Morris and National Disability Insurance Agency

[2022] AATA 3736

Morris and National Disability Insurance Agency [2022] AATA 3736 (10 October 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):               2022/7500

Re:Evelyn Morris

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member D Barker

Date:10 October 2022

Date of written reasons:         8 November 2022     

Place:Sydney

The Applicant has lodged an application for a review of a 'decision' dated 8 September 2022. The Tribunal is satisfied that the 'decision' is not reviewable by the Tribunal.

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.

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

Member D Barker

Catchwords

PRACTICE AND PROCEDURE – JURISDICTION – application for review of a decision to approve a plan of supports – where Agency has not made an internal review decision – no jurisdiction – application for review dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29, 42A

National Disability Insurance Scheme Act 2013 (Cth) ss 9, 25, 99, 100, 103

Cases

R v Moodie, Ex parte Mithen (1977) 17 ALR 219

REASONS FOR DECISION

Member D Barker

8 November 2022

Introduction

1. These are the written reasons for the decision to dismiss the application for lack of jurisdiction following a hearing on 10 October 2022.

2. Evelyn Morris (the Applicant) is non-binary and 40 years of age. Their preferred pronouns are they/them. They have a primary condition of Autism Spectrum Disorder (ASD) and comorbidities including Attention Deficit Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD), Arthritis and Asthma.

3. The Applicant is a participant in the National Disability Insurance Scheme (NDIS). The NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

4. On 21 June 2022, the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA or the Respondent) approved a plan for the Applicant under the NDIS Act (the original plan).

5. On 21 June 2022, the Applicant requested an internal review of the original plan pursuant to subsection 100(2) of the NDIS Act, requesting funding for the provision and installation of double-glazed windows for their residential accommodation, supports which were not provided for in the statement of participant supports in the original plan.

6. On 13 July 2022, the Respondent decided pursuant to subsection 100(6) of the NDIS Act (the internal review decision) to confirm the original plan and decline the request for funding of double-glazed windows.

7. On 31 August 2022, the Applicant provided the Respondent with additional material in support of the requested funding for double-glazed windows.

8. On 8 September 2022, the Respondent sent the Applicant a letter titled ‘Your NDIS plan decision explained’.

9. On 14 September 2022, the Applicant applied to the Tribunal, pursuant to section 103 of the NDIS Act, for review of a decision they received on 8 September 2022.

10. On 16 September 2022, the Tribunal received an email from the Respondent which requested that the Tribunal list an interlocutory hearing to resolve an apparent jurisdictional issue.

11. On 10 October 2022, the Applicant and their Sponsor appeared before the Tribunal by telephone at an interlocutory hearing. The Applicant’s support coordinator, Ms O’Driscoll, also participated in the hearing.

12. The Tribunal reserved its decision on 10 October 2022 and dismissed the application for review for lack of jurisdiction later that day.

    ISSUE

13. The issue to be decided is whether the Tribunal has jurisdiction pursuant to section 103 of the NDIS Act to review the application lodged by the Applicant on 14 September 2022.

    legislative framework

14. The Tribunal’s jurisdiction is founded in section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which relevantly provides:

    (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.

    (2)The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.

    (3)Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:

    (a)shall specify the person or persons to whose decisions the provision applies;

    (b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and

    (c)may specify conditions subject to which applications may be made.

15. In exercising its power to review decisions, the Tribunal must be satisfied that it has the requisite jurisdiction.[1] 

    [1] R v Moodie, Ex parte Mithen (1977) 17 ALR 219 at 225 per Stephen, Murphy and Aickin JJ.

16. The NDIS Act is the enactment which provides for the Tribunal to review certain decisions of the NDIA. Subsection 103(1) of the NDIS Act provides:

    (1)Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

17. Subsection 100(2) of the NDIS Act provides:

    (2)A person who is directly affected by a reviewable decision may request the decision‑maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.

18. In reviewing a decision, subsection 100(6) of the NDIS Act provides:

    (6) The reviewer must make a decision:

    (a)confirming the reviewable decision; or

    (b)varying the reviewable decision; or

    (c)setting aside the reviewable decision and substituting a new decision.

19. A ‘reviewable decision’ is defined in section 9 of the NDIS Act as having ‘the meaning given by subsections 99(1) and (2)’. Subsection 99(1) of the NDIS Act sets out, in a table, the decisions which are reviewable and refers to the provisions under which the reviewable decisions are made. A decision to approve the statement of participant supports in a participant’s plan is listed at Item 4 in the table.

20. Subsection 42A(4) of the AAT Act provides:

    (4)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.

    DISCUSSION

21. The Tribunal has considered information provided by the Applicant in their application for review and at the hearing. The Applicant’s position appears to the Tribunal that they consider the Respondent’s decision to not provide funding for double-glazed windows in their residential accommodation to be an incorrect decision. Their position is summarised in the review application form filed with the Tribunal, where they respond to the question ‘Why do you claim the decision is wrong?’, stating:

    The decision is wrong as the double glazing of windows for noise reduction is due to [the Applicant’s] sensory sensitivity and is not a luxury item to [the Applicant] but a sensory aid to assist in enabling [the Applicant] to work from home, attend online education, online medical appointments and go about their day completing day to day activities without sensory escalation.

22. The context within which the Applicant’s contention that the decision is wrong and that the requested support is both reasonable and necessary can be ascertained from background information provided in an Occupational Therapy report dated 28 April 2022, prepared by Miranda Bruyn of Occupation Matters:

    [The Applicant] doesn’t like a rigid schedule. They prefer flexibility. This is partly because they need to sleep to help manage their fatigue and tiredness and for energy conservation.

    [The Applicant] tried to study when they were 19 years old, but without much success.

    They kept having meltdowns, didn’t understand what was happening and had no supports. They occasional do acupuncture, Epsom salt baths and floating baths. [The Applicant] worked as a bar tender at nights for almost 15 years. They realised that they could manage it only because they could drink while working. Without drinking alcohol, they reported they couldn’t manage work and the social interactions also got very tiring. They have also tried teaching jobs and office jobs. However, they realised that they cannot manage it and get depressed. As a result, they have had to either quit or got fired.

    [The Applicant] currently works as a musician and composer. They have been playing the piano since they were 3. They have done music for three feature films. They also do sound design for art galleries, make their own music and have also collaborated with dancers. They recently did their first gig post COVID. [The Applicant] found it “very weird” to be in front of so many people after so long. [The Applicant] has their own missing (music?[2]) setup at home. They prefer working at nights because it is more peaceful and there are very few disturbances.

    [2] Added as possible word intended.

23. The position of the Respondent is outlined in submissions filed on 7 October 2022. In summary, the Respondent submits that whilst there is a decision potentially reviewable by the Tribunal, pursuant to section 103 of the NDIS Act, it is the internal review decision made by the Respondent on 13 July 2022. This is not the decision the Applicant has asked the Tribunal to review. The Respondent contends that the Applicant’s reference in their application to the Tribunal for review of a decision, namely a decision they received on 8 September 2022, is not a decision as such, rather it is a document explaining the internal review decision which was made on 13 July 2022. The Respondent submits, in part, that:

    On 5 May 2022[3], the Respondent provided a letter stating that the requested
    supports had not been included in their plan dated 21 June 2022. We do not
    consider that this can be considered as a s100 review decision, as an internal
    review decision had already been made on 13 July 2022, and so the s100 power
    was already exhausted.

    On 14 September 2022, the Applicant requested an external review of the
    decision dated 8 September 2022 by the Tribunal.

    In reference to s103, the Respondent submits that the Tribunal does not have power to review the decision dated 8 September 2022 as it is not a decision made under s100(6). Accordingly, the application as it stands ought to be dismissed (s42A(4) of the AAT Act).

    [3] It was clarified at hearing that this date was a typographical error and the intended date is 8 September 2022.

24. The Tribunal is satisfied that the decision of the Respondent dated 21 June 2022 to approve the original plan and the statement of participant supports was reviewable under section 99 of the NDIS Act.

25. The Tribunal is satisfied that the internal review decision dated 13 July 2022 is a decision potentially reviewable by the Tribunal under section 103 of the NDIS Act. This is not, however, the decision the Applicant has asked the Tribunal to review.

26. The Tribunal has considered whether the document sent by the Respondent to the Applicant on 8 September 2022 constitutes a decision of a type provided for by subsection 100(6) of the NDIS Act. As described above, the document is titled ‘Your NDIS plan decision explained’ and states ‘Dear [Applicant], I am writing about your request on 2 September 2022 for an explanation of the decision to approve your current National Disability Insurance Scheme (NDIS) plan’.

27. There are aspects of this document which the Tribunal considers confusing.  Amongst these, is that there does not appear within the document information which identifies the date on which the decision about the current plan was made. In the section of the document ‘How to request a review of a decision’, there is reference to the right to ‘request an internal review of the decision within three months of first receiving the notice of the original decision (in this case, the NDIS Plan)’ and that it is also possible, if ‘not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT)’.

28. The Tribunal acknowledges that people familiar with the NDIS would be aware of distinctions between different documents referred to as plans in the scheme, and would make sense of the types of plans discussed in the explanatory document prepared by the Respondent on 8 September 2022. The Tribunal is however of the view that to a lay person, it is not readily apparent which plan is referred to and what is the appropriate mechanism to request a review of a decision about requested supports in light of further assessments and reports which go to the need for the requested supports.

29. On reviewing the evidence and submissions, the Tribunal is not persuaded that the document dated 8 September 2022 is a decision of a type listed in section 99 of the NDIS Act. Rather, it is as a further explanation of why requested supports were not funded in the current NDIS plan and an acknowledgment that the Applicant has provided, after the date of the internal review decision dated 13 July 2022, further information in support of the requested supports. The Tribunal finds the explanatory letter from the Respondent dated 8 September 2022 is not however a new decision in relation to what is approved in a statement of participant supports, which could provide the basis for a request for an internal review by the Respondent of a new plan decision.

30. The Tribunal finds that the explanatory letter of 8 September 2022 is not an internal review decision of a type provided for by subsection 100(6) and consequently, section 103 of the NDIS Act is not enlivened. There is not a decision made by the Respondent on 8 September 2022 that is reviewable by the Tribunal. Therefore, the Tribunal has no power of review.

    OTHER MATTERS

31. The Tribunal is of the view that the internal review decision made on 13 July 2022 is a decision potentially reviewable by the Tribunal. The prescribed time in which the Applicant needed to have applied to the Tribunal for a review of this decision has passed. However, it is open to the Applicant to apply to the Tribunal for an extension of time in which to make the application for review.

32. There is no such request before the Tribunal and whilst it is not a matter otherwise dealt with in this decision, the Tribunal would draw the attention of the Applicant to the provisions of section 29 of the AAT Act which deal with circumstances in which the Tribunal may extend the time for making an application for review:

    ……

    (7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

    (9)Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:

    (a)    give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or

    (b)   require the applicant to give notice to those persons.

    If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

    conclusion

33. On 10 October 2022, the Tribunal issued the following decision:

    The Applicant has lodged an application for a review of a 'decision' dated 8 September 2022.

    The Tribunal is satisfied that the 'decision' is not reviewable by the Tribunal.

    Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Barker

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

Associate:

Dated: 8 November 2022

Date(s) of hearing:	10 October 2022
Applicant:	Self-represented
Solicitors for the Respondent:	C Slade, National Disability Insurance Agency