Pearce and National Disability Insurance Agency
[2022] AATA 3608
•28 October 2022
Pearce and National Disability Insurance Agency [2022] AATA 3608 (28 October 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/4802
Re:Richard Michael Pearce
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member C. J. Furnell
Date:28 October 2022
Place:Melbourne
The Tribunal affirms the decision the subject of review.
..........................[sgd]..............................................
Senior Member C. J. Furnell
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – statement of participant supports – assessment of reasonable and necessary supports – accessories for use with hearing aids – interpreting and captioning services – effect of new participant plan on Tribunal jurisdiction – bar on variation of a plan once it is in effect – Tribunal decision unable to affect funding of supports under current plan – Tribunal not satisfied supports effective and beneficial for the applicant given absence of jurisdiction to affect supports under current plan – Tribunal satisfied that but for that absence of jurisdiction it would have been satisfied that certain of the supports sought by the applicant were reasonable and necessary – nevertheless, decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660
Castledine v National Disability Insurance Agency [2019] AATA 4240
Ewin and National Disability Insurance Agency [2018] AATA 4726
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Gordon and Comcare [2022] AATA 841
Holland and National Disability Insurance Agency [2021] AATA 92
Johnson v Director of Consumer Affairs Victoria [2011] VSC 595
Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR
Nairn and National Disability Insurance Agency [2017] AATA 242
National Disability Insurance Agency v Davis [2022] FCA 1002
Ousley v R (1997) 192 CLR 69
Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
RTRH and National Disability Insurance Agency [2022] AATA 205
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SSLP and National Disability Insurance Agency [2021] AATA 4207
Vecchio and National Disability Insurance Agency [2021] AATA 4565
Williamson and National Disability Insurance Agency [2019] AATA 2944REASONS FOR DECISION
Senior Member C. J. Furnell
28 October 2022
The applicant is a 57-year-old man who suffers from severe to profound bilateral deafness.[1]
[1] T1A, 7. References to “T” documents are references to documents provided by the respondent under s 37 or s 38AA of the Administrative Appeals Tribunal Act 1975, with references to “ST” documents being references to supplementary documents so provided.
He has been a participant in the National Disability Insurance Scheme established under the National Disability Insurance Scheme Act 2013 (Act) since 2020.[2]
[2] T8, 42.
The applicant contends that, as a participant, assistance should be provided to him by way of certain supports funded under the NDIS.
Whether the supports in contention ought to be funded under the NDIS turns on whether I am satisfied that they are reasonable and necessary for the applicant.[3]
[3] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 (McGarrigle) at [93].
For the reasons which follow, but for a jurisdictional issue outlined later, I would have been so satisfied in relation to what I characterise as the accessories for use with hearing aids. I am not (and even in the absence of the jurisdictional issue would not have been) so satisfied in relation to certain interpreting and captioning services.
Before outlining those reasons, however, mention should be made of certain aspects of the procedural history and of the legislative context of relevance to the Tribunal’s exercise of jurisdiction in this matter.
Procedural history
In June 2020, the applicant’s first participant’s plan was finalised.[4] A participant’s plan is the key mechanism for the provision of funding under the NDIS to a participant in the scheme.[5] It is “the foundational document for a person’s access to services under the NDIS.”[6]
[4] T8, 42.
[5] McGarrigle at [30].
[6] Ibid at [87].
8.Included in the plan was a statement of participant supports (SOPS) that had been approved by the respondent’s chief executive officer. Amongst other things, it specified the “reasonable and necessary supports” to be funded under the NDIS in relation to the applicant.[7] It also specified 19 June 2021 as the date by which the respondent was required to review the plan (the review date).[8]
[7] A “support” is the practical means by which a person with disability is assisted. It is not the funding by which that means of assistance is to be provided: see McGarrigle at [88].
[8] T8, 45.
9.On 2 July 2020, the applicant requested an internal review of the CEO’s June 2020 decision to approve that SOPS.[9]
[9] T5, 38.
10.In August 2020, the internal reviewer decided to confirm that decision.[10]
[10] T2, 22.
11.The applicant applied to the Tribunal for review of the August 2020 confirmation decision.[11]
[11] T1.
12.The parties agree that one of the supports sought by the applicant is both reasonable and necessary. In particular, they are agreed that, in lieu of a capital support specified in the approved SOPS, the applicant should be provided with two Phonak Naida Paradise 90-UP hearing aids “as per quote by Medical Audiology Services dated 8 April 2022”.
13.The parties disagree, however, as to the appropriateness of certain other supports being funded under the NDIS (the supports in contention).
14.In light of the legislative context (briefly outlined later), the question in issue is whether the supports in contention ought to be included in the applicant’s SOPS as reasonable and necessary supports to be funded under the NDIS.
15.Before seeking to address this question, however, there is a threshold issue concerning the Tribunal’s role and its jurisdiction to affect, legally, the nature of the supports now to be provided to the applicant and funded under the NDIS.
Tribunal role and jurisdiction
Role and jurisdiction generally
The role of the Tribunal 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 function of the AAT, in other words, is ‘to do over again’ that which was done by the primary decision maker.[12]
[12] Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 (Makasa) at [50] (citing Frugtnietv Australian Securities and Investments Commission (2019) 266 CLR 250 (Frugtniet)). That the Tribunal stands in the decision-maker’s shoes is consistent with the origins of the type of review undertaken by the Tribunal, as recently outlined by Logan J in Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637 (Mamatta) at [11]. There His Honour stated that “…the origins of the type of review for which s 43 of the AAT Act provides may be traced to the advice of the Judicial Committee of the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co). The Judicial Committee, at 544 – 545, upheld the constitutional propriety of the then Taxation Board of Review, observing that the Board was in the nature of administrative machinery and that it was not exercising judicial power but, rather, merely in the same position as, in that instance, the Commissioner himself.”
17.In undertaking that role, the Tribunal:
(a)is “…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision”;[13] and
[13] Frugtniet at [14]-[15] per Kiefel CJ, Keane and Nettle JJ. See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) per Kiefel J (as Her Honour then was) at [134] “…in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.”
(b)“…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 AAT's review.”[14]
[14] Frugtniet at [51] per Bell, Gageler, Gordon and Edelman JJ. See also Shi per Kiefel J (as Her Honour then was) at [133] “…it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.”
18.As recently noted by Logan J in Mamatta, in Tribunal proceedings it is necessary “…to identify with precision…the particular decision which falls for review…”,[15] given that the “…boundaries of the review conducted by the Tribunal, and the powers it may exercise, are dictated by the particular decision under review and the powers conferred by the statute concerned on the administrator who made the decision under review.”[16]
[15] Mamatta at [14].
[16] Ibid at [15].
Role in this proceeding
In this proceeding, the administrator whose decision is under review is the internal reviewer who decided in August 2020 to confirm the June 2020 decision to approve the applicant’s SOPS and the decision under review is that August 2020 decision.[17]
[17] Act, s 103 which identifies decisions made on internal review as the decisions in respect of which a review application may be made to the Tribunal. It is noted that by virtue of item 49 of Schedule 1 to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (the PSGOM Act), an application for review of a decision approving of a statement of participant supports included in a plan that no longer applies will also be taken to be an application for review of the decision to approve the statement of participant supports in the new plan. This, however, only applies in relation to review applications made on or after 2 July 2022: item 68 of Schedule 1 to, and s 2 of, the PSGOM Act 2022.
20.In saying this, I reject the respondent’s submission to the effect that, in the context of an internal review decision to confirm or vary a reviewable decision (such as a decision to approve a SOPS), the decision the subject of review is not the internal review decision but is, rather, the reviewable decision or, in the context of an internal review decision to set aside a reviewable decision and make a substitute decision, the substitute decision.[18]
[18] R SFIC at [9]-[10].
21.That submission was based on a suggestion made by the Tribunal in Nairn.[19] With respect, that suggestion runs counter to the clear words of s 103 of the Act and is inconsistent with the more recent decision of the Full Court in QDKH.[20] It appears to have been made because of a concern that the Tribunal would not be able to address “operative” decisions if its role were to be defined in terms of the review of internal review decisions. As I see it, that concern is unwarranted. It reflects an unduly narrow view as to the scope of the Tribunal’s role when reviewing internal review decisions. A reconsideration of “operative” decisions is inherent in doing over again that which was done by an internal reviewer. As Logan J recently said in Batson:[21]
[19] Nairn and National Disability Insurance Agency [2017] AATA 242 at [40], where an internal review decision was described as “… a decision that confirms or varies the reviewable decision or that sets the reviewable decision aside and substitutes a new decision. It is not, however, that decision made on review by the CEO as such that is reviewable but the operative decision. That is to say, it is the decision that remains after review and so the operative decision.”
[20] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (QDKH) where at [7] and [8] the Court adopted the proposition that the Tribunal’s jurisdiction “…involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act.”
[21] Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660 at [11].
…Overarchingly, the Tribunal’s task was to review the delegate’s decision. In that task, it was unconstrained by the view reached by the delegate. The Tribunal was required to make its own assessment based on the material before it.
22.Given the general role and jurisdiction of the Tribunal, in doing over again that which was done by an internal reviewer, the Tribunal exercises the same powers as the internal reviewer and is subject to the same constraints as the internal reviewer. Moreover, the statutory question addressed by the internal reviewer’s decision marks the boundaries of the review being undertaken by the Tribunal. That statutory question is apparent from the role undertaken by the internal reviewer, as prescribed by s 100 of the Act.
23.As so prescribed, the internal reviewer who made the August 2020 decision (the decision under review by the Tribunal) had to decide whether to confirm the June 2020 decision to approve a SOPS, vary the June 2020 decision or set the June 2020 decision aside and substitute a new decision.[22] This is consistent with the proposition endorsed in QDKH that the “… scope of the Tribunal’s jurisdiction is…determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act”.[23]
[22] Act, ss 100(5) and 100(6).
[23] QDKH at [7] and [8].
24.Accordingly, while the decision the subject of review is the August 2020 internal review decision, the focus of that review is the June 2020 decision to approve a SOPS for inclusion in a plan that took effect in June 2020. It is the focus of the statutory question which marks the boundaries of the review being undertaken by the Tribunal.
25.Any decision to approve a SOPS other than the one made in June 2020 is not a decision on which the Tribunal should or can focus on in this proceeding. Any such other decision is not encompassed within the boundaries of the review now being undertaken. Such a decision is not an element of the statutory question addressed by the internal reviewer’s decision. The jurisdiction exercisable by the Tribunal in this proceeding does not require or permit review of other such decisions. The Tribunal has no power to, and has a duty not to, hear matters that fall outside its jurisdiction. It does not have “…power to inquire at large into matters that might be of interest, but for which I have no power to review. In fact, the tribunal has a clear duty to decline to hear such matters…”.[24]
[24] Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077 at [14].
26.What has just been said about the Tribunal’s role and jurisdiction is by way of an explanation for my conclusion that the Tribunal in this proceeding is concerned only with the SOPS approved in June 2020 for inclusion in the applicant’s participant’s plan that commenced in June 2020. While the Tribunal might have jurisdiction enabling it to maintain or change the supports specified in that SOPS (albeit recognising an impediment to doing so if, as I later find to be the case, the SOPS was included in a participant’s plan that has ceased to be in effect), it does not have jurisdiction to, for instance, change the supports specified in any other SOPS.
27.Accordingly, whether the Tribunal has jurisdiction to change the supports now to be provided to the applicant and funded under the NDIS depends on whether those supports are specified in the SOPS approved in June 2020 for inclusion in the applicant’s participant’s plan that commenced in June 2020.
Does the June 2020 plan currently apply?
I find that the supports now to be provided to the applicant and funded under the NDIS are not those specified in the SOPS approved in June 2020 for inclusion in the applicant’s participant’s plan that commenced in June 2020. That plan has ceased to be in effect as it was replaced by another plan.[25] Put simply, the SOPS which the Tribunal now has jurisdiction to review is, I find, one included in a plan which is no longer in effect.
[25] Act, s 37(3).
Inherent in that finding is a rejection of the respondent’s submission that there has been no replacement of the plan approved in June 2020 so that the plan so approved remains in effect.[26]
[26] Respondent’s submissions on jurisdiction of 21 April 2022 (R JURIS) [9].
30.According to the respondent, a review of the June 2020 plan was not conducted by its review date,[27] despite an obligation to have done so.[28] Instead, the plan “…has auto-extended which means the system has pushed out the review date and in turn, funding has continued for a further 12 month period.”[29] This review date change by “auto-extension” is said to have been “…purely an administrative extension on the system to ensure funding continues to be available to the Applicant under the plan while this application is before the Tribunal.”[30] Somewhat confusingly, the respondent also acknowledges (in my view, correctly[31]) that it did not have the power to change that review date.[32]
[27] R JURIS [7]. What was previously called the “review date” is now called the “reassessment date” in relation to statements of participant supports approved after 1 July 2022: see cl 65(3) of Schedule 1 to the PSGOM Act.
[28] Act, s 39, pursuant to which the respondent is obliged to comply with a SOPS included in a participant’s plan. Prior to the assent on 1 April 2022 to the PSGOM Act, s 48(5) of the Act expressly imposed an obligation to conduct a review by the review date specified in the relevant SOPS. Difficult transitional provisions apply to the amendments effected by the PSGOM Act. Items 65(5) and 65(7) of Schedule 1 to that Act describe transitional arrangements in relation to amendments made to s 48 by reference to the time when a review or re-assessment commenced. It is unclear how to apply those provisions, if at all, in relation to a provision such as s 48(5) which, as expressed, imposed an ongoing obligation irrespective of a review or re-assessment request. In any event, however, it is not necessary to resolve this lack of clarity given that s 39 of the Act would appear to encompass the obligation formerly found in s 48(5).
[29] R JURIS [8].
[30] R JURIS [11].
[31] Act, s 37(2) which provides that a plan “cannot be varied after it comes into effect but can be replaced under Division 4.” That section has been deleted as of 1 July 2022 in relation to participant plans then in effect and which thereafter come into effect: see cl 65(4) of Schedule 1 to the PGSO Act. Hence, it remains the case that no variation can be made to a participant plan that ceased to have effect before 1 July 2022.
[32] R JURIS [11].
31.As the respondent’s submissions appear to acknowledge, the review date (or reassessment date[33]) under the current plan differs from that reflected in the June 2020 plan. Moreover, funding of supports provided for under the current plan is additional to that provided for in the June 2020 plan.
[33] The review date in a plan in effect immediately before 1 July 2022 becomes the reassessment date: item 65(8), Schedule 1 to the PSGOM Act.
32.With a different review date and additional funding, the plan currently in effect is not the June 2020 plan.[34] This distinguishes the situation now under consideration from that addressed in Williamson.[35] There it was decided that supports can continue to be provided under a plan beyond its review date “provided the supports or funds in the nature of supports remain” so that “funds remaining unspent” can continue to be spent.[36] Here, we are speaking not only of a change in the review date but also the provision of fresh funding.
[34] I note that, under the PSGOM Act, variations can now be made to a plan without having to replace the plan. This does not apply, however, to the plan approved in June 2020 as it ceased to be in effect before 1 July 2022: see item 65(4), Schedule 1 to the PSGOM Act. The “auto-extension” to which the respondent refers or the implicit review of the applicant’s participant’s plan initiated by the respondent’s chief executive officer under Division 4 of Part 2 of the Act occurred prior to 1 July 2022.
[35] Williamson and National Disability Insurance Agency [2019] AATA 2944 (Williamson).
[36] Ibid at [5] and [10].
33.In this context, the plan currently in effect could only have arisen as a result of an implicit review of the applicant’s participant’s plan initiated by the respondent’s chief executive officer under Division 4 of Part 2 of the Act.[37] Absent such a review and resultant plan, the respondent’s adoption of a new review date and its provision of additional funding would have constituted an invalid exercise of administrative power. Given this and consistent with application of the presumption of regularity,[38] I presume that such a review occurred which necessarily resulted in the preparation of a new plan,[39] one which inevitably entailed a decision to approve a SOPS for inclusion in the new plan,[40] a SOPS which specified a new review date and provided additional funding for supports. The new plan replaced the June 2020 plan so that the June 2020 plan ceased to be in effect.[41]
34.Hence, while the Tribunal retains jurisdiction to review the August 2020 decision confirming the June 2020 decision to approve a SOPS,[42] that review concerns a SOPS included in a plan which is no longer in effect. As stated earlier, the Tribunal does not have jurisdiction to make a decision concerning a different SOPS, such as the SOPS included in the applicant’s participant’s plan currently in effect.
35.This conclusion as to the scope of the Tribunal’s jurisdiction is reflected in a number of Tribunal decisions.[43] It is not, however, one adopted in other Tribunal decisions.[44]
36.Several of those other decisions appear to be based on a premise which is, in my respectful opinion, inconsistent with the Act. The premise is that a new plan comes into existence when the Tribunal sets aside an internal review decision and, in substitution, decides to approve a SOPS.[45] This is not the case. A new plan does not come into existence on the making of a decision to approve a SOPS in substitution for an initial decision to approve a SOPS. A plan only ceases to be in effect when replaced by another plan under Division 4 of Part 2 of the Act.[46] The making of a decision to approve a SOPS in substitution for an initial decision to approve a SOPS does not effect a plan replacement under that Division. Instead, the making of such a decision simply operates by way of substitution, with the newly approved SOPS substituting for the initially approved SOPS.[47]
37.In substituting for the initially approved SOPS, the newly approved SOPS takes effect from the time of the initial approval decision (in our case, June 2020). This is because the decision made on internal review of a reviewable decision (in our case, the decision made in August 2020 confirming the June 2020 decision) takes effect from the time of the reviewable decision.[48] The internal reviewer’s decision is taken to be the decision of the initial decision-maker so that the plan in which the initially approved SOPS was included continues in effect.[49] This appears to be accepted in relation to decisions made on internal review to vary an initial approval decision by varying the SOPS approved pursuant to the decision. It is unclear why a different result should obtain if, instead of varying the initial approval decision, a new substitute decision is made.
38.As the Tribunal stands in an internal reviewer’s shoes, any decision of the Tribunal is similarly taken to be the decision of the reviewable decision-maker, with effect from the time of the reviewable decision (a result consistent with the standard position in relation to Tribunal decisions which, absent an order to the contrary, take effect on and from the day when the relevant decision under review has effect).[50] Hence, a plan in which an initially approved SOPS was included continues in effect despite any Tribunal decision to vary that SOPS or to approve a substitute SOPS. Such a Tribunal decision does not give rise to a new plan.
39.It has been suggested that the conclusion I have arrived at in relation to the Tribunal’s jurisdiction is incorrect because it gives rise to bureaucratic “red tape” not mandated by the Act.[51] In my respectful opinion, this approach to identifying jurisdiction is misconceived. In particular, Tribunal jurisdiction cannot be assumed unless an enactment mandates otherwise.
40.Jurisdiction enabling the Tribunal to consider the SOPS included in the plan currently in effect has not been enlivened. As the person who made the August 2020 internal review decision did not have power to confirm, vary or set aside that SOPS, the Tribunal does not have jurisdiction to do so. No internal review decision has been made with respect to the decision to approve that SOPS. Absent such an internal review decision, no relevant application for review may be made to the Tribunal.[52]
41.The upshot is, as mentioned, that the Tribunal in this matter only has jurisdiction with respect to the SOPS included in the June 2020 plan, which I have found is not the plan currently in effect. At law, a Tribunal decision in this proceeding cannot affect the nature of the supports now to be provided to the applicant and funded under the NDIS. This is not to decry, however, the possibility of those supports being indirectly affected by a decision of the Tribunal, noting the respondent’s agreement to, in effect, endeavour to reflect what the Tribunal decides in this proceeding in a new or varied plan.[53]
Supports in contention
[37] Prior to 1 July 2022, the Act, s 37(2), provided that a plan could not be varied but could be replaced under Division 4 of Part 2 of the Act.
[38] See Ousley v R (1997) 192 CLR 69 at 130-1 where Gummow J stated that “…the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where ‘acts are of an official nature...everything is presumed to be rightly and duly performed until the contrary is shown.’" The presumption of regularity might generally be seen to apply with respect to the satisfaction or otherwise of preconditions to the valid exercise of administrative power: see Johnson v Director of Consumer Affairs Victoria [2011] VSC 595 at [57].
[39] Act, s 48 in its from prior to 1 July 2022.
[40] Act, s 33(2).
[41] Act, s 37(3).
[42] Williamson. There (at [5]) it was suggested that the Tribunal might, for instance, increase the level of supports under a SOPS applicable in “an earlier period” so that a participant who had self-funded those supports may be reimbursed for any costs incurred.
[43] Williamson; RTRH and National Disability Insurance Agency [2022] AATA 205 (RTFH). It is noted that by virtue of item 49 of Schedule 1 to the PSGOM Act 2022, an application for review of a decision approving of a statement of participant supports included in a plan that no longer applies will also be taken to be an application for review of the decision to approve the statement of participant supports in the new plan. This, however, only applies in relation to review applications made on or after 2 July 2022: item 68 of Schedule 1 to, and s 2 of, the PSGOM Act 2022.
[44] Ewin and National Disability Insurance Agency [2018] AATA 4726 (Ewin) at [280]-[318]; Castledine v National Disability Insurance Agency [2019] AATA 4240 which adopted the Ewin analysis at [79]; SSLP and National Disability Insurance Agency [2021] AATA 4207 which adopted the Ewin analysis at [25].
[45] Ewin at [294].
[46] Act, s 37(3), assuming that the participant to which the plan relates remains as a participant in the NDIS.
[47] RTRH at [116], where it is said that “A reviewer’s decision to vary or substitute a decision of the CEO to approve an SPS under s 33(2) does not require a new plan to give it effect. A reviewer’s decision has effect as or in substitution for the CEO’s decision within the plan in which the CEO’s original decision was instrumental.”
[48] RTRH at [112], where it is said that “…whether the reviewer decides to vary or to set aside the reviewable decision and substitute a new decision, the reviewer’s decision is taken to be the decision of the original decision-maker, with effect from the date the original decision was made or came into effect.” At [113] it is said that “The decision of a reviewer is taken to be, and has effect as, the original decision of the CEO.”
[49] RTRH at [113].
[50] Administrative Appeals Tribunal Act 1975, s 43(6).
[51] Holland and National Disability Insurance Agency [2021] AATA 92 (Holland) at [43]; Vecchio and National Disability Insurance Agency [2021] AATA 4565 which adopted the analysis in Holland at [28].
[52] Act, s 103.
[53] R JURIS [16]: there, the respondent stated that “if the Tribunal decides that it would have varied the plan the subject of the application, so as to include different supports, the Agency will take steps to reflect that finding in a new plan for the participant.”
As noted earlier, the parties disagree as to the appropriateness of certain supports being funded under the NDIS and added to the SOPS.
43.The applicant was not required to have identified the particular supports that ought to be specified in the SOPS as reasonable and necessary supports and the Tribunal’s role in this proceeding is not confined to a consideration of those supports that he did so identify.[54]
[54] QDKH at [7].
44.Nevertheless, I do need to consider the particular supports identified by the applicant which he contends ought to have been, but which were not, specified as reasonable and necessary supports in the SOPS (which I have characterised earlier as the supports in contention).
45.As identified by the applicant prior to the hearing,[55] the supports in contention comprise accessories for use with hearing aids and certain interpreting and captioning services.
[55] Applicant summary of issues of 17 March 2020 (A SFIC) at [1]-[2].
46.The accessories are:
(a)A Phonak Roger On iN microphone (one unit) (microphone dedicated to conversations in groups or with background noise) priced at $2,100;
(b)Phonak Roger iN receiver (two licences) (required for the Phonak Naida P90-UPBTE hearing aids to connect to the Roger ON iN microphone) priced at $3,800; and
(c)A Phonak TV connector (one unit) (simple plug and play interface to TVs, mobile phones, laptops, and other audio sources) priced at $310.
47.The interpreting and captioning services are:
(a)The services of an Auslan interpreter for an additional 120 hours over the 150 hours already provided in the SOPS[56] (making a total of 270 hours);[57] and
(b)A live captioning service for a total of 32 hours.
[56] See ST6, 31, where it was said that the “current plan” caters for 150 hours of interpreting and translating services.
[57] In the A SFIC, the applicant had sought an additional 278 hours of Auslan interpreting (totalling 428 hours) but at the hearing modified this, as reflected in an undated document headed “NDIS Auslan Interpreting and Live Captioning” lodged with the Tribunal on 6 April 2022
48.In this regard, for a support in contention to be specified in a SOPS as a reasonable and necessary support I “…must either be satisfied that … [the] support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described…, then the question … is whether … that support, as identified, is reasonable and necessary for…[the applicant].”[58]
[58] McGarrigle at [93].
49.A positive answer to that question requires that I be satisfied that the funding of the support satisfies the matters set out in s 34 of the Act, having regard to matters set out in s 33(5) of the Act and applying the Supports Rules.[59]
[59] McGarrigle at [85]. Under s 209(1) of the Act, rules may be made prescribing matters under the Act. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules) have been so made. In terms of supports to be specified in a SOPS, s 35 of the Act identifies matters which may be provided for in such rules and matters to which such rules may relate. The need to apply the Rules arises not only from s 33(5) but also s 34(2) of the Act. Under the latter section, methods or criteria to be applied, or matters to which regard is to be had, in coming to the state of satisfaction required by s 34 may be prescribed by the Rules
50.Standing in the shoes of the internal reviewer, the Tribunal must “…address afresh the requirements of s 33, s 34 and relevant parts of the Rules in the particular case.”[60]
[60] RTRH at [112].
51.As for s 33(5), expressed in terms of the applicant’s SOPS, it makes it necessary to have regard to:
(a)his statement of goals and aspirations (a statement the applicant was required under s 33(1) of the Act to have prepared for inclusion in the June 2020 plan);
(b)relevant assessments conducted in relation to him, noting that assessments are required to be made when deciding whether or not to approve a SOPS, following a particular method and using certain tools (described in Part 4 of the Supports Rules);
(c)the principle that he should manage his plan to the extent that he wishes to do so; and
(d)the operation and effectiveness of any of the applicant’s previous plans.
52.In the circumstances, s 33(5) also requires that I be satisfied of the matters set out in s 34 of the Act with respect to the funding or provision of each support specified in the SOPS and that I apply the NDIS rules (if any) made for the purposes of section 35 (being, in our case, the Supports Rules).
53.With respect to the SOPS approved for inclusion in the applicant’s participant’s plan to apply from June 2020, the principal concern of the parties is as to that part of it which specifies the reasonable and necessary supports that will be funded under the NDIS. Given the nature of that concern, s 34 of the Act is of particular relevance.
54.Section 34 sets out matters of which it is necessary to be satisfied in relation to the funding of a support before the support can be specified in a SOPS as one which is reasonable and necessary.
55.Expressed in terms of the applicant’s SOPS and having regard to the Supports Rules, under s 34 it is necessary to be satisfied that the support:
(a)will assist the applicant to pursue the goals, objectives and aspirations included in his statement of goals and aspirations;
(b)will assist the applicant to undertake activities, so as to facilitate his social and economic participation;
(c)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 (to be assessed considering the matters outlined in 3.1 of the Supports Rules);
(d)will be, or is likely to be, effective and beneficial for the applicant, having regard to current good practice (to be assessed under 3.2 of the Supports Rules considering available evidence of the effectiveness of the support for others in like circumstances and, under 3.3 of the Supports Rules, taking into account and, if necessary, seeking, expert opinion);
(e)funding takes account of what it is reasonable to expect families, carers, informal networks and the community to provide (to be assessed considering the matters outlined in 3.4 of the Supports Rules); and
(f)is most appropriately funded through the NDIS 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 either as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability (to be assessed in accordance with 3.5 and 3.6 of the Supports Rules, having regard to the matters set out in Schedule 1 to the Supports Rules).
56.I mention two issues in relation to the operation of s 34.
57.First, being satisfied of the matters identified in the section in relation to the funding of a support does not necessarily mean that the support is reasonable and necessary. Those matters do not exhaust the meaning of the words “reasonable” and “necessary.”[61] While no express statement as to the meaning of those words is made in the Act, some indication of their meaning can nevertheless be found in the legislative context, especially ss 4(11) and 14 of the Act.[62]
[61] McGarrigle at [91]; as to “reasonable” see, in a different context, the discussion in Gordon and Comcare [2022] AATA 841 at [20]-[23].
[62] McGarrigle at [41].
58.Section 4(11) describes what it is intended that a reasonable and necessary support do in relation to people with disability. It is to support them to pursue their goals and maximise their independence, to support them to live independently and to be included in the community as fully participating citizens and to develop and support their capacity to undertake activities that enable them to participate in the community and in employment.[63]
[63] This section is replicated in Rule 1.4(e) of the Supports Rules
59.As for s 14, it identifies why the respondent funds reasonable and necessary supports.[64] It does so to enable people with disability to be assisted to realise their potential for physical, social, emotional and intellectual development and to participate in social and economic life.
[64] Act s 14 does not expressly refer to reasonable and necessary supports but does implicitly refer to such supports given that it is directed to supports which the Agency funds rather than general supports which the Agency provides.
60.Sections 4(11) and 14 are part of an Act establishing a scheme which “…is focused on assisting people with disabilities to live their lives with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities.”[65]
[65] National Disability Insurance Agency v Davis [2022] FCA 1002 at [82].
61.The second s 34 issue concerns what it requires of the relevant decision maker. It requires an evaluative judgement. A particular state of mind must be arrived at in relation to the matters identified in the section before a support might be specified in a SOPS as a reasonable and necessary support. That state of mind requires that the decision maker be actually persuaded that those matters are satisfied.[66]
[66] Makasa at [38].
62.But for the jurisdictional issue discussed earlier, I am so persuaded in relation to the accessories. I am not so persuaded in relation to the additional interpreting and captioning services.
Accessories
As for the Phonak Roger On iN microphone and Phonak Roger iN receiver licences, they represent roughly 95% of the additional funding sought for accessories.
64.The applicant contended that they were necessary to facilitate his participation in a variety of situations. In his March 2021 “Lived Experience Statement”, the applicant outlined why reliance only on hearing aids was inadequate in some settings. In particular, when attending or participating in meetings, workshops, seminars and presentations when the majority of participants are in the same room, the applicant expressed the view that “…[s]pecialised equipment such as linked directional microphones …can provide valuable augmentation to my hearing aids”. [67]
[67] ST12, 54.
65.The applicant’s view about the usefulness of the relevant accessories is echoed in two reports before the Tribunal.
66.In a March 2022 report,[68] Clarisse Giacovazzi, audiologist, opined that the applicant:
[68] ST13, 56-57.
…would greatly benefit from Roger technology (microphone and transmitters) for particularly challenging listening situations such as when the speaker is wearing a face mask and speech understanding in noise and distance. Using this technology will enable him to be more socially active and lead a professionally fulfilling life. Roger technology now uses in-build transmitters called the Roger On iN - which requires licences at an additional cost.[69]
[69] ST13, 56.
67.In an August 2020 report,[70] Professor Stephen O’Leary, ear nose and throat specialist, and Nicole Conway, audiologist, opined that:
[70] T1A, 7-10.
The Roger iN receivers are required in order to enable Richard to stream audio from his existing Roger transmitter system for work. These receivers are loaded as software directly onto the Naida M90-SP devices, enabling a wireless connection to the Roger hardware (replacing the need for physical receiver shoes to attach to the hearing aids, which are more expensive and require ongoing physical maintenance).[71]
[71] T1A, 8.
That latter opinion is suggestive of the relevant accessories being required for the applicant’s work. If that were so, it is likely that they would not qualify as reasonable and necessary supports. In such a situation, it would be difficult to see how such supports could be considered to be most appropriately funded through the NDIS and not more appropriately funded or provided through other general systems of service delivery or support services. In this regard, reference is made to cl 7.18(a) of Schedule 1 to the Supports Rules[72] which provides that the “NDIS will not be responsible for… work-specific aids and equipment.”[73] In this context, I note that a microphone that had been in use by the applicant (a “Roger pen”[74]) had been provided to him by a job access service (a microphone which was now more than seven years old and no longer re-charges effectively).[75]
[72] The schedule to the Supports Rules is applied under cl 3.5 of the Rules.
[73] Note that in May 2020 the applicant would appear to have been seeking replacement accessories through job access: see ST16, 82.
[74] ST15, 59 (document outlining the uses of a Roger pen).
[75] This suggests that the existing equipment held by the applicant is unable to do that which the accessories sought by the applicant are intended to do (noting also that there is no material suggestive of the applicant’s existing receivers being compatible with the hearing aids to be provided by the respondent): cf R SFIC [22].
69.Since provision of the August 2020 report, the applicant has changed jobs. He now works primarily from home. Moreover, the accessories he seeks would, the applicant says, not be for work use. Instead, the applicant’s evidence was that the accessories would mostly be used in social situations.
70.As for the Phonak TV connector, the March 2022 report suggested that it would be useful for the applicant by enabling direct audio streaming from any TV or stereo system.[76] The August 2020 report characterised a capacity for direct-streamed audio as
[76] ST13, 56.
…crucial for Richard's ability to participate actively in online meetings via Cisco Webex or similar platforms, particularly in our current climate of workplace teams working and communicating entirely remotely. The TV Connector can be plugged in to various audio devices as needed.[77]
[77] T1A, 8.
71.Overall, subject to a qualification arising out of the jurisdictional issue discussed earlier, I am satisfied that the accessories have the character of being reasonable and necessary supports and that they are reasonable and necessary for the applicant.
72.The qualification to this conclusion concerns the requirement that the Tribunal be satisfied that a support in question will be, or is likely to be, effective and beneficial for the applicant. I am not satisfied as to that requirement as a Tribunal decision in this proceeding cannot affect the nature of the supports now to be provided to the applicant and funded under the NDIS. Those supports are provided under a SOPS that is not the subject of review in this proceeding. While it might be that supports in the SOPS that is the subject of review could now be reconsidered so as to effect some retrospective change, the scope to do so would appear to be extremely limited given that the plan in which the SOPS was included is no longer in effect.[78] As I see it, it would not encompass a capacity to now specify in the SOPS as reasonable and necessary an additional support if that support was not in fact provided while the plan in which the SOPS is included was in effect.
[78] Noting the reference in Williamson to a capacity to provide supports beyond the review or reassessment date of a plan “provided the supports or funds in the nature of supports remain” so that “funds remaining unspent” can continue to be spent: see also footnote 42.
Additional interpreting and captioning services
73.Irrespective of jurisdictional issues, I am not satisfied that the additional interpreting and captioning services have the character of being reasonable and necessary supports and are reasonable and necessary for the applicant.
74.I accept that interpreting and captioning services are of a nature that may develop and support the capacity of profoundly deaf persons such as the applicant to undertake activities that enable them to participate in the community and in employment. They might also assist such a person in the pursuit of goals such as those outlined in the applicant’s participant’s plan.[79]
[79] T8, 47.
75.On the material before me, however, I am not satisfied (that is, I am not actually persuaded) that the additional interpreting and captioning services sought by the applicant are reasonable and necessary for the applicant.
76.In the applicant’s statement of lived experience, he said that in “…group situations, meetings, seminars, workshops, and presentations my hearing aids are not always adequate and I need additional supports in the form of specialised equipment, live captioning services, or Auslan interpreters in the pursuit of my personal goals.”[80] Before the Tribunal, the applicant stated that, when relying on hearing aids and accessories, he had difficulty in fully participating in group conversations and overlapping conversations.
[80] ST12, 55.
77.The applicant’s view of the extent to which he requires these “additional supports” in the form of “live captioning services, or Auslan interpreters” is outlined in a document prepared by the applicant setting out the annual requirement for such services in relation to each of various types of event.[81]
[81] Undated document headed “NDIS Auslan Interpreting and Live Captioning” lodged with the Tribunal on 6 April 2022.
78.The events identified in the document essentially comprised attending the applicant’s children’s sporting events, the children’s “key events (parent-teacher interviews, awards, school shows, etc),” family social events,[82] mountain bike skills clinics, officiating at athletics competitions, and attending at Athletics Australia courses, theatre shows and guided arts tours. The bulk of the 270 hours for interpreting services was said to be required in relation to attending the applicant’s children’s sporting events.[83] The live captioning services were said to be required for attending Athletics Australia courses.
[82] The applicant’s evidence was that he had personally engaged interpreting services for his wedding and that of his son.
[83] 168 hours in total for the applicant’s children’s sporting events.
79.Despite the applicant being of the view that the lack of “supporting evidence/ documents” was significant in the rejection of his request for additional supports at the internal review stage,[84] there is little in the way of “supporting evidence/documents” in relation to the claim for the additional interpreting and live captioning services.
[84] T1, 5.
80.Indeed, as submitted by the respondent:
…there is a lack of evidence regarding why Auslan is necessary for the Respondent’s (sic) participation (given that he has engaged in social interaction without that support); and how he would benefit from Auslan interpretation, relative to the means he has been using to date to participate in those events. There is no evidence as to the strategies he has used to date to engage in communication during these events; or how Auslan interpretation would be effective to enable him to take part in ‘group’ conversations.[85]
[85] R SFIC [29].
81.The same could be said of the applicant’s request for 32 hours per annum of live captioning services.
82.Before the Tribunal, the applicant stated that the additional interpreting and captioning services were required when his hearing aids were inadequate.
83.I am not satisfied that hearing aids, coupled with an accessory such as a microphone, would be inadequate in the context of a number of events of the type for which the applicant said he required additional interpreting and live captioning services. There is no evidence before me suggestive of the applicant being unable to attend events of those types in the past. Indeed, the applicant’s evidence was that he has been able to attend various non-work courses using his existing hearing aids and the Roger pen microphone. While the applicant says that he had struggled when doing so, the material before me is not such as to suggest that any struggle the applicant experienced precluded his effective participation in the relevant events. Secondly, I am not satisfied that he would continue to so struggle when using the improved hearing aids which the respondent has now agreed to provide, together with the accessories which (subject to jurisdictional issues) I have decided are reasonable and necessary (noting, for instance, the description in the applicant’s March 2022 statement of issues of the microphone sought by him as one which is “dedicated to conversations in groups or with background noise”[86]).
[86] A SFIC at [1].
84.As noted earlier, the bulk of the 270 hours for interpreting services was said to be required in relation to attending the applicant’s children’s sporting events. In that context, the applicant said that he had difficulty in interacting with other parents when he attended those events, leaving him feeling isolated.
85.There is little before me as to the extent of that difficulty or as to how any such difficulty would be resolved (and not, possibly, exacerbated) by the provision of additional interpreting and live captioning services, noting that the applicant had never used an interpreting service when attending a sporting event.
86.Moreover, in a context where the applicant has elected not to use any of the existing 150 hours of interpreting services made available under the relevant statement of participant supports, it is difficult to be satisfied that additional interpreting services are necessary.
87.Further, in these circumstances, I am not satisfied that the additional interpreting and live captioning services sought by the applicant:
(a)represent value for money. I am not persuaded on the material before me that the costs of the services are reasonable, given (in particular) uncertainty as to the benefits that would be achieved by their provision. While the services might facilitate the applicant’s independence, there is little evidence that they “…will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant…” or that they will be “…likely to reduce the cost of the funding of supports for the participant in the long term.”[87]
[87] Supports Rules, 3.1.
(b)will be, or are likely to be, effective and beneficial for the applicant, having regard to current good practice, noting little “… evidence of the effectiveness of the [services] for others in like circumstances.”[88]
[88] Supports Rules, 3.2. I note that as the applicant’s use of interpreting and captioning services has been limited, apart from asserting a need for the services, his statement of lived experience says little as to the effectiveness of those services: ST12, 53-55.
Conclusion
Given the jurisdictional issue outlined earlier in these reasons, the Tribunal affirms the decision the subject of review.
89.The Tribunal notes that, but for that jurisdictional issue, it would have decided to set aside the decision the subject of review (the August 2020 decision) and to decide, in substitution, to approve a statement of participant supports that reflected the statement approved by the reviewable decision of June 2020, but varied so as to include, as additional reasonable and necessary supports to be funded under the National Disability Insurance Scheme:
(a)two Phonak Naida Paradise 90-UP hearing aids “as per quote by Medical Audiology Services dated 8 April 2022”;
(b)A Phonak Roger On iN microphone (one unit) (microphone dedicated to conversations in groups or with background noise) priced at $2,100;
(c)A Phonak Roger iN receiver (two licences) (required for the Phonak Naida P90-UP BTE hearing aids to connect to the Roger ON iN microphone) priced at $3,800; and
(d)A Phonak TV connector (one unit) (simple plug and play interface to TVs, mobile phones, laptops, and other audio sources) priced at $310.
90.In this regard, the Tribunal notes again the respondent’s statement to the effect that it will take steps to vary the applicant’s current participant’s plan so as to reflect the decision the Tribunal would have made but for the jurisdictional issue.[89]
[89] R JURIS [16]: there, the respondent stated that “if the Tribunal decides that it would have varied the plan the subject of the application, so as to include different supports, the Agency will take steps to reflect that finding in a new plan for the participant.”
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell.
......................[sgd]..................................................
Associate
Dated: 28 October 2022
Date of hearing: 6 April 2022 Date final submissions received: 21 April 2022 Applicant: Self-represented Counsel for the Respondent: Sarah Varney Solicitors for the Respondent: MinterEllison
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