Nairn and National Disability Insurance Agency
[2017] AATA 242
•28 February 2017
Nairn and National Disability Insurance Agency [2017] AATA 242 (28 February 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2016/6791
NATIONAL DISABILITY INSURANCE SCHEME DIVISION )Re:CHRISTOPHER NAIRN
Applicant
And:NATIONAL DISABILITY INSURANCE AGENCY
Respondent
CORRIGENDUM TO DECISION
The Tribunal amends its decision of 28 February 2017 by deleting the word ‘SCHEME’ from the name of the respondent.
…[sgd]……..
S A FORGIE
Deputy President
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2016/6791
Re: CHRISTOPHER NAIRN
APPLICANT
And:NATIONAL DISABILITY INSURANCE SCHEME AGENCY
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 28 February 2017
Place Melbourne
The Tribunal decides that:
(1)the decision under review by the Tribunal:
(a)is a decision by the respondent to decline to review the applicant’s plan under s 48(2) of the National Disability Insurance Scheme Act 2013; and
(b)is not a decision by the respondent to review the applicant’s participant’s plan under s 48(4) or to approve a statement of supports under s 33(2) of the National Disability Insurance Scheme Act 2013; and
(2)the Tribunal:
(a)has jurisdiction to review the decision by the respondent to decline to review the applicant’s plan under s 48(2) of the National Disability Insurance Scheme Act 2013; and
(b)does not have jurisdiction to review the applicant’s participant’s plan under s 48(4) or to approve a statement of supports under s 33(2) of the National Disability Insurance Scheme Act 2013.
…[sgd]………….
Deputy President
CATCHWORDS – NATIONAL DISABILITY INSURANCE SCHEME – characterisation of decision made by delegate of Chief Executive Officer – whether decision not to review plan or decision approving statement of participant supports – decision not to review plan.
PRACTICE AND PROCEDURE – JURISDICTION – Tribunal’s jurisdiction to review decisions under the National Disability Insurance Scheme Act 2013 limited to those made by a reviewer under s 100(6) and so to operative decisions described as “reviewable decisions” in s 99.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 25, 43
National Disability Insurance Scheme Act 2013, ss 3, 9, 13, 31, 32, 33, 34, 36, 47, 48, 50, 51, 99, 100, 101, 204, 209
Safety, Rehabilitation and Compensation Act 1988, ss 60, 62, 64
Tribunals Amalgamation Act 2015, s 3 and Schedule 1, Item 40National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013
CASES
Collector for Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307
Comcare v Burton (1998) 157 ALR 522
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427
Re Burston and National Disability Insurance Agency [2014] AATA 456
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246SECONDARY MATERIAL
Victorian Quality and Safeguards Working Arrangements for Transition
REASONS FOR DECISION
CONSIDERATION
Mr Christopher Nairn is a participant in the National Disability Insurance Scheme established under the National Disability Insurance Scheme Act 2013 (NDIS Act). His mother, Ms Dawn Holder, requested a review of his participant’s plan under s 48(1). In response, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Scheme Launch Transition Agency (NDIA)[1] decided to refuse her request and another delegate confirmed her decision under s 100(6).
[1] The National Disability Insurance Scheme Act 2013 establishes the National Disability Insurance Scheme Launch Agency under s 117. It defines that body as the “Agency”: see s 9. No reference is made in the legislation to a body known as the "National Disability Insurance Agency” (NDIA) and no provision is made for the name of the Agency to be changed by, for example, legislative instrument or some other means. In recognition of what seems to be common usage, I have referred to the Agency as the NDIA.
A preliminary issue has arisen as to the nature of both the original decision and the decision on review and, as a consequence, the powers and discretions that the Tribunal may exercise in reviewing that decision. Is the decision a decision made under s 48(2) not to conduct a review of Christopher’s plan or is it a decision under s 33(2) not to approve a statement of participant supports? I have decided that the decision under review is that made under s 48(2) and confirmed under s 100(6) of the Tribunal’s powers are strictly limited to deciding whether or not Christopher’s participant plan should be reviewed. They do not extend to its reviewing the plan or to making a decision under s 33(2) regarding Christopher’s statement of participant supports.
OUTLINE OF ISSUES AND SUBMISSIONS
On behalf of Mrs Holder, Ms Siskovic submitted that the issues in this case revolve around the identification of the decision that is under review. Both parties agree that the relevant reviewable decision is that which a delegate of the CEO made on 2 December 2016. That is a decision that is described by the decision-maker as having been made under s 48(2) and as a decision not to review Christopher’s plan. Ms Siskovic has submitted that, having regard to the intended operation of s 48 and to the decision that was actually made, I should find that the CEO decided to conduct a review of Christopher’s plan and commenced to conduct that review within 14 days of making that decision as required by s 48(3). The delegate considered whether to approve Christopher’s statement of participant supports in the plan under s 33(2) by considering the criteria under s 34 of the NDIS Act in both the initial decision and the decision on internal review. That was part of the review conducted by the CEO under s 48(2). Such a review is consistent with the NDIA’s Operational Guidelines. It is also consistent with s 48 itself because it was introduced to ensure that a participant’s plan may be reviewed over time to take into account changing circumstances.
Therefore, Ms Siskovic submitted, the reviewable decision should be taken not only to be a decision made under s 48(2) refusing to review Christopher’s plan but also as a decision under s 48(3) reviewing that plan. The review under s 48(3) enlivens the CEO’s powers under s 33(2) to consider whether to approve a statement of supports. That, in turn, requires a consideration of the matters set out in s 34. The Tribunal can, therefore, undertake the same consideration and set aside the decision.
BACKGROUND
Part 2 of the Plan set out Christopher’s goals and aspirations, which were, in summary, to have:
(1)a meaningful quality of life while being active and comfortable in his environment;
(2)a holiday or go on a camp;
(3)live in a home where he is supported, happy and comfortable;
(4)the opportunity to attend therapies that enhance and strengthen his health and wellbeing;
(5)regular contact with his family; and
(6)the opportunity to develop his communication abilities by participating in therapies and activities supporting their development.[2]
[2] T documents; T27 at 147
For over three years, Christopher has been living at supported accommodation, which is managed by Gateways Support Services (Gateways). In that time, he is said to have displayed a range of complex behaviours ranging from property damage to assault of other residents. Gateway’s Accommodation Manager referred to specific incidents in his undated memorandum to an NDIS Planner. The index to the T documents indicates that it was written or received on 26 November 2016. Given the reference to events after 1 July 2016 and the number of those events, that would seem to accord with its being written on 26 November 2016.
The Accommodation Manager refers to Gateway’s having used every cent of Christopher’s complex funding and beyond to provide extra staff so that he can have one on one support the majority of the time in order to manage his behaviour. At times, Christopher’s behaviour is very settled for a period but then he begins to target property and other residents and staff. That means that Christopher’s behaviour is very unpredictable so that other residents and the staff find themselves in a very stressful situation. The Accommodation Manager wrote in his letter to the NDIS Planner:
“I have expressed to his family and support coordinator that I am concerned with this level of behaviour and he was to hurt someone or he continues to have others living in fear, then this is not the right home for him and we would have to meet to discuss the possibility of him moving on for the safety of others.
I feel that planning may need to start occurring around looking for alternative accommodation option for Chris as clearly this one is not working for all other participants. We have managed Chris and on a whole have had him fairly settled the majority of the time. However, the risk he poses is significant and I am concerned that and it may only be a matter of time before someone is seriously injured.
I hope that the NDIS and his support team can review his current living situation and plan for a more appropriate living option before there is a crisis and he is required to leave his current living situation.”[3]
[3] T documents; T3 at 11
In approximately September 2016 and with the intention of giving her son, staff and his family a better quality of life, Mrs Dawn Holder purchased a property. She and her daughter, Ms Rebecca Nairn, completed a document headed “Requesting a Plan Review Form”. In response to a question asking about the changes that had occurred in her son’s life that affected his plan, she set out her concern regarding his increasing anxiety levels and his consequent behaviour to harm himself and others around him. She gave details of his behaviour and of his decreasing ability to communicate as he becomes more anxious. Mrs Holder set out her concerns with the current accommodation arrangements and her concerns for the staff and the difficulties that they face. She set out a proposal for alternative accommodation for her son including a quotation from a potential alternative health care provider: Faapitoa Care Services (FCS). On 14 September 2016, Mrs Holder lodged the documents with the NDIA.[4]
[4] T documents; T10 at 47-61
Ms Stangel was the CEO’s delegate responsible for considering Ms Holder’s request. In an email dated 27 September 2016, Ms Stangel advised that she had extended the period within which she had to respond by 14 days i.e. a further 14 days beyond the 14 days permitted by s 48(2). Ms Stangel referred to the basis on which she could make that extension in the following passage:
“As a delegate of NDIA and under the legislation Division 4 – 48 Review of a participants plan (@) note 1 The period may be extended under the National Disability Insurance scheme rules made under section 204.”[5]
[5] ST documents; ST1 at 1. Although I note that Note 1 to s 48(2) states that the period may be extended under National Disability Insurance Scheme rules made under s 204, that Note does not, of itself, authorise an extension of the time. The rules, and so any extension of the time stipulated in s 48(2), must actually be made under s 204 before an extension of time is permitted under them. That section sets out the parameters within which the rules may extend time for particular decision to be made or act to be done. I have looked at all of the National Disability Insurance rules and can find only one set that has been made for the purposes of s 204. Those rules are the National Disability Insurance Scheme (Timeframes for Decision Making) Rules 2013. They are concerned only with timeframes for making decisions in connection with a request for a person to become a participant in the NDIS launch and apply only for a limited time. As Christopher is already a participant, these rules have no application in this case. There may be other National Disability Insurance Scheme rules that apply but, if there are, they have not been brought to my attention. If I am correct in thinking that the time stipulated in s 48(2) has not been extended, the CEO would have been deemed to have decided not to conduct a review of Christopher’s plan well before Ms Stangel made her decision to the same effect. For the purposes of deciding the issue of the extent of the Tribunal’s power in reviewing a decision under s 48(2), the discrepancy in timing is of no relevance in this case. The decision has been reviewed by another delegate of the CEO under ss 100(5) and (6). That is so whether that review was conducted in response to a request by Ms Holder to the decision that Ms Stangel made, as would seem to be the case, or as required by s 100(5)(b) when a decision is taken to have been made under s 48(2).
On 14 October 2016, Ms Stangel, who is a delegate of the Chief Executive Officer (CEO) of the NDIA for the purposes of s 48(2), wrote to Mrs Holder to tell her that she had decided not to review Christopher’s plan at this time. Ms Stangel stated that she had based her decision on the material in Mrs Holder’s written request and on FCS’s service proposal and quote attached to that request. She noted that FCS’s proposed service would represent a significant increase in the level of support provided to Christopher. Ms Stangel continued:
“Before any support is added to a participant’s plan the NDIA must be satisfied that support represents value for money in that the costs of the support are reasonable as compared to the benefits achieved and the cost of alternative support (section 34(1)(c)).
When deciding whether a support represents value for money, the NDIA must consider the following matters:
1.whether there are comparable supports which would achieve the same outcome at a substantially lower cost (rule 3.1(a) of the Supports for Participants Rules);
2.whether there is evidence that the support would substantially improve the life stage outcomes for, and be of long-term benefit to, the participant (rule 3.1(b)) of the Supports for Participants Rules);
3.whether funding or provision is likely to reduce the cost of the funding of supports for the participant in the long term. For example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports (rule 3.1(c) of the Supports for Participants Rules);
4.for supports that involve the provision of equipment or modifications:
i.the comparative cost of purchasing or leasing the equipment or modifications (rule 3.1(d)(i) of the Supports for Participants Rules); and
ii.whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications (rule 3.1(d)(ii) of the Supports Participants Rules);
5.whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides (rule 3.1(e) of the Supports Participants Rules); and
6.whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports. For example, some home modifications may reduce a participant’s need for home care (rule 3.1(f) of the Supports for Participants Rules).
Based on the service proposal provided, I am not satisfied that items 1, 2, 3 or 5 above are met.
With regard to item 1 and 5, I have compared the total cost of the service proposal to the cost of shared accommodation (looking at the published NDIS prices available at I have copied the relevant rates below for your reference. The evidence provided to date does not clearly indicate that improving outcomes for Christopher can only be achieved through a transition to 1:1 24/7 support. Alternate shared accommodation or adjustments to current accommodation arrangements could achieve similar outcomes at a substantially lower cost.
…
… therefore it is recommended that Chris’s support model remain at a level that provides opportunities for one-on-one support throughout the day, and at key periods of time throughout the week and weekends in order to assist Chris in reducing his anxiety, and engage positively with his daily activities.
…
… [T]he FCS proposal does not provide evidence that support will substantially improve the life stage outcomes for Christopher, nor that funding or provision of the support is likely to reduce the cost of the funding of supports for Christopher in the long term. The 3, 6 and 12 month outcomes are not underpinned by a detailed plan with specific and measurable targets that would usually be provided with a request for a significant increase in 1:1 support. The proposed reduction over the transition period is from high intensity to standard rate and potential reduction of overnight supports. The life time cost of this level of support provision is significant when compared with shared living options.
Data provided to the NDIA to date does not indicate an increase in anxiety, damage to property, staff and others and self – as indicated on the review request form.
…
Finally, I understand that your preferred provider FCS is neither NDIS nor DHHS registered. On the evidence and information available to me I was not satisfied that this level of support provided by an unregistered provider does not present an unreasonable risk to Christopher. This decision is based on section 44 of the NDIS Act 2013: regarding the plan management decision, the NDIS delegate must be satisfied that the arrangement does not present an unreasonable risk to the participant.
In this case, there is limited evidence that the following requirements have been met (as outlined in Section 73 of the NDIS Act 2013):
· compliance with the prescribed safeguard
· compliance with prescribed quality assurance standards and procedures
· mandatory reporting requirements for incident reporting.In contrast, registered providers must adhere to specific quality and safeguards that minimise risk to the participant and others. Victorian approved NDIS providers of disability services must ensure that services are provided in compliance with all applicable Victorian and Australian laws, policies and guidelines. This may include, but is not limited to:
…
Providers registered under the Disability Act 2006 are subject to independent review once in every three year period. Providers must operate in accordance with the Disability Act 2006 including obligations with respect to complaints, Community Visitors and restrictive interventions. Where a disability support provider has its registration under the Disability Act 2006 revoked for any reason this will also mean loss of status as a Victorian approved NDIS provider for services in scope of the Act.
If you would like to discuss this decision not to review Christopher’ NDIS plan at this time please call the NDIA …
…”[6]
[6] T documents; T7 at 37-41
On 4 November 2016, Mrs Holder sought internal review of the NDIA’s decision. She described the decision of which she was seeking review as “Accommodation – Re Letter from Jodie Stangel Letter received 18/10/16”.[7] Her reason for seeking review is difficult to read but is, I think, to the effect that she needed to have Christopher safe.
[7] ST documents; ST2 at 5
A delegate of the CEO for the purposes of s 100(5), Ms Davids, carried out that internal review. In a decision dated 2 December 2016, she affirmed the decision. She stated that she had taken into account the following: the NDIS Act; the Operational Guideline – Planning and Assessment – Supports in the Plan – Personal Care Supports; the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules); and the Victorian Quality and Safeguards Working Arrangements for Transition (Commonwealth/Victorian Agreement). Ms Davids considered how Ms Stangel had applied the criteria in s 34 of the NDIS Act.[8]
[8] Set out at [10] below
Ms Davids summarised several conversations that she had previously had with both Mrs Holder and others concerned with Christopher’s care. The main points that she has either understood or has concluded from those conversations are:
(1)Mrs Holder feels that her son’s current accommodation situation does not meet his needs and she would like him to have a house to himself.
(2)Mrs Holder reported multiple incidents at the house and in her son’s day program as well as written complaints from the parents of other participants.
(3)The Gateways team have worked with Christopher for some years and have developed strategies for how best to support him in his home. They have put time and effort into identifying his triggers, learning how to manage his behaviours and in promoting a good quality of life for him and his fellow residents with the amount of social participation that he is able to cope with.
(4)Mrs Holder was concerned that her son is feeling socially isolated in his current accommodation and yet she proposes that he live on his own with no social participation other than that provided by paid carers. The NDIA does not regard socialisation with paid carers as social participation. At his present accommodation, her son can live independently in his own living space but still have opportunities for social participation with other residents at the property.
(5)The house that Mrs Holder has purchased is made of concrete with steel framed windows and doors. She feels that her son will not be able to do as much damage to them but he may do more damage to himself. Both he and his carers would find broken limbs and the like difficult to manage.
(6)There are concerns with exposing Christopher to the risks of care being provided by an unregistered provider. In addition to any such risks, the NDIA cannot fund a non-registered care agency to provide support. That is one of the terms of the Commonwealth/Victorian Agreement.
(7)NDIA staff, who have been involved with Christopher since he became an NDIS participant, have expressed their views that:
(a)the team at his present accommodation are well trained and well supported in caring for him and in integrating the strategies used to manage his behaviours with those of the other residents;
(b)that team understands what triggers Christopher’s behaviours and both minimises them and manages incidents using a consistent methodology. In doing so, the team has created an environment which promotes an optimum quality of life for Christopher; and
(c)first Lancaster Consulting, and now LifeAssist, has provided mentoring and oversight for the team at Christopher’s accommodation. The incident reporting data has shown that the severity of the incidents involving Christopher has decreased. That indicates the effectiveness of the program.
Ms Davidson’s main points in conclusion were:
“There are additional requirements I have had to consider in relation to the Support for Participant Rules which also present a potential problem relating to the changes in Christopher’s accommodation that you are considering. The NDIS fund cannot fund a support if it is likely to cause harm to the participant [paragraph 5.1(a)]. I am concerned that moving Christopher out of … into your new property could put him at risk of a potentially serious physical injury due to the building materials of the dwelling and could cause unreasonable risk of him losing the progress that he has made to date due to being managed well by the … team.
Jodie Stangel decided not to review the plan because she felt that Christopher’s current living situation at … is the most suitable option to enable him to achieve his goals. It allows him to be as independent as he chooses whilst still having opportunity to engage socially with his fellow residents if he wishes, and there is a trained team in place which is managing his risk behaviours. This is having a positive effect, as shown in the Incident Reports Summary table (see Jodie’s letter). The existing NDIS plan supports the continuation of this situation.
I agree with Jodie’s opinion in relation to your request and, in particular, echo her concerns about your intent to change providers to a provider which has been unable to meet the basic quality and safeguarding standards required by the Victorian government for service agencies providing supporting living care to NDIS participants.
When we spoke I explained that the Agency makes funding decisions using the reasonable and necessary framework detailed in section 34 of the NDIS Act but the way the funding, once provided, is used is decided by the participant or their representative, in this case – you… The only qualification on this, in relation to Christopher’s supported accommodation funding, is the requirement to use a registered provider as above.
As such, you are able to move Christopher into another residence, whether it be your property or another dwelling using the supported accommodation funds in his plan to pay any registered provider of your choice. The money allocated in the plan for Christopher to remain at the … residence remains reasonable and necessary for NDIS to fund and does not require a change. That said, you are able to use these funds to pay another provider if you choose to move him. Note however that as the … residence is considered a suitable option for him, the funding in the NDIS plan will not be increased if a move results in additional costs being incurred.
As with all other supports, the NDIS plan represents the maximum amount the NDIS will fund for a participant’s supports. Participants and their informal supports can always choose to contribute funds additional to NDIS funds should they wish to purchase higher cost supports.
For the above reasons I have decided not to change the original decision made by the Agency to not review the current plan.”[9]
[9] T documents; T2 at 8
LEGISLATIVE FRAMEWORK
Among the objects of the NDIS Act is the provision of a National Disability Insurance Scheme (NDIS).[10] Part 1 of Chapter 3 of the NDIS Act is concerned with a person’s becoming a participant in the NDIS. There is no question that Christopher is a participant. When a person becomes a participant, the CEO must facilitate the preparation of his or her plan and do so in accordance with the National Disability Insurance Scheme rules.[11]
[10] NDIS Act; s 3(1)(b)
[11] NDIS Act; s 32
General principles relating to a plan
Section 31 of the NDIS Act sets out the principles relating to plans:
“The preparation, review and placement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should be 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.”
Plan must include a statement of goals and aspirations and a statement of participant supports
A participant’s plan must include a statement of goals and aspirations prepared by the participant. It must also include a statement of participant supports approved by the CEO.
A.Statement of goals and aspirations
A statement of goals and aspirations specifies two categories of information. The first relates to the participant’s goals, objectives and aspirations. The second relates to the environmental and personal context of the participant’s living including his or her living arrangements, informal community supports and other community supports and social and economic participation.[12]
[12] NDIS Act; s 33(1)
B. Statement of participant supports
A participant’s plan must also include a statement of participant supports prepared with him or her and approved by the CEO. It must specify any general supports that will be provided to, or in relation to, the participant, any reasonable and necessary supports that will be funded by the NDIA, the date by which, or circumstances in which, the NDIA will review the plan, the management of the funding for supports under the plan and the management of other aspects of the plan.[13]
[13] NDIS Act; s 33(2)
In deciding whether or not to approve a statement of participant’s supports, the CEO must:
“(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to the 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.”[14]
[14] NDIS Act; s 33(5)
The expression “general supports” means:
“(a) a service provided by the Agency to a person; or
(b)an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.”[15]
[15] NDIS Act; ss 9 and 13(2) The NDIA may provide general supports to, or in relation to, a person with a disability who is not a participant: NDIS Act; s 13(1)
Section 34(1) provides that:
“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;
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”
For the purpose of preparing or reviewing a statement of participant supports, the CEO may make one or more of the requests specified in s 36(2).[16] Those requests are:
“(a) that the participant or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports;
(b)that the participant do either or both of the following:
(i)undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii)undergo, whether or not at a particular place a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.”
[16] NDIS Act; s 36(1)
Section 36(3) provides for the time at which the CEO may prepare a statement of participant supports or approve a statement of participant supports. The CEO may do so before all the information and reports requested under s 36(2) but must give the participant a reasonable opportunity to provide them. The note to the subsection states that, if information or reports are provided after the plan is approved, the plan can be reviewed and, if necessary, replaced.
Section 33(6) requires that:
“To the extent that funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered provider of supports.”
When does a participant’s plan come into effect?
A participant’s plan comes into effect when the CEO has received his or her statement of goals and aspirations and has approved the statement of participant supports.[17] A participant’s plan cannot be varied after it comes into effect but can be replaced under Division 4 of Part 2 of Chapter 3 of the NDIS Act.[18] A participant’s plan ceases to be in effect at the earlier of the following times: it is replaced by another plan under Division 4; or the participant ceases to be a participant.[19]
[17] NDIS Act; s 37(1)
[18] NDIS Act; s 37(2)
[19] NDIS Act; s 37(3)
Reviewing and changing a participant’s plan
There are two ways in which a participant’s plan may be changed. One comes about by the participant’s own action in changing his or her goals and aspirations. The other comes about by a review of the participant’s plan.
A. Change of participant’s statement of goals and aspirations
A participant may, at any time, give the CEO a changed version of his or her statement of goals and aspirations.[20] If a participant chooses to do that, his or her plan is taken to be replaced by a new plan comprising:
“(a) the changed version of the participant’s statement of goals and aspirations; and
(b)the statement of participant supports in the existing plan.”[21]
The NDIA is required to give the participant a copy of the new plan within seven days of its receiving the changed version of his or her statement of goals and aspirations.[22]
[20] NDIS Act; s 47(1)
[21] NDIS Act; s 47(2)
[22] NDIS Act; s 47(3)
B. Review of participant’s plan
A participant may request the CEO to conduct a review of his or her plan at any time.[23] If he or she does make such a request, the CEO must decide whether or not to accede to it within 14 days of receiving it. As provided for in s 204 of the NDIS Act, the period may be extended under National Disability Scheme Rules made under s 209 but no such extension has been prescribed.[24] If the CEO does not make a decision within the time permitted, he or she is taken by s 48(2) to have decided not to conduct the review.
[23] NDIS Act; s 48(1)
[24] See FN 4 above
Relying on his or her own initiative and under s 48, the CEO may conduct a review of a participant’s plan at any time.[25] In any event, the CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan[26] or prescribed by the National Disability Insurance Scheme rules.[27]
[25] NDIS Act; s 48(4)
[26] NDIS Act; s 48(5)
[27] NDIS Act; s 48(6)
If the CEO conducts a review of a participant’s plan under s 48, he or she must facilitate the preparation of a new plan with the participant under Division 2 of Part 2 of Chapter 3 of the NDIS Act. The plan would then need to comply with s 33 of Division 2.[28] That is the effect of s 49. Note 1 to that section states that the participant’s statement of goals and aspirations will remain unchanged and form part of the new plan if the participant does not wish to amend his or her previous statement. Note 2 to s 49 provides a reminder:
“Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under paragraph 99(d).”
The decision to approve a statement of participant supports is made by the CEO or by a delegate of the CEO.
[28] See also Note 2 to NDIS Act; s 49
For the purposes of reviewing a participant’s plan, the CEO has the same power under s 50 to obtain information as he or she has under s 36(2) for the purpose of preparing or reviewing a statement of participant supports. That is to say, the CEO may make one or more of the following requests:[29]
“(a) that the participant or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports;
(b)that the participant do either or both of the following:
(i)undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii)undergo, whether or not at a particular place a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.”[30]
[29] NDIS Act; s 50(1)
[30] NDIS Act; s 50(2)
Again, the CEO may review a participant’s plan before all of the information and reports requested under s 50(2) are received but must give the participant a reasonable opportunity to obtain them.[31]
[31] NDIS Act; s 50(3)
Obligation to notify of change of circumstances
Among others, a participant must notify the CEO if:
(a)an event or change of circumstances happens that affects, or might affect, his or her access request, status as a participant or plan; or
(b)the participant … becomes aware that such an event or change of events is likely to happen.”[32]
[32] NDIS Act; s 51(1)
Review of decisions
Part 6 of the NDIS Act is concerned with the review of decisions. It provides for internal review by the CEO of certain decisions identified in s 99 as reviewable decisions. Two of those decisions are:
“(d) a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan;
(e)…
(f)a decision under subsection 48(2) not to review a participant’s plan”.
A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the CEO has given the person notice of the decision under s 100(1), the person has three months within which to make the request.[33] The request may be made orally or in writing.[34] If the CEO receives a request for review of a reviewable decision or is taken to have made a reviewable decision under, of relevance in this case, s 48(2),[35] he or she must cause it to be reviewed by a person to whom he or she has delegated her powers and functions under s 100 and who was not involved in making the reviewable decision.[36] The person is known as the “reviewer” and must make a decision confirming or varying the reviewable decision or setting aside the reviewable decision and substituting a new reviewable decision.
[33] NDIS Act; s 100(2) A failure of the CEO to give written notice of a reviewable decision does not affect either the validity of the reviewable decision or the right of a person directly affected to request a review of the decision: NDIS Act; s 100(8)’
[34] NDIS Act; s 100(3)
[35] NDIS Act; s 100(5)(a) and (b)
[36] NDIS Act; s 100(5)(c) and (d)
If a request for a review of a reviewable decision is made but the reviewable decision is varied before the request is determined, the request is taken to be a request for review of the reviewable decision as varied.[37]
[37] NDIS Act; s 101
An application may be made to the Tribunal for review of a decision made by a reviewer under s 100(6).[38]
[38] NDIS Act; s 103
CONSIDERATION
The Tribunal’s jurisdiction or authority to review a decision is to be found in an enactment be it an Act or an instrument of some sort made under an Act. That follows from the fact that provision is made in s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that 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.”
Given that the Tribunal is given powers in relation to applications made to it and in relation to the review of decisions as well as authority to determine the scope of review of a decision under s 25(4A), it must be implied that the Tribunal is given jurisdiction to consider those applications and review the decisions.[39]
[39] Before its repeal by the Tribunals Amalgamation Act 2015; s 3 and Schedule 1, Item 40, s 25(4) expressly stated that this was so: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
Identifying the decisions in respect of which a person may apply to the Tribunal
I have set out the relevant provisions of the NDIS Act above. Section 103 provides that an application may be made to the Tribunal for review of a decision made under s 100(6). That is a decision that confirms or varies the reviewable decision or that sets the reviewable decision aside and substitutes a new decision. It is not, however, that decision made on review by the CEO as such that is reviewable but the operative decision. That is to say, it is the decision that remains after review and so the operative decision. Therefore, it is the original or primary decision as affirmed, the original decision as varied or, if the primary decision is set aside, the new decision that is made in its place. That follows from the principles explored by the Tribunal in Re Gee and Director-General of Social Services[40] when it said:
“… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person’s interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person’s rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover,… the Tribunal would not be able effectively to use the power conferred by s 43 of the Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …”[41]
[40] (1981) 3 ALD 132; 58 FLR 347 (Davies J, President, and Messrs Cusack and Prowse, Members)
[41] (1981) 3 ALD 132; 58 FLR 347 at 141; 357 cited with approval in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18
Section 99 of the NDIS Act specifically defines the primary decisions that are subject to the review process. Of relevance in this case are those under s 33(2), which relates to approval of a statement of participant supports, and s 48(2), which relates to a decision whether or not to conduct a review of a participant’s plan. Those two decisions are among the 25 decisions identified in s 99 of the NDIS Act as “reviewable decisions”.
What are not included in s 99 are any actions that the CEO may be required to take. One of the actions that the CEO is required to take is identified in s 48(3). The action is to commence to facilitate a review of a participant’s plan but the CEO’s obligation only arises if the CEO has decided to conduct that review in response to a request made under s 48(1). That obligation is quite separate from the CEO’s obligations that arise under ss 48(4), (5) and (6) to conduct a review of a participant’s plan. The first arises when the CEO has decided to conduct a review on his or her own initiative at any time. The CEO is also obliged to review a participant’s plan before the plan’s review date or before circumstances specified in the plan arise. Finally, the CEO must review a participant’s plan in the circumstances, if any, prescribed in the National Disability Insurance Scheme rules.[42]
[42] The National Disability Insurance Scheme rules are those rules mentioned in s 209: NDIS Act; s 9. They would include the Support Rules, to which I have referred.
Having identified the nature of the decisions that the CEO might make, I need to identify the decisions that have actually been made by the CEO’s delegate. As the parties agree, the delegate has made a decision under s 48(2) to decline to review the plan. Both delegates framed their decisions in terms of s 48(2) and made no mention of s 33(2). The way in which they have framed their decisions is not determinative of the decisions they have actually made. This approach lies at the heart of the majority in Collector for Customs (NSW) v Brian Lawlor Automotive Pty Ltd.[43] The case was concerned with the Tribunal’s power to review a decision to revoke a company’s licence relating to warehousing and storage in bond of goods under licence. The Collector of Customs submitted that its decision was authorised under the Customs Act 1901 but that, if it was not, the Tribunal had no authority to review it.
[43] [1979] FCA 21; (1979) 24 ALR 307; Bowen CJ and Smithers J; Deane J dissenting
Bowen CJ stated that:
“… A decision made in the intended exercise of powers will generally constitute a purported exercise of those powers. … “[44]
After raising various questions, his Honour concluded:
“ In the view which I take as to the meaning of s 25 of the Administrative Appeals Tribunal Act, these questions do not need to be decided. As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
…
In the present case the applicant established the necessary elements that there was a decision in fact and that it purported to be under an enactment or in exercise of powers conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. …”[45]
[44] [1979] FCA 21; (1979) 24 ALR 307 at 315
[45] [1979] FCA 21; (1979) 24 ALR 307 at 317and see also 339 per Smithers J
When I look at both the original decision made by Ms Stangel and the reviewable decision made by Ms Davids, I come to the conclusion that each was focused on whether or not Christopher’s plan should be reviewed. There is no question that each conducted a thorough consideration of matters that might, in some circumstances, be considered a review of the statement of supports. I refer in particular to their consideration of the matters arising under s 34 relating to the matters of which the CEO must be satisfied in relation to the funding or provision of each support. Each has looked at the house purchased by Ms Holder for her son and considered its merits as providing suitable accommodation for him. His current environment and care arrangements have also been considered by both Ms Stangel and Ms Davids. So too were the funding arrangements and both noted that the care agency proposed by Ms Holder was unregistered and that the NDIA was not permitted to fund an unregistered care agency.
The reviewable decision made by Ms Davids does not purport to make any changes to the statement of participant supports and nor did Ms Stangel’s initial decision. It did not do so, I find, because neither was reviewing Christopher’s plan. It considered his plan and the issues arising from and relating to his plan and to his current and proposed care arrangements but they did not go so far as to review the plan. The reviewable decision is a decision made under s 48(2) and not a decision made under s 33(2).[46]
[46] If Ms David had purported to make a decision under s 33(2) when Ms Stangel had not, Ms David’s decision would not be reviewable by the Tribunal. That would follow from the fact that it would be a decision made under s 33(2) and not a decision made on review under s 100(6). The Tribunal may only review decisions made on review under s 100(6).
The powers of the Tribunal on review of a decision under s 48(2)
A. The authorities
I now turn to the Tribunal’s powers to review the CEO’s decision under s 48(2) and begin with s 43 of the AAT Act. It provides:
“For the purpose 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 and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
While it is true that the authorities establish that s 43(1) should not be interpreted narrowly, it is necessarily confined by two elements that must be satisfied before the Tribunal may exercise powers or discretions. The first is that they be “conferred by any relevant enactment on the person who made the decision” and the second that the Tribunal exercise those powers only for “the purpose of reviewing a decision”. This is clear from the reasons for decision of Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) when he said:[47]
“Mr Morris submitted that the word ‘may’ in s 43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorize the Tribunal to limit its function as it sees fit. But the provision ‘For the purpose 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 …’ is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.”[48]
[47] (1981) 3 ALD 88 per Davies J
[48] (1981) 3 ALD 88 at 92
There is an emphasis in this passage upon the second of the two elements that I consider must be satisfied before the Tribunal may exercise its powers under s 43(1) of the AAT Act i.e. that the Tribunal exercise those powers only “for the purpose of reviewing a decision”. This aspect was also emphasised by Brennan J when he decided Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales)[49] as President of the Tribunal. His Honour said:
“ The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s 43(1) to take effect under the ‘relevant enactment’, the grant to the Tribunal of the original repository’s powers and discretions makes its order effective under the enactment. Not all of the orders for which s 43 provides are orders which draw upon the original grant of powers and discretions. A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.”[50]
[49] (1978) 1 ALD 167
[50] (1978) 1 ALD 167 at 175-176
In Secretary, Department of Social Security v Hodgson,[51] Hill J considered whether the Tribunal could exercise the power to waive a debt incurred under the Social Security Act 1991 (SS Act) when reviewing a decision to recover that debt. Neither the decision-maker nor the Social Security Appeals Tribunal, as it then was, had considered waiver. Hill J decided that the power to recover a debt and the power to waive it are not coextensive powers. There is no obligation upon a decision-maker to consider waiver when considering whether to recover a debt.[52] It did not follow from that, however, that the Tribunal was precluded from exercising the power to waive the debt. His Honour said of s 43 of the AAT Act:
“… It empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review.
Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal’s review. The test is one of relevance rather than dependence. Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion. …Where its jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do. …”[53]
[51] (1992) 37 FCR 32
[52] (1992) 37 FCR 32 at 39
[53] (1992) 37 FCR 32 at 39-40
As did Brennan J emphasised in Brian Lawlor, Hill J emphasised the second element of s 43(1) of the AAT Act i.e. that “for the purpose of reviewing a decision” the Tribunal may exercise the powers and discretions of the person who made the decision. This is an emphasis that also found expression in the judgment of Finn J in Comcare v Burton.[54] In that case, Comcare had accepted liability to pay Ms Lees compensation for a work-related injury under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It then refused to pay taxi fares for her to travel to her treating specialist for treatment. After the decision was affirmed within Comcare, Ms Lees applied to the Tribunal for its review. During the course of the proceedings, she asked the Tribunal to consider whether she was entitled to compensation for permanent impairment. The Tribunal decided that it had jurisdiction on the basis that, once it had jurisdiction in relation to one issue under the SRC Act, it had jurisdiction in relation to all.
[54] (1998) 157 ALR 522
In rejecting this conclusion and finding that the Tribunal did not have jurisdiction to consider Ms Lees’ claim for permanent impairment, Finn J said:
“… [I]n relation to s 43(1) of the AAT Act, that provision (as with, for example, s 23 of the Federal Court of Australia Act 1976 (Cth) as it applies to this court) confers power on the tribunal in relation to matters in which it has jurisdiction. It is not itself a source of jurisdiction. Furthermore the s 43(1) conferral is subject to the limitation that it is ‘for the purpose of reviewing a decision’: for the effect of this limitation see, generally, Secretary, Department of Social Security v Hodgson (at [40] FCR 40). In similar vein … I would add likewise that ss 69(a) and 72(a) of the SRC Act cannot be used to extend the review jurisdiction of the tribunal: Owens v Repatriation Commission [(1995) 59 FCR 93] at 101). Those provisions stipulate how Comcare must act. They have no bearing on when the tribunal has jurisdiction to act.”[55]
[55] (1998) 157 ALR 522 at 528. Section 69(a) provides that Comcare is “to make determinations accurately and quickly in relation to claims and requests made to Comcare under this [SRC] Act.” In doing so, s 72(a) provides it “shall be guided by equity, good conscience and the substantial merits of the case, without regard to the technicalities”. See also generally Secretary, Department of Social Security v Riley (1987) 17 FCR 99 (Northrop, Sheppard and Jenkinson JJ), Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 (Gray, Kenny and Downes JJ) and Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427 (Finn , Emmett and Edmonds JJ).
There were provisions of the SRC Act that did have some bearing, though. They were ss 60, 62 and 64. Section 62 provides for reconsideration of determinations and for the person who made the initial determination to make a decision affirming or revoking it or varying it as thought appropriate.[56] Section 60 provides that a “reviewable decision” means, together with another, a decision made under s 62. In essence, s 64 provides that an application may be made to the Tribunal for review of a reviewable decision made by one or other of the authorities specified in s 64(1). Section 64 is to be read with s 25(1) of the AAT Act, which provides in part that:
“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)…”
[56] SRC Act, s 62(5)
In Comcare v Burton, Finn J had regard to both s 25 of the AAT Act and s 64 of the SRC Act:
“… [I]n relation to SRC Act appeals the tribunal’s jurisdiction is limited in two ways. (1) By virtue of s 25 of the AAT Act and s 64 of the SRC Act its province is limited to reviewing what under the SRC Act is a ‘reviewable decision’. (2) To be constituted such a decision under the SRC Act, the process of determination and reconsideration must have been engaged in – and then only in respect of those sections of the statute that can give rise to a ‘determination’: SRC Act ss 60, 62. Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular ‘reviewable decision’ that the tribunal is to review: Secretary, Department of Social Security v Riley (at FCR 105). The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the tribunal can exercise its s 43(1) powers, but it is nonetheless obliged to answer the same question(s) as was (were) before the reconsideration decision-maker: Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (at FCR 234 [(1992) 39 FCR 225; 111 ALR 1 at ).”[57]
[57] (1998) 157 ALR 522 at 528
It follows from these cases that the first step in working out the powers and discretions available under s 43(1) is to identify the decision under review. Once that is done, thought must be given to what is meant by reviewing a decision for the powers and discretion conferred by s 43(1) are those “for the purpose of reviewing a decision”. In view of the ordinary meanings of the word “review” and the authorities stating that the Tribunal’s task is to determine the correct or preferable decision, they must be those powers and discretions available for re-examining the decision or going over the decision again. They must be powers and discretions that are relevant in answering the question that was answered, or the issue that was resolved, by the decision-maker whose decision is being reviewed. They must be powers that the Tribunal is permitted to exercise on review.
Therefore, in Hodgson, the power to waive the debt was relevant in answering the question whether the overpayment of unemployment benefits paid to Mr Hodgson should be recovered. It was a power available to both the decision-maker and the Tribunal. In Australian Securities and Investments Commission v Donald,[58] the power to accept an enforceable undertaking under s 93AA of the Australian Securities and Investments Commission Act 1989 was among the powers available to both the Commission and the Tribunal when deciding whether Mr Donald should have been banned under ss 829 and 830 of the Corporations Law from acting as a representative of a dealer or investment adviser on the ground he had contravened a securities law. By way of contrast, the Commissioner of Taxation has the power to remit the General Interest Charge imposed under Part IIA of the Taxation Administration Act 1953 but the Tribunal does not have those powers when reviewing the Commissioner’s assessment of that amount of taxation payable or penalty imposed for its review powers are limited to whether those assessments are excessive.[59]
[58] (2003) 136 FCR 7
[59] Taxation Administration Act 1953, s 8AAG
B. The Tribunal’s powers to review a decision under s 48(2) of the NDIS Act
I have already identified the operative decision that is under review in this case. It is the decision made under s 48(2) and reviewed under s 100(6) of the NDIS Act. In order to identify the Tribunal’s powers and discretions for the purpose of reviewing that operative decision, it is necessary to identify the decision that must be made and the range of powers and discretions available to the decision-maker in making that decision whether or not they were considered when the operative decision was made.
In the case of a decision under s 48(2), there are only two decisions that the CEO may make in response to a request made under s 48(1). They are either to conduct a review or not to conduct a review of the participant’s plan. There is no other option. Actually conducting the review is not one of the decisions available and nor is commencing to facilitate a review for that is the subject of s 48(3). Commencing to facilitate a review under s 48(3) is a consequence of the CEO’s having made a decision under s 48(2) to conduct a review. The obligation to commence facilitation of that review is to do so within 14 days “after so deciding” i.e. after so deciding to conduct a review under s 48(1). Although consequential upon a decision to review a participant’s plan, it is an obligation that is entirely separate from that decision. The obligation is an obligation and is not part of the suite of powers and discretions available to the CEO in making a decision under s 48(2).[60]
[60] I note that my conclusion is consistent with that reached by Senior Member Toohey in Re Burston and National Disability Insurance Agency [2014] AATA 456 at [18] and [20]
That means that the powers and discretions available to the Tribunal are those available to the CEO in making a decision either to review, or not review, a participant’s plan in response to a request under s 48(1). Even though reviewing the plan is not one of the options available to the CEO under s 48(2), it does not follow that the CEO may not consider matters of the sort that would be considered in a review of the plan and particularly those under s 34. Matters such as changes in a participant’s circumstances and variations in available services and their costs are among the matters that would be relevant in reviewing a plan but they are equally relevant in deciding whether a plan should be reviewed at all. That is a power that is not exercised “for the purposes of the review” of a decision under s 48(2) but as a consequence of a decision to conduct a review made under s 48(1).
CONCLUSION
Parliament has clearly separated the steps in the decision-making process. The CEO has the power to review a participant’s plan on his own initiative or as required by ss 48(5) or (6) or after making a decision to do so under s 48(2). When the CEO conducts a review of a participant’s plan under s 48, that must lead to the CEO’s facilitating a new plan with the participant under Division 2 of Part 2 of Chapter 3 of the NDIS Act. As Note 2 to s 49 explains, that will lead to a decision to approve a new statement of participant supports under s 33(2). Parliament has provided that the decision to make that new statement of participant supports is a reviewable decision but it has not provided that the review process itself that leads to that decision is a reviewable decision.
In this case, I have decided that the decision made on 14 October 2016 and confirmed on 2 December 2016 was a decision not to conduct a review of Christopher’s plan. That decision was made under s 48(2) of the NDIS Act. It was not a decision made under s 48(4).[61] It was not a decision under s 33(2) as to a statement of participant supports. Therefore, on review, the Tribunal’s powers are limited to reviewing the decision made under s 48(2). The issue to be decided is whether or not to conduct a review of Christopher’s plan. The issue does not extend to deciding wider issues such as whether a new statement of participant supports should be prepared under s 33(2) having regard to the matters in s 34 of the NDIS Act.
[61] Even if it had been, it would not have been reviewable as it is not a reviewable decision for the purposes of s 99.
Therefore, my decision will be that:
(1)the decision under review by the Tribunal:
(a)is a decision by the CEO to decline to review Christopher’s plan under s 48(2) of the National Disability Insurance Scheme Act 2013; and
(b)is not a decision by the CEO to review Christopher’s participant’s plan under s 48(4) or to approve a statement of supports under s 33(2) of the National Disability Insurance Scheme Act 2013; and
(2)the Tribunal:
(a)has jurisdiction to review the decision by the CEO to decline to review Christopher’s plan under s 48(2) of the National Disability Insurance Scheme Act 2013; and
(b)does not have jurisdiction to review Christopher’s participant’s plan under s 48(4) or to approve a statement of supports under s 33(2) of the National Disability Insurance Scheme Act 2013.
I certify that the sixty two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………[sgd]...................................
Associate
Date of Hearing 7 February 2017
Date of Decision 28 February 2017
Solicitors for the Applicant Ms A Siskovic
Victoria Legal Aid
Solicitor for the Respondent Mr S Fagg
National Disability Insurance Agency
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