MVGS and National Disability Insurance Agency - [2024] AATA 433

MVGS and National Disability Insurance Agency [2024] AATA 433 (15 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1458, 2023/0460
Re:MVGS
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:15 March 2024
Place:Sydney

The internal review decision of 25 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which confirmed the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:

the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 24 September 2021, the commencement of Plan A:
(i)Level 2 transport support at the higher rate, per year.

The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date).

All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.

The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

.................[SGD]...................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant has autism spectrum disorder (Level 2), hypermobility spectrum disorder, and attention deficit hyperactivity disorder - reasonable and necessary supports – whether transport support should be included in the Applicant’s plan or in her mother’s plan – whether the Tribunal has jurisdiction to order the Respondent to reimburse or backpay the Applicant for past transport supports – decision remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Hill and National Disability Insurance Agency [2023] AATA 3626
XXWC by his mother and National Disability Insurance Agency [2020] AATA 923
SECONDARY MATERIALS
The National Disability Insurance Scheme – Operational Guidelines –
Planning, (web page) align="left">Including Specific Types of Supports in Plans Operational Guideline - Transport (web page) FOR DECISION
Senior Member D Connolly
BACKGROUND TO REVIEW

The Applicant is aged 14 and has been diagnosed with autism spectrum disorder (Level 2), hypermobility spectrum disorder, and attention deficit hyperactivity disorder (ADHD). She became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of the impairments associated with these conditions.
The Applicant lives with her mother, KGCW, and two of her siblings, KGWD and SMYG, in regional New South Wales. She was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MVGS and National Disability Insurance Agency

Details

AGLC: MVGS and National Disability Insurance Agency [2024] AATA 433
Case: [2024] AATA 433
Decision Date: 15 March 2024

CaseChat Overview and Summary

This matter concerned an application by MVGS (the Applicant) against the National Disability Insurance Agency (the Respondent) regarding the Applicant's National Disability Insurance Scheme (NDIS) plan. The Applicant has autism spectrum disorder (Level 2), hypermobility spectrum disorder, and attention deficit hyperactivity disorder. The core dispute revolved around whether transport support should be included in the Applicant's NDIS plan or her mother's plan, and crucially, whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to order the Respondent to reimburse or backpay for past transport supports. The decision was ultimately remitted for reconsideration.

The legal issues before the Tribunal were twofold: first, to determine whether transport support was a reasonable and necessary support for the Applicant and, if so, how it should be incorporated into the NDIS plan; and second, to ascertain the Tribunal's power to order the Respondent to reimburse the Applicant for transport support costs incurred prior to the inclusion of such support in her plan. The Tribunal was required to consider the scope of its review powers under the *National Disability Insurance Scheme Act 2013* (Cth) and the *Administrative Appeals Tribunal Act 1975* (Cth).

The Tribunal found that Level 2 transport support at the higher rate was a reasonable and necessary support for the Applicant and should be included in her plan. However, the Tribunal determined that it did not possess the jurisdiction to order the Respondent to reimburse the Applicant for past transport support expenses. This conclusion was based on the understanding that the Tribunal's power to review decisions under section 99 of the NDIS Act is limited to reviewing the approval of a statement of participant supports. The Tribunal reasoned that decisions regarding the payment or reimbursement of supports are not reviewable decisions under the NDIS Act, nor are they within the scope of the Chief Executive Officer's powers when approving a statement of participant supports. The Tribunal drew upon precedent, specifically *XXWC and National Disability Insurance Agency* [2020] AATA 923, which established that the Tribunal cannot order reimbursement for supports not included in the reviewed decision, as payment is a matter for the Agency.

Consequently, the Tribunal set aside the internal review decisions and remitted the matter for reconsideration. The directions included funding Level 2 transport support at the higher rate from the commencement of Plan A, replicating other reasonable and necessary supports for a specified period, and directing the Respondent to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for past expenses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Any reimbursement for monies expended on transport support prior to the implementation of this decision, and the way in which any amount to be reimbursed is calculated, is a matter for the Agency. DECISION The internal review decision of 25 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which confirmed the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:a.the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 24 September 2021, the commencement of Plan A:(i)Level 2 transport support at the higher rate, per year. b.The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date).c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.d.The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

Ratio Decidendi

Legal Principle Established

The Tribunal explained that its powers to make decisions are set out in the relevant law. It explained that reviewable decisions are listed in the NDIS Act (section 99) and that the relevant power in this case is the power to review a statement of participant supports. It indicated that it may find it does not have jurisdiction to order the Agency to reimburse a particular amount.CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL The Tribunal notes the parties have agreed that Level 2 transport support at the higher rate is a reasonable and necessary support. Having regard to the table of transport needs for the Applicant, and the Applicant’s mother’s oral evidence at the hearing, the Tribunal is also satisfied this is a reasonable and necessary support, that should be included in both Plan A and Plan B. There is nothing before the Tribunal to indicate that any of the other supports provided in Plan A and Plan B are not reasonable and necessary supports. The Tribunal has considered the Applicant’s request that the Tribunal order the Agency to reimburse the Applicant the equivalent amount that would have been paid if the transport support had been included in the Applicant’s statements of participant supports in Plan A and Plan B. It is apparent that, had the Level 2 transport support been included in Plan A and Plan B, a fortnightly deposit would have been paid for the support. Essentially the Applicant’s mother is now requesting that the Tribunal make an order that the Agency reimburse the equivalent amount. The Tribunal appreciates why the Applicant’s mother is making this request. However, for the following reasons the Tribunal has concluded it does not have the power to make such an order. As was explained at the hearing, the Tribunal’s powers to review the decisions in this case, being decisions to approve the statement of participant supports, are set out in the relevant law; paragraph 25(1)(a) of the AAT Act and section 99 of the NDIS Act. The review of a decision made by the CEO under subsection 33(2) of the NDIS Act to approve a statement of participant supports is provided for by item 4 of subsection 99(1). Such decisions were made by the CEO on 24 September 2021 and 18 November 2022. The internal reviewers confirmed both of the CEO’s decisions, made pursuant to subsection 33(2) of the NDIS Act, to approve the statement of participant supports included in Plan A, which did not include transport support. The Applicant then made an application to the Tribunal for review under paragraph 100(6)(a) of the NDIS Act. A similar request for reimbursement was made in XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 (XXWC), in which DP Forgie was asked by XXWC’s mother to make an order that the Agency reimburse the costs of early intensive behavioural intervention (EIBI) supports that had not been included in the statement of participant supports under review but were found by DP Forgie to be reasonable and necessary. DP Forgie decided she could not make the order noting that the decision affecting XXWC’s rights was the decision by the CEO to approve a statement of participant supports. She explained with respect to the decision to approve a statement of participant supports that:It is the operative decision that affected XXWC’s rights. It is not the decision made by the reviewer for the decision simply confirmed the CEO’s decision that was already operative.Once an applicant has lodged an application for review of a decision, the Tribunal has power to review that decision…For the purposes of reviewing a decision, the Tribunal “... may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.” This is subject to any qualification made by the enactment conferring the right to make an application for review of a decision. The CEO’s powers in deciding whether to approve, or not approve, a statement of participant supports under s 33(2) of the NDIS Act must be made having regard to criteria set out in provisions such as ss 33(5), 34 and 35….There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.[29](Emphasis added)[29] XXWC, para 121 – 124.