Napper; National Disability Insurance Agency and
[2021] AATA 2363
•16 July 2021
Napper; National Disability Insurance Agency and [2021] AATA 2363 (16 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4784
Re:National Disability Insurance Agency
APPLICANT
AndNapper
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:16 July 2021
Place:Sydney
In this application, the Tribunal does not have jurisdiction to determine the Respondent’s claim for supports, other than the support of complete bathroom modifications.
On or before 23 July 2021, the parties must notify the Tribunal of their consent or otherwise to the making of an order, pursuant to s 26(1)(b) of the AAT Act, that the decision under review is altered by the CEO of the Applicant by the consent of both parties and the Tribunal.
...........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – where application to the Tribunal to review a decision not to approve certain supports – whether certain supports were put before the internal reviewer – jurisdiction of the Tribunal – Tribunal has no jurisdiction to consider certain supports
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 26, 42D
National Disability Insurance Scheme Act 2013 (Cth), ss 99, 100
CASES
Frugtniet v ASIC (2019) 266 CLR 250
Fuad and Telstra Corporation Limited [2004] AATA 1182
McGarrigle v NDIA [2017] FCA 308
QDKH and NDIA [2021] AATA 922
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
16 July 2021
BACKGROUND
On 8 August 2019, Ms Christine Napper made an application to this Tribunal. By that application, Ms Napper sought review of a decision of the delegate of the CEO of the National Disability Insurance Agency dated 29 July 2019, which varied a decision made on 26 March 2019 pursuant to s 33(3) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), to approve a statement of participant supports in the Ms Napper’s plan under the National Disability Insurance Scheme.
This particular interlocutory decision arises in the context of an interlocutory application made to the Tribunal by the National Disability Insurance Agency (the Applicant) on 5 May 2021 to determine whether the Tribunal has jurisdiction to review whether each of the participant supports claimed by Ms Napper (the Respondent) are reasonable and necessary under the NDIS Act.
The reviewable decision dated 29 July 2019 was implemented in a plan that commenced on 29 July 2019.
The application filed with the Tribunal on 8 August 2019 sought increased funding for supports, including home modifications to the Respondent’s bathroom.
The reviewable decision has been the subject of two remittal orders made by the Tribunal pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The first remittal order, dated 17 July 2020, remitted the decision under review to the CEO of the Applicant for reconsideration so as to “extend” the 29 July 2019 plan to ensure continuity of supports for the Respondent while the application was on foot before the Tribunal.
On 17 August 2020, the parties reached agreement that the Applicant would fund a range of supports sought by the Respondent, including 10 hours of physiotherapy.
On 7 October 2020, the Tribunal remitted the decision under review for reconsideration by the CEO of the Applicant, pursuant to s 42D of the AAT Act.
On 21 January 2021, the Applicant made a new plan in accordance with the second s 42D order.
Pursuant to s 42D of the AAT Act, the application filed with the Tribunal on 8 August 2019 is taken to be an application for review of the internal review decision dated 29 July 2019, which varied a decision of 26 March 2019 to approve the statement of participant supports in the Respondent’s current plan. It is understood that the supports currently in dispute between the parties are as follows:
(a)Complete bathroom modifications.
(b)13 hours of physiotherapy for lymphoedema management per year.
(c)Compression garments for management of lymphoedema.
(d)20 hours of orientation and mobility training per year.
(e)20 hours of occupational therapy per year.
(f)20 hours of assistive technology training per year.
The matter was listed for 3 days of hearing before the Tribunal, due to commence on 9 June 2021, however, was later vacated at the request of the Applicant.
On 5 May 2021, the Applicant’s representative contacted the Tribunal and requested that the matter be listed for an interlocutory hearing to determine the preliminary question of whether the Tribunal has jurisdiction to review the supports in dispute. The Applicant cited the recent decision of the Tribunal in QDKH and NDIA [2021] AATA 922 as the basis for its request.
An interlocutory hearing was held on 1 June 2021 to determine whether the Tribunal has jurisdiction in relation to the supports in dispute. It is this issue of jurisdiction that is the subject of this decision.
LEGAL PRINCIPLES
The Applicant’s representative provided a useful distillation of the principles that arise from the Tribunal’s decision in QDKH, which has been included as follows:
(a)As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute, namely s 25(1) of the AAT Act, which relevantly provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment;
(b)In every application that comes before it, the Tribunal must be satisfied that it has jurisdiction in accordance with the AAT Act. The parties cannot confer jurisdiction upon the Tribunal by consent;
(c)Section 100(3) is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 100(3) provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act;
(d)Section 100(6) of the NDIS Act provides that the reviewer, as soon as is reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision;
(e)Section 99 of the NDIS Act provides an exhaustive list of reviewable decisions, that is, decisions that are reviewable by the reviewer. The decisions include “a decision under 33(2) to approve the statement of participant supports in a participant plan” (section 99, item (d));
(f)It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:
(i)A review by a reviewer;
(ii)A review of the reviewer’s decision by the Tribunal;
(g)The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;
(h)The Tribunal cited with approval Fuad and Telstra Corporation Limited [2004] AATA 1182, where the Tribunal President, Justice Downes said at [5]:
…all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying what was before the decision-maker but that is a practical problem and not a jurisdictional problem.
(i)The Tribunal observed that it is important to note that the President referred to “matters put before the decision-maker”. These are matters in respect to which the Tribunal has jurisdiction.
Other relevant authorities which this Tribunal has considered include McGarrigle v NDIA [2017] FCA 308 and Frugtniet v ASIC (2019) 266 CLR 250.
THE ISSUES
The primary issue in this matter is whether the Tribunal has jurisdiction to decide whether each support in dispute is a reasonable and necessary support for the purposes of the NDIS Act.
The resolution of this issue requires the Tribunal to determine whether each of the specific supports in dispute were “put before” the delegate of the CEO who made the internal review decision dated 29 July 2019.
DISCUSSION
It is clear from both the AAT Act and the NDIS Act that the Tribunal’s role is to review a reviewable decision made by a reviewer. Accordingly, the Tribunal has no roaming jurisdiction but is confined to the jurisdiction conferred on it. In other words, the Tribunal is only able to look at matters that were put before the original decision-maker.
This is consistent with the decision of the High Court in Frugtniet v ASIC (2019) 266 CLR 250 at [15] where the Court made it clear that the Tribunal “cannot take into account any matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker”.
It is, in my opinion, therefore quite apparent that the fact that various matters are raised with the Agency at various times is not relevant to any review to be conducted by the Tribunal, unless those matters were clearly before or clearly relevant to the decision of the reviewer, which is the decision to be reviewed by the Tribunal.
In considering the question of jurisdiction, the Tribunal is further assisted by the decision of the Federal Court in McGarrigle v NDIA [2017] FCA 308. The Court held that “support” is to be seen as a practical description of the means by which a person with a disability is to be assisted. The Court gave an example at [93] as follows:
“Once a support is identified and described (to take an example way from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.”
The Tribunal will now consider separately the various supports currently being sought by the Respondent and whether the Tribunal has jurisdiction to determine whether those supports are reasonable and necessary supports, in light of the legal principles outlined above and also the decision of this Tribunal in QDKH and National Disability Insurance Agency [2021] AATA 922.
I note that there was a significant volume of material submitted on behalf of the Respondent, much of it not directly relevant to the issue of jurisdiction, which is the only issue before the Tribunal.
Complete bathroom modifications
The reviewer’s decision dated 29 July 2019 refers to “bathroom modifications” and also refers to “the specific home modifications you requested”. Specific plans for the bathroom renovations, including quotes for the cost of the work, were before the reviewer.
Accordingly, I am satisfied that the Tribunal has the jurisdiction to determine whether that support is a reasonable and necessary support for the purposes of the NDIS Act.
13 hours of physiotherapy for lymphoedema management per year
In originally making this claim, the Respondent relied on a report of a physiotherapist, Mr Mayday, dated 23 March 2019. In his report, Mr Mayday noted as follows:
(a)The Respondent’s musculoskeletal pathology would benefit significantly from regular and ongoing therapy on a weekly or fortnightly basis to maintain pain and stiffness at manageable levels.
(b)The use of a guide dog and long cane to mobilise “causes suboptimal sustained postures and repetitive movements which results in abnormal intersegmental movement of the cervical spine, trunk and shoulder girdle”.
(c)Due to the underlying cervical spine pathology and the use of the dog and/or cane she will continue to experience chronic pain and stiffness, which will limit movement and impair mobility and functioning in day-to-day life, reducing independence.
(d)Therefore, the Respondent will continue to benefit from ongoing physiotherapy treatment to her neck, shoulder and thoracic spine, on a fortnightly basis i.e. 26-30 treatments per calendar year.
It should be noted that Mr Mayday did not recommend any physiotherapy for the Respondent’s lymphoedema management.
The Respondent currently contends that she requires 13 hours of physiotherapy per year, specifically for lymphoedema management, and it would therefore appear that she is no longer asking for the balance of the 26 sessions of physiotherapy per year recommended by Mr Mayday.
Of critical importance is the fact that this seems to be a significant change of position from what the Respondent was seeking at the time of the internal review decision, namely:
(a)26-30 hours of physiotherapy per year as recommended by Mr Mayday; and
(b)Unspecified hours of physiotherapy for lymphoedema management.
Accordingly, particularly in light of the Federal Court authority in McGarrigle, I find that the requested support of 13 hours of physiotherapy for lymphoedema management was not before the reviewer at the time of the internal review decision. Therefore, the Tribunal has no jurisdiction in relation to that support.
Compression garments for management of lymphoedema
The Respondent requested for the first time “custom made compression stockings for lymphoedema managements (spina bifida) – prevention of cellulitis” in an email dated 18 June 2019.
In the internal review decision dated 29 July 2019, there is specific reference to “custom made compression stockings”. Therefore, the Tribunal does have jurisdiction to review this question.
The Agency contends that the Respondent has abandoned the request for custom-made compression stockings because she has submitted a report of Ms Holmes dated 24 April 2020, which refers to “compression garments”. The term “compression garment” can be taken to include compression stockings, but to the extent that it encompasses other items of clothing which might provide similar support to other parts of the body, that is not a support which was before the reviewer. Accordingly, it is not a support which the Tribunal has jurisdiction to review.
The Respondent argued that the assessment of expert reports and medical evidence is a matter to be reserved for hearing. However, particularly in light of the Federal Court decision in McGarrigle, which defined the meaning of “support”, the Tribunal needs to make a decision as to whether it has jurisdiction, before it starts to weigh evidence or give consideration to supports which may not be included within its jurisdiction.
20 hours of orientation and mobility training per year
In relation to this particular support, it would appear that during the course of the review, the Respondent sent an email to the Agency providing a report of Ms Canavezzi, who is an orientation and mobility specialist with Vision Australia. It appears that the Respondent had already had a number of consultations with Ms Canavezzi, who said that further sessions were required to support the Respondent to build her confidence and her independence. She said that “approximately 20 hours of orientation and mobility training would be beneficial”.
There is no evidence that Ms Canavezzi’s report was ever seen by the original reviewer, although there is evidence that the reviewer saw a report by an occupational therapist, Ms McCarthy, dated 25 March 2019, in relation to the cost of 20 hours of orientation and mobility training.
Whilst it is not clear what was intended to be covered by the support of “capacity building – daily activity – podiatry, physiotherapy and additional occupational therapy support hours”, it is impossible to conclude that the reviewer was considering a request for orientation and mobility training within this support, as the decision-maker decided that the supports sought by the Respondent “were not related to the condition of vision impairment”.
The Tribunal therefore finds itself in a similar position to the Tribunal in QDKH, where it appears that a number of documents were submitted to the Agency at various points in time, but there is no evidence that those documents were before the maker of the internal review decision.
20 hours of occupational therapy per year
On 18 June 2019, it is noted that the review of the original decision was already on foot. The plan report, the report of Ms McCarthy referred to above, the Respondent’s email of 18 June 2019, and a service estimate prepared by Vision Australia were all reviewed as part of the internal review decision. However, it is not clear what specific request was put to the decision-maker in relation to occupational therapy. On balance, it would appear to be the request in the Respondent’s email of 18 June 2019.
There was no request for “20 hours of occupational therapy” before the decision-maker responsible for the internal review decision. The request before the decision-maker was for an unspecified amount of occupational therapy. The Respondent’s representative attempted to justify this discrepancy by arguing that the appropriate number of hours of occupational therapy is a decision for the relevant Tribunal Member presiding at hearing. I reject that submission on the basis that the Tribunal has neither the expertise nor the jurisdiction to make such a decision. It is further relevant that the recommendation of 20 hours of occupational therapy per year was first mentioned in the report of Ms Canavezzi dated 1 June 2020.
Accordingly, having reviewed all of the various documents, I find that the Tribunal does not have jurisdiction to determine whether the support of 20 hours of occupational therapy per year is a reasonable and necessary support for the purposes of the NDIS Act.
20 hours of Assistive Technology training per year
There is no reference to any request for the support of assistive technology training in the plan review report completed by the Respondent. There is also no reference or request for the support of assistive technology training in the Respondent’s email to the Agency of 18 June 2019. Further, there is nothing in the internal review decision to indicate that the decision-maker considered a request for “assistive technology training”. At page 5 of the internal review decision, the decision-maker considered that Support 7, “Assistive Technology – Orthotics and custom made compression stockings”, was not a reasonable and necessary support. However, this is of a fundamentally different character to the support of “20 hours of assistive technology training” which is currently claimed.
Accordingly, I find that the Tribunal does not have jurisdiction to determine whether the support of 20 hours of assistive technology training is a reasonable and necessary support for the purposes of the NDIS Act.
REMITTAL ORDERS
Section 42D orders
It should also be noted that the decision under review made on 29 July 2019 has been the subject of two remittal orders made by the Tribunal pursuant to s 42D of the AAT Act.
The first remittal order, dated 17 July 2020, remitted the decision under review to the CEO of the Applicant for reconsideration so as to “extend” the Respondent’s plan to ensure continuity of supports for the Respondent while the application was on foot before the Tribunal (the first section 42D order).
On 17 August 2020, the parties reached agreement that the Agency would fund a range of supports sought by the Respondent, including supports not sought by the Respondent at the time the internal review decision was made in July 2019.
On 7 October 2020, the Tribunal remitted the decision under review for reconsideration by the CEO of the Applicant pursuant to s 42D of the AAT Act (the second section 42D order).
On 21 January 2021, the Agency made a new plan in accordance with the second section 42D order.
Both the first section 42D order and the second section 42D order were made by the Tribunal before the decision in QDKH was handed down.
Although the remittal orders may have been infected by a lack of jurisdiction on the part of the Tribunal, those orders were implemented.
The Applicant put to the Tribunal that any defect in those orders could be cured by making orders under s 26(1)(b) of the AAT Act, subject to consent of both parties and the Tribunal. Accordingly, I have made an order giving each of the parties 7 days to forward such consent to the Tribunal, and on receipt of that consent, I will make orders under s 26(1)(b) of the AAT Act so that there is some certainty in this regard.
DECISION
On the basis of the evidence before the Tribunal, and in light of the authorities cited above, the Tribunal does not have jurisdiction to determine the Respondent’s claim for supports, other than the support of complete bathroom modifications.
ORDERS
On or before 23 July 2021, the parties must notify the Tribunal of their consent or otherwise to the making of an order, pursuant to s 26(1)(b) of the AAT Act, that the decision under review is altered by the CEO of the Applicant by consent of both parties and the Tribunal.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 16 July 2021
Date(s) of hearing: 1 June 2021 Date final submissions received: 1 June 2021 Counsel for the Applicant: M Fisher, 9 Wentworth Chambers Counsel for the Respondent: K Boettcher, Frederick Jordan Chambers
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