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 the plan management decision in accordance with the Applicant’s request. Accordingly, there was no internal review decision made within 90 days of the request as specified in subsection 100(6A) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). A deemed decision to refuse a request can be accepted to have occurred on 9 March 2023 in accordance with subsection 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Both parties agree with this proposition, as does the Tribunal.
The Applicant was not notified of this deemed refusal in any way and did not proceed to the Tribunal.
On 4 January 2024 the Applicant contacted the Agency seeking advice about whether the Agency would fund the purchase of an electronic trike or modified e-bike. She stated that she was ‘looking at the possibility of working with [her] occupational therapist’ to find such an item.
The Agency had some correspondence with the Applicant about this, noting in an email on 11 January 2024 that the request was likely to be considered high risk and to require further advice. On 3 February 2024 the Applicant’s occupational therapist formally recommended an e-bike and on 4 February 2024 the Applicant contacted the Agency and made a formal request for the support to be provided.
On 22 February 2024 the Agency wrote to the Applicant and advised that it had declined to fund the e-bike for a number of reasons, including that it was not reasonable and necessary and that the management of the Applicant’s chronic pain lies within the health system. The notice of decision advised the Applicant that she could seek an internal review of this decision within three months of it having been made. The email advising the Applicant of this decision appears to have been sent to an incorrect email address.
The Respondent initially contended that this decision was not a decision to approve a statement of participant supports under section 99 of the NDIS Act and so is not a reviewable decision under that Act and therefore the Tribunal does not have jurisdiction to review it. The decision was also not properly notified to the Applicant due to the incorrect email address.
The Tribunal notes that the Applicant sought an internal review of this decision on 19 March 2024. She was not impeded in her ability to do so by the original decision having been incorrectly addressed as she contacted the Agency in relation to the status of her request and was told that it had been refused and provided with a copy of the notice of decision. She made the request for review within the required timeframe in the event that the decision itself is a reviewable decision.
A decision which states that it is an internal review decision was made on 20 May 2024. This decision also declined to fund the requested support.
The Applicant applied to the Tribunal on 23 May 2024 for the review of the decision not to fund her e-bike.
The Tribunal held an interlocutory hearing on the issue of jurisdiction on 10 July 2024.
INITIAL SUBMISSIONS AND HEARING
The Respondent initially submitted that the Tribunal does not have jurisdiction to review this decision, but it could gain jurisdiction if the Applicant’s application was amended to be in relation to the deemed internal review decision of 9 March 2023 and the Tribunal grants the Applicant an extension of time to make an application. The Applicant submits that the Tribunal does have jurisdiction to review the 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 2023
16.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
The Respondent submitted that section 47A was introduced into the Act by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022. Section 47A(1A) is connected to s 47A(1)(a)(i) which provides that ‘the CEO may, in writing, vary a participant’s plan (except the participant’s statement of goals and aspirations) if the variation is covered by subsection (1A)’. Section 47A(1A) provides four situations for the purposes of s.47A(1)(a)(i). Paragraph (d) itself provides four scenarios constituting ‘a variation of the statement of participant supports included in the plan, or of the funding of supports under the plan’, including (iv), where ‘the variation is a minor variation that results in an increase to the funding of supports under the participant’s plan’.

The Respondent submitted that a purpose of the introduction of s 47A was to give the Agency greater flexibility in changing a participant’s plan, without having to conduct a full reassessment as would occur with approving a statement of participant supports under Division 2 of Part 2 of the Act. In the present case, the Agency considered that the original and internal review decision makers had power under s 47A(1A) to vary Ms Mills’ plan to approve funding for an e-bike under s 47A(1A)(d)(ii).
The Respondent submitted that the Agency communicated with Ms Mills by requesting information about her variation request in accordance with s 50(1) and 50(2)(a) of the NDIS Act, which gave rise to a power to vary a plan in response to information which is received as a result of a request. The Respondent submits that the Tribunal’s power to consider Ms Mills’ request under s 47A(1A)(d)(ii) is limited to any variation which ‘relates’ to the information requested by the Agency under s 50(2). Essentially the Respondent submits that the Tribunal’s jurisdiction is limited to consideration of the e-bike and whether this is a reasonable and necessary support under s 34 of the NDIS Act.
Consequently, the funding of a e-bike is also within the scope of the Tribunal’s jurisdiction in the current application:
Accordingly, the Tribunal has the power to vary Ms Mills’ plan under s.47A(1A)(d)(ii), if satisfied that the ebike (as quoted) was a reasonable and necessary support under s.34. By virtue of s.43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal has the same powers and discretions that were invested in the original decision maker (in this case, the delegate who made the decision on 20 May 2024).[9]
[9] Respondent’s submission on the Tribunal’s powers, 9 August 2024, at [17].
32.The Tribunal cannot help but notice that this approach neatly sidesteps the issue of whether the variation requested by Ms Mills was a ‘minor variation’, which was intended to be the purpose of the submissions. The concept of what constitutes a ‘minor variation’ has not yet been tested in the Tribunal or the Court and there has been no attempt to define it in the NDIS Act or its companion Rules. The Tribunal’s view is that this absence of definition is with good reason, as the meaning of the phrase will always be contingent on the facts of the case at hand, including the overall value of the plan and the number of proposed changes. Any attempt to define or codify its meaning is fraught with danger and it was surprising that the Agency was proposing to do so in a proceeding such as this.
33.Nonetheless, as this is a jurisdiction matter and jurisdiction is now conceded, the Tribunal is content to make no pronouncement on what may or may not be a ‘minor variation’ generally, other than to say – well, it depends. In this case, the addition of a relatively low value single support in a comprehensive plan where the Applicant had been very clear that she did not want a plan review would likely correctly be considered to be a minor variation. The basis of jurisdiction proposed by the Respondent is equally appropriate and correct in the circumstances of the communication it had with Ms Mills about the variation of her plan to include an e-bike.

CONSIDERATION
34.In its’ submissions about the Tribunal’s powers, the Agency has conceded that the Tribunal’s view that it has jurisdiction in this matter is correct, albeit on an alternative basis. The Tribunal finds that Ms Mills made a request for a minor variation to her plan to increase the funded supports and the Agency requested information about that support consistent with variations under both ss 47A(1A)(d)(ii) and 47A(1A)(d)(iv) of the NDIS Act.
35.The decision made on 22 February 2024 is expressed as a decision to decline to fund the purchase of an e-bike on the basis that the requested support was not reasonable and necessary under section 34 of the NDIS Act, in particular subsections (c), (f) and (g). The notice of decision does not specify whether the decision is a decision not to vary the Applicant’s plan; a decision not to conduct an unscheduled plan review; or a decision to affirm the previously approved statement of participant supports provided in the plan of 2 November 2022. While this is not a decision to approve a statement of participant supports it is a decision not to vary the Applicant’s plan.

36.Subsection 99(1) of the NDIS Act, at point 6A of the table of reviewable decisions and decision-makers, states that a decision not to vary a person’s plan in accordance with section 47A(4)(b) is a reviewable decision under the Act. In this case, the Applicant requested a variation of her plan to include funding for the purchase of an e-bike. The Tribunal is satisfied this that this is a participant requested variation in accordance with subsection 47A(4) of the NDIS Act.

37.When such a request is received the CEO must (before the end of 21 days beginning on the day the CEO receives a request) make a decision to vary the plan; not to vary the plan; or to inform the participant that the CEO requires further time to decide whether or not the plan needs to be varied. In this case, the CEO received a request to vary the plan on 4 February 2024 and on 22 February 2024 made a decision not to vary the plan in accordance with subsection 47A(4)(b). The Applicant requested an internal review of this decision on 19 March 2024 and that review under section 100 of the NDIS Act was conducted on 20 May 2024, once again being a decision not to vary the plan. The Applicant then made application to this Tribunal on 23 May 2024.
38.The Respondent has submitted that the Tribunal’s jurisdiction is limited to considering the assistive technology, which is the subject of the variation request, being the e-bike. As this support is the only subject of the application before it the Tribunal did not proceed to consider whether its jurisdiction extended any further. It was satisfied that it does have jurisdiction to review whether an e-bike should be added to Ms Mills’ plan.
DECISON

The Tribunal has jurisdiction to consider whether the Applicant's plan should be varied to include the funding of an electric bicycle.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

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Associate
Dated: 15 August 2024

Date(s) of hearing: 10 July 2024

Date final submissions received: 12 August 2024

Date(s) of hearing:	10 July 2024
Date final submissions received:	12 August 2024