Neumueller and National Disability Insurance Agency

[2021] AATA 1049

Neumueller and National Disability Insurance Agency [2021] AATA 1049 (23 April 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/0821

Re:Jocelyn Neumueller

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:23 April 2021

Place:Adelaide

The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the Applicant’s application for review is dismissed.

..................[Sgnd]...................

Member I Thompson

Catchwords

PRACTICE AND PROCEDURE – Jurisdiction – Whether internal review conducted – Consideration of when statement of participant supports was in fact approved by CEO – Internal review of reviewable decision by “reviewer” not completed at time of application for review – Tribunal does not have jurisdiction – Application dismissed.

Legislation

National Disability Insurance Scheme Act 2013, ss 33, 99, 100, 103

Cases

NNXF and National Disability Insurance Agency [2019] AATA 5552

REASONS FOR DECISION

Member I Thompson

INTRODUCTION

1. The Applicant in this matter is a participant who qualifies for assistance under the National Disability Insurance Scheme (NDIS).

2. The substantive application to the Tribunal concerns the Applicant’s request for funding for modifications to her vehicle. The application was filed on 12 February 2021. The initial issue is whether the Tribunal has jurisdiction to review that application if the Agency has not made an internal reviewable decision. The Applicant contends that an internal review decision has been made. The Agency disagrees.

   PROCEDURAL HISTORY

3. The matter was listed for an interlocutory hearing on the issue  of jurisdiction before the Tribunal on 14 April 2021, at which the Applicant was represented by counsel Ms Wade of Equality Lawyers and the Respondent by Ms Fletcher, the National Disability Insurance Agency (the “Agency”).

   BACKGROUND

4. The Applicant’s first NDIS Plan commenced on 29 March 2018 for a period of six months. Subsequently six NDIS Plans have been approved.

5. The first NDIS Plan (Plan 1) commenced on 29 March 2018 for a period of six months. Plan 2 was approved for six months and included funding for the assessment of a vehicle modification and trial. Plan 3 was approved for a period of three months. Plan 4, which commenced on 28 June 2019 was approved for twelve months, however its duration appears to have been three months. Plan 5 was approved on16 September 2019 for twelve months but remained in place only until 25 February 2020.

6. Plan 6 was approved on 26 February 2020 for twelve months with a review date on 25 February 2021. This Plan was in place at the time of the application to the Tribunal on 12 February 2021.

7. The Applicant’s current NDIS Plan (Plan 7) commenced on 5 March 2021 with a review date on 5 March 2022.

8. It is possible that the Applicant, at some point, may have formed the impression that the Agency had been requested to conduct an internal review about the vehicle modifications and the result of such a review was reflected in a subsequent plan.

9. However, the Tribunal must assess what occurred as a matter of law, and whether a decision of a reviewer pursuant to s 100 National Disability Insurance Act 2013 (the “Act”) was made, which the Tribunal has jurisdiction to review.

   APPLICANT’S CONTENTIONS

10. The substance of the Applicant’s contentions are as follows:

    (a)the Agency made a decision on 12 February 2021 to decline requested supports for modifications to a vehicle;

    (b)the decision was conveyed to the Applicant by telephone on 12 February 2012;

    (c)the Applicant sought a review of the decision to decline the requested supports pursuant to s 100 (2) of the Act in writing on 12 February 2021;

    (d)the Agency decided on 4 March 2021 to decline the requested support, in accordance with s 100 (6) of the Act;

    (e)the Tribunal has jurisdiction to review the decision made on 4 March 2021 in accordance with s 103 of the Act and s 25 of the Administrative Appeals Tribunal Act (the “AAT Act”); and

    (f)the reasons for the decision were provided to the Applicant on 22 March 2021.

    CONSIDERATION

11. Not all decisions made under the Act are reviewable. The decisions which are reviewable are set out in s 99 and include:

    “(d) a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan.”

12. Section 100 provides for review of a reviewable decision by a “reviewer” who is required to confirm or vary the reviewable decision or set aside the reviewable decision and substitute a new decision.

13. The Tribunal is conferred with jurisdiction by s 103 to review “a decision made by a reviewer under subsection 100(6)”.

14. The first question is whether a valid (primary) reviewable decision can be identified. Next, a decision by a reviewer must be identified in order to meet the requirements of the Act.

15. Whether or not there was a reviewable decision, within the meaning of s 99 of the NDIS Act, requires consideration of s 33 (2) of the Act.

16. Section 33(2) of the NDIS Act relevantly provides as follows:

    (2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

    (a) the general supports (if any) that will be provided to, or in relation to, the participant; and

    (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

    (c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

    (d) the management of the funding for supports under the plan (see also Division 3); and

    (e) the management of other aspects of the plan.

17. Plan 6 provides for a statement of participant supports under s 33 (2) of the Act. It is a (primary) reviewable decision, which was made as a result of a determination, by or on behalf of the CEO, to approve a statement of supports in the Applicant’s plan. 

18. Plan 6, which was the current plan when the Applicant applied to the Tribunal, was approved on 26 February 2020. The Agency sent a copy of the Plan to the Applicant by letter dated 26 February 2020. This constitutes written notice in accordance with s 100(1) of the NDIS Act. Included in that letter under the heading “How to request for your plan approval decision to be reviewed” are details both about the steps which must be taken to meet the requirements of s 100(2) of the NDIS Act and how to take those steps. Each one of the Applicant’s seven NDIS plans was conveyed to her by letter which included information regarding the three-month time limit for requesting an internal review.

19. Section 100(2) provides that:

    “A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.”

20. The Applicant‘s statement of issues indicate that Plan 2 provided funding for a vehicle modification and trial. Subsequent to the commencement of Plan 2 it appears that allied health assessments took place and reports and quotes were generated and supplied to the   Agency’s “technical advice team”. Meanwhile conversations ensued and emails were exchanged between the Applicant and the Agency, both about progress with the requested vehicle modifications and other supports. In early 2020, the Applicant’s planning process was apparently transferred from the Local Area Coordinator partner agency to the Agency’s complex support needs pathway. By March 2020 the Applicant had understood: “…from an email dated 5 March 2020 that a full Plan review would be undertaken within three months and she understood approved funding for vehicle modifications would be included within the revised Plan”.[1]

    [1] Applicant’s Statement of Issues, paragraph 15.

21. However, the contents of that email are not as optimistic as the Applicant might have thought and do not go on to suggest that the modifications would be approved. The email to the Applicant from a planner in the complex supports needs branch of the Agency states:

    “Thank you so much for your impromptu time today – I appreciate you taking my call.

    I hope this weekend works well for you and everything is smooth and easy.
    As discussed, my details are below, and I will ring you on the 27th of May to see how you are and if you are ready to re-evaluate the current plan for your future needs.
    

    [2] Ibid, Attachment 9.

    Take care and I wish you well for the next few weeks”.[2]

22. The Applicant now contends that the Agency decided on 12 February 2021 to decline requested supports for modifications to a vehicle.

23. Four days earlier, in an email dated 8 February 2021 under the subject heading “check in”,  the Applicant wrote to a planner in the complex support needs branch of the Agency as follows:

    “I just wanted to check in and ensure that you received the information for the passive/active overnight data and assistance dog information from my last email as I have not had any reply.

    I was also wanting to check in and see where my car modifications are at.”[3]

    [3] Ibid, Attachment 11.

24. The next correspondence comprises 2 emails dated 12 February 2021 which the Applicant sent to the Agency. In the first email at 8:15AM the applicant asked the planner:

    “is it possible to have some indication of what the outcome of my car modifications application is, or what is holding up an outcome?”[4]

    [4] Ibid, Attachment 12.

25. The email goes on to describe the Applicant’s discontent that the timeframe for a decision exceeds those listed in operational guidelines, and that current transport arrangements are not satisfactory. The final sentence of the email is as follows:

    “I would really appreciate some communication on this application so I can pursue the matter externally if required to get an outcome.”

26. Following that email it appears that there was a telephone conversation between the Applicant and the planner as the Applicant wrote a second email at 12:41PM on the same day addressed to enquiries @NDIS.gov.au. In that email the applicant wrote:

    “To whom it may concern,

    I am writing to request an appeal of the decision to decline the car modifications submitted in March 2019.

    Although I do not have the reasons for the decision in writing and am relying on the verbal conversation with [NAME OF PLANNER]  on the morning of 12 February I believe the decision is incorrect on the basis of the application of reasonable and necessary supports.

    I am requesting immediate written confirmation of the support being declined and at the same time I am wanting to lodge an appeal if this decision to be noted today to begin that process.”

27. The Applicant’s contention implies that an Agency delegate other than the planner made a reviewable decision between 8.15AM and 12.41PM on 12 February 20 which was communicated by the planner verbally to the Applicant. Further, it is submitted that eventually   the planner provided written reasons for that decision by email dated 22 March 2021.

28. The Applicant concedes that written notice of a “decision” on 12 February 2021 was not provided. The communications on 12 February 2021 are recorded in the two emails which the Applicant sent to the Agency. There is no correspondence on 12 February 2021 from the Agency to the applicant and no indication in any interaction notes of a decision by the Agency. This is important in view of s 100 (1) of the Act which provides:

    “(1) The decision maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision”

29. The Applicant correctly points to s100(8) of the NDIS Act which states that non-compliance with subsection (1):

    “does not affect the validity of the reviewable decision or the right of a person directly affected to request a review of the decision.”

30. However, this provision does not apply in the present circumstances as the Tribunal is not satisfied that a reviewable decision was made on 12 February 2021.

31. The Tribunal is satisfied that the two emails which were generated on 12 February 2021 do not provide a basis for asserting that the Agency made a reviewable decision. The communications on 12 February 2021 were taking place in the period leading up to the formulation of Plan 7 which commenced on 5 March 2021.  It is also clear that the Applicant was wanting to get clarification regarding the Agency’s position about the vehicle modifications. As it was a long standing and seemingly unresolved issue it is not surprising that clarity was sought in anticipation of the next plan.

32. The Tribunal is unable to accept the Applicant’s contention that the Agency made a primary, reviewable decision on 12 February 2021 that purported to be a decision made by a delegate, other than the NDIA planner.

33. The Applicant also suggested that an email from the Agency planer which was sent to the Applicant on 4 March 2021 is evidence of a decision made by a reviewer to decline the requested support pursuant to s 100(6) of the NDIS Act.

34. However, this was an email sent on the day before the commencement of Plan 7. The email[5],  which is slightly more than one page in length, sets out details of the Agency’s current position regarding the requested modifications, specifically that the modifications do not meet the requirement of s 34(1)( c) of the Act regarding value for money. The email details   the type of evidence which the Agency suggests the Applicant should provide for her request to receive further consideration.

    [5] Ibid, Attachment 13.

35. It is not clear why the planner chose to write in those terms to the Applicant at that time. It seems to have been part of a continuing dialogue, however intermittent, between the planner and the Applicant about the vehicle modifications. It may have been intended to foreshadow an explanation about the contents of Plan 7, due to be sent the next day, with reference to the vehicle modifications.

36. However well-intentioned the communication might have been, it seems to have caused further confusion. Furthermore, the confusion is not reduced by the inclusion of comments towards the end of the email about the Applicant’s rights to an internal review decision. The email states: “if you disagree with this decision, you can request an internal review of a decision within 3 months of first receiving the plan.” At that stage, however, Plan 7 did not exist.

37. The Applicant contends that this email is confirmation of a decision by a reviewer pursuant to s100 (6) of the Act which the planner made on 4 March 2021 to decline the requested support. This contention rests on acceptance of the proposition that a reviewable decision was made on 12 February 2021. The Tribunal rejects that contention, as outlined above.

38. Furthermore, if there was a decision made by a reviewer under s100 (6) which was made on 4 March 2021 it would have been after the application on 12 February 2021 to the Tribunal for external review of that decision.

39. Next, it was argued for the Applicant that the Tribunal has jurisdiction to hear the review due to the application of s 25 of the AAT Act. This raises the question of whether a deemed decision was made in circumstances which would enable the Tribunal to exercise jurisdiction. Although this part of the Applicant’s submission was not pressed in detail it requires consideration.

40. Section 25(5) of the AAT Act relates to “failure of the decision-maker to meet deadline” and provides:

    “(5) for the purposes of an enactment that makes provision in accordance with this section for the making of implications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”

41. In NNXF & National Disability Insurance Agency[6] the Tribunal decided that s 25(5) of the AAT Act can operate to deem a decision under 100(6) of the Act to have been made in circumstances where none was made. The Tribunal identified four elements that are critical to the operation of the deeming provision in s 25(5). Those elements are a failure to act, a temporal requirement, a deemed decision, and correct identification of the decision that is deemed.

    [6] [2019] AATA 5552, a majority decision of the Tribunal comprising President Justice Thomas and Deputy President Britten-Jones.

42. The Tribunal’s jurisdiction must be determined by reference to whether a reviewable decision and a request for a reviewable decision have in fact taken place under the NDIS Act. In NNXF & National Disability Insurance Agency, the Tribunal confirmed that:

    “The beginning of the period expressed in s 100(6) is when the person directly affected by the reviewable decision requests the decision-maker to review the reviewable decision under s 100 (2).”[7]

    [7] Ibid, paragraph 94.

43. A request for a review must involve a challenge to a decision which has already made. At the time of the application to the Tribunal the most recent decision made on behalf of the CEO to approve a plan under s 33(2) was the decision to approve Plan 6. As previously indicated, the Tribunal is satisfied that a request for internal review was not made within 3 months of that primary, reviewable decision. There must be a request for a review of a reviewable decision otherwise the provisions in s 25(5) of the AAT Act do not apply. Moreover, there is nothing in the documents to indicate that such a request was made at any time in relation to any of the plans that preceded Plan 6. No doubt the Applicant was concerned about the length of time that had passed and also about requests by the Agency for supporting material which she considers to be repeated and unnecessary requests as adequate information, in her view, had already been provided. However, that lapse of time is not related to the question of whether or not a decision is deemed to have been made pursuant to s 25 of the AAT Act.

    CONCLUSION

44. It follows, therefore, on this analysis, that a reviewable decision was made under s 99 of the Act, the decision being the approval of the statement of participant supports in Plan 6. That decision has not been reviewed under s 100. A review by a reviewer under s 100 is a precondition to the Tribunal having jurisdiction under s 103. Accordingly, the Tribunal does not have jurisdiction with respect to the application lodged on 12 February 2021, and the application must therefore be dismissed.

45. This decision does not prevent the Applicant from pursuing her request for funding for vehicle modifications. She has the option of requesting an internal review of the decision that approved Plan 7. Unfortunately, however, there is some doubt about whether such a request has already been made. The Applicant lodged a complaint about the way in which the Agency has handled her request for funding for vehicle modifications. Correspondence dated 22 March 2021 from the Internal Reviews and Complaints Branch of the Agency[8]   suggests that a conversation with the Applicant has been interpreted as a request for an internal review. During this hearing it became apparent that the Applicant does not consider that she has lodged an internal review request in relation to Plan 7. It would be helpful if the parties can promptly unravel this divergence of views. Otherwise there is a danger that misunderstandings about procedural requirements could continue to distract attention from the substantive questions about the modifications to the vehicle.

    DECISION

    [8] Applicant’s Statement of Issues, Attachment 15.

46. The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the Applicant’s application for review is dismissed.

    DECISION

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

   ……………[Sgnd]………………

  Administrative Assistant Legal

 Dated: 23 April 2021

Date of hearing:	14 April 2021
Advocate for the Applicant:	Natalie Wade, Equality Lawyers
Advocate for the Respondent:	Erina Fletcher, National Disability Insurance Agency