O’Hearn and National Disability Insurance Agency

[2023] AATA 2993

O’Hearn and National Disability Insurance Agency [2023] AATA 2993 (18 September 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/9680

Re:Judith O’Hearn  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:18 September 2023

Place:Brisbane

The Tribunal has remitted the matter for reconsideration but has not referred a question of law to the Federal Court of Australia.

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

Senior Member K Buxton

Catchwords

Interlocutory Application — National Disability Insurance Scheme — Plan — Review of Supports in Plan — Statement of Participant Supports — Section 42D Remittal — Whether 42D remittal creates a new plan — Decision remitted for reconsideration – Whether question of law to be referred to the Federal Court of Australia – Question of law not referred

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Cases

Frugtnietv Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
Klewer v National Disability Insurance Agency [2023] FCA 630
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v Davis [2022] FCA 1002
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Williamson and National Disability Insurance Agency [2019] AATA 2944

Secondary Materials

Commonwealth, Parliamentary Debates, House of Representatives, 1 December 1995, 4441

REASONS FOR INTERLOCUTORY DECISION

Senior Member K Buxton

18 September 2023

1. The Applicant, Ms O’Hearn, is a participant in the National Disability Insurance Scheme. Her application for review relates to a decision to approve a Statement of Participant Supports under section 33(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act).

2. These reasons are published in relation to two requests made in the proceeding. This first was a joint request to remit the decision under review, made on 21 November 2022 under section 100(6) of the NDIS Act, to the Respondent for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). The second was the Applicant’s request that a question of law arising in these proceedings, about the nature and scope of any new decision made on reconsideration if the matter was remitted, be referred to the Federal Court of Australia under section 45 of the AAT Act.

3. On 14 September 2023, the Tribunal acceded to the first request and remitted the decision under review to the Respondent for reconsideration under section 420 of the AAT Act. The Tribunal considers it necessary and appropriate to provide reasons for the remittal given recent divergence in judicial opinion (and in decisions of the Tribunal) regarding the nature of power exercised by the Respondent on remittal.

4. As to the second request, the Tribunal does not consider it appropriate to refer a question of law to the Federal Court under s 45 of the AAT Act. The reasons for that decision are set out below.

   Background

5. On 6 September 2022 a delegate of the Respondent made a decision to approve a statement of participant supports for the Applicant, under section 33(2) of the NDIS Act. As this decision was made following a reassessment under section 48 of the NDIS Act, this decision led to the preparation of a new plan. By operation of subsection 37(1)(b) of the NDIS Act, this September 2022 plan came into effect on that date and, in so doing, replaced a previous plan for the Applicant which had been in effect from January 2022, by operation of 37(3) of the NDIS Act. On 21 November 2022, under section 100(6)(a) of the NDIS Act, a delegate of the CEO of the Respondent (the Internal Reviewer) confirmed the delegate’s original decision (the Internal Review Decision) and the Applicant has applied to the Tribunal for review of this decision.

6. That application is listed for final hearing on 12 October 2023. There are three remaining supports for which the Applicant asserts funding should be provided in her statement of participant supports. These are:

   (a)bathroom modifications to the main bathroom of the home (including removal of existing bath and installation of a custom bath);

   (b)an increase in physiotherapy support to allow for a total of 52 hours per year for physiotherapy sessions, 2 hours for home visits and 10 hours for report writing; and

   (c)an increase in hydrotherapy support to allow for a total of 104 hours of hydrotherapy, per year, travel time and pool hire fees.

7. Not all of the supports which the Respondent now accepts are reasonable and necessary, under section 34(1) of the NDIS Act, have yet been funded. That is because the Respondent has only recently changed its position in relation to a number of supports which are significant and, as both parties accept, important and urgent for the Applicant to access. When the Respondent accepts that additional reasonable and necessary supports should be incorporated into a Statement of Participant Supports, and there is a review before the Tribunal relating to the Statement of Participant Supports in which these supports should be funded, the Respondent cannot simply change the decision. Section 26 of the AAT Act provides that, subject to section 42D of the AAT Act, a reviewable decision before the Tribunal may not be altered other that by the Tribunal on review unless the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

8. It is the prohibition in section 26 of the AAT Act that limits the conduct of the decision maker, once the reviewable decision is before the Tribunal, to alter that decision only with the engagement of either section 42D (remittal for reconsideration) or section 26 (consent alteration) of the AAT Act.

9. In some limited circumstances, the Respondent may also vary the plan under section 47A of the NDIS Act, with the consequence that the decision to make that variation is folded into the existing review application as a further reviewable decision.[1] It is also open to the Respondent to provide an Applicant with access to further funded supports by undertaking a re-assessment and issuing a new plan, via section 48 of the NDIS Act. In this case, for various reasons, the Respondent has declined to undertake a section 48 re-assessment or a section 47A variation to provide the funded supports it has now agreed are reasonable and necessary.

   [1] By operation of section 103(2) of the NDIS Act.

10. Instead, the Applicant and Respondent have jointly requested that the decision under review should be remitted to the Respondent for reconsideration under section 42D of the AAT Act. There is nothing unusual about the request and, until recently, a request of this nature would ordinarily have been granted so long as the Tribunal was satisfied that it was appropriate to do so. However, following recent divergence in judicial opinion (and in decisions of the Tribunal) regarding the nature of power exercised by the Respondent on remittal, the parties and the Tribunal have become understandably cautious about remittal without confirmation that to do so will not cause detriment to an Applicant. I have considered the remittal request and, for the reasons that follow, have determined that it is appropriate in this case to remit this matter for reconsideration at this stage of the proceedings.

    Submissions

11. On 14 June 2023 the Federal Court handed down the decision of Klewer v National Disability Insurance Agency[2] (Klewer). In that case, Justice Raper considered whether the Tribunal had erred in the decision arrived at in Mr Klewer’s review application relating to, inter alia, whether funding for overnight support was reasonable and necessary under section 34(1) of the NDIS Act. In that case, the Respondent had made a new decision following a remittal under section 42D of the AAT Act. The Respondent submitted, and the Court apparently accepted, that a new plan was created as a result of the remittal. In considering the nature and scope of the reviewable decision, her Honour concluded that “the effect of the power under section 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan”.[3] Her Honour went on to observe:[4]

    Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied.

    [2] [2023] FCA 630.

    [3] Klewer at [201].

    [4] Ibid at [202].

12. If a new plan, rather than a reconsideration of the Statement of Participant Supports in an existing plan, can be created as a result of a section 42D remittal, this may impact the nature and scope of the review in a way that limits review rights that were available to an Applicant before such a new plan was made. Specifically, if the Tribunal decides on review that a funded support is reasonable and necessary and is to be funded for any period that pre-dates the start of the “new plan”, a real question arises as to whether the Tribunal would still have jurisdiction to consider such a support, even though there is no question that it was plainly within the Tribunal’s review jurisdiction to do so prior to the reconsideration.

13. The decision in Klewer represents a departure from the previous understanding of the operation of reviewable decisions in NDIS reviews and, respectfully, for the reasons set out in the decision of in Pavlakis and the National Disability Insurance Agency,[5] (Pavlakis) also represents a departure from previous appellate authorities that address merits review by the Tribunal more generally, and the scope of this type of NDIS review.[6] Because of the potential significance of this interpretation of section 42D, the Tribunal directed the Respondent to provide, on or before 11 September 2023, written submissions in support of the request for a remittal under s42D of the AAT Act addressing the recent decision in Klewer insofar as it relates to the Tribunal's jurisdiction and whether any supports in issue in this review may be affected by that decision.

    [5] [2023] AATA 2485.

    [6] Pavlakis at [14] – [39], in particular [33] – [37].

14. The Respondent’s written submissions were provided by the Respondent to the Applicant and the Tribunal on 12 September 2023, nine minutes prior to the interlocutory hearing. The submissions did not address, in any detail, the decision in Klewer or whether the Respondent intended to contend, in this case, that a reviewable decision made in this case following remittal should be interpreted in accordance with the conclusions arrived at by the Court in Klewer. The submissions were brief, and the following extracted passages contain the substance of those submissions:

    Section 42D Remittal: The Respondent submits that it would be appropriate for the Tribunal to make a s42D remittal in this matter due to the significant amendments and further inclusions as requested by the parties…

    … we do not consider that any of the criteria in s47A(1A) are met that would allow the Agency to vary the Applicant’s plan as requested in the remittal. We also do not consider that s47A(1)(a)(ii) is met as the request is not to correct a minor or technical error.

    Klewer: The Applicant has not incurred any out-of-pocket expenses in this matter to date and it is not envisaged that this is likely to occur prior to a remittal being implemented. The Agency will be able to quickly implement a s42D remittal if the Tribunal was minded to make the order. We therefore do not consider that the decision in Klewer will cause any disadvantage to the Applicant.

    Next Steps: We therefore consider that it would be appropriate in this matter for the Tribunal to make a s42D order in line with the agreement filed by the parties.

15. The matter was listed for an interlocutory hearing during which both parties were provided with the opportunity to make further submission about the remittal request and about alternative mechanisms that may be available to the Tribunal. The Applicant was provided a further day to put, in writing, submissions that had been made orally during the interlocutory hearing. During the hearing, the Applicant submitted that it would assist the Tribunal if the question of the nature and scope of any reconsidered decision that purports to be a “new plan” could be referred to and answered by the Federal Court of Australia.

16. During the hearing, the Tribunal raised with the parties the question whether, as an alternative to a remittal under section 42D, an alteration could be made to the reviewable decision, with the consent of both parties, consistent with the power provided in section 26(1) of the AAT Act, and for the parties to consider the terms of an alteration to which they would consent.

17. The Applicant submitted, in support of either an agreement under section 26 or a remittal under section 42D, that the supports that had been newly agreed to be funded by the Respondent were needed by her urgently. This urgency was accepted by the Respondent and both parties urged the Tribunal to remit so that a decision could be made that could take effect, and allow for those supports to be accessed, as soon as possible. The Respondent submitted that section 26 was not available for the reasons explored below.

18. The Applicant submitted that, if the matter were remitted, and a new decision made, it would not be proper to characterise that decision as a new plan (even if, in accordance with the Respondent’s ordinary practice, that is what the decision purported to be). Rather, the proper interpretation of the new decision, if made in accordance with the Respondent’s recommendation, is a varied (or set aside and replaced), approved Statement of Participant Supports that specifies the newly agreed supports in addition to those previously specified. This new decision, it was submitted, would have ongoing effect, rather than operating as a new plan, and would include the newly agreed supports.

19. Prior to the hearing the Applicant asked the Respondent in correspondence to accept that any reconsidered decision would have this effect (presumably in order to provide comfort and certainty to the Applicant). Expressly, the Applicant wrote:

    “…to ensure there is no dispute about what will follow if a decision is made under s 42D, the Applicant notes that she considers the effect of the remittal will be as follows (see Pavlakis and National Disability Insurance Agency [2023] AATA 2485 at [25], see further [31]-[32]):

    Following a section 42D remittal, if the Respondent specifies additional supports, or other features of the SPS that are expressly within power, having regard to section 33(2) of the NDIS Act, it is open to the Respondent to re-issue the original plan, with the updated SPS. However, it is not within the statutory powers of the Respondent, and therefore not open to the Respondent, to issue a new plan as the decision does not bring about the ending of the original plan in the way prescribed by sections 37(3) and 48 of the NDIS Act.”

20. However, the Respondent did not express its position in relation to this request. The Applicant submitted that, if the decision in Pavlakis is correct (as she contended was the case), then the Applicant will not be disadvantaged when it comes to the final hearing and any final decision of the Tribunal can, if needed, be informed by a date of effect order made under section 43(6) of the AAT Act.

21. The Applicant submitted that the decision in Pavlakis should be applied and, if that course were followed at the substantive determination of the review, this would lead the Tribunal to conclude now that there was no basis upon which a remittal would, or could, have a detrimental effect upon the Applicant’s review rights or her case.

22. The Applicant submitted that, were the Tribunal to remit the matter, and if there remained any doubt at the hearing about the scope of the review following the reconsidered decision, there were two potential options available to assist the Tribunal to arrive at the correct or preferable decision:

    (a)The parties could make submissions at the final hearing (or shortly after) about the effect of any s 42D(2) decision and the correctness or otherwise of Klewer; and

    (b)The Tribunal could, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision (AAT Act, s 45(1)). That could be sought on an expedited basis to ensure there was no delay to the Tribunal’s final decision.

23. Both parties submitted that, as the Applicant had not funded any supports to date that required determination in the review, and the Applicant is seeking that additional supports be funded prospectively only, there was no disadvantage to the Applicant in a remitted decision being made to take effect from that date, rather than earlier.

24. In response to questions from the Tribunal during the interlocutory hearing, the Applicant’s counsel stated unequivocally that the Applicant had been informed of the risk of a section 42D remittal, including that the outcome could not be directed by the Tribunal, and also stated that the review itself would be conducted on the same evidential basis regardless of the interpretation of any reconsidered decision made following remittal.

    Consideration

25. Both parties have urged the Tribunal to remit this matter for reconsideration. The Respondent was asked by the Tribunal to consider whether an alteration to the reviewable decision, agreed to by the parties and the Tribunal under section 26(1) of the AAT Act, would provide a viable and practical alternative to remittal. Such an alteration cannot be made without the agreement of all parties, and the Respondent declined to provide its consent, citing the correctness of the reasoning in the decision of Williamson and National Disability Insurance Agency [2019] AATA 2944 as the basis for so declining. Without the consent of the Respondent, section 26(1) cannot be used as an avenue for alteration of the decision before the Tribunal, and the Respondent informed the Tribunal that it will not utilise either section 47A or section 48 of the NDIS Act in this case to make a varied or new decision before the Tribunal. This leaves section 42D as the only option available to the Tribunal and the parties, who both contend that the reviewable decision should be re-made in terms that include funding for newly agreed and urgent supports. Whilst it is for the Respondent, and not the Tribunal, to ensure that the Applicant has access to reasonable and necessary supports, the request to use the mechanism in section 42D of the AAT Act requires the Tribunal to agree to that course.

26. In those circumstances the Applicant submitted, not unreasonably, that the Respondent should assist the Tribunal to arrive and the correct decision in the remittal request. The Respondent was asked whether it would submit, on substantive determination, that the relevant reasoning in Klewer was correct and that the effect of the Respondent’s reconsideration was that it had somehow managed to create a new plan, which had become the reviewable decision, despite not having engaged section 48 of the NDIS Act in order that the earlier plan would cease to have effect under section 37(3) of the NDIS Act. However, the Respondent would not be drawn on a position, one way or the other. The substance of the Respondent’s submission was that the Tribunal did not need to know how the Respondent intended to exercise its decision-making power on reconsideration, or whether the Respondent would ultimately submit that the review had “transmogrified” into a review about a new plan made during a section 42D reconsideration, because it did not impact the Applicant adversely in this case.

1. To summarise, where the Respondent has accepted that an Applicant before the Tribunal, such as Ms O’Hearn, who is a participant in the National Disability Insurance Scheme, should have urgent access to additional reasonable and necessary supports, its position in this case is that:

   (a)It will not consent to an alteration to the decision, using section 26(1)(b) of the AAT Act;

   (b)It will not explain to the Tribunal, or to the Applicant, the nature of the decision it will purport to make on remittal (including whether or not it will purport to issue a “new plan”); and

   (c)It will not explain to the Tribunal, or to the Applicant, what it intends to submit is the effect of any reconsidered decision when the matter proceeds to a substantive hearing (including whether or not the review will have “transmogrified” into a review about a “new plan” in the way contemplated in the decision of Klewer).

2. This has left the Tribunal in the undesirable position of having to make an election: decline to facilitate access to agreed, urgent supports by refusing the section 42D remittal or remit under section 42D with the expectation that this may facilitate the Applicant’s access to those agreed, urgent supports, but with the concern that this course is attendant with the real prospect that the Respondent will submit that the character of the reviewable decision has changed (to a new plan with a new start date).

3. Where a support has been determined by the Respondent as reasonable and necessary, the Respondent has a statutory obligation to facilitate the funding of that support. Klewer is a decision of the Federal Court. The problematic parts of the reasoning arise from the Court’s acceptance of submissions made in that case by the Respondent. As explained in Pavlakis, the Respondent does not appear, in its presentation of its case in Klewer, to have drawn the attention of the Court to a number of binding decisions of the High Court and Full Court of the Federal Court. Where the reasoning in Klewer would, if applied, create risk and doubt for participants who are applicants in the Tribunal, it is open to the Respondent to make its position clear, one way or the other, as to whether it contends that the reasoning is correct. The Respondent has declined to do so in this case, but it will not agree to fund newly agreed reasonable and necessary supports in this case other than through a statutory mechanism the scope of which is now attended with jurisprudential doubt.

4. In Pavlakis, the Tribunal declined to follow the reasoning in Klewer, because the Tribunal preferred the reasoning of the Full Federal Court (Justices Rangiah, Perry and Abraham) in QDKH by his litigation representative BGJF v National Disability Insurance Agency,[7] and of other decisions, including Justice Mortimer’s decision in McGarrigle v National Disability Insurance Agency,[8] and the High Court’s decision in Frugtnietv Australian Securities and Investments Commission.[9] This reasoning in such decisions was noted to have been at odds with certain observations made and conclusions reached by Justice Raper in Klewer.

   [7] QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, at [10(d)].

   [8] [2017] FCA 308; 252 FCR 121 at [85].

   [9] (2019) 266 CLR 250; [2019] HCA 16.

5. The Tribunal further notes that, in National Disability Insurance Agency v Davis,[10] Justice Mortimer observed that the nature of the scheme is remedial and should be interpreted with pragmatism:

   The NDIS Act is beneficial and remedial legislation designed to operate in relatively high volume decision-making, in a pragmatic context, and in respect of people (and their families and carers) already facing great challenges in their daily lives. The NDIS Act’s construction and operation should not be beset by parsing, technicalities and distinctions which make the legislative scheme more difficult to comprehend and administer, including for first instance decision-makers and the Tribunal on review.

   [10] [2022] FCA 1002.

6. When considered together with the general principles guiding actions taken by the Respondent, in section 4 of the NDIS, and in particular that people with disability should be supported in all their dealings and communications with the Respondent so as to maximise their capacity to exercise choice and control,[11] the Tribunal observes that the Applicant should not be left, by the Respondent, with doubts as to the basis upon which the Respondent intends to conduct this review. The Respondent will, of course, have the opportunity to remedy these current circumstances after the matter is reconsidered and prior to the upcoming substantive hearing.

   [11] NDIS Act section 4(9).

7. In the circumstances, the Tribunal is satisfied that the Applicant has been made aware that the decision in Pavlakis is that of a single member of the AAT, that the decision in Klewer is one made by the Federal Court, and of the significance of that. The Tribunal is satisfied that the Applicant is prepared for the prospect that, ultimately, the Respondent will contend for the position in Klewer, rather than the position in Pavlakis, and has accepted what is currently a forensic risk to her in inviting the Tribunal to remit with an uncertain outcome. Although the Respondent has agreed that the Applicant currently and urgently requires additional funding, the Respondent’s conduct of this interlocutory proceeding has necessarily generated this uncertainty.

8. The Tribunal should be cautious in exercising the remittal power in such undesirable circumstances unless the alternative is plainly more disadvantageous to the Applicant. In this case, the Tribunal is satisfied that is the case. The Tribunal observes that, despite the existence of statutory alternatives, the Respondent offers no pathway other than section 42D in this case in order that the Applicant may access urgent supports. The Tribunal accepts that the Applicant’s needs are urgent. The Tribunal notes that the Applicant has stated, clearly, that she does not seek to recover funding for supports for a past period and that the hearing will not be conducted in any different way depending on the nature of the decision made on reconsideration. Therefore, the Tribunal is satisfied that it is proper to engage the mechanism provided by section 42D at this juncture in the review.

9. I note that section 42D is a power that may be exercised by the Tribunal to confer, for the purpose of reconsideration, its own decision-making power back to the Respondent for a limited period of time, after which the Applicant may choose whether to proceed with the review. Whilst the Tribunal cannot direct the delegate’s re-consideration, is it worth noting that the decision-maker cannot validly exercise a power that cannot be exercised by the Tribunal.[12]

   [12] Williamson and National Disability Insurance Agency [2019] AATA 2944 at [91], Pavlakis at [26] – [27].

10. The Respondent’s decision, if re-made, will become the reviewable decision in this case and will be construed by the Tribunal according to law. The parties will be at liberty to make submissions about the scope of that decision and the Respondent is already on record as having submitted that the remittal process will not disadvantage the Applicant. For these reasons, the Tribunal is not minded to refer to the Federal Court, under section 45 of the AAT Act, the question as to how, properly, to interpret the reviewable decision in this case.

    Consent Alteration under section 26 of the AAT Act

11. Given that the Tribunal raised with the parties the prospect of Section 26 as an alternative to a remittal under section 42D, particularly in the current jurisprudential climate, the Tribunal makes the following observations about the Respondent’s submission that it cannot consent to such a course, relying on an aspect of the Tribunal’s decision in Williamson and National Disability Insurance Agency[13] (Williamson).

    [13] [2019] AATA 2944.

12. In Williamson, the Tribunal considered the scope of the Agency’s power to consent to a variation of a decision under section 26 and stated:[14]

    The power to alter a decision under review by the Tribunal under s 26(1)(b) relies on the parties, as well as the Tribunal, consenting to it. Section 26(1)(b) does not of itself give the parties power or authority to consent. It does not give the Tribunal power to consent. That power or authority must be found elsewhere. All that s 26(1)(b) does is to state that a decision may be altered if the circumstances arise in which the parties and the Tribunal consent to the alteration. The power or authority to consent to the alteration must come from somewhere else.

    …

    A decision-maker who has made the administrative decision that is subject to review by the Tribunal is, however, subject to constraints and they take the form of legislative constraints. If a decision-maker is able to agree to an alteration, his or her power has to be found in a legislative provision other than s 26(1)(b). As I have said, s 26(1)(b) refers only to the fact of the parties to the proceeding having consented. It does not give them power or authority to consent. That power or authority must be found in a place other than s 26(1)(b).

    In the case of a decision under s 33(2) approving a statement of participant supports, the CEO does not have any power or authority to vary that decision. I have explained the reasons for this at [24] to [27] above. Should it be thought that this conclusion is inconsistent with the conclusion I have reached in relation to ss 34D and 42C of the AAT Act, I would observe that those provisions are expressed in terms of the Tribunal’s power to make a decision. The agreement that the parties reach under those provisions is not to consent to the alteration of the decision under review. It is an agreement as to the terms of a decision in the proceeding, or part of it, that would be acceptable to them were the Tribunal to be satisfied that a decision in those terms, or consistent with them, would be within its powers. The power to make the decision leading to a confirmation, variation or setting aside and substitution of all or part of the decision under review is exercised by the Tribunal. The parties simply agree to the terms of a decision of the Tribunal that would be acceptable to them. This means that the decision-maker does not himself or herself have to exercise any power to make that decision. That is to be contrasted with the situation under s 26 when it is not the Tribunal that is altering the decision. It is consenting only to an alteration to which the parties also consent. For the reasons I have given above, a decision-maker cannot consent to an alteration unless authorised to do so by the legislation under which the decision under review has been made.

    [14] Ibid at [75]; [77]-[78].

13. More recently, the Tribunal has expressed some doubts as to the conclusions arrived at in Williamson with respect to the limitation imposed upon the exercise of subsection 26(1)(b) In RTRH and National Disability Insurance Agency[15] (RTRH), the Tribunal observed:

    There is also a real question whether a reviewer lacks power to vary a decision made under s 100(6) for the purposes of s 26 of the AAT Act. The Tribunal in Williamson’s case concluded that the CEO has no such power. I note that there is no express provision or power for the CEO to commence an internal review, by the CEO’s own motion, where no request is made under s 100(2). I agree with the Tribunal’s observation that it may be desirable for any uncertainty about these matters to be addressed by way of amendment of the NDIS Act.

    [15] [2022] AATA 205 at [159].

14. In GBNR and National Disability Insurance Agency[16] (GBNR) the Tribunal expressed the view that, section 26 of the AAT Act may provide a more efficient mechanism to effect a partial resolution of supports to be funded in a statement of participant supports than the alternative of a remittal under section 42D, noting that the remittal would involve reconsideration of the entire decision. The Tribunal also observed that, if one accepts the construction adopted in RTRH above, which was not challenged in the Federal Court of Australia, there is no want of power for the CEO to agree, for the purposes of section 26 of the AAT Act, to vary the terms of a decision approving a Statement of Participant Supports during the course of Tribunal proceedings. I respectfully adopt the observations of the Tribunal in RTRH and GBNR. I would, respectfully, venture further to suggest that section 26(1) does provide a stand-alone source of power to alter the very wide range of decisions reviewable by the AAT, so long as the parties and the Tribunal agree.

    [16] [2022] AATA 1323 at [49].

15. Section 26 was introduced into the AAT Act in 1995 via the Law and Justice Legislation Amendment Bill (No 1) (1995). When read for a second time, the bill was described in the second reading speech[17] as amending the AAT Act by providing, inter alia, that, “the decision-maker may only vary the decision where the decision-maker is specifically authorised to do so by the relevant stature or the tribunal and the parties consent”. This description, and particularly the portions emphasised, strongly suggest legislative intent consistent with section 26 providing its own source of power for alterations by consent. This is consistent with the plain wording of the statute - no express mention is made of the need for extant statutory powers in order to agree an alteration to a reviewable decision.

    [17] Commonwealth, Parliamentary Debates, House of Representatives, 1 December 1995, 4441 (Peter Duncan, Parliamentary Secretary to the Attorney-General).

16. Upon amalgamation of a number of other Commonwealth Tribunals with the AAT in 2015, various amendments were considered desirable to best accommodate those additional review jurisdictions under the umbrella of the AAT Act, including to section 26. The explanatory memorandum to the Tribunals Amalgamation Bill 2014 referred to the existing paragraph 26(1) (which remains in force in the same terms) as a provision that “empowers the Tribunal to alter the decision under review with the consent of the parties”.

17. Together, the wording of section 26(1), its purpose and the available extrinsic material relevant to the statutory intent point consistently to the creation of a statutory power in the Tribunal to alter the reviewable decision where the Tribunal and the parties agree. Further, the provision is a sufficient basis for the parties, including statutory decision-makers, to consent to an alteration without additional powers.

18. In any event, section 101 of the NDIS Act expressly provides for variation of a reviewable decision prior to completion of a section 100 review. It is unclear why such powers could not be exercised in the context of review by the Tribunal under section 103 of the NDIS Act and thereby provide the basis for the section 26 consent if that is required. That approach is consistent with section 33 of the Acts Interpretation Act 1901 (Cth) which grants to the issuer of a statutory instrument the power to amend or vary that statutory instrument, such power in this case being subject to any express limitations in the NDIS Act and in section 26 of the AAT Act. It is not clear why this would not apply to a Statement of Participant Supports.

19. These observations may assist the parties in this case only if a further need arises for additional supports in this case. Obviously, the power can be exercised only where each of the parties and the Tribunal consent.

    Conclusion

20. For these reasons, the Tribunal has remitted the matter for reconsideration but has not referred a question of law to the Federal Court of Australia.

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

    ………………[SGD]…………………
    Associate

    Dated: 18 September 2023

    Date of the interlocutory hearing:              12 September 2023

    Date of last submission:  13 September 2023   

    Counsel for the Applicant:  Mr Thomas Wood

    Solicitors for the Applicant:           Ms Leah Siebert

    Solicitors for the Respondent:                   Ms Jane Thomson