Mizzi and National Disability Insurance Agency

Mizzi and National Disability Insurance Agency [2024] AATA 1003 (16 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2024/0474
Re:Ashley Mizzi
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member J Toohey
Date of decision:               16 April 2024
Date of written reasons:      9 May 2024
Place:Brisbane

The Tribunal does not have jurisdiction to review the National Disability Insurance Agency planning decision made on 15 January 2024 as this decision has not been reviewed under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth).
..................................[SGD]......................................
Member J Toohey
Catchwords
National Disability Insurance Scheme – Jurisdiction Issue – Where no request for review made under subsection 100(3) – Where no review decision made under subsection 100(6) – Request for written reasons – Tribunal does not have jurisdiction under section 103
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
REASONS FOR DECISION
9 May 2024
PROCESS STEPS

On 17 January 2024, Mr Mizzi asked the Administrative Appeals Tribunal (AAT) to review a decision. In the AAT online application form, Mr Mizzi said that the decision he wanted reviewed was also dated 17 January 2024. In the online form, Mr Mizzi said that he thought the decision was wrong because:
… I have should be entitled to have more sta in my ndis funding due to my disability … I’m wanting this funding so I can have access to accommodation and activities to firstly to build capacity around on exploring new thing and making new friends and others things [some words omitted from original]
Mr Mizzi uploaded a copy of the decision he said he wanted reviewed with his AAT online application form. The decision that Mr Mizzi uploaded was an AAT decision made by Member P Smith on 22 December 2022. This decision was made under section 42C(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) after an agreement was reached in an earlier appeal Mr Mizzi had made to the AAT. The reference number for this earlier appeal was 2022/8122 and it has been finalised.
On 16 February 2024, the AAT asked the National Disability Insurance Agency (NDIA) whether Mr Mizzi had requested an internal review by the NDIA. On the same day, the NDIA advised that no internal review had been requested by Mr Mizzi.
On 22 February 2024, the AAT sent a letter to Mr Mizzi by email which included the following information:
We have received your application for review of a decision. It appears you want us to review a matter regarding NDIA STA funding. It also appears that you have not provided a copy of a reviewable decision with the application.
Can we review this decision?
We can only review a decision if a Commonwealth law says that we can.
The NDIS Act says that you must have a decision internally reviewed by the NDIA before we can look at it. It is not clear to us that this has happened.
If National Disability Insurance Agency has not reviewed your decision, you should ask them to review it. If they have reviewed it, please send us a copy of their decision or give us the details of that review.
The Tribunal has been advised by the National Disability Insurance Agency that no request for an internal review has been made. Please find enclosed a copy of the agency’s position in relation to your application.
What happens next?
If you think we can review your decision, please contact us within 14 days after receiving this letter and tell us why.
If you cannot show that we can review the decision, we can dismiss your application. This means we will not review it.
We might hold a hearing to decide if we can review your decision. If we hold a hearing, we will let you know the date and time and where it will be. You can represent yourself at the hearing or arrange for someone else to represent you.
The email attaching this letter also contained a copy of the advice from the NDIA on 16 February 2024 that no internal review had been requested. Mr Mizzi did not respond to the letter or email sent on 22 February 2024.
On 27 March 2024, the AAT sent Mr Mizzi and the NDIA a notice to say that the AAT would hold an ‘Interlocutory Hearing by telephone - Jurisdiction question’ on 5 April 2024 at 10:00 am.
On 4 April 2024, Mr Mizzi sent an email to the AAT asking that the interlocutory hearing be rescheduled as Mr Mizzi and his support coordinator did not have evidence ready for the supports requested and were not ready for a hearing.
On the morning of 5 April 2024, the AAT advised Mr Mizzi that the interlocutory hearing would go ahead. The AAT explained that this process was to consider whether the Tribunal was able to look at Mr Mizzi’s appeal and that Mr Mizzi did not need to provide further evidence at this stage. Mr Mizzi advised he did not want to take part in the interlocutory hearing. Mr Mizzi’s support coordinator, Ms Fakaanga, took part instead.
At the interlocutory hearing, Ms Fakaanga advised that Mr Mizzi:
(a)Was seeking a stakeholder meeting so that the documentation he submitted for his plan review would be considered.
(b)Believed the NDIA planner said he would lose his short term accommodation (STA) funding if the plan was reassessed.
(c)Agreed to a ‘rollover’ of his plan funding to avoid cuts in his funding.
At the interlocutory hearing, the NDIA advised that their records showed that:
(a)The Tribunal’s order in Mr Mizzi’s 2022/8122 appeal was implemented with a plan being put in place in January 2023, which included the 12 days for STA.
(b)That plan was due to be reviewed in January 2024 and that, on 19 September 2023, the NDIA wrote to Mr Mizzi proposing that the funding be rolled over for a further 12 months.
(c)There was a conversation between a NDIA planner and Mr Mizzi on 2 January 2024 in which Mr Mizzi agreed to rolling over the plan for 12 months.
(d)A new plan was put in place on 15 January 2024 which replicated the prior funding, including 12 days for STA, for 12 months.
(e)Mr Mizzi had not requested an internal review of this 15 January 2024 decision by the NDIA and that he would have until 15 April 2024 to do so.
At the interlocutory hearing, I (Member Toohey):
(a)Indicated my initial view was that a NDIA review did need to be requested and completed before the AAT would be able to consider an appeal.
(b)Requested that the NDIA take steps to support Mr Mizzi to understand his review rights before they expired on 15 April 2024.
On 15 April 2024, in an email to the AAT, the NDIA:
(a)Advised Mr Mizzi had now orally requested a review under section 100(3)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and agreed to email documents in relation to his request.
(b)Advised it would initiate the review process, advise the appropriate department within the NDIA, and advise Mr Mizzi of the contact person within the NDIA in relation to the review.
(c)Requested the AAT dismiss Mr Mizzi’s current application before the Tribunal under to section 42A(4) of the AAT Act.
On 16 April 2024, the AAT advised the parties that Mr Mizzi’s appeal had been dismissed. Mr Mizzi requested written reasons on the same day. These are the written reasons.
WHY THE TRIBUNAL DISSMISSED THE APPEAL
Section 25 of the AAT Act sets out that the AAT is able to review decisions if another Act says it can. Section 103 of the NDIS Act says that the Tribunal can review a decision made by a reviewer under subsection 100(6) of the NDIS Act.
Subsection 100(6) of the NDIS Act says that a NDIA reviewer must make a decision either:
(a)confirming the reviewable decision;
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
Section 99 of the NDIS Act says which decisions are ‘reviewable decisions’. A decision to approve a statement of participant supports in a participant's plan under subsection 33(2) of the NDIS Act is a reviewable decision.
Subsection 100(6A) of the NDIS Act says the NDIA reviewer must complete their review within 90 days of receiving the request for review.
The AAT cannot review the decision made by the NDIA to approve the statement of participant supports in the plan which commenced on 15 January 2024 until either:
(a)A NDIA reviewer completes a review, or
(b)A NDIA reviewer does not complete a review within 90 days from 15 April 2024.
If Mr Mizzi is still not satisfied with the outcome of the NDIA review, or the NDIA fails to make any decision within the required timeframe, Mr Mizzi may then lodge another appeal with the AAT.
Also, if Mr Mizzi is not satisfied with the way that the NDIA planner has communicated with him in rolling over his plan, or other aspects of the NDIA’s treatment of him, he can raise those concerns as a complaint with the NDIA.[1] If Mr Mizzi disagrees with the outcome of that complaint, he has further rights to raise his concerns with the Commonwealth Ombudsman.[2]
[1] >
Also, if Mr Mizzi is not satisfied with the way the Tribunal has managed his appeal, he can raise a complaint with the Tribunal through our feedback form.[3] In addition, as set out in the letter with the notice of this decision on 16 April 2024, Mr Mizzi can appeal this ‘no-jurisdiction’ decision to the Federal Court. I would recommend Mr Mizzi seek legal advice before lodging such an appeal. There can be fees and costs connected with a Federal Court appeal that are not present at the Tribunal.
[3] >
For these reasons, I find the Tribunal does not have jurisdiction to review the NDIA planning decision made on 15 January 2024 as this decision has not been reviewed under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth).

23. I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member J Toohey

....................[SGD].....................
Associate
Dated: 9 May 2024

Date of interlocutory hearing: 5 April 2024

Advocate for the Applicant Lisa Fakaanga,
Bloom Support & Co

Solicitors for the Respondent:
Nathan Woolley and Amalin Nouvelle,

National Disability Insurance Agency

[2024] AATA 1003

16 April 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Standing

Statutory Construction