Minervini and National Disability Insurance Agency
[2024] AATA 187
•25 January 2024
Minervini and National Disability Insurance Agency [2024] AATA 187 (25 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/8416
Re:Vanessa Minervini
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member D. Barker
Date:25 January 2024
Date of written reasons: 12 February 2024
Place:Sydney
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 13 November 2023.
...........................[SGD]............................
Member D. Barker
Catchwords
Whether the Tribunal has jurisdiction to undertake the requested review – Whether the decision is reviewable decision – whether the Applicant requested an internal review – Decision not reviewable by the Tribunal – Application dismissed under subsection 42A(4) of the AAT Act.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360
REASONS FOR DECISION
Member D. Barker
12 February 2024
The Applicant is a participant of the National Disability Insurance Scheme (the NDIS)
On 4 September 2023, the Applicant emailed the claims payment section of the National Disability Insurance Agency (the NDIA) regarding a payment claim for costs associated with respite care in short term accommodation (STA) amounting to $8,500 which were incurred whilst they were in Bali between 10 August 2023 to 20 August 2023 (the August 2023 Bali respite).[1] By way of an email sent 5 September 2023 the NDIA acknowledged the Applicant’s payment enquiry.
[1] NDIA claims and payments assurance - payment request 369199461 – 4 September 2023
The NDIA received a further email regarding payment for costs associated with the August 2023 Bali respite on 26 September 2023[2] and, by way of an email on 27 September 2023 the NDIA acknowledged this payment enquiry.
[2] Applicant duplicate payment enquiry – 8101351013 – 26 September 2023
On 3 October 2023, the NDIA received a complaint from the Applicant, by way of a phone contact, regarding the non-payment of the claim for the costs associated with the August 2023 Bali respite.
On 9 October 2023, the Applicant submitted to the NDIA an NDIS My Plan Purchase Payment Request Form for payment from the ‘Social and Community Support’ budget category for NDIS self-managed support services which started on 10 August 2023 and ended on 20 August 2023, which costed $,8500. This form indicates that two receipts were associated with the payment request.[3]
[3] Copy filed with Tribunal by the Applicant.
On 17 October 2023 a payment officer of the NDIA sent the Applicant an email in response to enquiries regarding the payment claim for the August 2023 Bali respite (the payment decision). The email states in part:
Thank you for your enquiry about a National Disability Insurance Scheme (NDIS) payment.
This response relates to your payment enquiry for STA supports on 10 August 2023 to 20 August 2023 for $8,500.00.
This response also relates to Payment Enquiries: 8101353251, 8101365372 & Complaint ID: 8101352265
The National Disability Insurance Agency (NDIA) has reviewed your enquiry and can advise that we are unable to make the requested payment as your plan budget has been consumed and the Planner Delegate has declined payment.
If your circumstances have changed and current supports are not meeting your needs, the Agency may conduct a plan reassessment. Please contact us on 1800 800 110 to discuss the plan reassessment process. (wording as in original)[4]
[4] NDIA Interaction Notes 17.10.2023 11:33:17 KGP847.
On 13 November 2023[5] the Applicant sought a review of the payment decision by the Administrative Appeals Tribunal (the Tribunal).
[5] The AAT review application form from the Applicant is dated 13 December 2023 but was filed with the Tribunal four weeks earlier on 13 November 2023.
The Tribunal has considered the oral submissions of the Applicant and Respondent at the interlocutory hearing which took place by telephone on 18 December 2023 (the interlocutory hearing). The Tribunal has as well considered the written submissions made by the parties prior to and following the interlocutory hearing.
For the reasons set out below, the Tribunal is satisfied that the payment decision is not reviewable by this Tribunal. On this basis, the Tribunal dismisses this application under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The parties’ contentions with respect to jurisdiction
Written submissions filed by the Respondent with the Tribunal on 18 December 2023 provide a chronology they contend is relevant to the question of whether the Tribunal has the jurisdiction to undertake the requested review.
Date Event
6 October 2022 Agency plan decision – plan effective 6 October 2022 to 5 November 2023. Planner declines funding for requested STA and Assistance (Inc. Respite) 1:1 – Weekday 28 days. - CRM Interaction 117804174
20 October 2022 Applicant requests s 100 internal review of Agency’s 6 October 2022 plan decision.
3 November 2022 Agency s 100 decision made confirming the Agency’s 6 October 2022 planning decision (which, among other things, declined funding for respite).
4 to 16 October 2023 Applicant submits four payment enquiries seeking reimbursement of purported STA supports provided in Bali, Indonesia from 10 August 2023 to 20 August 2023 for $8,500.00.
17 October 2023 Agency Payments Officer sent an email to the Applicant, responding to her payment enquiries. - CRM Interaction 148697260
6 November 2023 Agency plan decision – plan 6 November 2023 to 5 November 2024.
14 November 2023 Agency receives from the Tribunal the Applicant’s Application for Review of decision (signed and dated 13 December 2023) seeking review of an Agency decision received 17 October 2023.
In relation to the whether the Tribunal has jurisdiction in this matter, the submission filed by the Respondent on 18 December 2023 made the following contentions:
(1)On 17 October 2023, the Agency Payments Officer sent an email to the Applicant responding to her payment enquiries, advising that the payment could not be made.
(2)On or around 13 November 2023, the Applicant lodged a request for external review (signed and dated 13 December 2023) with the AAT seeking review of an Agency ‘decision’ the Applicant received on 17 October 2023. The ‘decision’ which the Applicant appears to refer to in their Application is the Agency’s 17 October 2023 email responding to her payment enquiries.
(3)With reference to s103, the Agency submits that the Tribunal does not have jurisdiction to review the Agency’s 17 October 2023 email responding to her payments enquiries. The email by the Payments Officer in the Agency’s Finance Branch is not an internal review decision made under s100(6), nor does it constitute a reviewable decision listed in s99.
(4)The Agency notes the Applicant sought internal review of the relevant plan and on 3 November 2022 an internal review decision was made under s100(6). The Applicant has not indicated that she seeks review of that decision, and in any event, an extension of time application would be required for this to be considered within the Tribunal’s jurisdiction. The Agency notes that a significant period of time (approximately 12 months) has elapsed since that internal review decision was made and the Applicant’s current application to the Tribunal. The reasons for this delay are not clear, and in the absence of further information explaining the nature and extent of the delay, the Agency respectfully submits an extension of time should not be granted in this matter.
(5)Consequently, the Respondent submits the matter should be dismissed under s42A(4) of the AAT Act on the basis that the email of 17 October 2023 is not reviewable by the Tribunal.
At hearing the Applicant confirmed that the decision they request the Tribunal review is the decision to decline payment for the costs incurred by the Bali respite, which was conveyed to them by way of the NDIA email of 17 October 2023. The Applicant indicated that they were not seeking a review of the internal review decision made by the NDIA in November 2022 and that they did not consider that decision relevant to the NDIA’s decision to not reimburse the costs associated with the August 2023 Bali respite, which is the decision that they are asking the Tribunal to review.
The Applicant disputed a range of the contentions put by the Respondent in their written submissions, claiming amongst other things that STA is included in their NDIS Plan and that sufficient funds were available in their budget to cover costs associated with the August 2023 Bali respite.
The Respondent’s oral submissions at hearing were consistent with those outlined in the written submissions that they filed with the Tribunal on 18 December 2023.
The Applicant was granted time following the hearing to provide further written submissions in relation to the jurisdiction issue and on 8 January 2024 the Tribunal received an email from an Advocate from Carers WA assisting the Applicant, which states in part:
The Applicant (Name provided) submits her response to the Respondent’s (Agency’s) submission to the AAT on 18 December 2023:
“The Agency considers the Tribunal does not have jurisdiction based on the below submissions.”[6]
[6] Sentences highlighted in grey reflect the Applicant’s highlighting of quotations from the Respondent’s submissions of 18 December 2023.
(1)“On 17 October 2023, the Agency Payments Officer sent an email to the Applicant responding to her payment enquiries, advising that the payment could not be made.”
a)Prior to the email on 17 October 2023, the Agency Payments Officer (Kayley P) advised the Applicant by telephone at 11:18 am, of the outcome of her enquiries and complaint, that the decision by the NDIA to deny her payment for STA services used on 10 August 2023 to 20 August 2023 would remain unchanged.
b)The Applicant maintains that when she stated to the Agency Payments Officer she did not agree and wished to challenge the decision by the NDIA, she was directed to escalate the matter at the AAT.
c)The Applicant maintains that the email received on 17 October 2023 at 11:30 am, was sent by the Agency Payments Officer in response to her request for written evidence of the NDIA decision in writing.
(2)“On or around 13 November 2023, the Applicant lodged a request for external review (signed and dated 13 December 2023) with the AAT seeking review of an Agency ‘decision’ the Applicant received on 17 October 2023. The ‘decision’ which the Applicant appears to refer to in their Application is the Agency’s 17 October 2023 email responding to her payment enquiries.”
a)The Applicant lodged their application to the AAT on 13 November 2023, on the information provided to her by the Agency Payments Officer on 17 October 2023.
(3)“With reference to s103, the Agency submits that the Tribunal does not have jurisdiction to review the Agency’s 17 October 2023 email responding to her payments enquiries. The email by the Payments Officer in the Agency’s Finance Branch is not an internal review decision made under s100(6), nor does it constitute a reviewable decision listed in s99.”
a)The Applicant respectfully submits that if the decision made by the NDIA Finance Branch to not provide payment for the STA services used on 10 August 2023 – 20 August 2023 does not fall within the scope of S99 of the National Disability Insurance Scheme Act 2013 (Cth), this represents a significant gap in oversight of NDIA decisions affecting its participants.
b)The Applicant requests, if she was directed to the AAT as the venue to pursue this matter in error by the Agency Payment Officer, can the NDIA now provide her with the appropriate venue for NDIS participants to challenge decisions made by the NDIA Finance Branch.
(4)“The Agency notes the Applicant sought internal review of the relevant plan and on 3 November 2022 an internal review decision was made under s100(6). The Applicant has not indicated that she seeks review of that decision, and in any event, an extension of time application would be required for this to be considered within the Tribunal’s jurisdiction. The Agency notes that a significant period of time (approximately 12 months) has elapsed since that internal review decision was made and the Applicant’s current application to the Tribunal. The reasons for this delay are not clear, and in the absence of further information explaining the nature and extent of the delay, the Agency respectfully submits an extension of time should not be granted in this matter.”
a)The Applicant submits she was experiencing medical issues throughout the 12-month period referenced by the respondent.
b)The Applicant queries the Respondent raising the s100 submitted on November 2022, as it is unrelated to the current matter.
(5)“Consequently, the Respondent submits the matter should be dismissed under s42A(4) of the AAT Act on the basis that the email of 17 October 2023 is not reviewable by the Tribunal.”
a) See response to (3).
By way of response to the Applicant’s post hearing submissions the Respondent, on 22 January 2024, filed further written submissions in reply with the Tribunal, which state in part:
No Jurisdiction for Tribunal to Review
The Respondent maintains its position in its submissions filed on 18 December 2023 that the Tribunal does not have jurisdiction to review the Agency’s Payments Officer’s 17 October 2023 email to the Applicant declining her payment request of $8,500.00 (for purported STA supports provided in Bali, Indonesia from 10 to 20 August 2023).
The Respondent further submits that an Agency ‘decision’ declining a payment request (which would include the Agency’s Payment Officer’s 17 October 2023 email declining the Applicant’s payment request) is not a reviewable decision under s 99 National Disability Insurance Scheme Act 2013 (Cth) and is incapable of internal review under s 100 in order to confer jurisdiction on the Tribunal to review it per s 103 NDIS Act. On this point, the Agency refers the Tribunal to LinkAssist Pty Ltd and National Disability Insurance Agency [2023] AATA 2063 at paragraph 20:
‘The table of reviewable decisions in s99 of the NDIS Act specifies 33 items, each of which specifies one or more reviewable decisions and the provisions of the Act under which the reviewable decision is made. As the Tribunal pointed out in Complete Nursing and Home Care Pty Ltd, none of those reviewable decisions are decisions that relate to payment to a service provider. The conclusion in that matter inevitably leads to the same conclusion in this matter, namely that the Agency’s decision to reject a payment request is not a decision which is specified in ss 99(1) or (2). Hence, the Applicant is not entitled to seek review of the decision under s100(2). The request which the Applicant made to the Agency for its refusal to pay does not fall within the provisions of s100(6). Accordingly, any decision made by the Agency on that question is not a decision under s100(6). In the absence of any such decision, the Tribunal does not have a power of review under s103. (emphasis added).
Consequently, the Respondent submits the matter should be dismissed under s42A(4) of the AAT Act on the basis that the Agency’s Payment Officer’s 17 October 2023 email declining the Applicant’s payment request is not reviewable by the Tribunal.
CONSIDERATION
In determining whether the Tribunal has jurisdiction to undertake the review requested by the Applicant there are two issues for the Tribunal to consider. These are whether the decision made by the NDIA to not pay costs incurred by the Applicant whilst having respite in Bali between 10 August 2023 and 20 August 2023 is what is referred to in the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) as a ‘reviewable decision’; and if so, whether the Applicant requested the NDIA undertake an internal review of that reviewable decision.
The Tribunal’s power to review particular decisions is derived from specific enactment provisions in relevant Commonwealth legislation, in conjunction with section 25(1) of the AAT Act, which states:
Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)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.
The relevant enactment in this case is section 103 of the NDIS Act. Subsection 103(1) states that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
A decision made by a reviewer under subsection 100(6) of the NDIS Act will be made when a review of a “reviewable decision” under subsection 100(2) of the NDIS Act takes place at the request of a person directly affected by that reviewable decision. A person who is directly affected by a reviewable decision may, within three months of receiving a notice from the person who made the “reviewable decision,” request a review of that decision.[7]
[7] NDIS Act, section 100(2).
Section 9 of the NDIS Act defines “reviewable decision”, as having the meaning given by ss 99(1) and 99(2) of the NDIS Act. Section 99(1) contains an itemised table setting out the different types of reviewable decisions under the NDIS Act and the decision-maker in respect of those decisions.
In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency,[8] Deputy President Forgie, in general terms, summarised those items in subsection 99(1) as follows:
…the first six items specify decisions that are made in respect of a person’s entitlement to be a participant in the NDIS and decisions that affect the content of a participant’s plan. The next ten…are concerned with registered provider[s] of supports…Items 17 to 19 are concerned with decisions relating to determinations made by the Chief Executive Officer of the Agency (CEO) regarding a person who may do acts or things required or permitted to be done by the NDIS Act in relation to a child. Items 20 to 22 specify…decisions made in relation to the appointment, suspension or cancellation of a plan nominee or a correspondence nominee…items 23 to 28…relate to decisions made under Chapter 5 of the NDIS Act. Chapter 5 is concerned with decisions relating to compensation…Items 29 to 33…[are] concerned with decisions to write off or waive a debt where the debt is owed to the Agency.[9]
[8] [2020] AATA 360.
[9] Ibid [11]-[14].
The Tribunal has reviewed section 99 of the NDIS Act and could not identify any reference that would support the conclusion that the payment decision made by a NDIS payment officer on 17 October 2023 is a decision of a type itemised in subsection 99(1) of the NDIS Act. As a consequence, the Tribunal’s potential authority to review an internal review decision of the payment decision made on 17 October 2013, should one have occurred, is not enlivened by section 103 of the NDIS Act.
In any event, there is no indication in the available evidence that the Applicant sought an internal review by the NDIA of the 17 October 2023 decision to decline payment for costs associated with the August 2023 Bali respite. The Applicant’s contention is that the NDIA payment’s officer told them to approach the Tribunal and seek review of the decision to decline payment.
The Respondent contends the NDIA records of the interaction between the Applicant and the NDIA payments officer do not support the claim advice was given to the Applicant to go straight to the Tribunal for a review of the payment decision. The Tribunal notes that the respondent’s contention with regard to the interaction notes from 17 October 2023 are technically correct. The Tribunal is however unaware if the interaction notes accurately reflect all issues discussed in the interaction between the Applicant and the NDIA payments officer on that date. Irrespective of what advice the Applicant may have received, the Tribunal’s authority to review a decision of the NDIA is limited by the legislation as discussed above. In the circumstance where the available information does not support a finding that the Applicant has at any stage requested a review under section 100 of the NDIS Act of a decision by an NDIA “reviewer”, no power arises under section 103 of the NDIS Act for the Tribunal to undertake a review.
Circumstances where the Tribunal has the power to dismiss review applications are detailed in section 42A of the AAT Act. These powers include that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.[10]
[10] AAT Act s 42A(4).
CONCLUSION
The Tribunal considers that the payment decision is not a type of decision listed within subsection 99(1) of the NDIS Act. Nor is it a “reviewable decision” by reason of subsection 99(2). Further, even if it is, no decision has been made by an NDIA “reviewer” under subsection 100(6) of the NDIS Act as no request was made by the Applicant for this type of review.
For these reasons, the Tribunal is satisfied that the payment decision is not reviewable by the Tribunal. Accordingly, the Tribunal dismisses this application under subsection 42A(4) of the AAT Act.
OTHER MATTERS
A number of the factors raised by the Applicant at hearing and in submissions filed in association with this interlocutory issue pertained to the issues in dispute between the parties regarding the reimbursement request. The Tribunal has not detailed or discussed this material in the course of determining whether the Tribunal has jurisdiction to undertake the requested review, as to do so before determining whether the Tribunal had the required jurisdiction would exceed the powers available to the Tribunal through the AAT Act.
The Tribunal notes comments made by the Applicant and Respondent as to other avenues whereby the Applicant may challenge decisions made by the NDIA Finance Branch. The Tribunal is reassured that the parties have and are communicating with regard to this issue.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker
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Associate
Dated: 12 February 2024
Date(s) of hearing: 18 December 2024 Applicant: In person Solicitors for the Joined Party: Jeremy Burston, NDIA Litigation
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