MDCT and National Disability Insurance Agency

[2020] AATA 6036

MDCT and National Disability Insurance Agency [2020] AATA 6036 (24 December 2020)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2020/4203          

Re:MDCT  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon Justice D G Thomas, President

Deputy President F Meagher

Member K Buxton

Date:24 December 2020

Place:Brisbane

The Tribunal DIRECTS that, upon the Respondent providing at least five (5) business days’ written notice to the Applicant, the Applicant provide access to all parts of their property for the purpose of an assessment by [name redacted], Occupational Therapist.

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

The Hon Justice D G Thomas, President

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision to approve statement of supports in participant plan – interlocutory application for direction that Applicant provide access to all parts of their property for the purpose of an assessment by an occupational therapist – whether Tribunal has power to compel Applicant to facilitate occupational therapy assessment – application granted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth): ss 2A and 33.

National Disability Insurance Scheme Act 2013 (Cth): ss 20, 26, 33, and 36.

Cases
Bushell v Repatriation Commission (1992) 175 CLR 408.
Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534.
Liddle and National Disability Insurance Agency [2018] AATA 507.
PKVC and Minister for Home Affairs [2018] AATA 4045.

REASONS FOR DECISION

The Hon Justice D G Thomas, President
Deputy President F Meagher
Member K Buxton

24 December 2020

INTRODUCTION

1. On 14 July 2020, [MDCT, hereafter referred to as “the Applicant”] applied to the Tribunal for review of a decision of the National Disability Insurance Agency (“the Respondent”) dated 10 July 2020.

2. The Respondent applied for a direction to require the Applicant to provide access to their home in order for an assessment to be undertaken by an independent occupational therapist, [name redacted, hereafter referred to as “OT”], which will be funded and arranged by the Respondent. The Applicant resisted the Respondent’s application. On 21 October 2020 an interlocutory hearing was convened to hear submissions from the parties as to whether the Tribunal should issue the direction.

   BACKGROUND

3. The Applicant is a [redacted]. On 23 July 2018 they became a participant in the National Disability Insurance Scheme (“NDIS”) administered by the Respondent. The Applicant has applied for review of a decision of the Respondent, made on 10 July 2020, to approve a statement of supports in their participant plan, but which did not include funding for various modifications to their home. The question before the Tribunal in the substantive review application is whether the cost of such modifications ought to be funded through inclusion in the Applicant’s Statement of Participant Supports.

4. The Respondent wishes to commission an assessment by an occupational therapist with a view to assisting the Tribunal to determine whether the supports sought by the Applicant are reasonable and necessary. The Respondent selected OT, Occupational Therapist, to conduct the assessment. The Respondent submitted that it did not intend to request that OT undertake any physical assessment of the Applicant, but to limit their activity to the conduct of an assessment of the Applicant’s property and premises, in order to provide an opinion regarding home modifications in the form of a report addressed to the Respondent. There is no uncertainty as to the scope of the direction sought by the Respondent nor does there appear to be any question of the Applicant being placed at risk or inconvenience by the proposed access, other than the incidental inconvenience caused to the Applicant on the day of the proposed inspection.

5. The Respondent submitted that it would be unfair to permit the substantive review to proceed unless it was permitted to obtain a report from OT, and that their evidence would assist the Tribunal to make the correct or preferable decision in this case. The Applicant submits that they should not be compelled to assist in the preparation of the report by providing access to their home.

   CONSIDERATION

   Compellability

6. The effect of the direction sought by the Respondent in this case is to require, or compel, participation in gathering of expert evidence which the Respondent submits is likely to assist the Tribunal in the determination of the substantive review application. Specifically, the Respondent seeks that the Applicant make their property available for an assessment by OT, which will be funded and arranged by the Respondent.[1] In this case, that participation is limited to providing access to the Applicant’s home.[2] Given the nature of the direction sought, the Tribunal will first consider the Tribunal’s power to issue such a direction.

   [1] Respondent’s Submissions in Support of Application for Direction that the Applicant Facilitate an Assessment by OT, Occupational Therapist at [1] (14 October 2020) (“Respondent’s Submissions”).

   [2] Respondent’s Submissions, [7].

7. Neither party has submitted that the Tribunal lacks the power to make the direction sought by the Respondent. Each party has referred to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) as the likely source of that power.[3] Section 33 relevantly provides that:

   [3] Respondent’s Submissions, [11]; Applicant’s Outline of Submissions in Relation to the Compellability Issue at [13] (20 October 2020) (“Applicant’s Submissions dated 20 October 2020”).

   (1)In a proceeding before the Tribunal:

   …

   (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

   …

   Types of directions

   (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

   (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding;

   …

8. The position, in circumstances where the Tribunal considered that it required further evidence, was discussed in Commissioner of Taxation v Cancer and Bowel Research Association[4]. In that case the Full Federal Court stated with approval that:

   The Tribunal identified a number of matters which it considered relevant to the inquiry of the trustee’s entitlement to endorsement upon its construction of s 426-55 (see [114]) accepting, however, that a determination of those facts as at 16 February 2012 could be made by reference to events after that date (see [115]). The Tribunal took the view that the proper course to be followed in those circumstances would ordinarily have been for the Tribunal itself to seek further evidence. That view, if it had been open to be adopted by the Tribunal, was critical to what the Tribunal in fact did. The learned Deputy President reasoned that ordinarily he “would have further adjourned the hearing to enable the parties to adduce further evidence” but that for a variety of reasons that was not the appropriate course in this case and that in all the circumstances what was appropriate was “to remit the matter for further consideration pursuant to s 42D of the AAT Act”.

   [4] (2013) 305 ALR 534, [7].

9. This approach was adopted by the Tribunal in PKVC and Minister for Home Affairs[5] where Deputy President Rayment stated:

   The applicant’s submissions do not include any submission that the Tribunal lacks power to make such a direction as the respondent seeks. In my opinion the powers of the Tribunal do extend, in an appropriate case, to the making of such a direction. The general power to make directions contained in s 33(1A) of the Administrative Appeals Tribunal Act 1975, the power to inform itself in such manner as it thinks fit conferred by s 33(1)(c) of the Act and, perhaps also, the power to require a party to provide further information in relation to the proceeding (s 33(2A)) confer such power in my opinion.

   [5] [2018] AATA 4045, [3]

10. Section 2A of the AAT Act sets out the objective which the Tribunal must pursue in carrying out its functions. Expressly, that objective speaks to the mechanism of review, and the section mandates that mechanism to be, amongst other things, fair, just and proportionate to the importance and complexity of the matter and which promotes public trust and confidence in the decision-making of the Tribunal. Section 33 of the AAT Act details the way in which the Tribunal may control its process. Relevantly, subsection 33(1AB) requires the parties to a review application, and any person representing such a party, to use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT Act. The effect of that provision upon the Respondent’s obligations, when requesting an applicant to facilitate the provision of information or evidence, is that the requests must be reasonable and proportionate to the complexity of his or her case. The effect of that provision upon the response to a reasonable and proportionate request is to require an applicant to accede to such a request where it is made for the purpose of facilitating a review process that it fair and just. If a reasonable and proportionate request is made, and unreasonably refused, it is open to the Tribunal to control the review process by directing that an applicant meet such a request.[6] To do so is consistent with the Tribunal’s objective to ensure that each party is given the opportunity to present their case, and that the review is conducted fairly and justly.

    [6] Respondent’s Submissions, [16].

11. The Respondent submitted that, in requesting the direction to facilitate the preparation of OT’s report, the Respondent has had regard to its obligation to assist the Tribunal in making its decision, as required by subsection 33(1AA) of the AAT Act.[7] By providing OT’s report, the Respondent submitted that it will assist the Tribunal in arriving at the correct or preferable decision. Counsel for the Respondent further submitted that evidence provided by OT in relation to the reasonableness and necessity of the supports sought by the Applicant to be included in their participant plan may assist the Respondent to resolve the controversy between the parties, or, at least, narrow the issues before the Tribunal.[8]

    [7] Respondent’s Submissions, [2] and [16].

    [8] Transcript of proceedings, page 21, lines 34-36.

12. We are satisfied that the directions-making power in section 33 of the AAT Act provides the Tribunal with power to make a direction such as the one sought by the Respondent to facilitate the adducing of relevant evidence in this case. Whether the Tribunal ought to do so involves an exercise of its discretion having regard to the particular circumstances of the case before it.

    Exercise of Discretion

13. The parties have each made submissions as to the way in which the discretion to make such a direction ought to be exercised.

14. The Applicant submitted that the discretion to make the direction should not be exercised because the proposed direction lacked utility, and because the Respondent’s selection of OT was inappropriate, prejudicial to them and would not assist the Tribunal in determining the substantive review application. In particular, the Applicant submitted that:

    (a)there were already sufficient reports as to the physical condition of the premises from builders, an architect and an engineer;[9]

    (b)OT lacked the necessary experience or qualifications in visual disability;[10]

    (c)there were already sufficient occupational therapists’ reports as to the Applicant’s functional issues;[11]

    (d)OT could not undertake the work of an occupational therapist, insofar as it related to recommendation of reasonable and necessary home modifications, without consulting with the Applicant.[12]

    [9] Applicant’s Submissions in Reply for Direction that the Applicant Facilitate an Assessment by OT, Occupational Therapist [3] (13 September 2020) (“Applicant’s Submissions dated 13 September 2020”).

    [10] Applicant’s Submissions dated 13 September 2020, [21] and [31].

    [11] Applicant’s Submissions dated 20 October 2020, [36].

    [12] Applicant’s Submissions dated 20 October 2020, [22].

15. Firstly, the Applicant submitted that OT was not a qualified builder or architect and in submitting a report as to the physical condition of the premises, they would be providing evidence outside their scope of expertise, as they are an occupational therapist.[13] We note that the Applicant has provided expert evidence from occupational therapists. The Respondent submitted that it would be prejudiced by the Tribunal declining to direct the assessment by OT, as it would be denied the opportunity to adduce evidence from an appropriately qualified expert of its choosing in the proceeding and that this would constitute a denial of procedural fairness.[14] In addition, the Respondent noted that OT would be briefed with the Tribunal's Guideline for Persons Giving Expert and Opinion Evidence if the direction were made, which provides that an expert’s overriding duty is to provide impartial assistance to the Tribunal on matters relevant to the expert’s area of knowledge or experience.[15] The guideline also requires an expert to make it clear when a particular question or issue falls outside his or her field of knowledge.[16]

    [13] Applicant’s Submissions dated 20 October 2020, [19].

    [14] Respondent’s Submissions, [23] and [26].

    [15] Respondent’s Submissions, [22].

    [16] Tribunal's Guideline for Persons Giving Expert and Opinion Evidence, [4.4].

16. We are not satisfied that the choice of OT to conduct an assessment of the physical attributes of the home that the Applicant contends ought to be modified is inappropriate. The Respondent submitted, and we accept, that OT will not be acting as a builder – they will be asked to take into account all of the documentary evidence, including information regarding the functional impact of the Applicant’s disability, and will be asked to provide an opinion with respect to the property following consideration of the documentation and their review of the premises[17]. As such, OT is to be instructed and will be required to prepare a report within their area of knowledge or experience.

    [17] Respondent’s Submissions, [22].

17. The second submission, that OT lacked the requisite expertise in visual disability, was asserted on behalf of the Applicant,[18] but not supported by any evidence. We do not accept it.

    [18] Applicant’s Submissions dated 20 October 2020, [21].

18. Thirdly, the Applicant submitted they have already produced reports to the Respondent and to the Tribunal that contain the opinion evidence of more than one occupational therapist.[19] Those reports have been commissioned by or on behalf of the Applicant and the authors of those reports have been instructed by them. They include a Complex Home Modifications Assessment Report prepared by [name redacted, hereafter referred to as “OT1”], Occupational Therapist[20], a response by OT1 to the “rejection response”[21], a letter from OT1[22] and a Full Functional Capacity Report prepared by [name redacted, hereafter referred to as “OT2”], Occupational Therapist[23]. The authors of those reports have sought to advance various recommendations with respect to the Applicant’s premises. Although an expert’s duty is to provide impartial assistance to the Tribunal and is not an advocate for a party, at the hearing, it will be open to each party to test, through cross-examination, the expertise of those whose opinions are presented to the Tribunal and the basis for the opinions of those experts. In the circumstances, the Respondent is specifically entitled to test the evidence of the occupational therapists provided by the Applicant with its own occupational therapist. It is also entitled to more generally exercise a forensic choice as to which expert can best present relevant evidence that may assist the Tribunal in making a decision, so long as that choice is not oppressive to the Applicant, and it does not put them at risk.

    [19] Applicant’s Submissions dated 20 October 2020, [36].

    [20] T-documents, T14, Complex Home Modifications Assessment Report, undated, page 106.

    [21] T-documents, T1, Response, OT1 (Occupational Therapist), dated 14 May 2020, page 16.

    [22] T-documents, T1, Letter, OT1, (Occupational Therapist), dated 15 May 2020, page 38.

    [23] T-documents, T5, Full Functional Capacity Report, OT2 (Occupational Therapist), dated 5 May 2020, page 69.

19. The Applicant further submitted that it was incumbent upon the Respondent to first identify a deficiency or shortcoming in the available evidence before they should be subjected to participation in the further gathering of expert evidence.[24] In this case, the effect of the Applicant’s submission seems to be that, as they have already provided reports from occupational therapists, the Tribunal should conclude that no further evidence from an occupational therapist would assist in the proper determination of this review. We accept that it will not be every case in which it is proper to exercise the available discretion to compel an applicant to participate in an evidence-gathering process. However, in circumstances where one party has had the opportunity to provide evidence that another party appropriately wishes to test, gathering further evidence of the same nature may provide assistance to the Tribunal, and is therefore justified. The Respondent contended that the Applicant had criticised the breadth and conclusions in the report of the Respondent’s “Technical Advisory Team”.[25] The Respondent submitted that those criticisms could be addressed by OT’s consideration of the same documents that were considered by the Technical Advisory Team, together with their observations of the property.[26] Any further information which touches upon that matter is relevant to the Tribunal’s role to consider the matter de novo. That was touched upon by Brennan J in Bushell v Repatriation Commission[27]:

    …the A.A.T. is an administrative decision maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate the Commission, the Board or the A.A.T. may request or itself compel the production of further material.

    [24] Transcript of proceedings, page 34, lines 40 – 42.

    [25] Respondent’s Submissions, [17].

    [26] Respondent’s Submissions, [18].

    [27] (1992) 175 CLR 408, 424 - 425.

20. In any event, the Respondent is not obliged to identify all the shortcomings in the available evidence so long as the request made is reasonable in the circumstances. To unreasonably refuse the Respondent’s request for access to the property may lead to a genuine risk that the Respondent will not be provided an opportunity to present its own case and that the hearing may proceed on evidence that, in some respects, will necessarily remain untested.

21. It was submitted by the Applicant that the powers of the Respondent decision-maker to request that the Applicant consent to participating in the provision of further information should only be enlivened after satisfying itself that any assessment or examination to inform such further information was reasonably necessary. It was further submitted, in this regard, there was no indication that the Respondent had embarked upon such an exercise.[28]  In support of these propositions, the Applicant relied on the decision of Liddle and National Disability Insurance Agency[29] (“Liddle”) which was an application for review of a decision of the National Disability Insurance Agency that the applicant did not meet the access criteria to become a participant in the NDIS.[30] In Liddle, Deputy President Constance made an interlocutory decision refusing to direct that the applicant participate in an assessment by an occupational therapist in circumstances where she had already provided one such report to the Respondent and to the Tribunal.[31] However, in Liddle, the applicant was at a real risk of suffering physical injury if she were to undergo a second assessment. It is not suggested that there is a potential risk to the Applicant if a further assessment is carried out in this case. In Liddle, Deputy President Constance noted at the outset that[32]:

    In considering these reasons it should be clearly understood that the outcomes of applications such as the present depend on the particular facts and circumstances of the cases in which they arise. I do not intend to suggest, and should not be taken as suggesting, that the Tribunal will never direct an applicant to undergo a second occupational assessment.

    [28] Transcript of proceedings, pages 27 - 28, lines 40 - 45 and 1 - 5.

    [29] [2018] AATA 5071.

    [30] Applicant’s Submissions dated 20 October 2020, [25] – [31].

    [31] [2018] AATA 5071.

    [32] [2018] AATA 5071, para 7.

1. The Applicant further submitted that, in determining a review about a participant’s plan, the approach required of the Respondent CEO contained within the Operational Guidelines as to access to the NDIS “is the type of approach that should be embarked upon here”.[33]

   [33] Transcript of proceedings, page 28, lines 33 - 34

2. When the CEO is determining an application for access to the NDIS under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”), section 26 of the NDIS Act prescribes the powers exercisable by the CEO, including to request (but not require) that a person seeking access undergo one or both of an assessment of the person and a medical, psychiatric, psychological or other examination. The stakes are high and failure by a person seeking access to the NDIS to accede to such a request leads to a deemed withdrawal of the access request. Operational Guidelines therefore provide guidance and limitations upon the evidence gathering powers of the CEO and impose strict timeframes.

3. In contrast, where a participant has already been granted access, section 26 has no work to do. Here, the Applicant has sought review of a decision made under section 33 of the NDIS Act with respect to the matters to be included in their participant’s plan. Section 36 of the NDIS Act prescribes the powers exercisable by the CEO in gathering information for the purpose of preparing and approving a participant’s plan. The CEO is empowered to request (but not require) a participant to undergo one or both of an assessment of the person, or a medical, psychiatric, psychological or other examination.[34] However, the statute does not provide for any consequence should the participant fail or refuse to accede to such a request.

   [34] Section 36(2) of the NDIS Act.

4. A request under section 36 of the NDIS Act is made for the purpose of gathering information about matters to be included in the participant’s plan. An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence

5. The Respondent submitted there would be no real prejudice to the Applicant in making their home available to OT to attend and to inspect for the purpose of undertaking the assessment and that, as OT is not being instructed to undertake any physical assessment of the Applicant, there could be no risk of any potential physical harm to the Applicant (cf. Liddle).[35] Unlike the situation where an applicant has already been subjected to physical examinations that have led to generation of adequate evidence upon which a decision can readily be made, and where the potential detriment caused to the applicant by a further physical examination would outweigh the forensic benefit in obtaining the report, the Respondent’s request cannot reasonably be said to risk any detriment to the Applicant.

   [35] Respondent’s Submissions, [21].

6. Finally, the Applicant submitted that any report produced as a result of OT’s inspection of the premises would be of no assistance to the Tribunal as the Applicant has not been consulted or examined in the course of its preparation.[36] The Respondent clearly articulated its position in this review: the nature and scope of the disabilities are accepted,[37] and it is the nature of the physical modifications sought to be funded under the NDIS Act that is in issue in this case.[38] It is reasonable for OT to be engaged to conduct a physical examination of the premises, and to report on their opinion of those premises, within the accepted parameters of the Applicant’s circumstances. We accept the submission of the Respondent that it may be beneficial to the Tribunal, in determining the issues in the substantive review, to have access to OT’s report.

   [36] Applicant’s Submissions dated 13 September 2020, [31].

   [37] Transcript of proceedings, page 26, lines 6 – 16.

   [38] Transcript of proceedings, page 26, lines 16 – 21; page 36, lines 30 – 34.

7. The Applicant’s resistance to providing the Respondent’s chosen expert with access to their home does not appear to be consistent with either their obligation to assist the Tribunal to conduct a review that is fair and just for all the parties or with the Tribunal having access to the evidence necessary to arrive at the correct or preferable decision. The Tribunal concludes the request of the Applicant, made by the Respondent, that they provide access to their home to facilitate the preparation of a report by OT, is reasonable and proportionate. For reasons set out, we consider that the Applicant’s refusal of that request is unreasonable and inconsistent with their obligation to use their best endeavours to assist the Tribunal in fulfilling its objectives. In all the circumstances, the Tribunal considers that it is proper that the Applicant be directed to provide the requisite access in order to facilitate the preparation of OT’s report.

   DECISION

8. Accordingly, the Tribunal directs that, upon the Respondent providing at least five (5) business days’ written notice to the Applicant, the Applicant provide access to all parts of their property for the purpose of an assessment by OT, Occupational Therapist.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of the Hon Justice D G Thomas, President, Deputy President F Meagher and Member K Buxton.

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Associate

Dated: 24 December 2020

Date of hearing:	21 October 2020
Counsel for the Applicant:	Mr Dan O’Gorman SC Mr Reimen Hii
Solicitors for the Applicant	Holding Redlich Lawyers
Counsel for the Respondent:	Mr Matthew Gollan
Solicitors for the Respondent	MinterEllison