O’Hearn and National Disability Insurance Agency

Case [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…

Continue reading O’Hearn and National Disability Insurance Agency

Sign in free to access the full text

Details
AGLC
O’Hearn and National Disability Insurance Agency [2023] AATA 2993
Case
[2023] AATA 2993
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant for review of a decision made by a delegate of the National Disability Insurance Agency (NDIA) to approve a statement of participant supports. The decision under review was an internal review decision that confirmed the original decision. The Applicant sought funding for several supports, including bathroom modifications, increased physiotherapy, and increased hydrotherapy. The NDIA had recently accepted that some of these supports were reasonable and necessary but had declined to undertake a reassessment or vary the existing plan to include them.

The legal issues before the Tribunal were whether it was appropriate to refer a question of law to the Federal Court of Australia under section 45 of the Administrative Appeals Tribunal Act 1975 (Cth), and the implications of remitting the matter for reconsideration under section 42D of the AAT Act, particularly whether such a remittal could create a new plan. The Applicant had applied for review of the NDIA's decision, and the matter was listed for a final hearing.

The Tribunal, presided over by Senior Member K Buxton, determined that it was not appropriate to refer a question of law to the Federal Court. The Tribunal noted that both parties urged the Tribunal to remit the matter for reconsideration under section 42D of the AAT Act. The NDIA declined to consent to an alteration of the decision under section 26 of the AAT Act, citing the correctness of reasoning in a previous decision. The NDIA also indicated it would not utilise sections 47A or 48 of the National Disability Insurance Scheme Act 2013 (Cth) to make a varied or new decision. The Tribunal found that section 42D was the only available option for the parties to have the reviewable decision remade to include the newly agreed supports. However, the NDIA remained unforthcoming regarding how it intended to exercise its decision-making power upon reconsideration, including whether it would purport to issue a "new plan" without engaging section 48 of the NDIS Act.

The Tribunal concluded by remitting the matter for reconsideration under section 42D of the AAT Act. However, it declined to refer a question of law to the Federal Court of Australia. The Tribunal noted that its observations might assist the parties if further need for additional supports arose, but that the power to remit could only be exercised with the consent of all parties and the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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]…………………AssociateDated: 18 September 2023Date of the interlocutory hearing: 12 September 2023Date of last submission: 13 September 2023 Counsel for the Applicant: Mr Thomas WoodSolicitors for the Applicant: Ms Leah SiebertSolicitors for the Respondent: Ms Jane Thomson

Ratio Decidendi

Legal Principle Established

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 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. 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. 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).