Oczenaschek and National Disability Insurance Agency
[2021] AATA 3511
•30 September 2021
Oczenaschek and National Disability Insurance Agency [2021] AATA 3511 (30 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/6438
Re:Eric Norman Oczenaschek
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:30 September 2021
Place:Sydney
The jurisdiction of the reviewing delegate and the Tribunal to review reasonable and necessary supports and other supports extends only to those supports mentioned in the participant’s plan, with the proviso that the significance and application of rule 2.4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 to that jurisdictional issue is reserved for the final hearing.
...........................[SGD].............................................
Deputy President B W Rayment OAM QC
CATCHWORDS
PRACTICE AND PROCEDURE - National Disability Insurance Scheme – where applicant applied to Tribunal to review a decision not to approve certain supports – where the applicant requested the Tribunal consider additional supports – where additional supports not put to the original decision maker – where additional supports not put to the internal review decision maker – whether the participant’s plan is ambulatory – the reach of the CEO’s approval power – jurisdiction of the Tribunal – Tribunal has no jurisdiction to consider additional supports
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
CASES
BWLK and NDIA [2021] AATA 1631
CRWR and NDIA [2021] AATA 2514
Dunstan and NDIA [2021] AATA 2406
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Frugtniet v Australian Securities and Investment Commission [2019] HCA 16
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415
Novosel v Comcare [2017] FCA 722; 72 AAR 269
Shi v Migration Agents Registration Authority [2008] HCA 31
QDKH and NDIA [2021] AATA 922
VXVL and NDIA [2021] AATA 1709
Young and NDIA [2021] AATA 1555
SECONDARY MATERIALS
EXPLANATORY STATEMENT: Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform: National Disability Insurance Scheme Act 2013, National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
30 September 2021
The issue in this matter is whether the Tribunal has jurisdiction to entertain a number of claimed reasonable and necessary supports not mentioned in the participant’s plan placed before the Chief Executive Officer (CEO) for approval under s 33(2) of the National Disability Insurance Scheme Act 2013 (the NDIS Act) either at the time of the delegate’s original decision or at the time of the internal review of that decision conducted by the agency in response to a request made under s 100(2) of the NDIS Act. A decision to approve or not to approve such a reasonable and necessary support may be the subject of an application for review made to this Tribunal under s 103 of the NDIS Act.
The CEO has a duty to facilitate the preparation of the participant’s plan under s 32(1) of the NDIS Act. Section 32A of the Act makes provision concerning the preparation of plans. The plan itself is a matter of background in these proceedings, and it involves no review rights before the Tribunal.
The matters which the NDIA Act makes relevant and mandatory for the CEO to have regard to, be satisfied about, or to apply, as the case may be, in deciding whether or not to approve a statement of participant supports in the plan are set out in s 33(5) of the NDIS Act.
Section 33 is in the following terms:
33 Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered provider of supports.
(7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.
Note: Section 38 requires a copy of a participant’s plan to be provided to him or her.
Section 33(5) describes mandatory functions for the original decision, the review decision and for the Tribunal’s review function: See National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [139].
In characterising the decision which is brought to the Tribunal for review, and which fixes the bounds of the jurisdiction of the Tribunal, the provisions of s 33(5) are critical.
Section 33(2) makes it clear that until the CEO gives his or her approval to the statement of participant’s supports, there will be no participant’s plan. At the time before the CEO gives his or her approval, the plan must in practice be in a draft form, that is, a draft prepared “with” the participant. In the case of a participant who is adult, and without cognitive impairment, that will occasion no difficulty in the usual case.
In order to comply with s 33(5)(b) the CEO will need access to any relevant assessments conducted in relation to the participant, and reports as to the operation and effectiveness of any previous plans, and such materials as go to the s 34 issues of which the CEO must be satisfied. The statement of goals and aspirations will appear from the (draft) plan, and do not need the approval of the CEO. So far as the Tribunal is concerned, it will need access to all of the same materials, and to take into account the evidence led before it, as well as the submissions of the parties.
In the present case, four fresh or varied claims for reasonable and necessary supports were made before the internal reviewer which had not been made before the original delegate acting in place of the CEO under s 33(2). Two of those claims sought additional funding, and two were matters that had not been claimed at all in the original plan approved. All of those four claims were rejected by the internal reviewer. After that decision, the matter was remitted to the CEO for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act), and a fresh decision was made by the CEO which became the decision under review by force of s 42D(4) of the AAT Act. It altered the plan date but otherwise repeated the internal reviewer’s decision.
The submissions made before me by the applicant were as follows:
(a)In his written submissions filed prior to the hearing before me, he submitted as follows:
1A participant in the National Disability Insurance Scheme launch must have a “plan”. A participant’s plan must include a “statement of participant supports”. Under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), the Chief Executive Officer (CEO) of the Respondent (Agency) must approve that statement. That statement must, among other things, specify “the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme”.1
2A decision under s 33(2) to approve the statement of participant supports in a participant’s plan is a “reviewable decision”.2 A participant may therefore request that the decision be reviewed.3 Under s 100(6), a “reviewer” must make a decision confirming the reviewable decision, varying the reviewable decision, or setting aside the reviewable decision and substituting a new decision.
3An application may be made to the Tribunal for review of a decision made by a reviewer under s 100(6).4 By ss 25 and 43 of the AdministrativeAppealsTribunalAct1975(Cth) (AAT Act), the jurisdiction conferred on the Tribunal is to stand in the shoes of the “reviewer” who made the decision under s 100(6) “so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power” conferred on the “reviewer” for the purpose of making the decision under s 100(6).5
4The issue before the Tribunal is whether the Tribunal’s jurisdiction is confined by reference to the material that was “put before” the decision-maker under s 100(6), such that the Tribunal cannot make a decision to approve a “statement of participant supports” that specifies “reasonable and necessary supports” unless those supports were considered by that decision-maker (cf RS [14]).
5The Agency contends the answer to the particular question is “no”, which is consistent with the conclusion reached in VXVL and National Disability Insurance Agency 6 and several subsequent decisions.7 There is nothing in the statutory scheme of the NDISAct that narrows the ordinary jurisdiction of the Tribunal under ss 25 and 43 of the AATAct. As a matter of form, the Tribunal is required to stand in the shoes of the “reviewer”. However, as a matter of substance, because the “reviewer” is themselves to stand in the shoes of the CEO making the decision under s 33(2), the Tribunal must, in turn, stand in those same shoes. That is, the role of the Tribunal is to exercise the power conferred on the CEO by s 33(2), subject to the same constraints.
6The Agency’s argument to the contrary should be rejected. The decision in QDKH and National Disability Insurance Scheme should not be followed.8 The objection to the Tribunal’s jurisdiction should be dismissed.
LEGISLATIVE BACKGROUND
7The objectives of the NDIS Act include to:9
(a)in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); …
(b)support the independence and social and economic participation of people with disability; and
(c)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch.10
8In order to be a participant in the scheme, a person must meet certain criteria (including residence and disability or early intervention requirements).11 If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.12
9A participant’s plan is made up of the following two elements:13
9.1 a statement of the participant’s goal’s and aspirations; and
9.2 statement of “participant supports”, being a statement “prepared with the participant and approved by the CEO” that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant
(b)the reasonable and necessary supports (if any) that will be funded under the [NDIS]; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan…;
(e)the management of other aspects of the plan.
10Section 33(3) provides that:
The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
11Section 34 sets out the criteria of which the CEO must be satisfied in relation to the funding or provision of each support provided to the participant, to ensure that they are “reasonable and necessary”.
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
12In deciding whether or not to approve a statement of participant supports under s 33(2), the CEO must (s 33(5)):
(a)have regard to the participant’s statement of goals and aspirations; and have regard to relevant assessments conducted in relation to the participant; and
(b)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(c)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(d)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(e)have regard to the operation and effectiveness of any previous plans of the participant.
13The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Participant Rules) have been made for the purposes of s 33 and 34 of the NDIA Act and deal with the assessment and determination of reasonable and necessary supports that will be funded under the NDIS.
14Rule 2.4 provides that (emphasis added):
The CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these.
15Rule 4.1 provides (emphasis added):
When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a)Identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)assess risks and safeguards in relation to the participant; and
(d)relate support needs to the participant’s statement of goals and aspirations.
16A decision by the CEO to approve the statement of participant supports in a plan, under s 33(2),14 is a “reviewable decision”.15 In particular:
16.1 a person who is directly affected by the decision may request the decision-maker to review the decision, including by making an oral request;16
16.2 the decision-maker who receives an internal review request must cause the decision to be reviewed by another person, to whom the decision-maker’s functions and powers are delegated and who was not involved in the original decision;17
16.3 the reviewer must as soon as reasonably practicable make a decision confirming or varying the reviewable decision or setting it aside and substituting a new decision;18
16.4 applications may be made to the Tribunal for review of an internal review decision,19 whereupon the Tribunal exercises all the powers and discretions conferred on the internal reviewer.20
JURISDICTION OF THE TRIBUNAL
General principles
17In Frugtniet v Australian Securities Investments Commission, four members of the High Court explained the scope of the Tribunal’s jurisdiction as follows:21
… except where altered by some other statute, … the jurisdiction conferred on the [Tribunal] by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The [Tribunal] exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the [Tribunal’s] review. The [Tribunal] must address the same question the primary decision-maker was required to address.
18That explanation has two relevant dimensions for present purposes:
18.1 First, it is the whole matter before the primary decision-maker that is subject to review, not limited by either the submissions made to the decision-maker or the particular grounds of the original decision.22
18.2 Secondly, it is open to the Tribunal to have regard to things that have occurred after the decision under review (such as, for example, further expert reports, which, in the case of the NDIS scheme may contain recommendations for additional or different supports).23
19There is nothing in the NDIS Act that excludes those general principles.24
20The starting point is to identify the “primary decision”. As the Agency correctly points out, for present purposes, the primary decision is the decision of the “reviewer” made under s 100(6) (RS [24]).
21It is then necessary to determine the statutory question that the “reviewer” was required to address. That is because, as the Agency correctly recognises, it is that statutory question that “marks the boundaries” of the Tribunal’s review (RS [25]).25 The Tribunal is to “stand in the shoes” of the reviewer and address that same question.
Jurisdiction of the “reviewer”
22What the reviewer was required to do was to undertake a “review” of the original decision made by the CEO under s 33(2) in precisely the same way that the Tribunal is ordinarily required to undertake a “review” under ss 25 and 43 of the AAT Act.
23That follows from the fact that the language used to confer jurisdiction upon the “reviewer” is relevantly identical to the language that is used in the AATAct to confer jurisdiction on the Tribunal.
23.1 Under the AAT Act, applications may be made to the Tribunal “for review of decisions” (s 25(1)). Under the NDIS Act, a request may be made that causes a decision to be “reviewed” (s 100(5)). There is no reason to think that the word “review” in these provisions has some different meaning.
23.2 The power conferred on each of them is to approve the decision under review, to vary the decision under review or to set aside the decision under review and substitute a new decision (AAT Act, s 43(1); NDIS Act, s 100(6)). The only difference is that the Tribunal has a remittal power upon setting aside a decision.26 However, that difference provides no reason to think that the powers conferred upon each of them are intended to have any different scope.
24It can be accepted that s 100 of the NDISAct does not expressly confer upon a reviewer “all the powers and discretions” that were conferred upon the CEO, in contrast to s 43(1)) of the AAT Act. The NDIS Act is silent on that question. However, given that the reviewer may “substitute” a new decision, it must be that the reviewer has all the powers and discretions of the CEO. Otherwise, the result would be that a “substituted” decision might be made by reference to different parameters than the original decision. There is no reason to think that Parliament would have intended that outcome.
25To the contrary, given the very similar language used in the relevant sections — and the tiered nature of the review process under the NDIS Act27 — it can be presumed Parliament intended that the jurisprudence that has been developed concerning the scope of the Tribunal’s jurisdiction would apply equally to the scope of the reviewer’s jurisdiction.28 That is also supported by the Revised Explanatory Memorandum to the Bill that became the NDISAct, in which both the reviewers’ function and the Tribunal’s function are said to constitute “merits review”.29 The only difference in description is that one is “internal” (reviewer) and one is “external” (Tribunal).
26The consequence is that, for the purpose of making a decision under s 100(6), the reviewer must stand in the shoes of the CEO, “so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power” conferred on the CEO by s 33(2) of the AATAct.30
27So much appears to be accepted by the Agency. In particular, it appears to accept that the “reviewer” may consider support that were not “put before” the CEO when making the original decision under s 33(2). That appears from the fact that both decisions made under s 100(6) — that is, the first review decision made by a delegate on 25 September 2020 (T2) and the Reconsidered Decision made by the CEO on 9 June 2021 (RS [13], [41]) — considered supports that were not the subject of the original decision under s 33(2).
Jurisdiction of the Tribunal
28What the Tribunal must do is stand in the shoes of the “reviewer” making the decision under s 100(6). And, once the jurisdiction of the reviewer is understood, it is clear that what the Tribunal must do is stand in the shoes of the CEO making the decision under s 33(2). Thus, what the Tribunal must do is determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power under s 33(2) (cf RS [28]).
29That accords with the explanation given by the Victorian Court of Appeal, when considering the scope of the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) to review the decision of an internal review decision made under s 128 of the Occupational Health and SafetyAct 2004(Vic).31 Nettle JA said:32
When therefore [VCAT] sits in review of an internal reviewer’s decision, it is to re-exercise the functions of the internal reviewer and, since the functions of the internal reviewer are in turn to re-exercise the functions of the original decision maker, the function of [VCAT] is to re-exercise the functions of the original decision maker.
30That explains why, in VXVL, Member Buxton correctly focused on the scope of s 33(2) (cf RS [23]).33 The question that decision requires to be answered is whether to approve a statement of participant supports. The Agency’s criticism of that framing of the question is misplaced (RS [26]): it is precisely the question the CEO is required to answer (s 33(2)), precisely the question the reviewer is required to answer (s 99(1)) and, ultimately, precisely the question the Tribunal is required to answer.
31In stepping into the shoes of the reviewer, and in turn, the CEO, the Tribunal exercises the same power, subject to the same constraints. Relevantly, by reason of s 33(5), the Tribunal must “have regard to relevant assessments conducted in relation to the participant” (para (b)), “be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided” (para (c)). The Tribunal must also apply the Participant Rules.34 In particular:
31.1 under r 2.4, it must:
31.1.1 “consider supports in a plan either in relation to particular support or a package of supports to achieve an outcome”; and
31.1.2 also have regard to any particular supports that “the participant has identified or requested”
31.2 under r 4.1, it must:
31.2.1 “assess support needs arising from a participant’s disability” (para (b); and
31.2.2 “relate support needs to the participant’s statement of goals and aspirations” (para (d)).
32Again, those limitations on the power of the Tribunal were correctly identified by Member Buxton in VXVL.35
33There are no further limitations on the power in s 33(2). In particular, there is no limitation that requires the participant to identify particular supports before they may be approved by the CEO. As Member Buxton stated, the decision to approve under s 33(2) “is not made by the participant, nor is it made as a result of requests made by a participant”.36 A participant may choose to make a request in relation to a particular support (in which case the Agency must have regard to the request), but “[n]o obligation is placed upon any participant to ‘request’ any particular support”.37
34That is true of the exercise of the s 33(2) power by the CEO. It necessarily follows that it is the same of the exercise of that power by the Tribunal. As the High Court has made clear, the Tribunal is to exercise the same power subject to the same constraints.38
35There is no “statutory support” for any additional constraints.39 The Agency submits that there are such additional constraints, but identifies no basis for them in the statutory text or context. Rather, it seeks to import, from very different statutory contexts, concepts that are entirely foreign to the statutory scheme of the NDISAct. It then seeks to rely on those foreign concepts to read down the clear text and structure of the NDIS Act. That approach should be rejected, including for the reasons explained in paragraphs 44 to 51 below.
36That the Agency has failed to identify any statutory support for its approach is not surprising. It failed to do so in VXVL.40 And, as Senior Member O’Donovan recently observed in Dunstan and National Disability Insurance Agency:4
Given how open the initial decision to approve is, it is difficult to read in any significant restriction as the matter moves through the review process. If evidence and submissions are put to the Tribunal which support the inclusion of items in the statement of participant supports which the Tribunal decides to approve, there is no obvious basis on which those can be disregarded.
37The Senior Member concluded that he was in “complete agreement” with Member Buxton’s assessment of jurisdiction in VXVL.42
38The above analysis of the Tribunal’s function is consistent with that of Mortimer J in McGarrigle v National Disability Insurance Agency.43 There, her Honour said:44
Section 99 of the Act identifies the decisions under the Act which are reviewable by the Tribunal. Included in this list are decisions made under s 33(2). Section 33(2) preparation of a participant’s plan. In that context s 33(2), stating as it does in mandatory language what a plan must specify, confers an additional function on the CEO (and her or his delegate) of “approving” the necessary or reasonable supports required by the participant. This is confirmed by several other provisions. First, s 33(2)(b) which speaks of supports “that will be funded” – meaning, in my opinion, those supports the CEO approves to be funded. Second, s 37, which provides that a plan only comes into effect when approved by the CEO, and third, s 39 which imposes a duty on the Agency to comply with a statement of participant supports. Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.
39Her Honour specifically refers to the possibility that the Tribunal may “vary or modify the supports as set out in a participant plan”. It can be accepted that the particular jurisdictional issue that is now before the Tribunal was not before her Honour. Nonetheless, there is nothing in her Honour’s explanation that suggests the “variation” or “modification” to which her Honour was referring was limited in the way now suggested by the Agency. Indeed, her Honour expressly referred to the requirement that the Tribunal have regard to the matters set out in s 33(5). None of the decisions relied upon by the Agency confront the explanation of the Tribunal’s jurisdiction provided by Mortimer J. An appeal from her Honour’s decision was unanimously dismissed by the Full Court.45
[footnotes omitted]
(b)From those submissions he submitted the following conclusions followed:
40For the above reasons, the Tribunal has jurisdiction in relation to any supports that are now identified or requested by the Applicant (set out at RS [16]).
41The jurisdiction is not confined to supports identified at the time the relevant decision was made under s 100(6) (being the Reconsidered Decision). Nor, for completeness, is it confined to supports identified at the time that the original decision was made under s 33(2) by a delegate of the CEO (RS [6]) or the subsequent review of that decision under s 100(6) by a different delegate of the CEO) (Doc T2; RS [10]).
42Consistently with an object of the Act, that enables the Applicant to “exercise choice and control in the pursuit of their goals and the planning and delivery of their supports” (s 3(1)(e)). The Tribunal must have regard to the Applicant’s request (r 2.4), must assess the Applicant’s support needs (r 4.1(a)) and relate those support needs to the participant’s statement of goals and aspirations (r 4.1(d)). In doing so, it must “have regard to relevant assessments conducted in relation to the participant” (s 33(5)(c)), including any relevant assessments that have been conducted the time of the Reconsidered Decision.
During oral argument, Mr Thomas Wood of counsel submitted that the evidence filed by the applicant before the Tribunal effectively was in support of a different plan including further reasonable and necessary supports now claimed by the applicant on the review. I put to Mr Wood that his submission was that the application for the fresh supports could have been put before the reviewer, and that the fact that it was not does not matter for the purposes of jurisdiction to hear the review. Mr Wood replied: ‘That’s exactly right, yes. It doesn’t matter that it wasn’t before … the original decision-maker. It could have been, in the sense that it’s information, but it didn’t exist at that time, but had it, it would have been something that the original decision-maker and in turn the reviewer could have considered’.
Mr Wood referred to Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 and, in effect, submitted that the corollary of what was there said by Bell, Gageler, Gordon and Edelman JJ in paragraph [53] was that if a matter could have been taken into account by the original decision-maker, then the same matter could be taken into account by the Tribunal.
Mr Wood submitted that the question before the original decision-maker (and the reviewer) was whether to approve the provisions of the plan as to reasonable and necessary supports.
Mr Wood submitted that if I were to directly apply the decision of Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, it would follow that neither the internal reviewer nor the Tribunal could take account of any plan other than the plan put before the original reviewer. That would be contrary, he submitted to a point conceded by the agency, that it was open to the internal reviewer to take into account supports for which the applicant had not contended before the original decision-maker. He submitted that CJP16 was distinguishable.
Finally, Mr Wood submitted that even if the applicant had not requested additional supports, the Tribunal would be obliged to consider that they were reasonable and necessary having regard to the applicant’s circumstances.
The applicant submitted that the conclusions reached by Member Buxton in VXVL and NDIA [2021] AATA 1709 and by Senior Member O’Donovan in Dunstan and NDIA [2021] AATA 2406 were correct, and that the conclusions reached in QDKH and NDIA [2021] AATA 922, Young and NDIA [2021] AATA 1555, BWLK and NDIA [2021] AATA 1631 and CRWR and NDIA [2021] AATA 2514 were incorrect.
The respondent, represented by Ms Molyneux of counsel, submitted orally, and consistently with the agency’s written submissions, that the jurisdiction of the Tribunal did not extend beyond the matters put before the reviewing delegate for consideration. The respondent submitted that the Tribunal’s decision in QDKH was correct.
The respondent drew attention to the decision of Perry J in Novosel v Comcare [2017] FCA 722; 72 AAR 269. That case, involving the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) involved, as here a three-stage decision-making process, a delegate making the original decision, a reviewing delegate and the Tribunal reviewing the decision of the reviewing delegate. Perry J held at [90] and [91] that since the original delegate had considered a claim for medical expenses under s 16 of the SRC Act, and also a claim for incapacity under s 19 of that Act, and since the reviewing officer affirmed the original decision, both matters were within the jurisdiction of the Tribunal reviewing the decision of the internal reviewing officer. For this purpose it did not matter that the focus of the claimant before the reviewing officer was on challenging one of the two decisions made in the first officer’s determination.
In supplementary written submissions filed after the oral hearing, Ms Molyneux raised an alternative argument, to the effect that the reviewing delegate and the Tribunal were authorised to consider the same matters as were raised before the original decision-maker, and no other matters. The applicant responded to those submissions. As will emerge from my consideration of the submissions of the parties, I have, with one qualification, effectively accepted the conclusions suggested by Ms Molyneux’s supplementary submissions.
At the conclusion of the oral argument I directed further written submissions on issues arising under Shi v Migration Agents Registration Authority [2008] HCA 31 and earlier Federal Court decisions including Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 and Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225. Those Federal Court cases were referred to by Keifel CJ, Keane and Nettle JJ in Frugtniet as footnotes to paragraph [15] of their Honours’ reasons for judgment.
DISCUSSION
I am conscious that the unsuccessful party in QDKH has sought judicial review of that decision in the Federal Court, and it is due to be heard several months from now. So that the present matter may now proceed, and since I have now received detailed argument on matters not dealt with in QDKH or the decisions which followed it, I have decided to deal with this matter now, so that at least at this level, this matter may proceed when I have disposed of it. Moreover, the issues debated before me have already occasioned differences within the Tribunal’s members, albeit that I have heard more detailed argument in this matter than has been the case in earlier decisions. Finally, if participants must go back to the agency and raise particular supports before bringing them to the Tribunal, that will cause delay and inconvenience and in principle, unless that is the correct result, it should be avoided.
Some important questions arising from the submissions of the applicant include the following: Is the participant’s plan referred to in s 33, which is to contain a statement of the reasonable and necessary supports which the CEO will either approve or not approve, fixed at the time of the original decision under s 33(2) or ambulatory in nature as the matter passes beyond the original decision-maker to the reviewing delegate or to the Tribunal? That will affect not only the powers and authority of the internal reviewer, but those of the Tribunal. If the plan is ambulatory, as the applicant submits, then the decision at all levels will be similarly described, as a decision to approve or not to approve supports, but in some cases different in content, because the supports which the applicant claims may be different at each stage of decision-making. The question is one of the proper construction of the NDIS Act, and not a discretionary question. I will call this the question whether the participant’s plan is an ambulatory concept.
Secondly, is the CEO to say whether the supports claimed are approved or not, or does his consideration of which supports he will approve extend to matters not mentioned in the plan put before him? This is the submission of the applicant which I have mentioned in [15] above. This question, if answered in favour of the applicant, could produce consequences which members of this Tribunal might find surprising. If particular supports are brought to the Tribunal for consideration, must the Tribunal consider whether others should also be considered and invite further evidence or submissions from the parties about such matters? I will call this question the reach of the CEO’s approval power.
I take as my starting point what is said in paragraph [139] of the reasons of the Full Court in WRMF :
In McGarrigle at [22]-[44], the legislative scheme of the Act is described. The Agency appealed from the Court's orders in McGarrigle, but it ultimately conceded before the Full Court that the Tribunal's decision should be set aside: see National Disability Insurance Agency v McGarrigle [2017] FCAFC 132; (2017) 157 ALD 458 at [2]. Leave for it to rely on an amended notice of appeal was refused by the Full Court. On this appeal, the Agency accepted the description in McGarrigle of the statutory scheme, subject to the clarification set out by the Full Court at [3] of its reasons concerning [95] of the primary reasons. In resolving ground 4, we emphasise the following aspects of the statutory scheme, some of which are drawn from the description in McGarrigle, and some of which are not. Some of the aspects have been referred to above, but they bear restating.
(a)Section 17A enshrines and gives prominence in the legislative scheme to principles of autonomy and self-determination for people with disability.
(b)Once a person is accepted to be a 'participant' within the meaning in Part 1 of Ch 3, the delivery of supports occurs through participant plans. Participant plans are the cornerstone of the assistance the legislative scheme intends be delivered to those who qualify as participants.
(c)The entire process associated with participant plans must be directed - as far as reasonably practicable - in accordance with the objectives set out in s 31. Of relevance to the resolution of ground 4 are the objectives that the plan should:
i.'be directed by the participant' (para (b));
ii.'be underpinned by the right of the participant to exercise control over his or her own life' (para (g));
iii. 'advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations' (para (h));
iv. 'maximise the choice and independence of the participant' (para (i)); and
v.'facilitate tailored and flexible responses to the individual goals and needs of the participant' (para (j)).
(d)The CEO is required by s 32 to facilitate the preparation of a participant's plan. Section 33 prescribes two mandatory components for a participant's plan: a statement of a participant's goals and aspirations (s 33(1)), and a statement specifying a number of matters about the 'participant supports' to be provided, which includes specification of both general and reasonable and necessary supports which will be, respectively, provided and funded (s 33(2)(a) and (b)).
(e)This statement of participant supports must be prepared with the participant and approved by the CEO: see s 33(2).
(f)It is s 33(2)(b), read with s 33(5), which comprises the statutory task for the purposes of both the reviewable decision and the Tribunal's function on merits review.
(g)The matters set out in s 33(5) are mandatory aspects of the CEO's approval function, and therefore on review, mandatory aspects of the Tribunal's review function. On any given review by the Tribunal, some of these aspects will feature more than others, depending on the factual circumstances. The matters go to both the CEO's function in s 33(2) of specifying the general supports the Agency will provide and the reasonable and necessary supports the Agency will fund.
(h)The requirements of s 33(5) should be set out:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
WHETHER THE PARTICIPANT’S PLAN IS AN AMBULATORY CONCEPT
This question seems to me to be answered in the NDIS Act. Section 9 provides that in the Act, plan, for a participant means the participant’s plan that is in effect under section 37. The participant’s plan is described by the Full Court in WRMF as the cornerstone of the assistance to be provided to a participant.
Section 37, including the note to sub-section 2, provides as follows:
37 When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a)received the participant’s statement of goals and aspirations from the participant; and
(b)approved the statement of participant supports.
(2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(3) A participant’s plan ceases to be in effect at the earlier of the following times:
(a)when it is replaced by another plan under Division 4;
(b)when the participant ceases to be a participant.
Division 4 contains sections 47-50, which are as follows:
47 Participant may change participant’s statement of goals and aspirations at any time
(1) A participant may give the CEO a changed version of the participant’s statement
of goals and aspirations at any time.
Note: The participant may also request a review of his or her plan at any time under subsection 48(1) and the CEO may review a participant’s plan at any time under subsection 48(4).
(2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the plan is taken to be replaced by a new plan comprising:
(a)the changed version of the participant’s statement of goals and aspirations; and
(b)the statement of participant supports in the existing plan.
(3) The Agency must provide a copy of the new plan to the participant within 7 days of receiving the changed version of the participant’s statement of goals and aspirations.
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme
rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
(4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
(5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.
(6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.
49 Outcome of review
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under paragraph 99(d).
50 Information and reports for the purposes of reviewing a participant’s plan
(1) For the purposes of reviewing a participant’s plan, the CEO may make one or more requests under subsection (2).
(2) The requests the CEO may make are as follows:
(a)that the participant, or another person, provide information that is reasonably necessary for the purposes of reviewing the participant’s plan; or
(b)that the participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.
(3) The CEO may review a participant’s plan before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them.
Note: If information or reports are provided after the plan is reviewed, the plan can be reviewed again and if necessary replaced.
Section 33 is set out at paragraph 4. Sections 100 and 103 provide as follows:
100 Review of reviewable decisions
(1) The CEO must give written notice of a reviewable decision to each
person directly affected by the reviewable decision. The notice must include a statement:
(a)that:
(i) the person may request the CEO to review the reviewable decision; or
(ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b)that the person may seek further review under section 103.
(2) A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3) A request may be made by:
(a)sending or delivering a written request to the CEO; or
(b)making an oral request, in person or by telephone or other means, to the CEO.
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a)make a written record of the details of the request; and
(b)note on the record the day the request is made.
(5) If:
(a)the CEO receives a request for review of a reviewable decision; or
(b)the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(c)to whom the CEO’s powers and functions under this section are delegated; and
(d)who was not involved in making the reviewable decision.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the CEO is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.
(8) A failure of the CEO to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.
(9) To the extent that this provision relates to a decision referred to in paragraph 99(g) or (h), a reference in this section to a person includes a reference to an entity.
103 Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
The original decision under s 33(2), once the supports in the plan prepared with the participant are approved by the delegate of the CEO, establishes what is, at that time, the participant’s plan. In accordance with section 37(1), it then comes into effect.
Despite s 37(2) which states that the plan cannot be varied after it comes into effect, it can be varied or replaced by the reviewing delegate under section 100(6) which provides that the reviewer may vary, confirm or replace the “reviewable decision” that is, the decision made under s 33(2). If there is a variation or replacement of the statement of participant supports, the participant’s plan will stand amended accordingly, which then comes into effect.
When application is made to the Tribunal for review of the decision made under s 100(6), the Tribunal also has power to confirm, vary or set aside the reviewable decision, and if the Tribunal affirms the decision of the reviewing delegate, the participant’s plan as it was before the Tribunal’s review, will remain in place. If the Tribunal varies or replaces the terms of the approval of the supports which the reviewing delegate decided upon, then unless the Tribunal otherwise orders, from the date of the reviewing delegate’s decision, the variation or substitution made by the Tribunal has or is deemed to have effect.
The plan approved by the CEO under s 33(2) is described as “prepared with the participant”, that is, in its primary sense, prepared by the participant but facilitated by the CEO, in practice, by the agency. Thus in the present case, the plan looks as if it was written by the participant himself, although that may have been done with the assistance of the agency.
The liberty reserved to the participant to change his mind appears to be by means of Division 4. The statement of goals and aspirations may be changed by the participant at any time under s 47. If the participant wishes to change anything else in the plan, including the statement of participant supports, he or she must seek a review by the CEO. A decision not to reassess a participant’s plan is also a “reviewable decision” under s 99. If the CEO conducts a review the whole process starts again, and the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2, which includes, inter alia, sections 32 and 33.
That throws up the important question whether new general supports or new reasonable and necessary supports may be proposed to the reviewing delegate, and taken into account by the reviewing delegate at the time of his or her review. If so, then it would seem that the Tribunal is in the same position, and must entertain fresh requests during its review. If not, then the Tribunal would seem to be in the same position, since it is to stand in the shoes of the reviewing delegate.
It seems to me that what I have described as the question whether the participant’s plan is an ambulatory concept comes down to the question I have referred to in the previous paragraph. If an applicant who seeks internal review wishes to agitate for additional reasonable and necessary supports or general supports not mentioned in the statement of participant’s supports in the plan, it seems to me that his proper course is to seek a review of the plan under Division 4, which, if granted will enable him to nominate the relevant supports in the new plan. He can, of course, press the internal reviewer to grant supports which were placed before the original decision-maker and which he or she rejected. But fresh supports not included in the original plan appear not to be open to be raised before the reviewing delegate and therefore not before the Tribunal.
If that is right, then unless a support was mentioned in the plan prepared with the participant it is unavailable to be raised for consideration before the reviewing delegate or the Tribunal. The plan is not ambulatory in the sense mentioned in this question.
Reference was made by the applicant during the course of argument to rule 4.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules). That rule is in the following terms:
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a)identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)assess risks and safeguards in relation to the participant; and
(d)relate support needs to the participant’s statement of goals and aspirations.
I see that rule as directed to matters which the CEO (and therefore the Tribunal) must consider in deciding whether or not to approve a statement of participant’s supports. That statement is a mandatory part of the participant’s plan and I do not see the terms as suggesting any different conclusion.
THE REACH OF THE CEO’S APPROVAL POWER
Reference has been made by the applicant in submissions (and in some of the Tribunal decisions) to rule 2.4 of the Supports Rules.
Rule 2.4 is in the following terms:
2.4 The CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these.
The applicant put emphasis on the first sentence of that rule, and upon the word “also” in the second sentence.
Rule 2.4 gives a power to the CEO and necessarily also to the Tribunal.
No argument was put to me in the application of rule 2.4 that any of the applicant’s supports desired to be agitated in this case were within jurisdiction. It seems to me that the precise meaning of rule 2.4 should not be discussed in the abstract but in the context of a real dispute, and possibly in the light of evidence which may be led before the Tribunal. The Explanatory Memorandum to the Support Rules describes rules 2.1-2.5 of the Support Rules as summarising ‘a number of provisions of the Act including aspects of sections 3, 33 and 34 of the Act and are explanatory and contextual’.
At first blush, rule 2.4’s statement that the CEO may consider supports either in a group designed to achieve an outcome or individually does not imply that the CEO has decisional freedom to approve supports not mentioned in the participant’s plan, when performing the task of deciding whether or not to approve particular supports stated in the participant’s plan. That view is preliminary only, and should await argument in a case where the proper construction and application of rule 2.4 is debated.
The possible questions arising under rule 2.4 of the Support Rules are reserved for the final hearing of this matter.
As to the submission of Mr Wood noted in paragraph [15] above, it seems to me that the statutory regime which I have discussed in relation to the first question does not support the view that the approval function in s 33(2) extends to the function of approving supports not mentioned in the participant’s plan.
I therefore resolve the jurisdictional issue in this case by deciding that the jurisdiction of the reviewing delegate and the Tribunal to review reasonable and necessary supports and other supports extends only to those supports mentioned in the participant’s plan, with the proviso that the significance and application of rule 2.4 to that jurisdictional issue is reserved for the final hearing.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
.........................[sgd]...............................................
Associate
Dated: 30 September 2021
Date(s) of hearing: 4 August 2021 Date final submissions received: 7 September 2021 Counsel for the Applicant: Mr T Wood, Owen Dixon Chambers West Solicitors for the Applicant: Ms J Finlay, Legal Aid NSW Counsel for the Respondent: Ms S Molyneaux, Castan Chambers Solicitors for the Respondent: Ms C Halls, National Disability Insurance Agency
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