Mills and National Disability Insurance Agency - [2024] AATA 2914

Mills and National Disability Insurance Agency [2024] AATA 2914 (15 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2024/3309
Re:Ms Lindy Mills
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member T Bubutievski

Date: 15 August 2024
Place:Sydney

INTERLOCUTORY DECISION
The Tribunal has jurisdiction to consider whether the Applicant's plan should be varied to include the funding of an electric bicycle.
....................[SGD]....................................................
Member T Bubutievski
Catchwords
Jurisdiction - previous original decision - deemed internal review decision – requested support not considered and not capable of being considered at the time of the original decision - change to the nature of the decision before the original decision-maker - limited jurisdiction - subsequent original decision made under subsection 47A(4)(b) - reviewable decision - internal review conducted - Tribunal has jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
Cases
Farrall and National Disability Insurance Agency [2020] AATA 5077
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
Minister for Immigration and Border Protection v Makasa [2021] HCA
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Rogers and National Disability Insurance Agency [2022] AATA 2809
REASONS FOR DECISION
Member T Bubutievski
15 August 2024
BACKGROUND

The parties have come before the Tribunal in an interlocutory proceeding to determine whether the Tribunal has jurisdiction to hear the Applicant’s application. The application concerns funding for an electronic bicycle (e-bike) which was purchased by the Applicant on 17 April 2024. The total cost of the claimed support was $3,614, including accessories. The E-bike alone with no accessories was $2,696.79. The Applicant contends that the Tribunal has jurisdiction to hear the application. The Respondent initially contended that the Tribunal could have jurisdiction to hear the application subject to the application itself being amended to be an application for review of a deemed decision of a different date and the Tribunal granting an extension of time.
In this case, the Respondent approved a statement of participant supports for the Applicant in the form of a plan dated 2 November 2022, which was to be reviewed by 1 November 2024. This plan included no funds for capital expenditure and only low-cost assistive technology.
On 8 December 2022 the Applicant contacted the Respondent and requested a review of the plan management for this plan. The plan had been specified to be plan managed, rather than self-managed. The Respondent’s contact document of that date specifies that the Applicant requested that the management of the plan be changed back to self-management. The Applicant confirmed that she did not seek for any other aspects of the plan to be reviewed. She had not, at that time, considered the issue of a E-bike. She commenced to research whether she could use an E-bike in early 2024.
The Respondent failed to conduct an internal review of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mills and National Disability Insurance Agency

Details

AGLC: Mills and National Disability Insurance Agency [2024] AATA 2914
Case: [2024] AATA 2914
Decision Date: 15 August 2024

CaseChat Overview and Summary

This matter concerned an application by Ms Mills to the Administrative Appeals Tribunal (AAT) for review of decisions made by the National Disability Insurance Agency (NDIA). The dispute arose from Ms Mills' request to change her plan management from plan-managed to self-managed, which the NDIA failed to determine within the statutory timeframe, resulting in a deemed refusal. Ms Mills also sought to have funding for an e-bike considered, a support she had only begun to contemplate after the original plan decision.

The primary legal issues before the Tribunal were whether it had jurisdiction to review the deemed refusal decision, and whether it could consider the provision of an e-bike as a support, even though this had not been raised at the time of the original plan decision. The Tribunal was required to determine the scope of its merits review function, particularly in relation to deemed decisions and the consideration of supports not initially requested.

The Tribunal reasoned that its merits review function requires it to stand in the shoes of the original decision-maker and determine the decision afresh, considering all matters that could have been before the original decision-maker. Drawing on High Court authority, the Tribunal held that it was not limited to the specific supports requested by the applicant and could consider the issue of plan management and the provision of an e-bike. The Tribunal found that the decision of 22 February 2024, which the NDIA argued was not a reviewable decision, was in fact a decision not to vary Ms Mills' plan under subsection 47A(4)(b) of the NDIS Act, and therefore constituted a reviewable decision. The Tribunal also noted that the NDIA had acknowledged making significant errors in Ms Mills' case.

The Tribunal concluded that it had jurisdiction to review the matter. The Tribunal expressed the view that it had jurisdiction to review the decision of 22 February 2024 as a decision not to vary Ms Mills’ plan under s 47A(4)(b), which is a reviewable decision. The Tribunal granted the Respondent time to make further submissions regarding the interpretation of a 'minor variation' under s 47A(1A)(d)(iv) of the NDIS Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant was of the view that the Tribunal has jurisdiction to review the decision because the requested support was a single support which amounted to a ‘minor variation’ of her plan which increased the funding of supports under her plan and so is a variation permitted under ss 47A(1A)(d)(iv) of the NDIS Act. The Applicant contended that the Agency treated the request as a request for a variation and acted consistently with this view. She was concerned that there would be other people affected by this jurisdictional issue who did not have the option of lodging an extension of time to an alternative, unrelated decision.The deemed refusal decision of 9 March 202316.The original decision made was to approve a statement of participant supports on 2 November 2022. This included a number of core and capacity building supports and for the plan to be plan managed. It did not include any capital supports and the plan only included $550 per year for low-cost assistive technology.17.On 8 December 2023 the Applicant contacted the Agency and requested that the plan management be changed back to self-management. As the Agency did not complete an internal review within the statutory timeframe it is deemed to have refused the request. 18.The proposition that the merits review function of the Administrative Appeals Tribunal is:‘to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review’[1]is uncontroversial. The Tribunal on review exercises the same powers and discretions as the original decision-maker.[2] In the case of the deemed internal review decision, the Tribunal is required to re-make the original decision to approve the statement of supports having regard to the obligations and limitations of subsection 33(2) of the NDIS Act.[1] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 [50] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ[2] AAT Act, s 43(1). 19.The High Court in Frugtniet v Australian Securities and Investments Commission (“Frugtniet”),[3] confirmed the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to reconsider, afresh, the question before the primary decision maker and to address the same question the primary decision-maker was required to address.[4] In QDKH,[5] the Court made clear that the Tribunal is not limited to considering supports that the Applicant had requested.[6] This means that the Tribunal can consider both the issue of plan management as raised by the Applicant in her initial request for internal review and the provision of funding for an e-bike, as both the management of the plan and the supports to be provided under the plan are matters for consideration by the original decision-maker under ss 33(2) of the NDIS Act.[3] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).[4] Frugtniet, [14]-[15]; [51]. [5] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.[6] QDKH, [7(c)].20.The Applicant queried whether it was possible for the Tribunal to consider the matter of the e-bike when reviewing an original decision made on 2 November 2022 when she had only begun to consider whether she should seek funding for an e-bike in early 2024. The Tribunal was satisfied that it could do so, as funding for an e-bike is a type of support which could have been before the original decision-maker even though that particular support had not been raised at that time. QDKH explained that if a matter could have been considered by an original decision-maker (even if it was not) it can also be considered by the Tribunal on review.21.The Respondent pointed the Tribunal to Rogers and NDIA[7] as authority for its position that the Tribunal could have jurisdiction in relation to the deemed decision of 9 March 2023. The Tribunal agrees with the jurisdictional explanation given by SM Buxton in that decision but considers that it has jurisdiction to review the decision to refuse the support of the e-bike in any event.[7] [2022] AATA 2809.22.The Tribunal agrees that if Ms Mills was to make an application to the Tribunal in respect of the deemed decision of 9 March 2023 the Tribunal would have jurisdiction to hear an application about that decision if Ms Mills was granted an extension of time. The Respondent indicated that it would not oppose an extension of time.Does the Tribunal have jurisdiction to hear this matter resulting from the decision made on 22 February 2024?23.The Applicant submits that the Agency has made significant errors in its decision-making and communication about those decisions. She submitted that the decision of 22 February 2024 was in fact a decision not to vary her plan in accordance with subsection 47A(4)(b) of the NDIS Act and so is a reviewable decision under section 99 of the NDIS Act. She also submitted that the decision made on 20 May 2024 was an internal review decision in accordance with section 100 of the NDIS Act. She referred the Tribunal to Farrall and NDIA[8] in support of her proposition. In that case, the Agency incorrectly characterised person’s request for review as a request for an unscheduled plan review instead of an internal review. DP Forgie found that a request can be both a request for an unscheduled review under section 48 of the NDIS Act and a request for an internal review under section 100 of the NDIS Act, and commented that the Agency should be very slow to construe such requests as request for review under section 48 given that the focus of the person seeking a review is likely to be the supports that they are currently receiving.[8] [2020] AATA 5077.24.The Respondent acknowledged that the Agency had made a significant number of errors in the Applicant’s case and that these errors extended to multiple staff members. 25.In its initial written submissions, the Respondent argues that the decision made on 22 February 2024 was not a decision to approve a statement of participant supports. The Tribunal agrees. This is not the character of the decision that was made on 22 February 2024. It was the character of the decision that was made on 2 November 2022 to approve a new plan for the Applicant. The Respondent goes on to submit that because the decision of 22 February 2024 was not a decision to approve a statement of participant supports it is not a reviewable decision under section 99 of the NDIS Act. 26.The Respondent contends that there was no plan made on 22 February 2024. The Tribunal also agrees with this proposition. It does not, however, follow that there was no decision made on 22 February 2024. Further, it also does not follow that there was no reviewable decision made on 22 February 2024. The Tribunal expressed the view that it had jurisdiction to review the matter as the decision was a decision not to vary Ms Mills’ plan under s 47A(4)(b), which is a reviewable decision.27.At the hearing, the Respondent acknowledged that it would be possible to find that the decision of 22 February 2024 was a decision not to vary the plan under s 47A(4)(b), but that if such a finding was made there would then need to be a statutory interpretation of what constitutes a ‘minor variation’ under ss 47A(1A)(d)(iv) of the NDIS Act as this may limit the Tribunal’s jurisdiction. The Respondent asked for time to make further submissions on the matter of s 47A(1A)(d)(iv), which the Tribunal granted. These submissions were received on 12 August 2024.SUBMISSIONS ON SECTION 47A

Ratio Decidendi

Legal Principle Established

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