McVeigh and National Disability Insurance Agency
[2021] AATA 69
•29 January 2021
McVeigh and National Disability Insurance Agency [2021] AATA 69 (29 January 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5196
Re:Corrine McVeigh
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President F Meagher
Date:29 January 2021
Place:Brisbane
The Tribunal is satisfied that the decision made by the Respondent on 19 May 2020 is not reviewable by the Tribunal within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth).
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed 19 August 2020.
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Deputy President F MeagherCatchwords
PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – whether Tribunal has jurisdiction to review decision made under subsection 29(1)(b) of the National Disability Insurance Scheme Act (Cth) – nonreviewable decision – no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
R v Moodie, Ex parte Mithen (1977) 17 ALR 219
REASONS FOR DECISION
Deputy President F Meagher
29 January 2021
Introduction
This is a decision with respect to whether the Tribunal has jurisdiction to hear an application made to it regarding whether the Applicant had ceased to be a participant in the National Disability Insurance Scheme (the NDIS).
The application for review was filed on 19 August 2020 on behalf of the Applicant by Ms Judy McManus, the Applicant’s power of attorney and representative in these proceedings. In response to the question ‘why do you claim the decision is wrong?’ in the application, the Applicant’s representative stated as follows:
The reason for this appeal is that Corrine being Hospitalised at Prince Charles Hospital from 2 May 2019 to 2 July 2019 when she was discharged and admitted to Waterford on the same day. This prevented her from entering age care prior to age 65. Being a younger person in aged care unfortunately Corrine is currently not receiving any transport or a carer to escort her to attend medical and regular mental health appointments nor any community access which she cannot afford to pay for this service due to a limited budget and her disabilities.
Furth [sic] We received verbal confirmation from Waterford that they are happy to offer Corrine a permanent placement to Waterford prior to age 65, unfortunately Lee the employee at Waterford is no longer employed to confirm this.
Corine prior to entering age care lived at Beaumont Care for the last 4 years which was a level 3 care facility where she was provided with transport and a carer to escort her to medical ,regular mental health appointments and community access funded by the Australian Government, which is currently not provided by the current provider which was covered by NDIS funding .Prior to the NDIS funding Corrine has been receiving this service since she was 16 years of age and still requires this service for a good quality of life. Furthermore Corrine being in the public hospital system is unable to afford the transport cost nor the cost of a carer at $40.00 an hours to attend hospital and regular mental health appointments which can take up to 4 hours or longer.
(errors in original)
Background
These are the facts before the Tribunal in respect of which no dispute has been raised:
(a)the Applicant was a participant in the NDIS and her first plan was approved on 31 May 2019;[1]
(b)on 18 May 2020, the National Disability Insurance Agency (the NDIA) approved a statement of participant supports for the Applicant’s second plan; [2]
(c)following this the Applicant sought the appointment of her sister, Ms Judy McManus, as her Plan Nominee;[3]
(d)on 18 May 2020, Ms McManus notified the NDIA that the Applicant was residing in the Waterford Residential Aged Care Facility (Waterford) with her own room;[4]
(e)on 19 May 2020, the NDIA wrote to the Applicant confirming that her status as a participant under the NDIS had ceased under s29(1)(b) of the National Disability Insurance Scheme Act 2013 (the NDIS Act) as she had entered an aged care facility after turning 65 years old;[5]
(f)on 29 May 2020, the NDIA advised the Applicant that she could lodge a request for review of the decision to revoke her status as a participant pursuant to section 100 of the NDIS Act;[6]
(g)on 30 July 2020, the Applicant lodged a request pursuant to section 100 of the NDIS Act for review of the NDIA’s decision dated 19 May 2020;[7]
(h)on 19 August 2020, an application for review was lodged with the Tribunal;
(i)on 12 November 2020, the NDIA wrote to the Tribunal advising that it did not consider that the Tribunal had jurisdiction with respect to the Applicant’s application and asking that a hearing be arranged with respect to that issue;[8] and
(j)on 25 November 2020, a hearing in relation to the Tribunal’s jurisdiction with respect to the matter took place.
[1] Respondent’s submissions (12 November 2020).
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Respondent’s submissions (12 November 2020).
[7] Ibid.
[8] Ibid.
It also appears to be common ground that the Applicant was hospitalised between 2 May 2019 and 2 July 2019, covering the period during which she turned 65 years old, which was on 20 June 2019. In that regard, the Tribunal notes that the Respondent’s submissions state that ‘on 2 May 2020 the Applicant was admitted to hospital’.[9] At hearing it was confirmed that the date of hospitalisation in question was in fact 2 May 2019.
[9] Ibid.
Evidence before the Tribunal includes a letter from the Site Manager of Waterford dated 12 August 2020, which relevantly states:
This letter is to advise Corrnie McVeigh was admitted to The Waterford @ Hervey Bay on 2nd July 2019 as a Respite Resident and became a Permanent resident 15th July 2019.
Corrnie’s sister, Judy McManus made contact with The Waterford on 25th June 2019 and our Administration staff emailed information to Judy McManus on 25th June 2020 requesting completion of documentation in order to have confirmation from the Clinical Manager to organise an admission into The Waterford. Judy returned the information and provided Request for Admission on 26th June 2019 together with other documentation.
The social worker from Prince Charles Hospital Chermside made contact also on 26th June 2019 advising that Corrnie was currently in the Geriatric Evaluation Management Unit (GEM) awaiting permanent aged care in Hervey Bay
There are also three emails provided by the Applicant’s representative, Ms McManus, being one of 14 June 2019, one of 15 June 2019, and one undated, evidencing communication between the NDIA and the Applicant’s representative regarding identifying support coordinator services in Hervey Bay.
Submissions
The NDIA submits that the Tribunal does not have jurisdiction to review the decision made under subsection 29(1)(b) of the NDIS Act as it is not a reviewable decision. Subsection 29(1)(b) of the NDIS Act relevantly states that:
When a person ceases to be a participant
(1) A person ceases to be a participant in the [NDIS] when:
(b)the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age.
The Tribunal notes that the application made by the Applicant suggests that her placement at Waterford was accepted by Waterford prior to her 65th birthday. Furthermore, responsive to the submissions of the NDIA that the Applicant became a permanent resident of Waterford after she had turned 65 thus triggering subsection 29(1)(b) of the NDIS Act, the Applicant’s representative submitted that:
That’s partly correct. Corinne Documents prior to me becoming nominee always stated her residential address to be Waterford on all NDIS documents. Corinne has been receiving NDIS support while she was residing Waterford until it got cancelled.[10]
[10] Applicant’s submissions filed 13 November 2020, being the Applicant’s response to the Respondent’s email to the Tribunal dated 12 November 2020.
The Tribunal notes that, as set out in the application for review, prior to entering aged care the Applicant lived at Beaumont Care.
The Tribunal’s jurisdiction
The Tribunal’s jurisdiction is founded in section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which relevantly provides:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(c)for review of decisions made in the exercise of powers conferred by that enactment; or
(d)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
2…
3Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
In terms of exercising its power to review decisions, the Tribunal must be satisfied that it has the requisite jurisdiction.[11]
[11] R v Moodie, Ex parte Mithen (1977) 17 ALR 219 at 225 per Stephen, Murphy and Aickin JJ.
The NDIS Act is the enactment which makes provision for the Tribunal to review certain decisions of the NDIA. Section 103 of the NDIS Act provides:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Subsection 100(2) of the NDIS Act provides:
(2)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.
In reviewing a decision, subsection 100(6) of the NDIS Act provides:
(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
A ‘reviewable decision’ is defined in section 9 of the NDIS Act as having ‘the meaning given by subsections 99(1) and (2)’. Section 99(1) of the NDIS Act sets out the decisions which are reviewable in table form and includes reference to the provisions under which such reviewable decisions are made. Subsection 99(1) of the NDIS Act makes no mention of a decision made pursuant to subsection 29(1) of the NDIS Act. As such, decisions made pursuant to subsection 29(1) of the NDIS Act are not decisions which the Tribunal can review. Accordingly, the Tribunal’s jurisdiction is not enlivened.
For completeness subsection 99(2) of the NDIS Act states that the NDIS rules may:
(a)provide that a decision made under a specified provision of the rules is a reviewable decision; and
(b)specify the decision‑maker in respect of the reviewable decision.
There are no Rules providing that a decision under subsection 29(1) of the NDIS Act is a reviewable decision.
CONSIDERATION
The submission made by the Applicant’s representative that had the Applicant not been hospitalised she would have entered Waterford prior to turning 65 is not, in this instance, determinative of whether there is a decision capable of review by the Tribunal.[12]
[12] Applicant’s submissions (12 November 2020).
The Tribunal notes that the Applicant was advised by the Respondent that she had a right of internal review of the decision that she had ceased to be a participant in the NDIS, which in turn advised her that she had a further right of review by the Tribunal. In the circumstances it is understandable that the application to this Tribunal was brought by the Applicant. However, that does not mean that the Tribunal can overlook the strict requirements regarding jurisdiction.
CONCLUSION
The Tribunal has considered all of the submissions and evidence before it. There is nothing before it to suggest that the NDIA a made a reviewable decision by reference to subsections 99(1) or (2) of the NDIS Act, such that the Applicant was entitled to review of that decision pursuant to subsection 100(6) of the NDIS Act. There is also nothing to suggest that the NDIA has made a decision under subsection 100(6) of the NDIS Act. Therefore, in this matter, the Tribunal has no power of review.
DECISION
The Applicant’s application for review filed 19 August 2020 is dismissed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher
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Associate
Dated: 29 January 2021
Date of Hearing: 25 November 2020 Final Submissions Received:
Representative for the Applicant:
13 November 2020
Ms J McManus
Representative for the Respondent: Ms C Gan, National Disability Insurance Agency
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