NJDF and National Disability Insurance Agency - [2022] AATA 2138

NJDF and National Disability Insurance Agency [2022] AATA 2138 (30 June 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/1495

NATIONAL DISABILITY INSURANCE SCHEME DIVISION )
Re: NJDF
Applicant

And: National Disability Insurance Agency
Respondent
REMIT ORDER
TRIBUNAL:             Member Dr C Huntly
DATE:   30 June 2022
PLACE:                  Perth
The Tribunal ORDERS:
1.The directions of Senior Member Parker dated 19 May 2022 be vacated.
2.Pursuant to section 42D of the Administrative Appeals Tribunal Act 1975, and for the reasons that follow, the Tribunal remits to the Respondent for reconsideration on or before 14 July 2022 the decision of the Respondent’s delegate dated 2 February 2022.

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Member

REASONS FOR THE ORDERS
Legislation

The relevant legislation in this matter is the National Disability Insurance Scheme Act 2013 (the NDIS Act).
The objects and principles of the NDIS Act are set out in Part 2 of the NDIS Act. Subsection 3(1) of the NDIS Act relevantly includes:
(1)The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community; and
…
Section 4 of the NDIS Act sets out the General Principles guiding actions under the NDIS Act and they relevantly include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
…
(11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.
…
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
Section 34 of the NDIS Act specifies the matters which the CEO of the National Disability Insurance Agency (Agency) must be satisfied for the purposes of a statement of participants supports; the section provides as follows:
34.      Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participants 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 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 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)     a part of a universal service obligation; or
(ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)the support is not prescribed by the National Disability Insurance Scheme rules as a support that will not be funded or provided under the National Disability Insurance Scheme;
Section 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides as follows:
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and make a new decision in substitution for the decision set aside.
Note:    For time limits, see subsection (5).
(3) If the person varies the decision:
(a)the application is taken to be an application for review of the decision as varied; and
(b)the person who made the application may either:
(i)proceed with the application for review of the decision as varied; or
(ii)withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a)the application is taken to be an application for review of the new decision; and
(b)the person who made the application may either:
(i)    proceed with the application for review of the new decision; or
(ii)   withdraw the application.
Time limits
(5)The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a)if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;
(b)in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.
(6)The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7)If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8)If the person affirms the decision, the proceeding resumes.
Section 33 of the AAT Act provides as follows:
(1)In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision‑maker must assist Tribunal
(1AA)In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB)A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Directions hearing
(1A)The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2)For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b)where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A)Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d)limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)require witnesses to give evidence at the same time; or
(f)limit the time for giving evidence or making oral submissions; or
(g)limit the length of written submissions.
The operation of s 42D of the AAT Act was considered by Senior Member Nikolic AM CSC in Sharpe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[1] as follows:
Section 42D of the AAT Act confers a discretion on the Tribunal ‘at any stage’ to remit an application to the Respondent for reconsideration, without determining the substantive application. ...The decision-maker on remittal can affirm, vary, or set aside the decision and make a new decision in substitution. The Applicant can also decide whether to continue with or withdraw their application after considering the outcome. If the decision-maker affirms the decision, or it is affirmed by operation of law, and the Applicant does not withdraw their application, the proceeding resumes in the Tribunal. …
[1][2022] AATA 1125 [10], (relying on Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2010] AATA 935).
Background
The Applicant is an 11-year-old boy who has autism spectrum disorder (ASD).
The Applicant (represented by his mother and Ms Julie Bloomfield, a disability advocate of People with Disabilities (WA) (Inc)) seeks review of his approved program of support under the NDIS Act (reviewable decision) made by a Review Officer and dated 2 February 2022. An application for review of the reviewable decision was lodged with the Tribunal on 23 February 2022.
Subsequently, an “early event” directions hearing (Directions Hearing) was held by Senior Member Parker on 17 May 2022. Senior Member Parker granted the request for an expeditious hearing of this matter, based on the following rationale:
The Tribunal considers it appropriate to progress this application on an expedited basis in light of the following:
·the reported incidents of increasing behaviours of concern and destruction of property;
·the risk of harm to the Applicant’s younger sister in the current family home environment; and
·the Applicant is about to transition from mainstream primary school to mainstream high school at the end of this year.
In her Directions dated 19 May 2022 (19 May 2022 Directions) following the Directions Hearing, Senior Member Parker also included the following foreshadowing commentary:
To this end and noting the Respondent’s willingness to reconsider the requested supports upon further clarification by the Applicant’s mother and representative, the Tribunal foreshadows that it will remit this matter to the Respondent for reconsideration for a period of 14 days in accordance with the following Directions.
By agreement of the parties, the 19 May 2022 Directions established a challenging, but achievable, schedule of pre-hearing submission deadlines that would facilitate the orderly conclusion of the review application prior to the end of School Term 3. This was necessary to provide certainty at a time of transition, something that is clearly in the best interests of the child Applicant in accordance with the wishes of the child Applicant’s parent, and in a manner consistent with Australia’s international convention obligations.
The initial compliance with the 19 May 2022 Directions as to the submissions of parties was positive.
Regrettably, following timely and comprehensive submissions from the Applicant, the Respondent did not meet its first significant submission deadline under the schedule agreed and implemented by the 19 May 2022 Directions. At a subsequent Telephone Directions Hearing (TDH) with the parties on Thursday, 23 June 2022, Counsel for the Respondent cited delays in what was termed the “complex supports needs team” within the Agency for this failure to meet agreed deadlines.
The Respondent sought leave to amend the scheduling provided for in the 19 May 2022 Directions. The effect of this request would be to defeat the intention of the expedited schedule directed by Senior Member Parker, namely, to provide certainty of funding and supports to the Applicant prior to the important transition planning around his passage from primary school to secondary school. Certainty at such a milestone is a reasonable and necessary expectation of and for the child Applicant.
TDH
The purpose of the TDH was threefold, namely;
(a) to raise concerns with the parties about the impact of delayed submission and hearing deadlines on the developmental needs of the child Applicant;
(b) to ensure that the Respondent was meeting its obligation to use its best endeavours to assist the Tribunal in the discharge of its statutory objectives under s 33(1AB) of the AAT Act (s 33(1AB) obligations); and
(c) to find out from the parties if there was any reason why the s 42D remitter foreshadowed in the 19 May 2022 Directions should not be immediately issued.
The Tribunal explained its concerns about the disposition of the application in light of the developmental needs of the child Applicant.[2]
[2]Transcript pp 1-6.
Counsel for the Respondent advised the extent to which the Respondent had met its s 33(1AB) obligations as a Model Litigant. Counsel demonstrated commendable familiarity with the brief and was able to provide relevant context and chronology in response to the Tribunal’s concerns.[3]
[3]Ibid 6-7.
The Tribunal is satisfied that the Respondent has been meeting its s 33(1AB) obligations.
Given the present disposition of this application and considering the best interests of the child Applicant, the views of parties were sought about the amenability of the application to be remitted to the Agency pursuant to s 42D of the AAT Act. The Tribunal noted that such an eventuality was foreshadowed in the 19 May 2022 Directions and that, as such, it would merely crystallise that to which previous allusion had been made.
The parties agreed that a s 42D remitter was the most appropriate option, given the present disposition of the application and the best interests of the child Applicant.
After hearing from the parties, the Tribunal advised the Parties that for the purposes of s 42D(5)(a) of the AAT Act, the time limit for a decision by the Respondent’s delegate would be three (3) weeks from the date of the TDH (or 14 July 2022).
REASONS FOR PUBLICATION OF ORDERS
The Tribunal indicated to the parties that, given the relative infrequency of a s 42D remitter issuing from proceedings in the Tribunal, there was a public interest in publishing subsequent directions and providing the background for its occurrence in the present matter. This, in addition to the particular public interests raised in the present matter suggest that publication is appropriate.

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/1495
NATIONAL DISABILITY INSURANCE SCHEME DIVISION	)