MSZN and National Disability Insurance Agency
[2021] AATA 4047
•4 November 2021
MSZN and National Disability Insurance Agency [2021] AATA 4047 (4 November 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/0146
Re:MSZN
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President F Meagher
Date:4 November 2021
Place:Brisbane
The Tribunal has jurisdiction to consider the supports which the Applicant seeks to have reviewed.
...................................[SGD].....................................
Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision to approve a statement of participant supports – where additional supports not considered within internal review decision – jurisdiction of the Tribunal – Tribunal has jurisdiction to consider matters that were before the primary decision-maker – jurisdiction to ultimately be determined at substantive hearing.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29AB, 29, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 32, 33, 34, 37, 48, 99, 100, 103National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 2, 4
Cases
Dunstan and National Disability Insurance Scheme Agency [2021] AATA 2406
Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629
Fuad v Telstra Corporation Limited (2004) 33 AAR 496; [2004] ATA 1182
National Disability Insurance Agency v WMRF [2020] FCAFC 79; (2020) 276 FCR 415
QDKH and National Disability Insurance Agency [2021] AATA 922
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Steley and National Disability Insurance Agency [2021] AATA 2539VXVL and National Disability Insurance Scheme [2021] AATA 1709
REASONS FOR INTERLOCUTORY DECISION
Deputy President F Meagher
This decision arises from an application made by the National Disability Insurance Agency (the Respondent) on 19 April 2021 as to the scope of the Tribunal’s jurisdiction in relation to an application made by MSZN (the Applicant) to the Tribunal on 11 January 2021 pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Background
The Applicant is thirteen years old. She experiences Autism Spectrum Disorder and Intellectual Disability caused by Cortical Dysplasia and Epilepsy. The Applicant is a participant in the National Disability Insurance Scheme (NDIS)[1] and the reasonable and necessary supports the subject of the application to the Tribunal relates to a plan approved by the Chief Executive Officer (CEO) of the Respondent on 24 August 2020 (Applicant’s Plan).[2]
[1] T-Documents, T15. The Tribunal notes that the Applicant’s Submissions dated 7 May 2021 indicate that the Applicant has been a participant of the NDIS since 27 November 2018, however the T-Documents do not contain any participant plans before 29 November 2019.
[2] T-Documents, T16.
Pursuant to paragraph 100(2) of the NDIS Act, the Applicant sought internal review of the statement of participant supports in their Plan and on 15 December 2020 the Respondent made an internal review decision in that regard (decision under review).[3] The decision under review confirmed the reasonable and necessary supports provided in Applicant’s plan.
[3] T-Documents, T2.
The application by the Respondent was made in the context of the decision of QDKH and National Disability Insurance Agency [2021] AATA 922 (QDKH) made by the Tribunal on 16 April 2021.
In QDKH the Tribunal decided that the Tribunal’s jurisdiction in relation to review of statements of participant supports under the NDIS Act was confined to supports specifically raised by a participant in the internal review process undertaken pursuant to subsection 100(6) of the NDIS Act.
On 18 October 2021, the Full Federal Court made orders by consent in relation to the matter of QDKH relevantly as follows:
4. The appeal be allowed.
5. The decision of the Administrative Appeals Tribunal dated 16 April 2021 (2019/4503) be set aside.
6. The matter be remitted to the Administrative Appeals Tribunal for determination according to law, having regard to the contents of the notation below.
On 29 October 2021, the Full Federal Court, in making its orders, provided brief reasons for their judgement in the matter of QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (QDKH No. 2) which relevantly stated:
2. While orders conceding the appeal and the accompanying notation were made by consent and there is, strictly speaking, no requirement therefore for the Court to give reasons, the Court considers that it is desirable to publish reasons given the public importance of the issues raised on the appeal.
…
7. On 18 October 2021, the Full Court ordered by consent that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal for determination according to law, having regard to the notation to the orders to which the parties had agreed. That notation reads:
The parties agree that [the Tribunal’s] conclusion involved an error of law for the following reasons:
a) The Tribunal’s jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO’s or delegate’s decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4).
b) The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.
c) On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports “put before” the internal reviewer. A participant in the National Disability Insurance Scheme need only “request” a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review.
d) Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to “facilitate” the preparation of a participant’s plan (s 32(1)) and to prepare the SOPS “with” the participant (s 33(2)).
e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that “[p]eople with disability should be supported to receive reasonable and necessary supports” (s 4(5)) and that “[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs” (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26].
8. The Court considers that the appeal was correctly conceded for the reasons set out in the above notation. Accordingly, the Tribunal had jurisdiction to consider the additional supports.
Legislation
Chapter 3 Part 2 of the NDIS Act is entitled ‘Participants plans’. Section 31 of the NDIS Act sets out the principles relating to a participant’s plan as follows:
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 32 of the NDIS Act sets out that the CEO must facilitate the preparation of participant’s plan and subsection 32(2) of the NDIS Act specifically refers to the CEO’s obligation to prepare the plan in accordance with the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules) as follows:
The CEO must commence facilitating the preparation of the participant’s plan in accordance with the National Disability Insurance Scheme rules.
Section 33 of the NDIS Act sets out the matters which must be included in a participant’s plan. Relevantly subsections 33(2) and (5) of the NDIS Act read as follows:
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
…
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The Support Rules include the following with respect to the matters to which the CEO is to have regard in deciding whether to approve a statement of participant’s supports:
2.2 In deciding whether to approve a statement of participant supports, the CEO is to have regard to a range of matters set out in the Act including the participant’s statement of goals and aspirations. This will also specify the environmental and personal context of the participant’s living (which might include, among other things, their gender and cultural background).
…
2.4 The CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these.
…
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b) assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c) assess risks and safeguards in relation to the participant; and
(d) relate support needs to the participant’s statement of goals and aspirations.
[Emphasis added]
Section 34 of the NDIS Act set out the matters in respect of which the CEO must be satisfied in relation to general and specific supports to be provided or funded.
Section 36 of the NDIS Act refers to information and reports for the purposes of preparing and approving a participant’s plan. It sets out requests the CEO may make of the participant or another person for information or that the participant undergo an assessment or examination and provide a report to the CEO. It further provides that the CEO may decide to approve a statement of participant supports before the information of reports are provided, but that the participant must be given a reasonable opportunity to provide them.
Subsection 99(1) of the NDIS Act contains a table of reviewable decisions and specifically includes at item 4 and item 6:
Reviewable decisions and decision-makers
Item
Column 1
Reviewable decision
Column 2
Provision under which the reviewable decision is made
Column 3
Decision-maker
4
a decision to approve the statement of participant supports in a participant's plan
subsection 33(2)
CEO
6
a decision not to reassess a participant's plan
subsection 48(2)
CEO
Subsection 100(2) of the NDIS Act makes provision for ‘[a] person who is directly affected by a reviewable decision may request the decision maker to review the reviewable decision’, and prescribes a time frame in which such a request must be made. By reference to subsection 100(3) of the NDIS Act, a request may be made in writing or orally, and subsection 100(4) of the NDIS Act states:
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
With respect to review by the Tribunal, section 103 of the NDIS Act provides that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the circumstances in which an application may be made to the Administrative Appeals Tribunal and subsection 29(1) of the AAT Act stipulates that an application must be made in writing (except in particular circumstances not relevant here)[4] and that the application ‘must contain a statement of reasons for the application’.[5] Section 29AB of the AAT Act makes provision for the Tribunal to request the Applicant to amend the statement of reasons for application in circumstances where it considers them insufficient.
[4] AAT Act, s 29(1)(d).
[5] AAT Act, s 29(1)(c).
On 19 April 2021 the Tribunal conducted a telephone directions hearing with respect to the issue of jurisdiction, however no oral submissions were provided at the hearing and directions were made providing the parties an opportunity to file written submissions. The parties provided submissions and other documents relevantly as follows:
·On 19 April 2021 the Respondent provided the Tribunal with a copy of the decision in QDKH handed down on 16 April 2021.
·Submissions on jurisdiction were provided by the Applicant on 7 May 2021 (Applicant’s Submissions).
·Submissions on jurisdiction were provided by the Respondent dated 24 May 2021 (Respondent’s Submissions).
·Submissions on jurisdiction in reply were provided by the Applicant dated 4 June 2021 (Applicant’s Submissions in Reply).
·On 8 June 2021 the Respondent provided the Tribunal with a copy of the decision in BWLK and National Disability Insurance Agency [2021] AATA 1631 handed down on 8 June 2021.
·On 21 June 2021 the Respondent provided the Tribunal with a copy of the decision in VXVL handed down on 14 June 2021.
Respondent’s Submissions
The Respondent’s Submissions in relation to the question of jurisdiction distinguish between two categories of supports – those which it says were ‘before the internal review delegate and considered in the internal review decision’[6] and those which it says are additional to those. The additional supports are set out in paragraph 3 of the Respondent’s Submissions and are described as ‘the New Supports’.[7]
[6] Respondent’s Submissions, [2].
[7] Respondent’s Submissions, [2].
The Respondent, adopting the reasoning in QDKH, submits that the New Supports are not properly before the Tribunal as they were not before the CEO when the supports included in the Applicant’s Plan were approved, nor were they before the internal reviewer when the decision under review was made.
The Respondent’s Submissions set out the framework of the NDIS Act insofar as it applies to the approval of the statement of participant’s supports. Specifically, they refer to sections 32, 33 and 34 of the NDIS Act and set out what a statement of participant’s supports must include,[8] and the matters in respect of which the CEO must be satisfied in specifying the reasonable and necessary supports that will be funded.[9]
[8] NDIS Act, s 33(2).
[9] NDIS Act, s 34(1).
The Respondent’s Submissions also set out section 37 of the NDIS Act and highlighted that a participant’s plan cannot be varied after it comes into effect but can only be replaced under Division 4 of the NDIS Act.[10] Division 4 of the NDIS Act deals with reviewing and changing participant’s plans and contemplates the situations where a review of a participant’s plan may occur, including when requested by a participant,[11] on the CEO’s initiative[12] or before a plan review date.[13] The Respondent’s Submissions also reference the internal review process pursuant to section 100 of the NDIS Act, and section 99 of the NDIS Act which sets out the reviewable decisions and the respective decision makers.
[10] NDIS Act, s 37(2)
[11] NDIS Act, s 48(1).
[12] NDIS Act, s 48(4).
[13] NDIS Act, s 48(5).
The Respondent submits that ‘[T]he scope of the Tribunal’s jurisdiction is determined by construing section 99 and section 100 of the NDIS Act, and section 43(1) of the [AAT Act]’ and in that regard cited Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi).[14] The Respondent also set out a number of other principles relevant to the question of what the Tribunal may take into consideration including that:
·‘The internal reviewer may receive further evidence – provided that the evidence is relevant to the review…’[15]
·‘In the ordinary course, the Tribunal is empowered to take into account facts and circumstances existing at the time of review…’[16]
·‘…there will be some cases where the particular decision, which is the subject of the Tribunal proceeding, will require the Tribunal to limit itself to the circumstances as they existed at a particular point in time.’[17]
·‘Where the statute conferring jurisdiction on the Tribunal to review a particular decision contains limitations on the decision-maker’s powers, the Tribunal is similarly constrained.’[18]
[14] Respondent’s Submissions, [19].
[15] Respondent’s Submissions, [19], citing Re TFS Manufacturing Pty Ltd and Minister for Health [2017] AATA 2786, [36].
[16] Respondent’s Submissions, [21], citing Shi, [46], [60], [101], [143] and [151].
[17] Respondent’s Submissions, [21], citing Shi, [44] – [46], [99] and [142] – [143]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] AATA 3907, [58].
[18] Respondent’s Submissions, [21], citing Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629.
The Respondent submits that there is nothing in the NDIS Act to support the proposition that the internal reviewer or the Tribunal can take into account requests for supports which were not made of the CEO during the process set out in Division 2 of Part 2 of Chapter 3 of the NDIS Act.[19] To do so, in the Respondent’s submission, would be to render the CEO’s process under Division 4 of the NDIS Act ‘otiose’.[20] The Respondent also submits that the internal review process is similarly limited by the supports requested by the participant.[21]
[19] Respondent’s Submissions, [23].
[20] Respondent’s Submissions, [24].
[21] Respondent’s Submissions, [25].
Ultimately the Respondent, in rejecting the Applicant’s submissions states that the existence of a ‘reviewable decision does not mean that the Tribunal therefore has jurisdiction to make whatever decision an applicant now wishes’[22] and that ‘[t]he Tribunal cannot and should not be used as a first instance decision maker’.[23] It submits that in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] AATA 3907 (CPJ16) ‘…Rares J observed in a similar context that, where a reviewable decision has been confined to any particular issue and the decision-maker gives reasons limited to that issue, the application for review in the Tribunal is only of ‘that’ decision on ‘that’ ground’,[24] which is similar to the position adopted by Justice Downes in Fuad v Telstra Corporation Limited (2004) 33 AAR 496; [2004] ATA 1182 (Fuad).[25]
[22] Respondent’s Submissions, [26].
[23] Respondent’s Submissions, [27].
[24] Respondent’s Submissions, [25].
[25] Respondent’s Submissions, [25], citing Fuad, [5].
Applicant’s Submissions
The Applicant rejects the Respondent’s characterisation of its submissions as set out in paragraph 26 above and makes its submissions in two parts. The Applicant’s Submissions in Reply deal first with the question of jurisdiction and what it contends is the correct construction of the legislation. In particular the Applicant submits that the ‘scope of’ the ‘Tribunal’s authority is discernible from section 103 of the NDIS Act; it is ‘for review of a decision made under subsection 100(6) of the NDIS Act.’[26] It is these broad concepts that denote the scope of the Tribunal’s authority and accordingly jurisdiction. The scope of that authority is broadly expressed. Contextual and purposive factors also tell against reading down the jurisdictional words or reading into them unexpressed limitations. The Applicant goes on to submit that the only ‘precondition’ with respect to jurisdiction is the existence of a decision made pursuant to subsection 100(6) of the NDIS Act.[27]
[26] Applicant’s Submissions, [19].
[27] Applicant’s Submissions, [20].
The Applicant further submits that ‘[t]he statutory scheme envisages that the Tribunal stand in the shoes of the Reviewer to determine the correct and preferable decision according to the requirements of s 33(5) and s 34(1) of the NDIS Act and the material before it at the time it decides’. [28] She submits that ‘the very flexibility of the tribunal’s procedures in respect of an application that may be made to the tribunal tells against reading down or reading limits into its jurisdiction to review’, and in that regard points to ‘the objects and principles of the NDIS Act as the statutory source of the decision under review’.[29]
[28] Applicant’s Submissions, [21].
[29] Applicant’s Submissions, [22].
The Applicant’s final submission in her Applicant’s Submissions, with respect to statutory interpretation are that:[30]
Section 4 of the NDIS Act stipulates general principles guiding action under the Act. Relevant principles that support a purposive construction of “review of a decision made by a reviewer under subsection 100(6)” that contemplates a re-examination of, or looking again at, the question of what supports will address the statutory criteria for a grant of support are those stated in s 4(2), (3), (6), (8), (9), and especially, (5) and (11). Section 5 of the NDIS Act states that Parliament’s intention is that if the Act “requires or permits an act or thing to be done by or in relation to a person with disability,” that act or thing should be done in accordance with the s 4 principles, and the other principles there identified.
[30] Applicant’s Submissions, [23].
The Applicant secondly deals with the Respondent’s Submissions with respect to the New Supports, stating first, that they should not necessarily be considered as new supports[31] and second, that to the extent that the Tribunal accepts the Respondent’s arguments as to jurisdiction, she would like the right to be heard as to whether in fact the supports were before the original decision maker or the person conducting the internal review pursuant to section 100 of the NDIS Act.[32] In that regard the Applicant refers to reports (including specifically a report of [redacted], Support Coordinator, entitled ‘Plan Review and Outcome Report’) which are contained in the T Documents.[33] The Applicant submits that the list of documents contained in the Report attached to the decision under review does not necessarily encompass all the documents available to the internal reviewer.
[31] Applicant’s Submissions in Reply, [2].
[32] Applicant’s Submissions in Reply, [24].
[33] T-Documents, T11.
In the Applicant’s Submissions in Reply, she reiterates some of the submissions contained in the Applicant’s Submissions and also submits that the Respondent is conflating power and jurisdiction and states that, based on what the Tribunal may do as set out in subsection 43(1) of the AAT Act, and its powers of dismissal as contained in subsection 42A(4) of the NDIS Act, the Tribunal may not partially dismiss an application and that it therefore follows that the jurisdiction is validly invoked.[34] The Applicant’s Submissions in Reply further stated that the wording itself in subsection 43(1) of the AAT Act is at odds with the Respondent’s Submissions.[35]
[34] Applicant’s Submissions in Reply, [3], [4], [5], [6] and [7].
[35] Applicant’s Submissions in Reply, [8].
The Applicant’s Submissions in Reply also submit,[36] inter alia, that the Respondent’s submission regarding the operation of Division 4 of the NDIS Act being rendered ‘otiose’ on the approach of the Applicant is incorrect. In her submission the process is the same whether carried out by the CEO, a reviewer or the Tribunal – it is that set out in subsection 33(5) of the NDIS Act having regard to the matters set out in section 34 of the NDIS Act. Further the Applicant submits[37] that there is no requirement that the Applicant to specify supports sought at any time during the process of the development of a plan, including an internal review process or before the Tribunal. The Applicant also submits that the processes undertaken by an internal reviewer under subsection 100(2) of the NDIS Act and by the CEO under subsection 48 of the NDIS Act ‘responds to different statutory events.’[38]
[36] Applicant’s Submissions in Reply, [10], [11], [12] and [13].
[37] Applicant’s Submissions in Reply, [14].
[38] Applicant’s Submissions in Reply, [15].
Consideration
The Tribunal deals first with the submissions regarding jurisdiction, and consistent with the Court’s decision in QDKH No. 2 considers that the Tribunal’s jurisdiction in relation to the review of the statement of participant supports is not confined as submitted by the Respondent and extends to the matters raised by the Applicant and set out in paragraph 13 of the Applicant’s Submissions.
The Tribunal further notes that here is nothing in the NDIS Act to suggest that the Applicant is obliged to put all, or indeed any, of the supports sought before the decision maker, whether at first instance or internal review. It considers that the words in rule 2.4 of the Support Rules –‘“[I]f the participant has identified or requested particular supports, the CEO will also have regard to these’ – can be read harmoniously with the overarching principles of the NDIS Act regarding the central role of the participant, but that the language of the NDIS Act still makes it clear that the CEO’s role is a proactive one – both in accordance with subsections 33(2) and (5) of the NDIS Act and in considering the supports either as a particular support or as a package of supports as set out in rule 2.4 of the Support Rules.
This approach is further supported by the use of the words ‘either as a particular support or as a package of supports’, as outlined in rule 2.4 of the Support Rules, point to a further difficulty in the approach suggested by the Respondent. Many statements of participant supports involve a range of supports – for example core supports and capacity building supports, and those supports are frequently interdependent, and need to be considered pursuant to all of the criteria identified in section 34 of the NDIS Act. Otherwise, in circumstances where the evidence considered by the internal reviewer, or by the Tribunal upon external review, leads to a conclusion that the general and reasonable and necessary supports to be provided to a participant should be of a different composition to those before the primary decision maker, on the Respondent’s approach, the internal reviewer or the Tribunal, as the case may be, would be constrained in undertaking its statutory function.
Further, in that regard, the CEO must have regard to certain matters set out in subsection 33(3) of the NDIS Act which sets out that the ‘supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise’ (emphasis added). Were the supports to be described generally, it may be that it is not possible to crystallise the precise nature of the difference between what is proposed in the decision under review and what is most appropriate having regard to subsection 33(2) of the NDIS Act and section 34 of the NDIS Act until the matter is being considered substantively and there is an opportunity to fully address the parties’ cases.
Accordingly, and further to the Court’s judgement in QDKHNo. 2, it is difficult to see how a meaningful review of a decision by an internal reviewer or by the Tribunal can be undertaken if constrained by what is ‘put before’ the internal reviewer or the Tribunal, as may be the case, in circumstances where the participant is not required to, and indeed may not specify precisely the supports it is that he or she is seeking. This issue is amplified in circumstances where the supports may be ‘specifically identified’ or ‘described generally’.[39]
[39] NDIS Act, s33(3).
As to the Respondent’s submissions that to adopt the approach submitted by the Applicant renders Division 4 of the NDIS Act ‘otiose’, the Tribunal respectfully disagrees. The internal review process with respect to reviewable decisions is contemplated by subsection 100(2) of the NDIS Act and with respect to external review to the Tribunal by section 103 of the NDIS Act. ‘Reviewable decisions’ are set out in section 99 of the NDIS Act. Review of a decision to approve the statement of participant supports in a participant’s plan is referrable to subsection 33(2) of the NDIS Act.[40] Review of a decision not to reassess a participant’s plan is referrable to section 48(2) of the NDIS Act,[41] which is in Division 4 of the NDIS Act. A decision made under section 48(2) of the NDIS Act is the only reviewable decision contained in Division 4 of the NDIS Act and identified in section 99 of the NDIS Act as a reviewable decision.
[40] See NDIS Act, s 99, item 4.
[41] See NDIS Act, s 99, item 6.
Following the Respondent’s argument to its logical conclusion requires an examination of the reviewable decisions which flow from Division 4 of the NDIS Act. The decisions are confined to a decision to review or not to review a plan. Section 49 of the NDIS Act, which is not referred to as a ‘reviewable decision’ in section 99 of the NDIS Act, deals with the actions a CEO must undertake if they decide to undertake a review of a participant’s plan under section 48(2) of the NDIS Act. They are to facilitate the preparation of a new plan with the participant in accordance with Division 2 of the NDIS Act.
A proper construction of Division 4 of the NDIS Act therefore suggests that it is not a mechanism leading directly to review of the statement of participant supports under the NDIS Act. Rather it directs a decision maker back to Division 2 of the NDIS Act.
Similar matters may be relevant to either a review of supports in a participant plan (section 33(2) of the NDIS Act or as to whether a plan should be reviewed (section 48(2) of the NDIS Act), but that does not extend the scope of the decision that may be made by the CEO under section 48(2) of the NDIS Act. In that regard Note 2 to section 49 of the NDIS Act states “[B]ecause the new plan is prepared in accordance with Division 2 [of the NDIS Act], a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) [of the NDIS Act] and be reviewable under subsection 99(1) [of the NDIS Act].”
Therefore, the Tribunal’s view is that the all the supports which the Applicant seeks to have reviewed are properly before it, providing that they are matters which could properly been before the original decision maker. Accordingly, there is no need for the Applicant to be heard with respect to the question of what were defined by the Respondent as ‘new supports’.
INTERLOCUTORY DECISION
For the reasons set out above the supports which the Applicant seeks to have reviewed are within the Tribunal’s jurisdiction.
I certify that the preceding 42
(forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher.…………………[SGD]………………..
Associate
Dated: 4 November 2021
Dates of directions hearing: 19 April 2021
Final submissions received:
Counsel for the Applicant:
Representative for the Applicant:
21 June 2021
Mr M Harding SC
Ms M Holland-King, AED Legal Centre
Representative for the Respondent: Mr C Bilboe, National Disability Insurance Agency
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