance, it is referring to his unresolved request for review of the statement of participant supports. The letter giving notice of the decision begins with a reference to LQTF’s request for internal review of NDIA’s decision to approve the statement of participant supports before noting that he had specifically requested SDA funding. The decision is made as a consequence of the NDIA’s acknowledging that it had not followed s 100(5) in the review process and making the decision again. That is the decision of which LQTF sought review even though he referred to the decision that had been made earlier on 18 June 2018 in a manner that had not followed s 100(5). It follows that his application was within the time prescribed by s 29(1) of the AAT Act and the Tribunal has power to review that decision.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie
...........[sgd]............................................................
Personal Assistant
Dated: 2 April 2019
Heard:
Last submissions lodged:
9 January 2019
12 February 2019
Solicitor for the Applicant: Ms Rehana Chowdury, Victoria Legal Aid Solicitor for the Respondent: Ms Rachel Patterson, Wisewould Mahony
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