McDonald and National Disability Insurance Agency

[2023] AATA 3251

McDonald and National Disability Insurance Agency [2023] AATA 3251 (13 October 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/0488

Re:Kenneth McDonald

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

AndJacob McDonald

OTHER PARTY

INTERLOCUTORY DECISION

Tribunal:Senior Member D Connolly

Date:13 October 2023

Place:Sydney

The Tribunal has jurisdiction to review the Respondent’s decision.

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Senior Member D Connolly

CATCHWORDS

PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – cancellation of appointment as nominee – the CEO must decide whether to cancel the appointment within a prescribed period - whether the Tribunal has jurisdiction when the CEO cancelled the Applicant’s appointment as a nominee more than 14 days (the prescribed period) after the participant’s request – the Tribunal has jurisdiction.

LEGISLATION

Acts Interpretation Act 1901 (Cth)

National Disability insurance Scheme Act 2013 (Cth)

CASES

Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

Upton and Department of Transport (1977) 1 ALD 150

REASONS FOR DECISION

Senior Member D Connolly

13 October 2023

BACKGROUND

1. Mr Kenneth McDonald (the Applicant) has been appointed as nominee for his son, the Other Party, Mr Jacob McDonald (the Participant), on two different occasions, most recently on 23 December 2021. The Respondent has set out, in its submissions on jurisdiction, the history of those appointments, which, as far as I am aware, is not in dispute.[1] In summary the Applicant was first appointed as nominee, at the Participant’s request, in November 2019 for one year. That appointment lapsed in November 2020. In December 2021, the Applicant presented at the Respondent’s offices and advised that the Participant was in hospital, pending discharge, and needed a change to his supports. On 23 December 2021, a delegate of the CEO appointed the Applicant as the Participant’s nominee, in effect, in perpetuity (an end date of 31 December 9999 is recorded in the Respondent’s database). In August 2022 the Respondent received a request in writing to cancel the Applicant’s appointment as nominee. A decision was made to cancel the appointment, but it was made more than 14 days after the Participant’s request.

   [1] Respondent’s submissions on jurisdiction, dated 4 September 2023.

2. The submissions set out the particulars of following relevant events:

8.    On 26 July 2022 the Participant’s support coordinator contact the Respondent requesting that the nominee status of the Applicant be revoked.

9.    On 16 August 2022, the Respondent considered that it could not proceed with the revocation of the nominee status as the Participant could not be contacted to verify the request.

10.  On 25 August 2022, the Applicant contacted the Respondent regarding his nominee status. He indicated that there had been some issues in relation to the support coordinator.

11.  That same day, the Participant’s support coordinator contacted the Respondent to follow up in relation to the revocation request. A member of the Respondent’s staff confirmed that the Respondent could not proceed because the Participant’s consent had not been verified.

12.  On 29 August 2022, the Respondent received a document confirming the request. It was dated 25 August 2022 and featured what appears to be the Participant’s signature.

13.  On 13 September 2022, the Respondent decided that the Applicant’s nominee status should be revoked. A letter dated 14 September conveyed that decision to Mr McDonald.

14.  On 16 December 2022, the Applicant made a request for review of the decision to cancel his nominee status.

15.  On 16 January 2023, a delegate of the Respondent’s CEO made a decision under s100(6) of the Act[2] to affirm the decision to cancel the Applicant’s status as plan nominee for the Participant.

16.  On 23 January 2023, the Applicant filed an application for review of that decision in the Tribunal.

[2] National Disability insurance Scheme Act 2013 (Cth) (the Act).

ISSUES

1. After the review application was made, the Applicant filed a document entitled “Status of Appeal” in which he stated that he had received advice that his application involves procedural issues that require consideration by the Tribunal, in summary, as follows:

   a.    whether his appointment as nominee was at the request of the Participant or on the initiative of the CEO;

   b.    if the Tribunal decides the appointment was made on the initiative of the CEO, whether the cancellation decision was made under section 90 of the Act, noting it relevantly requires the CEO to decide whether to cancel the appointment within 14 days after receiving the Participant’s request; and

   c.     if the decision was not made in within 14 days of receiving the request, whether the instrument of cancellation is valid.

2. Essentially this has been taken to raise the issue of whether the Tribunal has jurisdiction to review the matter. As the Respondent put in its submissions, if I decide the decision was made outside the prescribed period, I need to consider “what effect (if any) the failure to make a decision within the statutory timeframe has on the Tribunal’s jurisdiction....”.

   RELEVANT LEGISLATION

3. Section 86 of the Act relevantly states:

   Appointment of plan nominee  

   (1)   The CEO may, in writing, appoint a person to be a plannominee of a participant for the purposes of this Act.

   […]

   (2)  An appointment may be made:

   (a)  at the request of the participant; or

   (b)  on the initiative of the CEO.

   […]

4. Section 90 of the Act relevantly states:

   At the request of a participant

   (1)  If:

   (a)  a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and

   (b)  the participant requests the CEO to cancel the appointment;

   the CEO may, by written instrument, cancel the appointment.

   […]

   (3) If a request is made under paragraph (1)(b):

   (a) the CEO must decide whether to cancel the appointment within the following number of days after receiving the request:

   (i) 14 days, unless subparagraph (ii) applies; […]

   DOES THE TRIBUNAL HAVE JURISDICTION TO REVIEW THE DECISION?

5. Having considered the circumstances in which the Applicant was most recently appointed as the Participant’s nominee, I am satisfied that on 23 December 2021, the Applicant was appointed as the Participant’s nominee, on the initiative of the CEO.

6. Having considered the information regarding the request to cancel the Applicant’s nominee status, I am of the view it was made on 29 August 2022, when the Respondent received a document featuring what appears to be the Participant’s signature. I am not satisfied the requests prior to that were made by the Participant.

7. As the Applicant was not informed of the CEO’s decision until 14 September 2022, I find the Respondent did not make a decision within 14 days as required by section 90(3)(a)(i) of the Act.

8. The Respondent has argued that the Tribunal does have jurisdiction to review the decision even though the decision was not made within 14 days of the request. It has argued that the power to cancel the appointment should be read broadly, that is, that Parliament must have intended that the power would continue after the 14-day period expired for three reasons: first, there is an alternate power by which the CEO could revoke the appointment, under section 33(3) of the Acts Interpretation Act 1901 (Cth); second, the Act should be interpreted beneficially in favour of the Participant; and third, in any event, the Tribunal would retain the ability to review a decision which was made without power, as established in relevant case law.

9. While I accept there is an alternate power, and that the Act should be interpreted beneficially in favour of the Participant, I am not satisfied Parliament intended for the application of section 90(3)(a)(i) of the Act to be flexible such that the CEO may decide whether to cancel the appointment outside the 14-day period. I am of this view because the provision clearly states that “the CEO must decide whether to cancel the appointment within the following number of days…” (my emphasis). I am of the view Parliament clearly intended that the power is to be exercised within the number of days prescribed.

10. I note however that the legislation does not indicate what should happen if the CEO fails to make a decision within the prescribed period. If it is the case that the CEO cannot make any decision after the 14-day period has expired, this leaves the Participant’s request in limbo, which in my view is not consistent with the objects and principles of the Act. In any case, for the following reasons, I am satisfied the Tribunal does have jurisdiction to review the Respondent’s decision so this is an issue I need not address further.

11. As section 90(3)(a)(i) of the Act requires the CEO to make the decision within the 14-day period, and the decision was made outside this prescribed period, I am of the view the power to cancel the appointment was not validly exercised. I note however that in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[3] (the Brian Lawler case) the Tribunal found that where there has been a ‘purported exercise’ of power conferred by an enactment, the Tribunal has jurisdiction to review the purported decision. As quoted by the Respondent in its submissions, Smithers J held:

    “It is clear that in enacting the [AAT] Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government… True it is that administrative errors may well occur in the performance of valid and legally effective administrative acts. And of course it might have been the intention of Parliament to empower the Tribunal to review only those decisions which are legally effective. In that case the function of the Tribunal would be restricted to considering whether or not in exercising its legal power validly the administrator making the decision had acted in accordance with the principles of fairness and good government. But to construe the Act as providing for the review of only such errors would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute. To my mind such a situation would not be compatible with the objective of the Administrative Appeals Tribunal Act. If administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review...”[4]

    [3] Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1.

    [4] Ibid 22-23.

12. I also note the view that the Tribunal has jurisdiction where a decision is made invalidly has been supported in other matters, namely in Upton and Baran.[5]

    [5] Re Upton and Department of Transport (1977) 1 ALD 150; Re Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379.

13. I am persuaded by the arguments set out in the Brian Lawler case, that the Tribunal has jurisdiction to review the Respondent’s decision.

14. The extent of the Tribunal’s power to provide relief was discussed at the interlocutory hearing. The Respondent also made further written submissions on the subject after the hearing.[6] Having considered the arguments in Baran, I am inclined to be of the view that the Tribunal has the power to proceed to consider the substantive issue. However, this is a question to be answered by the member to whom the matter is constituted, after the substantive hearing.

    [6] Respondent’s further submissions on jurisdiction, dated 3 October 2023.

    INTERLOCUTORY DECISION

15. The Tribunal has jurisdiction to review the Respondent’s decision.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

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Associate

Dated: 13 October 2023

Date(s) of hearing:

26 September 2023

Date final submissions received:

4 October 2023

Applicant:

By telephone

Solicitors for the Respondent:

Other Party:

Mr Vercoe, AAT Dispute Resolution & Litigation Branch

By telephone

Advocate for the Other Party:

Ms Heazlewood, Disability Advocacy NSW