Papakostas and National Disability Insurance Agency

[2022] AATA 2153

Papakostas and National Disability Insurance Agency [2022] AATA 2153 (1 July 2022)

AppID:  Papakostas and National Disability Insurance Agency

Division:GENERAL DIVISION

File Number(s):      2021/7567

Re:Danielle Papakostas

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:1 July 2022

Date of written reasons:        4 July 2022

Place:Sydney

For the reasons given orally at the conclusion of a hearing in this matter, the Tribunal decides, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), that:

1.the decision dated 11 October 2021, which affirmed the earlier decision of the Respondent on 28 May 2021 is set aside and remitted with a direction that the Respondent is to, by no later than 5:00pm on Friday 29 July 2022, either:

(a)commence discussions with the Applicant to develop a participant plan of supports for the Applicant; or

(b)make a revocation decision pursuant to section 30 of the National Disability Insurance Scheme Act 2013 (Cth).

................................[sgd]....................................

Chris Puplick AM, Senior Member

CATCHWORDS

National Disability Insurance Scheme – access to the scheme – issue of jurisdiction or power – error of the NDIA – where a second contradictory decision issued on the same matter where there was no valid revocation of the initial decision – whether the second decision is valid – decision not valid – tribunal able to set decision aside – decision set aside and remitted with direction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43

National Disability Insurance Scheme Act 2013 (Cth) s 30

CASES

Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167

Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1979) 24 ALR 307

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1

SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91

REASONS FOR DECISION

Chris Puplick AM, Senior Member

4 July 2022

1. On 23 April 2021 Ms Danielle Papakostas (the Applicant) made an application to become a participant in the National Disability Insurance Scheme (the Scheme).

2. On 18 May 2021 the National Disability Insurance Agency (the Agency) (the Respondent), the body responsible for the administration of the Scheme, advised the Applicant by letter that:

   “your request to access the National Disability Insurance Scheme (NDIS) has been successful. I have decided that you meet the age, residence and disability requirements outlined in the National Disability Insurance Scheme Act 2013 to become a participant from 18 May 2021.”[1]

   [1] Tribunal documents (T-documents) at 83.

3. On 19 May 2021 the Applicant was contacted by the Agency (by telephone) and advised that this advice had been sent in error and that a decision on her application was still pending.

4. On 28 May 2021 the Agency again wrote to the Applicant, on this occasion advising that

   “I have considered your application and based on the information provided, your circumstances do not meet the disability and early intervention requirements in the National Disability Insurance Scheme Act 2013.” [2]

   [2] Ibid at 75.

5. The Applicant sought an internal review of this decision on 29 July 2021 and on 11 October 2021 the Agency advised her:

   “After careful consideration of the evidence available, I have decided to confirm the earlier decision.” [3]

   [3] Ibid at 120.

6. The Applicant then applied to this Tribunal on 12 October 2021 for a review of that decision.[4]

   [4] Ibid at 1.

7. Prior to any hearing of the substantive application the Respondent raised a question related to the powers and jurisdiction of the Tribunal and that matter was heard by way of an interlocutory hearing on 1 July 2022. All parties appeared by telephone.

8. The issue raised was as follows:

   (a)the Respondent accepted that a decision (in favour of the Applicant) was validly made on 18 May 2021;

   (a)the decision, details of which were contained in the letter of 28 May 2021 (affirmed on 11 October 2021) was not a valid decision because, in order to displace the decision of 18 May 2021 the Agency[5] was required to make a formal revocation of the original decision under section 30 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act);

   (b)in doing so, the Agency would have been required to give notice of the decision to the participant, stating the date on which the revocation takes effect (pursuant to subsection 30(2) of the Act);

   (c)the letter of 28 May 2021 contained no reference to revocation, nor did it include any reference to a purported date of revocation; and

   (d)as such, the question arose as to what powers or jurisdiction this Tribunal had under section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to review “the decision” of 28 May 2021.

   [5] Specifically, the Chief Executive Officer of the Agency.

9. The Respondent conceded that the purported “decision” of 28 May 2021 was not validly made and that, as a consequence, the only valid decision made in reference to the Applicant was that of 18 May 2021 granting her access to the Scheme.

10. The jurisdiction of the Tribunal to review a “decision” which is not a valid decision, or not validly made, or of no legal effect, has been settled by the Courts almost from the outset of the Tribunal itself. In Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW)[6] (Lawlor) which was affirmed on appeal, [7] the Court said:

    “[a]n applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and further that the decision purports to have been made in exercise of powers conferred by the enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.”[8]

    [6] (1978) 1 ALD 167.

    [7] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1.

    [8] Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1979) 24 ALR 307 at 317 per Bowen CJ, Smithers J agreeing.

11. Lawlor has been followed as a matter of course by the Tribunal and was specifically further approved in SZGME when the Full Federal Court restated:

    “The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the person who made the decision.”[9]

    [9] SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [25] per Black CJ and Allsop J, Moore J agreeing.

12. Given that the Tribunal has jurisdiction to review the purported decision of 28 May 2021, the evidence establishes that this was not a decision to revoke the decision of 18 May 2021 and, as a result, is a “decision” of no validity or force. The Agency has not taken any valid step(s) to revoke the decision of 18 May 2021 which, as a result, remains unchanged.

13. In order to dispel any doubts on the matter the Respondent sought a decision from the Tribunal to set aside the purported decision of 28 May 2021, leaving the decision of 18 May 2021 intact.

14. Although this is an outcome, ab initio, favourable to the Applicant, the Applicant’s representative drew attention to the fact that were the Tribunal to make such a decision, the Applicant would not necessarily be granted any degree of certainty that the 18 May 2021 decision would subsequently not be revoked. The revocation powers of section 30 of the Act are potentially exercisable at any time.

15. Unfortunately for the Applicant, this is correct.

16. The Applicant has been ill-used by the Respondent. As a matter of fact, she has been an eligible participant in the Scheme since 18 May 2021 but, since that date the Respondent has failed in its responsibilities either to engage with her in the development of an NDIS Plan (pursuant to Part 2 of the Act) or make a formal decision about revoking her status as a participant, which would have allowed this matter to be reviewed properly and come before the Tribunal without creating the present difficulties.

17. This is anything but best practice; the Applicant has every right to feel aggrieved and to be concerned about the waste of her time and the expenditure of her resources (including financial resources) which might not have been necessary had the Respondent not made a serious error in the management of her application.

18. The Applicant is entitled to have her matter dealt with properly and promptly. It needs to be resolved one way or another. The Agency needs to make a determination as to her eligibility as a participant, and, in the event that she is eligible, to engage with her in the development of a Plan.

19. Section 43 of the AAT Act sets out the Tribunal’s powers on review. Under sub-paragraph 43(1)(c)(ii) of the AAT Act, it is empowered to set aside a decision under review and remit it to the respondent “with any directions” it determines should be made.

20. This Tribunal determines that for the reasons given, the Applicant is a participant in the National Disability Insurance Scheme and has been so since 18 May 2021.

    DECISION

21. The decision dated 11 October 2021, which affirmed the earlier decision of the Respondent on 28 May 2021 is set aside and remitted with a direction that the Respondent is to, by no later than 5:00pm on Friday 29 July 2022, either:

    (a)commence discussions with the Applicant to develop a participant plan of supports for the Applicant; or

    (b)make a revocation decision pursuant to section 30 of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..................................[sgd]......................................

Associate

Dated: 4 July 2022

Date(s) of hearing:	1 July 2022
Solicitors for the Applicant:	Ms D Brown, Legal Aid
Counsel for the Respondent:	Mr N Swan
Solicitors for the Respondent:	Ms S Thompson, HWL Ebsworth Lawyers