Neville and Aged Care Quality and Safety Commissioner

[2023] AATA 285

Neville and Aged Care Quality and Safety Commissioner [2023] AATA 285 (24 February 2023)

Division:GENERAL DIVISION

File Number:          2023/0482

Re:Kevin James Neville

APPLICANT

AndAged Care Quality and Safety Commissioner

RESPONDENT

Decision

Tribunal:Senior Member A. Nikolic AM CSC

Date:24 February 2023

Date of written reasons:        29 February 2023

Place:Melbourne

The Tribunal has does not have jurisdiction to hear the application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.......................[sgd].................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

PRACTICE AND PROCEDURE – complaint regarding provision of vitamins and supplements – review of ‘no further action’ decision by Commissioner –differentiation between ‘complaints reviewable decision’ and ‘regulatory reviewable decision’ – no jurisdiction – oral reasons provided – written reasons requested

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)

Aged Care Quality and Safety Commission Rules 2018 (Cth)

CASES

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Negri v Secretary, Department of Social Services [2016] FCA 879

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Explanatory Statement, Aged Care Quality and Safety Commission Rules 2018 (Cth).

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

29 February 2023

INTRODUCTION

1. Mr Kevin Neville objects to a ‘no further action’ decision by a delegate of the Respondent (“Commissioner”), regarding a complaint Mr Neville lodged about funding for vitamins and supplements. His application was heard by telephone on 24 February 2023. He was self-represented, asked questions, and made submissions. The Respondent was represented by Ms Katherine Whittemore of Sparke Helmore Lawyers.

2. Following the hearing and because of Mr Neville’s self-represented status, ex tempore reasons were provided. Mr Neville said he understood why the Tribunal did not have jurisdiction to hear his application and expressed appreciation for having this explained.

3. On 27 February 2023, Mr Neville emailed the Tribunal requesting ‘a copy in written form of the reasons the AAT does not have jurisdiction in my appeal’. These are now provided consistent with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and Federal Court authority,[1] which states:

   “...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).”

   [1] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

   BACKGROUND

4. On 12 October 2021, Mr Neville lodged a complaint about the Commissioner’s refusal to fund certain vitamins and supplements he was taking. The available documents disclose this decision was partly based on expert advice that the vitamins and supplements were of ‘no clinical benefit’ and therefore could not be provided under Mr Neville’s Home Care Package. This was communicated to Mr Neville in a letter dated 1 December 2021 (“original decision”), which also advised him about his appeal rights.

5. On 23 December 2021, Mr Neville asked the Commissioner to reconsider, but in a letter dated 28 November 2022, the Commissioner affirmed the original decision (“reconsideration decision”). Mr Neville was advised he could contact the Commonwealth Ombudsman if concerned about the handling of his complaint.

6. On 20 January 2023, Mr Neville asked the Tribunal to review the reconsideration decision. He stated in his application and during the hearing that the Ombudsman was unable to assist him, but purportedly referred him to the Tribunal. When asked for this correspondence, Mr Neville said he could not locate it.

   LEGISLATIVE FRAMEWORK AND ITS APPLICATION TO MR NEVILLE

7. The Tribunal’s jurisdiction under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is limited to review of decisions made in the exercise of powers conferred by a Commonwealth statute, or by another statute having effect under that law.[2]

   [2] cf Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 312, 334; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 324 at [132].

8. The decision Mr Neville sought to appeal from was made under a statutory scheme consisting of the Aged Care Quality and Safety Commission Act 2018 (Cth) (“the Act”) and the Aged Care Quality and Safety Commission Rules 2018 (Cth) (“the Rules”). The Commissioner’s role is set out in s 16(1) of the Act, and encompasses a complaints function at s 18. One of the options open to the Commissioner, or their delegate, is to take no further action regarding a complaint: s 14(1)(k) of the Rules. This was the course taken regarding Mr Neville’s complaint.

9. Mr Neville was entitled, in accordance with s 99 of the Rules, to have the original decision reconsidered. He exercised this right, but the original decision was affirmed by the Commissioner under s 100(2)(a) of the Rules.

10. Section 103 of the Rules provides for review by the Tribunal, but only in respect of a ‘regulatory reviewable decision’.

11. Section 4 of the Rules contains the following relevant definitions:

    (a)Complaints reviewable decision: ‘…means a reviewable Commissioner decision of a kind mentioned in item 1 or 2 of the table in section 98’.

    (b)Regulatory reviewable decision: ‘…means a reviewable Commissioner decision of a kind mentioned in an item (other than items 1 and 2) of the table in section 98’.

12. Item 1 at s 98 of the Rules relates to the decision made in response to Mr Neville’s complaint and is therefore a ‘complaints reviewable decision’:

    ‘A decision under section 14 to take no further action in relation to an issue raised in a complaint (other than a complaint that has been withdrawn under section 12).’

    TRIBUNAL CONSIDERATION

13. The decision made by the Commissioner in response to Mr Neville’s application, under s 100 of the Rules, is one of only two decisions expressly excluded as a ‘regulatory reviewable decision’.  As such, the Tribunal has no power to review it because jurisdiction is only enlivened by ‘regulatory reviewable decisions’ made under ss 101-102 of the Rules.

14. Having reviewed the extrinsic material of the statutory scheme relevant to this matter,[3] the Tribunal accepts Ms Whittemore’s submission that:

    “This is a deliberate feature of the scheme, as confirmed in the explanatory statement to the Rules, which provides that “Applications to the AAT for reconsidered complaints reviewable decisions would not have been suitable for external merits review.”

    [3] Explanatory Statement, Aged Care Quality and Safety Commission Rules 2018 (Cth) 31.

    DECISION

15. It follows that the Tribunal has does not have jurisdiction to hear Mr Neville’s application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

………[sgd]………………………….

Associate

Dated: 29 February 2023

Date of hearing:	24 February 2023
Advocate for the Applicant:	Applicant – self represented
Advocate for the Respondent:	Ms Katherine Whittemore
Solicitors for the Respondent:	Sparke Helmore Lawyers