NSDW and National Disability Insurance Agency - [2024] AATA 1432

NSDW and National Disability Insurance Agency [2024] AATA 1432 (6 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/5208 and 2024/0409
Re:NSDW
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President A Younes
Date:6 June 2024
Place:Sydney

The Tribunal dismisses review application number 2021/5208 under s 42A(5) and review application number 2024/0409 under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
...................................[SGD].....................................
Deputy President A Younes
CATCHWORDS
Practice and Procedure — dismissal of application for review — whether Tribunal satisfied that it is appropriate to dismiss the application — proper notice — Applicant failed within a reasonable time to progress with his application — procedural fairness — application dismissed under s 42A(5) and in 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451
De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269
Guse v Comcare (1997) 25 AAR 477; 49 ALD 288
Klewer v National Disability Insurance Agency [2023] FCA 630
McGarrigle v NDIA (2017) 252 FCR 121; [2017] FCA 308
Pavlakis and NDIA [2023] AATA 2485
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re De Simone and Commissioner of Taxation [2017] AATA 1005
Re Gulf Meat Exporters Pty Ltd and Export Development Grants Board (1982) 4 ALN No 116
Re Lewtas and Comcare [2017] AATA 1804
Re McGrath and Inspector-General in Bankruptcy (2011) 119 ALD 439; [2011] AATA 27
Re Vilips and Migration Agents Registration Authority (2007) 96 ALD 249; [2007] AATA 1613
SECONDARY MATERIALS
NIL
REASONS FOR DECISION
Deputy President A Younes
6 June 2024

There are two applications for review before the Administrative Appeals Tribunal (AAT/Tribunal), which have been commenced by the Applicant. The applications were consolidated by an order of the Tribunal in January 2024. The Respondent has made applications to dismiss both matters.
The Tribunal will firstly deal with matter number 2021/5208, and secondly with matter number 2024/0409.
Principles & Objectives
The National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’) operates in pursuit of the objectives set out in section 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 3 of the NDIS Act sets out the objects and principles of the NDIS Act, making particular reference to the purpose of providing reasonable and necessary supports.
Subsection 3(1) provides, in part:
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 community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
…
The objects of the NDIS Act are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”[1] Section 4 of the NDIS Act refers to the General principles guiding action under the NDIS Act, and provides a set of principles. Subsection 4(17) refers to the need to ensure the financial sustainability of the Scheme. It provides that it is “the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial stability of the National Disability Insurance Scheme”.
[1] Subsection 3(2)(b) of the NDIS Act.
Section 32 of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant's plan. Section 33 of the NDIS Act provides that the plan must include the participant's statement of goals and aspirations and a statement of participant supports (SOPS) prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under the NDIS Act, and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Supports for Participants Rules’).
Among other matters, it is with those principles and guidelines that the Tribunal is approaching its task.
Matter number 2021/5208
The Applicant lodged this application for review with the Tribunal on 30 July 2021[2] in relation to a decision made by a delegate of the CEO of the National Disability Insurance Agency (the Agency) dated 13 July 2021.[3]
[2] T1, 1-8.
[3] T1A, 9-15.
By way of background, the Applicant is in his mid-fifties with cognitive impairment and psychosocial disability as a consequence of a traumatic brain injury which he suffered as a result of motorbike accidents in 1986 and 1987, and being the subject of an assault in 1988.[4] Ms H, Clinical Psychologist provided a report dated 18 June 2021, noting that the Applicant’s acquired brain injury has “impacted his cognitive, emotional, and interpersonal competence…has previously been diagnosed with schizophrenia, bipolar, and organic brain injury…”[5] Ms H noted that a psychiatrist had previously diagnosed the Applicant with Post Traumatic Stress Disorder (PTSD). The Applicant is also reported as having sustained thoracic and cervical injuries.[6]
[4] T7, 74-76; T1E, 35.
[5] T7, 74.
[6] T4, 60.
The Applicant’s initial plan was for 12 months and it commenced on 29 May 2020, with a review date on 29 May 2021.[7]
[7] T14, 93.
A subsequent 36-month plan commenced on 29 May 2021.[8] Under this plan, the Applicant was approved for the following supports:
[8] T15, 111-112.
(a)Core supports:
(i)$10,648.00 – 6 hours per month for house and yard maintenance;
(ii)$8,028.00 – transport.
(b)Capacity building:
(i)$15,519.20 – Improved Daily Living (CB Daily Living) – 80 hours for allied health professionals;
(ii)$38,108.00 – support coordination – 200 hours of specialist support coordination.
The Applicant sought internal review under section 100 of the of the NDIS Act of the delegate’s decision to approve the SOPS under the plan that commenced on 29 May 2021. The outcome of the internal review was that the original decision was correct.[9]
[9] T2, 52.
The Applicant also sought that the Respondent review his plan under section 48 of the NDIS Act. On 4 August 2021, a delegate of the CEO of the Respondent decided not to review the plan.[10] On 2 March 2022, the Respondent filed a Statement of Position, updating its position in relation to the additional supports sought by the Applicant.
[10] T13, 87.
On 3 March 2022, the Tribunal ordered under subsection 25(4A) of the AAT Act, that the issues to be decided by the Tribunal in the proceeding are confined to whether the Applicant’s SOPS in his plan should include the provisions of, and funding for, the following three supports, and if so, whether those supports should be plan-managed:
·150 hours of specialist support coordination services per annum;
·vehicle hire; and
·an adjustable bed base and mattress.
On 10 March 2022, the Tribunal made an order under s 42D of the AAT Act to remit for reconsideration on or before 11 March 2022 the decision of the Respondent dated 13 July 2021. Consequently, on 10 March 2022, the Respondent varied the SOPS in the Applicant’s plan. In addition to the supports provided for in the preceding plan, the new plan included the following:
·27 hours of psychological therapy per year (including one hour for report writing);
·A reduction in the NDIS plan length from 36 months to 12 months;
·The changing of capacity building daily activity funding from Agency-managed to plan-managed; and
·The changing of core supports relating to house and yard management from Agency-managed to plan-managed.
On 12 May 2022, the parties participated in a conciliation conference which was unsuccessful in resolving the matter or confining the issues for determination.
On 22 December 2022, the Respondent implemented a new plan for the Applicant from 15 December 2022 to 15 December 2023, under section 48 of the NDIS Act. There was no s 42D of the AAT Act order in place at the time of implementation of this plan to remit the decision under review for reconsideration by the Respondent. The Respondent approved the following supports:
(a)Core supports:
(i)$16,661.68 – 6 hours per month for house and yard maintenance plus support for assistance with daily activities, social community and civic participation;
(ii)$2,676.00 – transport.
(b)Capacity building:
(i)$1,485.75 – Improved Life Choices (CB Choice & Control);
(ii)$11,026.80 – Improved Daily Living (CB Daily Living);
(iii)$29,724.24 – support coordination – 156 hours of specialist support coordination.
On 20 March 2023, the Tribunal made an order under s 42D of the AAT Act to further remit for reconsideration on or before 4 April 2023 the decision of the Respondent as reconsidered following the remittal order made on 3 March 2022. On 22 March 2023, the Respondent created a new plan for the Applicant. The supports in the 22 March 2023 plan reflect those in the 22 December 2022 plan, save that Transport has been funded for $9,964.50.[11] The goals in the new plan are unchanged from the earlier plans.
[11] Further T2, 13-22.
On 24 August 2023, the Respondent created a new NDIS plan and SOPS for the Applicant under section 48 of the NDIS Act, which was intended to be reviewed in 12 months. There was no s 42D order in place at the time of implementation of this plan to remit the decision under review for reconsideration by the Respondent. The only change to the previous plan was that it extended the transport funding under the previous plan to August 2024.[12]
[12] Further T3, 23-33.
On 12 September 2023, the Respondent varied the 24 August 2023 SOPS for the Applicant, due to be reviewed in 12 months. That plan included core support funding of $17,510.80 (self-managed), and transport funding of $6,927.62. The transport funding was adjusted so that the Applicant would retain the benefit of the earlier higher level transport funding until April 2024. Due to the Respondent’s systems, the transport support fortnightly payments were averaged out over the 12 month period of the plan, rather than providing higher fortnightly payments only until April 2024.[13]
[13] Further T4, 34-44.
On 1 February 2024, the Respondent again varied the Applicant’s plan under s 47A of the NDIS Act, creating a new SOPS, with a start date of 1 February 2024 and a plan review dated of 31 January 2025. When preparing the new SOPS, the Respondent provided for supports including transport payments of $382.22 per fortnight until 9 April 2024. Subsequently, the Respondent’s payments team identified that the Respondent’s system which funds transport support as fortnightly payments calculates those fortnightly payments based on the annual approved amount and pays a specified amount, being the average of that yearly amount, each fortnight. This is the case even where different amounts are specified for separate periods.[14]
[14] Respondent’s Further Amended Statement of Facts, Issues and Contentions (SFIC), dated 20 March 2024, [28]-[29].
ISSUES
It has been difficult to identify the remaining issues in dispute. Apart from potential jurisdiction issues to be discussed later, transport funding has been provided in accordance with the agreement made between the parties which resulted in the 22 March 2023 plan and SOPS that included transport funding for $9,964.50.
The other issue that has been in dispute relates to a bed and mattress. The Applicant has indicated that this is required in connection with back pain issues. The Tribunal notes that no provision for funding for such a support was provided for in either the 31 May 2021 plan or the reconsidered 10 March 2022 SOPS. Moreover, there was no provision of funding for this support made in the 22 March 2023 plan and SOPS. However in the 1 February 2024 plan, the Respondent has allocated funding for assistive technology (AT) in the amount of $1,600 with the intention that this funding could be used by the Applicant to obtain the requested bed and mattress following provision of an AT assessment and quote. Although that funding was to be used following a recommendation from a relevant practitioner to NDIS and quote, the Respondent has advised that the Applicant has already spent the allocated funding without provision of these documents to the Respondent.
In the course of the interlocutory hearing on 20 May 2024, the Respondent confirmed that those funds have been spent by the Applicant but no invoices have been provided to the Agency. The Applicant however remains to contend that he should have been provided with another $2. The Respondent has contended that funding for AT was provided for in the 1 February 2024 SOPS, which is not a decision about which the Tribunal has jurisdiction.
The Applicant also appears to be concerned about the length of his plan – he would like it to be for 3 years. The Respondent noted that the Applicant had on 1 February 2024 agreed to a one year plan but in any case, as this relates to the SOPS, it is not a matter about which the Tribunal has any jurisdiction.[15]
[15] Further Respondent’s SFIC dated 20 March 2024, [62].
The Tribunal is not determining the merits of the review application but whether it should be dismissed, pursuant to section 42A(5).
APPLICATIONS FOR DISMISSAL
There was initially an application to dismiss at the scheduled hearing on 24 April 2024 as the Applicant failed to appear when the matters were called at about 10.00 am. Counsel for the Respondent made the application to dismiss this matter under section 42A(2) and/or section 42A(5) of the AAT Act. The Tribunal declined to dismiss on that day as firstly, just a few minutes before the hearing, the Applicant had provided a brief medical certificate stating that he was unfit to attend the hearing. Secondly, the Tribunal was of the view that the Applicant needs to be given appropriate notice pursuant to section 42A(7) of the AAT Act. The Tribunal listed the matters for an interlocutory hearing on 20 May 2024 and gave the parties an opportunity to provide any submissions relating to the dismissal applications.
The Applicant appeared at the hearing on 20 May 2024, although he was about 10 minutes late, stating that he had connection issues. He appeared with a support person. Consequently, the Respondent did not press the application to dismiss under section 42A(2), but contended that the matter should be dismissed under section 42A(5).
RELEVANT LEGISLATION & CASE LAW
The Tribunal’s objectives are articulated in section 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Section 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not a reviewable decision by the Tribunal.
Section 42A(5) of the AAT Act provides that:
(5)If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
There is judicial guidance that the power to dismiss should be exercised as a last resort. In Guse v Comcare,[16] the Court remarked that section 42A(5) of the AAT Act provides a discretionary power that should be regarded as one of last resort. In relation to the exercise of this power, the Court held that:
The very nature of the discretion seems to me to demand that the Tribunal consider, after the default has occurred, whether in the circumstances then obtaining, a "reasonable time" has elapsed and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance…
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed.
[16] Guse v Comcare (1997) 25 AAR 477; 49 ALD 288.
In Charara v Federal Commissioner of Taxation, the Federal Court held that section 42A(5) is in aid of the objective in section 2A(b) of the AAT Act[17] and set out the principles relevant to the exercise of the discretion as follows:[18]
The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[17] Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451 at [75].
[18] Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451 at [79]–[80].
In Re McGrath and Inspector-General in Bankruptcy,[19] the Tribunal declined to make the order sought, stating at [20] that the discretion to dismiss should be exercised sparingly and only in the clearest cases. However, there have been multiple decisions, where the Tribunal exercised the power to dismiss an application. In Re Lewtas and Comcare,[20] the Tribunal noted that the applicant had both been advised of the need to comply with a direction and had been given an opportunity to explain why she had not complied with that direction thus making out the conditions for the exercise of the dismissal power.
[19] Re McGrath and Inspector-General in Bankruptcy (2011) 119 ALD 439; [2011] AATA 27.
[20] Re Lewtas and Comcare [2017] AATA 1804.

In Re De Simone and Commissioner of Taxation,[21] the Tribunal observed that:
Section 42A(5) plainly complements the Tribunal’s s 33 powers to regulate the conduct of an application to the Tribunal. Section 42A(5) affords a process for dealing with non-compliance with directions designed to cause:
(a)the issues in dispute to be identified; and
(b)gathering or preparation of evidence directed to the facts that bear upon the issues in dispute,
both for the purposes of assisting the parties to prepare their cases and assisting the Tribunal in discharging its review responsibilities. An applicant who fails or refuses to participate in the processes directed by the Tribunal does so at the peril of the application being dismissed.
[21] Re De Simone and Commissioner of Taxation [2017] AATA 1005 at [10].
In Re Vilips and Migration Agents Registration Authority,[22] the Tribunal noted that the mere fact that delay had been caused by a medical condition was not in itself sufficient to give an applicant a right to maintain a matter before the Tribunal indefinitely. This is particularly the case if the evidence shows that there is no reasonable prospect of the condition being resolved in the foreseeable future.
[22] Re Vilips and Migration Agents Registration Authority (2007) 96 ALD 249; [2007] AATA 1613 at [17].
PROCEDURAL BACKGROUND
In accordance with established procedures, the parties were streamed through the alternate dispute resolution pathway within the Tribunal, which is intended to provide an informal and timely resolution of the matter. There have been multiple case conferences and Directions Hearings, during which Directions were made to progress the matters.
The chronology set out below is relevant.
·Case Conferences held on 11 October 2021 and 9 December 2021. Listed for case conference on 21 February 2022 but vacated on the Applicant’s request.
·Conciliation held on 12 May 2022.
·Directions Hearing held on 25 May 2022 – Directions made on 26 May 2022 and matter listed for hearing on 7 and 8 September 2022.
·Directions hearing held on 23 August 2022 – the Applicant indicated that he was not yet ready to proceed to a hearing as he wanted to obtain legal/other representation. The hearing listed on 7 and 8 September 2022 was vacated and directions made.
·Listing for hearing on 7 and 8 September 2022 vacated to allow the Applicant more time to obtain legal/other representation.
·Directions Hearing held on 12 October 2022 – Directions made including listing for hearing on 28 February 2023 and 1 March 2023.
·Hearing on 28 February 2023 and 1 March 2023 vacated with consent to enable the parties to engage in informal discussions and if needed, to allow the Applicant more time to obtain legal representation.
·On 20 March 2023, there was partial settlement and s 42D terms made.
·Directions Hearing held on 28 March 2023 – Directions made and matter listed for hearing on 7 June 2023, which was vacated to allow the Applicant more time to obtain representation or legal advice.
·Listed for Directions Hearing on 31 July 2023.
·On 27 July 2023, the Applicant made a request to adjourn the Directions Hearing of 31 July 2023, on the basis of the Applicant needing ‘respite’. The Applicant provided medical evidence but that did not state that the Applicant was not able to participate or that the Applicant was not able to attend the Directions Hearing. The Respondent opposed the adjournment. The Tribunal did not grant an adjournment.
·On 28 July 2023, the Applicant made another request to adjourn the Directions Hearing of 31 July 2023, on the basis of the Applicant is in a state of duress and discomfort. The Tribunal did not grant an adjournment.
·On 30 July 2023, the Applicant made another request to adjourn the Directions Hearing of 31 July 2023, on the basis of the Applicant been uncomfortable, and stressed. The Tribunal did not grant an adjournment.
·Directions hearing held on 31 July 2023 – Applicant appeared.
·Hearing listed on 8 November 2023 but vacated due to a death in the Applicant’s family.
·Hearing listed on 25 January 2024 but vacated due to the Applicant filing another application for review (matter number 2024/0409). Directions made as follows:
1)For the matter of 2024/0409, on or before 22 February 2024, the Respondent is to provide to the Tribunal and to the Applicant a copy of the T-Documents;
2)On or before 14 March 2024, the Respondent is to provide to the Tribunal and to the Applicant a consolidated Statement of Facts, Issues and Contentions for both matters;
3)On or before 11 April 2024, the Applicant may give to the Tribunal and to the Respondent any reply to the Respondent’s Statement of Facts, Issues and Contentions; (this was varied on the Direction dated 21 March 2024 to 16 April 2024)
4)Both matters be listed for an in-person hearing on 24 April 2024 at 10:00AM.
·On 19 April 2024, the Applicant was advised by the Tribunal that his request for an adjournment of the listed hearing is declined.
·On 23 April 2014, the Applicant provided a medical certificate to support his request for an adjournment of the listed hearing but the medical evidence did not specify that the Applicant was unable to attend the hearing so the request was declined.
·On 24 April 2024, Directions for the dismissal applications were made and matters were listed for an interlocutory hearing on 20 May 2024. The following Directions were made:
1.On or before 3 May 2024, the Respondent is to file and serve on the Applicant and the Tribunal any submissions in support of the application to dismiss under ss 42A(2) and 42A(5) of the AAT Act;
2.On or before 15 May 2024, the Applicant is to file and serve on the Respondent and the Tribunal any submissions in reply, or advise that he does not intend to do so;
3.Both matters are listed on 20 May 2024 at 10:00 AM by video for an interlocutory hearing to determine the application for dismissal.
On 14 May 2024, Applicant requested an adjournment of the hearing listed on 20 May 2024. He wrote:
I am writing to formally request an adjournment of the hearing currently scheduled for 20 May 2024. Due to current circumstances relating to my mental health, I am not in the right frame of mind to attend or participate effectively in this hearing. I should not have to be responding to this letter for the submissions on the 14th May 2024, there is a letter from a doctor to say I am medically unfit. This decision is not taken lightly but is recommended as it is not in my best interest to be present under these conditions.
Please be informed that I have a scheduled appointment with my psychologist on 21st May 2024, which underscores the seriousness of my condition and my commitment to seeking the necessary treatment. Furthermore, I have submitted a medical certificate to the tribunal,[23] attesting to my unfitness to attend the upcoming hearing. This certificate, issued by a medical professional, clearly advises against my participation in proceedings that could exacerbate my current condition. My circumstances has not changed since the last medical certificate.
Additionally, I am in the process of obtaining further medical evidence, including letters from my psychiatrist, which will provide a comprehensive understanding of my health status and the professional advice against my involvement in stressful or taxing situations, including legal hearings, at this time.
Given these circumstances, I kindly request your consideration for adjourning the hearing to a later date, when I am better equipped, both mentally and physically, to engage with the requirements of the process. This adjournment would not only serve my health and welfare but also ensure that I can participate in the hearing more fully when I am medically fit in the future.
The NDIS act states 'in the best interest of the person with a disability' this is a breach of the NDIS act, this is against the legislated act.
I appreciate your understanding and cooperation in this matter. I am eager to comply with all necessary procedures, but I must prioritize my health as advised by my medical caregivers. I look forward to your expedient response and hope for a favorable consideration of my request.
Thank you for your attention to this matter.
[23] The Applicant is referring to a previous medical certificate unrelated to the scheduled hearing on 20 May 2024.
On 16 May 2024, the Tribunal responded as follows:
The Tribunal has carefully considered your request to adjourn the hearing listed on 20 May 2024.
The Tribunal notes that you commenced the first review on 30 July 2021. Since that time, the review has had multiple case conferences, and decisions made under s.42D. The matter was listed for a hearing on 7 and 8 September 2022, but was vacated on the basis that you wished to seek legal advice and/or representation. The matter was listed on 23 February 2023 and 1 March 2023, but was vacated to enable you and the Agency to engage in informal discussions with the aim to resolve the matter. The matter was then listed on 7 June 2023 for hearing, but this was again vacated at your request. You provided a brief report from a psychologist relating to your cognitive skills. Despite the brevity of the report and lack of any detailed assessments supporting the conclusions, the Tribunal granted an adjournment.
The matter was listed for a hearing on 8 November 2023, but was vacated due to the death of a family member. The matter was later listed for a hearing on 25 January 2024, but was vacated because just prior to the hearing you filed the second review application and it would not have been appropriate to proceed. It was listed again on 24 April 2024 but you did not appear. You provided a brief medical certificate stating that you could not appear.
You are now requesting a further adjournment of the interlocutory hearing listed on 20 May 2024, essentially on the basis of seeking psychological assistance. It is unclear why this was not done in the last two years.
The Tribunal acknowledges your position but the Tribunal is of the view that you have had ample opportunity to appear and put your case in full before the Tribunal. The Tribunal is particularly concerned about the lack of tangible progress in this matter. The Tribunal draws your attention to the fact that applications can be dismissed by the Tribunal if an applicant 'fails within a reasonable time' to proceed with the application (see s.42A(5) of the AAT Act). The history of the matter could potentially suggest that you do not wish to appear at a hearing. With the consent of both parties, the Tribunal could make a decision based on the available material. That is without a hearing.
Given the above reasons, the Tribunal declines the request for an adjournment and confirms the listing on 20 May 2024. You can choose to have a support person with you.
PROCEDURAL FAIRNESS
The first issue that needs to be addressed is whether the Applicant has had proper notice of the potential dismissal.
The Tribunal is mindful of the necessity to, before dismissing a matter, forewarn the Applicant of the potential dismissal and give an opportunity to provide an explanation for the non-compliance.[24] The Tribunal must be satisfied that the Applicant has been given proper notice before exercising its power to dismiss for non-appearance pursuant to section 42A(7) of the AAT Act.[25] Although the Respondent made an application to dismiss on 24 April 2024, the Tribunal declined. On 24 April 2024, the Tribunal made directions including listing the matters on 20 May 2024 for the interlocutory application to dismiss.
[24] De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269 at [25].
[25] Re Gulf Meat Exporters Pty Ltd and Export Development Grants Board (1982) 4 ALN No 116.
On the evidence, the Tribunal is satisfied that the Applicant has been given notice of the potential dismissal, and that he has had an opportunity to make submissions.
Should the application be dismissed?
The Respondent referred to multiple case conferences and other listings. The Tribunal observes that the first matter has been ongoing since July 2021 and although some progress has been made, it is at a stage where progress has been limited due to multiple requests by the Applicant to adjourn listings on the grounds that, among other things, clinical issues, lack of legal representation, and/or support. The Tribunal observes that the Applicant has been given multiple opportunities to seek and obtain legal representation. He has not been able to do so. As to any impacting clinical conditions, although the Applicant on occasions has provided medical and other certificates, the certificates have tended to be brief and limited in detail about the Applicant’s claimed inability to participate in hearing. His correspondence to the Tribunal on 14 May 2024, as outlined above, refers to a medical certificate which was previously provided to the Tribunal in relation to another adjournment. The Tribunal is mindful that the Applicant has been accepted into the Scheme based on his disabilities, which meant that he satisfied the relevant criteria, but the Applicant has applied for a review which needs to be progressed to a finality. The Tribunal is aware of a report from Mr C, Psychologist, dated 17 May 2023,[26] in which Mr C recommended “Legal counsel” or another qualified person equivalent to those representing the Agency to assist the Applicant, and allowing for brief breaks during the hearing. The Tribunal has adjourned listings on multiple occasions to allow the Applicant to obtain legal advice/representation. The Tribunal is persuaded by the Respondent’s submissions that “there is no real prospect that the applicant will, at any time in the foreseeable future, obtain legal representation to assist him with the review…He has provided no satisfactory medical evidence to the Tribunal that he is, for medical reasons or reasons associated with his disability, incapable of participating in a hearing.”[27]
[26] Tender Bundle, H54, 396-397.
[27] Respondent’s Submissions on Dismissal, [6].
The Respondent further contented that there is limited merits to this review application.
In the course of the interlocutory hearing held on 20 May 2024, the Applicant again raised the issue of legal representation. Rather than addressing the issues in dispute, he focussed on personal aspects and used language that could reasonably be perceived as being inappropriate; he used terms such as “disgusting…you know nothing…lady[28]…out of touch…cunning”, to refer to the Tribunal and to the Agency’s representatives, including Counsel for the Respondent. Although the Applicant’s conduct could be interpreted as being due to his impairment, the Tribunal is persuaded by the Respondent’s submissions that the Applicant’s attitude has not assisted and is indicative of the Applicant’s lack of intention to proceed in any meaningful manner.
[28] Referring to the Tribunal.
In relation to the outstanding issue of $2, apart from a potential jurisdiction issue, the Tribunal recognises that this is an important matter for the Applicant but the Tribunal is of the view that this needs to be considered in the context of the Tribunal’s objectives that in carrying out its functions, the Tribunal must pursue a mechanism of review that is, among other things, fair, just, economical, informal, quick, and is proportionate to the importance and complexity of the matter. The Tribunal is satisfied that the issues between the parties have essentially resolved, and it is disproportionate to maintain this matter active in circumstances where the Applicant has shown limited intention to progress his case in a meaningful manner, to lead to a finality. The Tribunal is of the view that dismissal in these circumstances is consistent with the objectives of the AAT Act and an efficient use of the Tribunal’s limited resources.
The Tribunal is satisfied that a fair review of the chronology indicates that although the matter has progressed since the application was lodged with the Tribunal, it is now at a stage where the Applicant is continuing the matter on foot but is not prepared to progress it to a hearing so that it can be determined. It is the Tribunal’s role to determine a review to achieve finality. The Tribunal appreciates that factors contributing to the lack of progression would appear to the Tribunal to, in no small part, include constraints affecting the Applicant’s capacity to participate. These constraints are due to his disability, for which he has sought assistance from the NDIS and indeed was accepted into the scheme. The effect this has had on the review process at the Tribunal would appear to be compounded by the lack of representation and advocacy available to assist the Applicant with the review process.
The Tribunal accepts that the Applicant has faced challenges in finding legal representation. The Tribunal acknowledges the Applicant’s difficulties in navigating through the processes and procedures of the Tribunal. The Tribunal however has no power, or role, to appoint representatives or advocates for applicants who, for whatever reason, find engaging with and traversing Tribunal procedures difficult or confusing. In particular, the Tribunal does not have the power to appoint or seek the appointment of a guardian ad litem, where this may be of assistance to an Applicant in proceeding with their application. Moreover, the Tribunal observes that many NDIS Applicants before the Tribunal are not represented. The circumstances of the case are arguably indicators of limited commitment on the part of the Applicant to progress the matter.
On balance, the Tribunal is satisfied that it is not reasonable, or consistent with its objectives, or appropriate for the Tribunal, to put aside or ignore an application where, as is the case in this matter, an Applicant’s engagement in the proceedings might be compromised. The repeated listings reflect the Tribunal’s genuine and empathic endeavour to engage the Applicant in procedures by which the application could proceed. The Tribunal has given the Applicant multiple opportunities to engage in the process in order to assist in the timely and fair disposition of this matter.
As to the submissions that the application for review has limited prospects of success, although the Tribunal is of the view that there is merit in those submissions, the Tribunal notes those submissions but makes no specific findings in this regard. The Tribunal is mindful that this application is not about the substantive issue(s), but about dismissal.
The Tribunal recognises that a decision to dismiss a matter such as this, particularly in the case of a vulnerable person, weighs heavily on the Tribunal personally. However, the Tribunal must discharge its review obligations in the context of the objectives of the AAT Act, including fairness, proportionality, and timeliness.
In conclusion and for the above stated reasons, the Tribunal finds that the requirements of section 42A(5)(a) are met. For those reasons, the Tribunal is satisfied that there are grounds to dismiss the application for review under section 42A(5) of the AAT Act.

MATTER NO 2024/0409

In relation to this review, the Applicant identified in the review application the decision under review as the s 42D Terms of Agreement of 17 March 2023. In the application, he stated that the NDIS decision is wrong because in accordance with s 42D, the Agency had not fulfilled its commitment to fund his transport costs for a 12-month duration. The Applicant requested “enforcement of this agreement and the issuance of owed back payments”. The Applicant did not identify any other decision but the s 42 terms of agreement.

The Respondent contended that the Tribunal does not have jurisdiction in relation to the decision that is sought to be reviewed, because the Applicant is seeking a review of the parties’ terms of agreement under s 42D, which is not a reviewable decision under s 100 of the NDIS Act. The Respondent argued that the terms of agreement made did not constitute any decision the Tribunal has jurisdiction to review.
The Tribunal observes that its role on review is to “stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act. The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.”[29]
[29] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, [10].
The Respondent contended[30] that the Tribunal’s jurisdiction following remittal under s 42D of the AAT Act, is as follows:
·Within the meaning of the NDIS Act, a remittal under s 42D of the AAT Act does not create a new ‘participant plan’. Under s 42D, the relevant power being exercised on remittal is to affirm, to vary, or to set aside the decision under review. In exercising that power, the decision-maker is tasked with reconsidering the decision under review but with limitations pursuant to the NDIS Act. The reconsideration does not involve the creation of a new plan as the decision-maker is not conducting a reassessment within the meaning of s 48 of the NDIS Act, which is the only way a new plan can come into effect for an existing participant. The decision of Klewer[31] is not correct;
·The Tribunal should adopt the reasoning in Pavlakis[32], namely that although a different SOPS may be inserted into the plan already in existence under s 37 of the NDIS Act, it is not a ‘new plan’ that is generated by the remaking of the SOPS on review. Further, in respect of the specific consequences of a remittal under s 42D of the AAT Act, the Tribunal was correct in Pavlakis and the consequences of a decision under paragraphs 42D(2)(b) or (c) is a varied—or substituted—SOPS that specifies the supports that are included in the plan.
·Changing the review date in a plan does not create a new plan, because that is not one of the events prescribed in subsection 37(3) of the Act as ceasing the effect of a plan. The Court in Klewer was wrong to suggest otherwise, and the Tribunal in Pavlakis was correct to that extent. Even if the Tribunal varies the decision under review, or sets aside the decision under review and substitutes a new decision, the plan continues until it ceases under subsection 37(3) of the Act.
·Upon a decision on remittal, the Tribunal’s jurisdiction is reengaged by reason of subsection 42D(3) and (4) of the AAT Act, but not by section 103 of the Act because the powers under ss 47A, 48 and 49 of the NDIS Act are not engaged, and no new plan comes into effect under section 37 of the NDIS Act.
[30]       Respondent’s Further Amended SFIC, dated 20 March 2024, [44].
[31]   Klewer v National Disability Insurance Agency [2023] FCA 630 (15 June 2023). The Court’s obiter comments on the effect of a s 42D AAT Act remittal on the decision under review may be read as suggesting that upon a s 42D remittal a new plan is made and the effect of s 37(1) of the NDIS Act is that the decision under review becomes the new plan extent.
[32]    Pavlakis and NDIA [2023] AATA 2485.
The Tribunal is satisfied that when a matter is remitted for reconsideration under s 42D, any variation to the SOPS, or substituted SOPS, does not create a new plan: the plan in which the varied or substituted SOPS are contained remains the plan that was the subject of review, with the same commencement date. There is support for this position in the reasoning in McGarrigle v NDIA,[33] and QDKH, by his litigation representativeBGJF v NDIA.[34]
[33] McGarrigle v NDIA (2017) 252 FCR 121; [2017] FCA 308.
[34] QDKH, by his litigation representativeBGJF v National Disability Insurance Agency [2021] FCAFC 189.
The Tribunal is satisfied that the application for review lodged by the Applicant on 23 January 2024 relates to terms of agreement which do not constitute a decision under s 100 of the NDIS Act and as such the Tribunal finds that it has no jurisdiction to review this application.
The Tribunal has noted the Respondent’s acknowledgment of the Applicant’s concerns about the manner with which his transport funding has been arranged under his current and earlier plans, and the Respondent’s intention to continue to engage with the Applicant “for the purposes of ensuring he understands the basis upon which his current, and earlier, transport funding was arranged.”[35]
[35] Respondent’s Further SFIC, dated 20 March 2024, [57].
In light of the finding that the Tribunal does not have jurisdiction to review the application filed on 23 January 2024, the Tribunal dismisses the application for review under s 42A(4) of the AAT Act.

DECISION

The Tribunal dismisses review application number 2021/5208 under s 42A(5) and review application number 2024/0409 under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate
Dated: 6 June 2024

Date(s) of hearing:
Applicant:

20 May 2024

By video

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Ms L Cameron, NDIA