Lupo Consultants Pty Ltd and National Disability Insurance Agency

[2021] AATA 3280

Lupo Consultants Pty Ltd and National Disability Insurance Agency [2021] AATA 3280 (8 September 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/4527

Re:Lupo Consultants Pty Ltd

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:8 September 2021

Date of written reasons:        10 September 2021

Place:Sydney

The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – whether internal review conducted pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) – Tribunal does not have jurisdiction – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

National Disability Insurance Scheme Act 2013 (Cth) ss 99, 100, 103

REASONS FOR DECISION

Dr L Bygrave, Member

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 8 September 2021. The following paragraphs are the reasons for the decision.

   INTRODUCTION

2. On 2 July 2021, Lupo Consultants Pty Ltd (Lupo Consultants) lodged an application for review of a decision with the National Disability Insurance Scheme (NDIS) Division of the Administrative Appeals Tribunal (the Tribunal). This application identified the decision to be reviewed was made by a payments officer at the National Disability Insurance Agency (the NDIA) on 14 May 2021.

3. At the direction of the Tribunal, the representative of Lupo Consultants, Mr Michael Vescio, filed written submissions and evidence by 6 September 2021.

4. The interlocutory (jurisdiction) matter was heard ex parte by the Tribunal on 8 September 2021: Mr Vescio attended this hearing by teleconference and made oral submissions.

   RELEVANT LEGISLATION

5. Part 6 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) sets out the review of decisions; section 99 lists reviewable decisions and decision-makers.

6. Relevant to this matter, section 103 of the NDIS Act provides:

   103 Applications to the Administrative Appeals Tribunal

   Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer [of the NDIA] 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.

7. Section 100 of the NDIS Act further states:

   100 Review of reviewable decisions

   (1)  The decision-maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision.

   (1A) The notice must include a statement:

   (a) that:

   (i) the person may request a review of the reviewable decision in accordance with this section; or …;

   and

   (b) that the person may seek further review under section 103.

   …

   (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.

   CONSIDERATION

8. The chronology of relevant events set out in documents filed by Mr Vescio and confirmed at the interlocutory hearing is:

   ·13 February 2019: the NDIA changed plan number XXXX690 for NDIS participant, Ms ‘S’, from ‘plan managed’ to ‘NDIA managed’.

   ·17 June 2020: on behalf of Ms ‘S’, Mr Vescio wrote to the NDIA requesting that NDIS plan number XXXX690 is restored back to plan managed.

   ·14 February 2019 to 6 July 2020: Lupo Consultants provided services to Ms ‘S’ that have not been paid for. Mr Vescio’s letter to the Tribunal dated 4 September 2021 stated the outstanding amount owed to Lupo Consultants is $62,839.84.

   ·6 October 2020: the NDIS plan for Ms ‘S’ was ‘restored’ to plan managed.

   ·14 May 2021: an email was sent from a payments officer at the NDIA to Mr Vescio that stated:

   Thank you for your enquiry about a National Disability Insurance Scheme (NDIS) payment.

   The National Disability Insurance Agency (NDIA) is unable to pay unregistered providers for supports delivered to participants who have their funding managed by the NDIA. More information about NDIA managed funding is available on the NDIS website. Please contact the participant directly in relation to this matter.

   In regards to Daily Activities supports delivered between 11/02/2019 – 13/02/2019, please refer these invoices to the participant’s plan manager at the time.

   If you would like to discuss the matter further, please contact the NDIA on 1800… [emphasis in original]

9. Having regard to the email sent by the NDIA payments officer on 14 May 2021, I make the following findings of fact:

   ·The email is not a ‘reviewable decision’ as listed in section 99 of the NDIS Act.

   ·The email does not meet the requirements of:

   osubsection 100(1) of the NDIS Act – a written notice of the reviewable decision given to each person directly affected by the reviewable decision; and/or

   osubsection 100(1A) of the NDIS Act – a statement that the person may request a review of the reviewable decision in accordance with section 100 and the person may seek further review under section 103.

   ·The email is not a decision made in accordance with subsection 100(6) of the NDIS Act as it does not confirm a reviewable decision, vary of reviewable decision, or set aside a reviewable decision and substitute a new decision.

10. In view of my finding that no decision has been made in accordance with subsection 100(6) of the NDIS Act, I am satisfied that section 103 of the NDIS Act, which allows applications to be made to the Tribunal, has not been enlivened.

11. For these reasons, the application made by Lupo Consultants on 2 July 2021 is dismissed in accordance with subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because I am satisfied the decision is not reviewable by the Tribunal.

    DECISION

12. The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 10 September 2021

Date(s) of hearing:	8 September 2021
Applicant:	In person