Mulipola and National Disability Insurance Agency

[2021] AATA 4442

Mulipola and National Disability Insurance Agency [2021] AATA 4442 (30 November 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/1479

Re:Levi Mulipola

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:30 November 2021

Place:Sydney

The Tribunal refuses the request made by the National Disability Insurance Agency on 12 October 2021 to dismiss Mr Levi Mulipola’s application pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal under section 42B of the Administrative Appeals Act (Cth) – application for review of decision that Supported Independent Living (SIL) is not a reasonable and necessary support pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – whether Tribunal satisfied the application has no reasonable prospects of success – application for dismissal refused

LEGISLATION

Administrative Appeals Act 1975 (Cth) s 42B

National Disability Insurance Agency (Cth) ss 31, 32, 33, 34

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

CASES

Filsell and Comcare [2009] AATA 90

McCarthy and Building Practitioners Board [2016] AATA 1029

Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895

Spencer v Commonwealth [2010] HCA 28

REASONS FOR DECISION

Dr L Bygrave, Member

30 November 2021

1. The applicant, Mr Levi Mulipola, is a participant in the National Disability Insurance Scheme (the NDIS). He has had NDIS plans approved for the periods from 16 November 2020 to 17 April 2021 and from 4 March 2021 to 4 March 2023.

2. The chronology of background events relevant to this matter are:

   ·16 November 2020: Mr Mulipola requested a review of his NDIS plan pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

   ·19 February 2021: the National Disability Insurance Agency (the NDIA) decided not to fund Mr Mulipola’s request for ‘Supported Independent Living (SIL) and to be deemed eligible’ (the internal review decision).[1]

   ·12 March 2021: Mr Mulipola applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

   ·29 April 2021 and 19 August 2021: orders were made in the Supreme Court New South Wales (NSW) in relation to Mr Mulipola.

   [1] ‘T’ documents, page 14.

3. On 12 October 2021, the NDIA wrote to the Tribunal seeking the dismissal of Mr Mulipola’s application pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that his ‘application for review is unmeritorious and has no reasonable prospects of success’.[2]

   [2] Letter from the Respondent’s legal representative dated 12 October 2021, paragraph 20.

4. At the direction of the Tribunal, the legal representatives for the NDIA and Mr Mulipola filed detailed written submissions on 5 November 2021.

5. Further oral submissions from the parties’ legal representatives were heard by the Tribunal at an interlocutory hearing in Sydney on 10 November 2021.

   RELEVANT LEGISLATION AND LEGAL PRINCIPLES

   The Administrative Appeals Tribunal Act 1975 (Cth) and relevant authorities

6. Section 42B of the AAT Act relevantly states:

   (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal.

   (2)  If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

   (3)  The direction has effect despite any other provision of this Act or any other Act. [emphasis added]

7. The discretionary powers of the Tribunal to dismiss an application under section 42B of the AAT Act have been extensively considered by the Courts and the Tribunal. In particular, I note the following authorities elucidate the issues to be considered; both generally in relation to dismissing an application pursuant to section 42B of the AAT Act and, more specifically, where an application ‘has no reasonable prospect of success’ as set out in paragraph 42B(1)(b) of the AAT Act.

8. The High Court, in Spencer v Commonwealth [2010] HCA 28, stated that ‘the exercise of powers to summarily terminate proceedings must always be attended with caution’ and it is readily ‘accepted the power to dismiss an action summarily is not to be exercised lightly’.[3]

   [3] At [24], [60].

9. In the decision of Filsell and Comcare [2009] AATA 90, Deputy President Jarvis provided a rationale for dismissing proceedings under section 42B of the AAT Act where there is ‘no reasonable prospect at all of success’, noting that:

   …it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.[4]

   [4] At [33].

10. The Deputy President also outlined the converse situation, especially at the early stages of proceedings at the Tribunal, stating:

    Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.

    Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings… [T]hese matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B.[5] [emphasis added]

    [5] At [33].

11. Deputy President Alpins, in Re Paraponiaris and Secretary, Department of Employment, provided a comprehensive review of relevant authorities in considering the Tribunal’s power under section 42B of the AAT Act, stating:

    The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).

    The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).

    Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).[6] [emphasis added]

    [6] [2015] AATA 895 at [23]-[25].

12. Finally, in McCarthy and Building Practitioners Board [2016] AATA 1029, Deputy President Forgie explained the scope of the Tribunal’s powers under section 42B of the AAT Act, noting that the Tribunal:

    …may exercise the power at any stage of the proceeding if it is satisfied that the application meets one of the descriptions set out in s 42B(1)(a) to (c). That means that the Tribunal must engage in a two-step process. Is it satisfied that it meets one or more of those descriptions? If so, should it exercise the power? The second question must be asked because the power is expressed in discretionary terms. The Tribunal “may” dismiss the application and there is nothing in the context of s 42B or in the AAT Act generally that dispels the use of that word to signify a discretion.[7] [footnote omitted] [emphasis added]

    [7] At [14].

    The statutory provisions of the National Disability Insurance Scheme

13. Chapter 3 of the NDIS Act outlines provisions for participants and their plans: section 31 outlines principles relating to participants’ plans, and section 32 sets out that the CEO (of the NDIA) must facilitate the preparation of a participant’s plan.

14. Section 33 of the NDIS Act sets out matters that must be included in a participant’s plan: pursuant to paragraph 33(2)(b), a participant’s plan must include a statement that specifies the ‘reasonable and necessary supports’ that will be funded under the NDIS.

15. Relevant to Mr Mulipola’s application to the Tribunal, subsection 34(1) of the NDIS Act sets out the following criteria for funding reasonable and necessary supports:

    Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)     as part of a universal service obligation; or

    (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [emphasis added]

16. Subsection 34(2) of the NDIS Act further states that the NDIS rules ‘may prescribe methods or criteria to be applied’, or matters to which the CEO is to have regard, in deciding whether or not they are satisfied of the matters mentioned in subsection 34(1). I note the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) form part of the legislation and are also relevant to assessing and determining the reasonable and necessary supports that will be funded for participants under the NDIS.

    THE APPLICANT’S CIRCUMSTANCES AND BACKGROUND OF THE MATTER

17. In written submissions dated 12 October 2021, the NDIA outlined the following undisputed facts regarding the circumstances of the applicant and the background of the matter:

    ·Mr Mulipola is 48 years old. He has a cognitive impairment consistent with mild intellectual disability and has also been diagnosed with alcohol and illicit substance misuse.

    ·Mr Mulipola has been in custody since 2013, residing in an additional support unit.

    ·On 7 September 2020, Mr Mulipola lodged a ‘Change of Circumstances Form’ with the NDIA that stated he would be transitioning from custody to the community.

    ·On 16 November 2020, the NDIA approved a NDIS plan for Mr Mulipola for the period from 16 November 2020 to 17 April 2021; this plan did not include funding for SIL.

    ·Mr Mulipola’s advocate requested a review and, on 19 February 2021, the internal review decision made by the NDIA maintained that SIL funding was not a reasonable and necessary support in accordance with section 34 of the NDIS Act, specifically paragraphs 34(1)(c), (d) and (f).

    ·On 4 March 2021, the NDIA approved a new NDIS plan for Mr Mulipola for the period from 4 March 2021 to 4 March 2023.

    ·Separate to the Tribunal application, decisions were made relating to Mr Mulipola in the Supreme Court NSW on 29 April 2021 and 19 August 2021.

18. Also relevant to these facts, in a statement dated 5 November 2021, the applicant’s legal representative advised she was notified on 6 September 2021 that Mr Mulipola had received Community Safety Funding and, as a result, he had been released from custody into the community.[8]

    [8] Statement of Ms Suzanne Parker, Solicitor for the Applicant, Legal Aid NSW, 5 November 2021.

    THE RESPONDENT’S SUBMISSIONS – DISMISSAL

19. In written submissions dated 5 November 2021, the NDIA provided a summary of the medical evidence about Mr Mulipola that was before the Tribunal (as at that date) including:

    ·assessments by and reports from psychologists, occupational therapists and a behavioural support practitioner; and

    ·a review of medical evidence set out in the Supreme Court decisions on 29 April 2021 and 19 August 2021.

20. The NDIA also referred to the Supreme Court NSW judgement dated 29 April 2021, which included (amongst many other statements) the following information:

    [The applicant’s] limiting term expires on 12 May 2021… On 10 March 2021, the Mental Health Review Tribunal (MHRT) made an order for his conditional release, subject to the grant of funding for supported living.[9] [emphasis added]

    [9] Attorney General for New South Wales v Mulipola (Preliminary) Supreme Court New South Wales, 29 April 2021, paragraph 8.

21. The NDIA’s written submissions stated Mr Mulipola’s application for review is unmeritorious and has no reasonable prospects of success for the following reasons:

    ·the requested support of SIL funding:

    ois not related to his disability (rules 5.1(b) and 7.7(d) of the Support Rules);

    ois to minimise his risk of reoffending (rule 7.25 of the Support Rules);

    oposes a risk to others (rule 5.1(a) of the Support Rules);

    ·the NDIS does not provide homelessness-specific services (rule 7.20 of the Support Rules); and

    ·there are other reasonable cost-effective alternatives to SIL available under general systems (paragraphs 34(1)(c) and (f) of the NDIS Act).

22. In oral submissions to the Tribunal on 10 November 2021, the NDIA referred to the Supreme Court NSW judgements dated 29 April 2021 and 19 August 2021 and contended the primary reason SIL funding has been requested is to minimise the risk of Mr Mulipola reoffending after his release from custody. Relying on rule 7.25(c) of the Support Rules, the NDIA submitted that SIL funding used to minimise the risk of a person offending or re-offending is not the responsibility of the NDIS.

23. Based on the available medical evidence, the NDIA submitted that Mr Mulipola was capable of living independently and his request for SIL did not relate to his mild intellectual disability, but rather his alcohol and illicit drug use. The NDIA proposed that supports relating to the risk of Mr Mulipola relapsing should be provided through NSW Health.

24. The NDIA further contended that Mr Mulipola’s NDIS plan approved on 4 March 2021 includes funding for supports to assist him with personal domestic activities and claimed this funding would assist Mr Mulipola to achieve the same goals of independent living as SIL funding. 

25. In conclusion, the NDIA contended that the requested SIL funding for Mr Mulipola did not meet the requirements of paragraphs 34(1)(c), (d) and (f) of the NDIS Act and therefore, the matter should be dismissed on the basis of no reasonable prospects of success.

    THE APPLICANT’S SUBMISSIONS

26. Mr Mulipola’s legal representative filed written submissions on 5 November 2021; they contended that his case has a reasonable prospect of success as he is a person with a disability, an eligible participant of the NDIS, and ‘SIL with 24-hour on-site shared support is a reasonable and necessary support that ought to have been included in his NDIS plan’.[10]

    [10] Applicant’s Submissions 5 November 2021, paragraph 11.

27. The applicant’s legal representative noted that:

    SIL is a type of support routinely funded [by] the…NDIA for participants in the NDIS. The purpose of SIL is stated in the Operational Guidelines for SIL. The Operational Guidelines state: “SIL is help with or supervision of daily tasks to help you live as independently as possible, with rebuilding your skills”. SIL is a type of support that is capable of being disability-related, it has the character of a disability-related support, and it is therefore the type of support funded by the NDIA.[11]

    [11] Applicant’s Submissions 5 November 2021, paragraph 12.

28. Regarding the Supreme Court judgements, the applicant’s legal representative contended that Mr Mulipola’s contact with the criminal justice system is not determinative of the issue before the Tribunal, that is whether SIL meets the criteria in subsection 34(1) of the NDIS Act. The applicant’s legal representative submitted that the question before the Supreme Court was whether forensic status should be extended based on a two-part test at section 122 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The Supreme Court did not establish what supports, if any, were required because of Mr Mulipola’s disability.

29. Further, the applicant’s legal representative stated their intention to file further evidence in support of the applicant’s position – that SIL is a support related to Mr Mulipola’s disability and is a reasonable and necessary support. Relevantly, a further report by an occupational therapist was provided to the Tribunal on 9 November 2021.

30. In oral submissions on 10 November 2021, the applicant’s legal representative highlighted the extensive medical evidence regarding Mr Mulipola and observed that the NDIA’s oral and written submissions made to the Tribunal about the evidence shows ‘there is clearly something to argue about’ and the evidence should be evaluated at a substantive hearing.  

    CONSIDERATION

1. I concur with the authorities that the discretionary power of the Tribunal to dismiss an application for no reasonable prospects of success under paragraph 42B(1)(b) of the AAT Act should be exercised with caution. I also consider that, to dismiss an application prior to a substantive hearing, I need to be satisfied to a high degree of certainty about the ultimate outcome if the matter proceeded to hearing in the ordinary way.

2. In view of these considerations, I make the following observations about the substantive application based on the documents filed and the submissions made to the Tribunal.

3. First, there is extensive medical evidence before the Tribunal in relation to Mr Mulipola. This evidence includes comprehensive assessments by and reports from psychologists, psychiatrists, occupational therapists, and a behavioural support practitioner. A brief review of this evidence indicates some differences of expert opinion about Mr Mulipola, and it would be anticipated that these different opinions would be further extrapolated in the course of a substantive hearing.

4. My second observation is that, as this matter remains in the early stages of proceedings before the Tribunal, the applicant may seek to submit further medical evidence. The applicant’s legal representative stated that there have been difficulties with access to Mr Mulipola due to the lockdown in Greater Sydney from June to October 2021, and this has delayed them obtaining further evidence in the matter. The option for the applicant to file further evidence means the application may not be readily ascertainable at this point in time.

5. Third, even on a preliminary examination, it is clear this matter involves complexities in relation to the intersection between the NDIS and the criminal justice system. It is also apparent that there are real and significant issues – both in relation to the factual evidence and the law – that require consideration and determination at a substantive hearing. Indeed, it would be unjust for Mr Mulipola to not allow these issues to be considered, particularly noting that his contact with the criminal justice system should not prevent his matter from proceeding in its ordinary course.

6. In view of these observations, it is not apparent whether the NDIA gave appropriate consideration to the additional expense to the parties’ and the use of the Tribunal’s time and resources in making this application for dismissal. It is very clear that this is not a case where there is a high degree of certainty about the outcome of a substantive hearing. It is also not a case where it would be futile for the proceedings to continue, or an inappropriate use of the time and resources of the Tribunal to consider the issues for determination.

7. For these reasons, I do not consider it appropriate to dismiss Mr Mulipola’s application on the basis that it has no reasonable prospects of success.

8. I refer the matter for case management and otherwise, for hearing.

   DECISION

9. The Tribunal refuses the request made by the National Disability Insurance Agency on 12 October 2021 to dismiss Mr Levi Mulipola’s application pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 30 November 2021

Date(s) of hearing:	10 November 2021
Advocate for the Applicant:	Ms Linda Rodrigues, Legal Aid NSW
Solicitors for the Applicant:	Ms Suzanne Parker, Legal Aid NSW
Solicitors for the Respondent:	Ms Naoimh Donaghy, AGS