Luke Burston and National Disability Insurance Agency
[2014] AATA 456
•7 July 2014
[2014] AATA 456
Division NATIONAL DISABILITY INSURANCE SCHEME DIVISION File Number(s)
2014/2986
Re
Luke Burston
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date of decision 4 July 2014 Date of written reasons 7 July 2014 Place Sydney The Tribunal does not have jurisdiction to review the decision of the National Disability Insurance Agency dated 27 May 2014.
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Senior Member J Toohey
CATCHWORDS – NATIONAL DISABILITY INSURANCE SCHEME – JURISDICTION –participant’s plan – meaning of reviewable decision – whether the National Disability Insurance Agency made a decision that the Tribunal has jurisdiction to review – no jurisdiction to review
Legislation
National Disability Insurance Scheme Act 2013 ss 33(2), 48(2), 48(4), 49, 99, 100(2), 100(6), 103
REASONS FOR DECISION
Senior Member J Toohey
7 July 2014
Background
This decision is about the Tribunal’s power to review decisions made by the National Disability Insurance Agency (NDIA). These written reasons reflect reasons given orally to the parties on 4 July 2014.
Luke Burston is a 24 year old participant in the National Disability Insurance Scheme (NDIS). On 21 February 2014, he attended a meeting with a Planner at the NDIA to finalise a plan for the supports he would receive through the NDIS. His mother, Uyvonne Raynor, and an advocate from Disability Advocacy NSW, Susan Wilcox, also attended the meeting. The NDIA agreed to fund most of the supports that Ms Raynor had asked for on Luke’s behalf but it did not agree to fund four hours “one on one support” for him on weekends.
Ms Raynor’s request to the NDIA to review its decision
On 8 May 2014, Ms Wilcox wrote to the NDIA on behalf of Ms Raynor and Mr Burston. Her letter was headed Application for Review of DisabilityCare Plan. It outlined why Ms Raynor required four hours support on weekends and stated:
The request for an internal review is lodged without waiting for the monitoring meeting because the meeting will be scheduled 3 months after the plan was finalised and the time for the internal review has run out by that time.
The reference to three months appears to be a reference to s 100(2) of the National Disability Insurance Scheme Act2013 (the NDIS Act) which requires that a request for review of a reviewable decision be made within three months.
The NDIA’S reply
On 27 May 2014, the Planner who attended the meeting on 21 February 2014 replied to Ms Wilcox. Her letter was co-signed by an Acting Senior Planner. The letter stated:
I am writing in regards to your written request to the [NDIA] for a review of Mr Luke Burston’s plan on 09/08/2014. I have authority under section 48(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act) to make a decision on whether to conduct a review of a plan when requested by a participant.
In your letter to the [NDIA] dated 08/05/2014 you requested the following supports for Mr Burston:
·4 hours of 1:1 support on weekends
The request for 4 hours of 1:1 Support on weekends is unable to be supported by the NDIA as it is an inclusion in the cost of shared accommodation with Life Style Solutions where Mr Burston is currently residing. I recommend that you contact Life Style Solutions in relation to this request for support.
The Planner decided that, based on a change in Mr Burston’s circumstances, it was appropriate to review his plan and she amended it to include six hours of behaviour support for an assessment to determine, and make recommendations about, his current needs.
Ms Raynor’s application to the Tribunal
On 11 June 2014, the Tribunal received an application from Ms Raynor in which she stated she was seeking review of the decision made by the NDIA on 27 May 2014 denying her request for 1:1 weekend support. She attached a copy of the letter dated 27 May 2014 from the NDIA to Ms Wilcox.
For the following reasons, I find that the Tribunal has no power to review the decision made by the Planner on 27 May 2014.
What decisions can the Tribunal review?
Part 6 of Chapter 4 of the NDIS Act is headed Review of Decisions. It deals with reviews by the CEO of the NDIA of certain decisions, and reviews by the Tribunal of the CEO’s decisions.
Reviews by the CEO
Section 99 lists 26 decisions that are reviewable decisions. These are decisions that the CEO of the NDIA must review if asked to do so by a participant. A request for review of a reviewable decision must be made within three months: s 100(2).
When asked by a participant to do so, the CEO must appoint a reviewer who must review the reviewable decision as soon as reasonably practicable. Section 100(6) states that the reviewer must:
·confirm the reviewable decision; or
·vary the reviewable decision; or
·set aside the reviewable decision and make a new decision in its place.
Reviews by the Tribunal
A participant who is dissatisfied with the reviewer’s decision can ask the Tribunal to review that decision: s 103.
Decisions made by a reviewer under s 100(6) are the only decisions by the NDIA that the Tribunal has power to review. Unless a decision has been made by a reviewer under s 100(6), the Tribunal cannot become involved.
Reviews and changes to plans under s 48(2)
Reviews under s 48(2) are different from those done by a reviewer under s 100(6).
Section 48(2) is in a part of the NDIS Act which is headed Reviewing and changing participants’ plans. It enables a participant to ask the CEO to review his or her plan at any time. The CEO must decide whether or not to review the plan, but is not obliged to do so. A decision by the CEO not to review the plan is a reviewable decision (s 99(f)) which may ultimately be reviewed by the Tribunal.
If the CEO decides to review the plan, the CEO must help the participant to prepare a new plan: s 49. A participant who is dissatisfied with the new plan may seek review by a reviewer under s 100(6) and, if still dissatisfied, by the Tribunal.
Although it does not say so in so many words, s 48(2) appears to be intended for situations where a change of circumstances means a plan needs replacing before it is due for its regular review. (A plan must include a date by which the NDIA will review it under Division 4: s 33(2)). For example, a participant’s goals or aspirations may have changed, or a change in circumstances means his or her needs have increased or decreased.
The only decision under s 48(2) that the Tribunal can review is a decision not to review a plan.
Did the NDIA make a decision that the Tribunal can review?
A decision to approve a statement of participant’s supports in a participant’s plan is a reviewable decision: s 99(d). By implication, that includes a decision not to fund or provide a support that a participant has requested. It was therefore open to Ms Raynor to ask for the statement of supports approved by the CEO to be reviewed by a reviewer under s 100(6).
It is clear from Ms Wilcox’s letter that Ms Raynor was dissatisfied with the decision not to fund weekend support and wanted the NDIA to review its decision. Although she did not say so in so many words, I think it clear that she was asking for a review by a reviewer under s 100(6). However, it does not follow that a decision was made under s 100(6). It is important to look at what decision was actually made. This may mean looking closely at the language that was used and the words in which the decision was expressed.
It is clear, from her letter dated 27 May 2014, that the Planner took Ms Wilcox’s letter to be a request for a review under s 48(2). She purported to make a decision under s 48(2) by affirming the decision not to fund one on one support and by amending the plan concerning other support. As discussed above, the only decision under s 48(2) that the Tribunal can review is a decision not to review a plan.
Nor did the Planner have the level of authority that a reviewer must have in order to make a decision under s 100(6). Ms Mtonga, the advocate who is now assisting Ms Raynor, has correctly pointed out that the Senior Planner who co-signed the letter dated 27 May 2014 has the necessary authority to make a decision sunder s 100(6). However, that is not itself enough to convert a decision which the Tribunal cannot review into a decision under s 100(6) which the Tribunal can review.
Conclusion
For these reasons I find that the Tribunal does not have jurisdiction to review the decision in the NDIA’s letter of 27 May 2014.
None of what I have said should be taken to be criticism of the Planner. The legislation is new. It refers to different kinds of reviews. It is not surprising, especially in the early days, if there is some confusion on the part of participants and Planners. What this underlines is the importance of making as clear as possible to participants what kinds of reviews are available, clarifying what kind of review a participant is seeking, whether a review because circumstances have changed or because the participant is dissatisfied with the plan, and the implications of the different kinds of reviews.
1. I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 7 July 2014
Date(s) of hearing 4 July 2014 Advocate for the Applicant Ms D Mtonga, Disability Advocacy NSW Solicitors for the Respondent Ms S Landmark, NDIA
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