Negi and National Disability Insurance Agency

Case •

[2022] AATA 1453

•

2 June 2022

Negi and National Disability Insurance Agency [2022] AATA 1453 (2 June 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/2294

Re:Seema Negi

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member Buxton

Date:2 June 2022  

Place:Brisbane

The Tribunal decides not to remit this matter under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) at this stage of the proceeding.

....................[SGD]................................

Senior Member Buxton

Catchwords

PRACTICE AND PROCEDURE — National Disability Insurance Scheme Act 2013 (Cth) — evidence gathering powers during internal review process — promote administrative efficiency — not remitted for reconsideration

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 42D, 43

National Disability Insurance Scheme Act 2013 (Cth) ss 20, 24, 25, 26, 99, 100, 103

Cases

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16

Secretary, Department of Social Security v.Hodgson (1992) FCR 32, 108 ALR 322

REASONS FOR INTERLOCUTORY DECISION

Senior Member Buxton

2 June 2022

  1. The Tribunal has considered whether it is appropriate to remit this matter, under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), for reconsideration by the decision-maker. The Tribunal has decided not to remit at this stage of the proceeding and provides the following reasons for its decision.

  2. The Applicant is a woman in her early 50’s who has been diagnosed with chronic pain syndrome, spondylitis and fibromyalgia who has requested access to the National Disability Insurance Scheme (“NDIS”).

  3. On 19 November 2021, a delegate of the Chief Executive Officer (“CEO”) of the Respondent made a reviewable decision under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”) that the Applicant did not meet the access criteria to become a participant in the NDIS. The decision was reviewed under section 100 of the NDIS Act and, on 3 March 2022, the internal review decision confirmed the earlier decision that the Applicant did not meet the access criteria. In particular, the delegate of the CEO who made the internal review decision was not satisfied that the Applicant met the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.

  4. On 21 March 2022 the Applicant lodged a review application at the Administrative Appeals Tribunal and claimed, in that application, that she met the disability requirements for access for the NDIS and, in particular, that she satisfied paragraphs 24(1)(b) and 24(1)(c) of the NDIS Act. The review application referred to the evidence that had already been supplied.

  5. The application was listed for a directions hearing on 3 May 2022 and on 2 May 2022, prior to any other steps being taken in the review application, the Respondent lodged a statement of issues. In that statement, the Respondent identified a significant number of evidence-gathering steps that would assist the Tribunal in reaching the correct or preferable decision in this review. These steps were:[1]

    (a)the Respondent will request the Tribunal to issue summonses to Dr Anil Nair, Ms Francis Broomfield, Dr Mandeep Kaur and Dr Tim Ho;

    (b)following consideration of the documents produced under summons, the Respondent may seek the Applicant's consent to participate in an assessment with an independent pain management specialist. The Respondent will organise and fund this assessment;

    (c)following consideration of the documents produced under summons, the Respondent may seek the Applicant's consent to participate in an assessment with an independent Occupational Therapist. The Respondent will organise and fund this assessment; and

    (d)the Respondent will pose to the Applicant a series of “targeted question” contained in an annexure to the statement of issues, running over two pages and containing 29 questions in total.

    [1]     Respondent’s statement of issues dated 2 May 2022, contained in table under ‘further information requested’.

  6. During the directions hearing, the Respondent submitted that the appropriate next steps were that the matter should proceed in accordance with its proposal the review application be listed before a conference registrar at least three weeks after:

    (a)the Applicant providing further requested evidence;

    (b)the Respondent being granted access to materials returned by summons recipients; and

    (c)the Respondent filing any independent expert report.

  7. The effect of the Respondent’s submissions during the directions hearing were that various steps to gather the additional information now said to be relevant in the review had not been undertaken, either at the time the CEO made the original decision, or during review, but that these steps should be taken now, for the first time, when the Applicant had escalated the exercise of her merit review rights to the Tribunal.

  8. The NDIS Act provides the following procedure for the original consideration, by the CEO, of a request for access to the NDIS, including to the CEO’s evidence-gathering powers that can be exercised at the time of consideration of such a request. When considering a request to become a participant under the NDIS the CEO must, within 21 days of receiving the request, do one of two things.[2] The first option open to the CEO is to decide either that the prospective participant meets the access criteria, or does not, which the CEO can do if able to arrive at that decision within 21 days.[3] The second option is to make one or more requests under subsection 26(1) of the NDIS Act.[4] These requests allow for information to be sought from a prospective participant such as the Applicant, for examinations and assessments to be undertaken and for reports to be produced. An updated statutory timetable is provided for the access request to be determined by the CEO within 14 days of receipt of the last information or report (subsection 26(2) of the NDIS Act), after which the CEO is to then decide whether the prospective participant meets the access criteria. More than one request for information may be made, and the timeframe is extended with each request to provide for a decision to be made by the CEO within 14 days of receipt of the last information.

    [2] s 20 of the National Disability Insurance Act 2013 (Cth) (“NDIS Act”). 

    [3] s 20(1)(a) and (2)(a) of the NDIS Act.

    [4] s 20(1)(b).

  9. In this case the evidence-gathering powers under subsection 26(1) of the NDIS Act, if exercised, would have allowed the Respondent to make a decision based on the evidence it now submits would “assist” the Tribunal. Yet, in this case, the Respondent has declined to exercise those powers. Instead, the Respondent submits, this evidence-gathering should take place only after the review application has been lodged in the Tribunal. For the reasons that follow, the Tribunal concludes that this practice is inconsistent with the statutory scheme and is not consistent with good administrative decision-making on the part of the Respondent as it does not permit the proper exercise of the two-tiered review process contemplated by the AAT Act.

  10. During the directions hearing, the Tribunal raised these concerns with the Respondent’s representative. The Tribunal invited the Respondent to consider whether the appropriate next step in the proceedings was to remit the matter under section 42D of the AAT Act in order to allow for a meaningful internal review to be undertaken. This would allow for the evidence that the Respondent had identified as likely to “assist” the Tribunal to be gathered by the Respondent in the manner provided under Chapter 3, Part 1 of the NDIS Act and considered by a reviewer. Such a process may or may not lead to a different outcome. At the very least, it would allow any further consideration by the Tribunal in resumed proceedings to be undertaken with the benefit of any additional evidence or information gathered during the review.

  11. The Applicant did not oppose the matter being remitted under section 42D of the AAT Act and, indeed, submitted that she had already made the Respondent aware of further information from her surgeon that was relevant to the permanency of her impairments (a question which is to be decided as part of the review application). The Applicant, through her advocate, stated that she had requested that a further opinion be requested from her surgeon by the Respondent but that this had not occurred during the review process. The Applicant was open to further evidence-gathering being undertaken by the Respondent. The Applicant confirmed that she understood such a remittal would take time, and may not lead to a different decision, but she supported the notion that the reviewer should have the opportunity to gather and consider all relevant information. The Respondent’s legal representative asked for time after the directions hearing so that the Respondent could consider its position.

  12. At the conclusion of the directions hearing the Tribunal issued a direction that, by 17 May 2022, the Respondent was required to provide to the Tribunal and the Applicant either:

    (a)notice that the Respondent intends to request that the Application be remitted (under s 42D of the AAT Act) for reconsideration and for further evidence gathering under sections 20 and 26 of the NDIS Act, noting the time required for such reconsideration; or

    (b)written submissions as to why that is not the appropriate next step in this application.

  13. The Respondent has since provided written submission in accordance with the direction. The Respondent has submitted that remitting the matter under section 42D of the AAT Act is not the appropriate next step. Although the Tribunal has decided not the remit the matter at this stage of the proceeding, it is the Tribunal’s view that the Respondent’s basis for this submission, as set out in its submissions dated 17 May 2022, is not consistent with the statutory scheme or with the nature of the merits review of a decision relating to access to the NDIS. In particular, the Respondent’s position does not address the task to be undertaken under Chapter Three, Part 1 of the NDIS Act when deciding, and re-considering, whether a prospective participant meets the access criteria. It is necessary to address that inconsistency because, as the Respondent has quite properly submitted, the Tribunal cannot direct the way in which reconsideration is to be undertaken under section 42D of the AAT Act. Put another way, there is little point in remitting a matter to a decision-maker who is unwilling to reconsider a matter, or who mis-directs itself as to the proper basis upon which such re-consideration can (and should) take place.

  14. The Respondent submitted that, if the decision under review were to be remitted to the decision maker for reconsideration pursuant to section 42D of the AAT Act, “that reconsideration would be limited to whether or not the Applicant meets the access criteria.  The power to make one or more requests under s 26(1) [NDIS Act] would not be re-enlivened upon remittal by the Tribunal as that power is not part of the decision under review”.[5] The Respondent further submitted that the power to request information under subsection 26(1) was “now closed” to the CEO and (by implication) to anyone exercising review rights in respect of the CEO’s decision.[6]

    [5]     Respondent’s submissions on remittal and further evidence gathering dated 17 May 2022, [2(b)].

    [6]     Ibid, [2(c)].

  15. The Tribunal does not accept this submission because the nature of re-consideration allows for those powers to be re-exercised on review. Subsection 99(1) of the NDIS Act contains, in table form, a list of all reviewable decisions under the NDIS Act, and each relevant decision-maker. The table includes a column listing the provisions under which each reviewable decision is made. A request made under subsection 100(3) of the NDIS Act leads to a reviewable decision being made under subsection 100(6) of the NDIS Act, and section 103 of the NDIS Act provides that, on application, the Tribunal may review such a decision.

  16. The relevant reviewable decision in this case, identified in section 99 of the NDIS Act at item one, is a decision that a person does not meet the access criteria. Chapter 3, Part 1 of the NDIS Act provides three pathways to such a decision, and these provisions are identified in the table: paragraph 20(1)(a), subsection 21(3) or paragraph 26(2)(c).

  17. The word ‘or’, where it is inserted into the table in section 99 to separate the references to paragraph 20(1)(a), subsection 21(3) and paragraph 26(2)(c) of the NDIS Act, has work to do. It indicates that the decision to be made by the CEO is not simply a binary choice. There are three decisions the CEO can make under paragraph 20(1)(a): the person meets the access criteria; the person does not meet the access criteria; or the person must provide more information or undergo an assessment or an examination and provide a resulting report that is then to be considered. The non-binary nature of the decision is reflected in the terms of paragraph 21(3)(a) and in the terms of paragraphs 26(2)(c) and (d) of the NDIS Act. On review, the reviewer (and, on further review, the Tribunal) is required to address the same statutory question as the CEO as original decision-maker. It follows that it is open to a reviewer to make one of the three decisions that were open to the CEO. The reviewer is tasked with reviewing a decision that a person does not meet the access criteria and it is open to the reviewer to come to this decision in accordance with all relevant statutory pathways that were open to the CEO. Therefore, on review, the power to request information under subsection 26(1) of the NDIS Act is not “now closed” either to a reviewer exercising powers under section 100 of the NDIS Act or, indeed, to the Tribunal on review.

  18. It would be a most surprising result if merits review of a decision that a person does not meet the access criteria had to take place on a different, or more limited, basis than the making of the original decision. It would also be surprising if the CEO was able to close off to any potential reviewer the statutory powers of investigation designed to assist in determining an access request simply by electing not to utilise those powers himself. The reviewable decision has been made under section 20 of the NDIS Act. It is reviewable in this case because it is a decision that a person does not meet the access criteria that has been made under paragraph 20(1)(a), without having made information requests under paragraph 20(1)(b) and subsection 26(1) of the NDIS Act. On review, the reviewer (and the Tribunal) can re-exercise the statutory powers under Chapter 3, Part 1, including to elect to make a request for further information under subsection 26(1) of the NDIS Act and then to decide under subsection 26(2) of the NDIS Act whether the access criteria have been met. One pathway is not “closed” simply because the other has been followed by the earlier decision-maker.

  19. The High Court in Frugtniet v Australian Securities and Investments Commission[7] (“Frugtniet”),[8] described the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to re-consider afresh the question before the primary decision maker and to address the same question the primary decision-maker was required to address. In this review application, the decision before for the Tribunal for review is a decision that a person does not meet the access criteria. That decision can be made in a variety of ways, and each of those ways are identified in section 99 of the NDIS Act as decisions that are reviewable. If the CEO has led himself into error by failing to request necessary information, or it is otherwise desirable to make such a request on review, the reviewer can request such information when “re-considering afresh” whether the access criteria are met.

    [7] (2019) 266 CLR 250; [2019] HCA 16.

    [8] Ibid, [14] - [15].

  20. Subsection 43(1) of the AAT Act 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. In Secretary, Department of Social Security v.Hodgson (1992) FCR 32, 108 ALR 322, the Federal Court considered (in the setting of a social security debt waiver) the scope of the Tribunal’s jurisdiction to re-consider, having regard to subsection 43(1) of the AAT Act.[9] Justice Hill stated at [25]:[10]

    Although I accept, therefore, that a decision to recover an overpayment does not necessarily involve a consideration of waiver, I do not think that it follows that in an appeal against the decision to proceed to recover an overpayment where the question of waiver has been raised by an applicant the Tribunal is precluded from exercising the power to waive under s43(1) of the Administrative Appeals Tribunal Act (1975). The language of s43 is quite clear and unambiguous. 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 s43 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.

    [9] See also Davies J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88, [92].

    [10]    Secretary, Department of Social Security v. Hodgson (1992) FCR 32; 108 ALR 322.

  21. Therefore, it does not follow that power to request information under subsection 26(1) of the NDIS Act by anyone exercising review rights in respect of the CEO’s decision is limited in the way described in the Respondent’s submissions. The Respondent also submitted that any defect in the decision of the CEO under section 20 or the review under subsection100(6) of the NDIS Act will be “cured” by the review of the Tribunal. In support of this submission, the Respondent contended:[11]

    Having the CEO's decision reviewed by the Tribunal, rather than seeking to have the 'proper' performance of the CEO's decision enforced, promotes administrative efficiency.[12] It would be administratively inefficient to pursue reconsideration, with uncertain outcome, where the Tribunal has its own information-gathering powers.

    [11]    Respondent’s submissions on remittal and further evidence gathering dated 17 May 2022, [18].

    [12]    The Respondent’s submissions cite Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [32] per Rares J as authority for that proposition. However, the Tribunal notes that the concept of “administrative efficiency” is not discussed in the passage referred to by the Respondent. The Tribunal notes that, in paragraph [20] of that decision, the concept of “administrative efficiency” is discussed when contrasting the availability of merits review to correct a defective decision with the availability of the more complex pathway of judicial review.

  22. Exercising of the powers to issue summonses and to make directions were identified by the Respondent as steps which the Tribunal could take in these proceedings. Even though those powers are available for exercise, this does not mean it is most expedient to do so. It is difficult to reconcile, on one hand, the Respondent’s submission that the Tribunal should itself, and for the first time, utilise its own powers to gather information not previously sought by the decision-maker with the submission, on the other hand, the Respondent’s submission that having the Tribunal “cure” an incomplete process would promote administrative efficiency. The statutory scheme plainly contemplates a two-tiered review process whereby a decision is first reviewed internally, under section 100 of the NDIS Act, and may then be reviewed externally by the Tribunal, by operation of section 103 of the NDIS Act and section 25 of the AAT Act. This two-tiered process is not designed to facilitate the abdication, by the decision-maker, of its evidence-gathering powers so that, if the matter is later escalated to the Tribunal, the evidence can be sought for the first time at that point. The process is designed to facilitate a meaningful review under section 100 of the NDIS Act as well as before the Tribunal. Just because a defect can be cured the Tribunal, including by the engagement of powers available only to the Tribunal such as the issuing of a summons, doesn’t mean that is the preferable course.

  1. The invitation by the Tribunal for the Respondent to consider whether the appropriate next step in the proceedings was to remit the matter under section 42D of the AAT Act was made for the purpose of achieving administrative efficiency. A more expedient administrative pathway is available by the Respondent allowing for any relevant information to be considered, in the first instance, internally, rather than by the Tribunal. The invitation to consider this pathway was advanced by the Tribunal in anticipation of the Respondent agreeing to a remittal of this matter in order to complete what has to date, by its own admission, been an incomplete review process. Instead, the Respondent has accepted that it has not obtained information necessary to conduct a meaningful review but has incorrectly arrived at the conclusion that this incomplete process cannot be remedied on remittal. The Tribunal has sought, by the reasons, to demonstrate that the pathway is available. Naturally, it is a matter for the reviewer to determine whether it should be followed by electing whether or not to exercise information-gathering powers. However, this is a clear case in which the Respondent has conceded that further information is needed in order to arrive at the correct or preferable decision.

  2. The question now is, what is the appropriate way to advance the determination of this review? The Applicant is entitled to have her review application dealt with by the Tribunal in a way that is expeditious and fair. The Respondent has, correctly, submitted that the Tribunal cannot direct the way in which reconsideration is to be undertaken under section 42D of the AAT Act. If, after further consideration of these reasons, the Respondent remains of the view that it either cannot or will not undertake a meaningful review, the issue of whether the matter should be remitted at an early stage for reconsideration (with any appropriate directions) can be determined by the Tribunal at a substantive hearing.

  3. Plainly, the Tribunal has jurisdiction under subsection 43(1) of the AAT Act to make a final determination that the decision under review is to be set aside and remitted to be reconsidered according to law, including in accordance with a direction that the review be undertaken with a proper re-exercising of the powers under Chapter 3, Part 1 of the NDIS Act. As the respondent has expressly submitted that further documents are required and raised the very real possibility that further medical and other assessments or examinations may also be required, such a determination would be within the jurisdiction of the Tribunal on review. However, the Tribunal is not in a position to make any such final determination now and would require both parties to participate in a hearing before determining whether this was the correct or preferable course.

  4. In circumstances where (as here) it has been made apparent by the decision-maker that more information is required to allow for a meaningful internal review to be undertaken, it is reasonable for the Tribunal to expect co-operation between the Tribunal and the decision-maker in order to achieve administrative efficiency. This is the orthodox approach for the proper operation of the administrative decision-making continuum. The Respondent may yet decide to seek a section 42D remittal, and the Tribunal notes that this course is open at any stage of the proceeding.[13]

    [13] 42D(1) AAT Act.

  5. In the meantime, both parties have asked that this matter be referred to an alternative dispute resolution process. I am prepared to direct that this matter be referred for a case conference as this may provide a setting for the parties to consider these reasons, any other relevant issues, and the appropriate next steps in this case. In the event that the matter remains before the Tribunal after the case conference, the matter will be set down for a substantive hearing so that the Tribunal can determine whether it is proper to set aside the decision under subsection 43(1) of the AAT Act and remit the matter for reconsideration with a direction that the further information identified by the Respondent as necessary in order to arrive at the correct or preferable decision be gathered by the Respondent and considered. Further review rights would attach. I have made directions to facilitate these courses of action, and to allow for the parties to make further submissions before a final hearing.

  6. If necessary, the parties can request that a further directions hearing be scheduled prior to the final hearing to further manage the process.

  7. It follows from these reasons that I have decided not to remit the matter under section 42D of the AAT Act at this stage of the proceeding but to instead issue the following directions The Tribunal directs that:

    1.The review application is listed for a case conference by telephone on 24 June 2022 at 3pm.

    2.On or before 28 June 2022, the parties are to file and serve hearing certificates for the month of August 2022.

    3.On or before 12 July 2022, the Respondent is to file and serve a Statement of Facts, Issues and Contentions and any written submissions directed to the question whether it is proper to set aside the decision under subsection 43(1) of the AAT Act and remit the matter for reconsideration with a direction that the further information, identified by the Respondent as necessary to arrive at the correct or preferable decision, be gathered by the Respondent and considered.

    4.On or before 26 July 2022, the Applicant is to file and serve a statement in reply.

    5.The review application is to be listed for hearing at a date to be fixed.

    6.Liberty to apply.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Buxton

..................[SGD]................................................

Associate

Dated:   2 June 2022

Date of hearing:

Date of final submissions:

3 May 2022

17 May 2022
Applicant’s Representative: Ms A. Holt, Spinal Cord Injuries Australia
 Solicitor for the Respondent: Ms S. Hardie, HWL Ebsworth Lawyers

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