Pelovski and National Disability Insurance Agency
[2022] AATA 3380
•6 October 2022
Pelovski and National Disability Insurance Agency [2022] AATA 3380 (6 October 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8051
Re:Zoran Pelovski
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member, P. Smith
Date:6 October 2022
Place:Brisbane
1. The Tribunal refuses the request made by the Respondent for an order under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) to remit the reviewable decision to the delegate of the Chief Executive Officer of the National Disability Insurance Agency for further consideration.
2. The Tribunal also refuses the request made by the Applicant for an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to stay the reviewable decision.
................[SGD]...................
Member, P. Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for a remittal order under section 42D of the AAT Act 1975 (Cth) –– request for a stay under subsection 41(2) of the AAT Act 1975 (Cth) to stay reviewable decision – Plan Managed – Agency Managed – where the Respondent intends to include a prohibition in the Applicant’s statement of participant supports if the reviewable decision is remitted under section 42D of the AAT Act 1975 (Cth) to prevent the Applicant’s Plan Nominee and Support worker from receiving payment – hearing scheduled to determine substantive issue in dispute - not necessary to make an order to stay the reviewable decision under subsection 41(2) of the AAT Act 1975 (Cth).Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 34J, 40, 41(2), 42D, 43(1)
National Disability Insurance Scheme Act 2013 (Cth), s 33(2), 43, 44Cases
Anassis and National Disability Insurance Agency [2022] AATA 622
Birdseye v Tax Practitioners Board [2020] FCA 1235
Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140
Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2010] AATA 935
N1112 v Minister for Immigration and Multicultural Affairs [2000] FCA 1597
Negi and National Disability Insurance Agency [2022] AATA 1423
Re Scott and Australian Securities and Investments Commission [2009] AATA 798Secondary Materials
National Disability Insurance Scheme (Nominees) Rules 2013
National Disability Insurance Scheme (Plan Management) Rules 2013Nominees Operational Guidelines for Appointment of Nominees
REASONS FOR DECISION
Member, P. Smith
6 October 2022
The application
Zoran Polevski (the Applicant) is a 60-year-old man who lives alone in his own home in Brisbane. He became a participant of the National Disability Insurance Scheme (the NDIS) on or around 10 January 2019 on the basis of his diagnosis of Chronic Paranoid Schizophrenia.
The Applicant made an application to the Tribunal on 25 October 2021 seeking a review of an internal review decision made on 27 September 2021. This internal review decision confirmed a decision made on 21 September 2021 by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent). The delegate’s decision approved a statement of participant supports in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a two-year period commencing on 21 September 2021 to be reviewed by the Respondent before the review date of 21 September 2023.
The Applicant is assisted in this proceeding by Ms Antoneta Krzeva. Ms Krzeva is the Applicant’s Plan Nominee and Support Worker and has an Enduring Power of Attorney to make health, financial and personal decisions in respect of the Applicant.
The statement of participant supports approved on 21 September 2021 includes $564, 652.80 in his Core Supports Budget to help the Applicant with daily activities. The Applicant also receives $43, 627.47 in his Capacity Building Supports Budget to help build independence and reduce his future need for the same level of support. The Applicant also receives $10,000.00 in his Capital Supports Budget to help him cover the costs of any higher-cost pieces of assistive technology, equipment and home or vehicle modifications and Specialist Disability Accommodation that may arise.
In respect of the Applicant’s Core Supports Budget, the Respondent, on 21 September 2021 decided, when approving the Applicant’s statement of participant supports, that the management of the funding of the Applicant’s Core Supports Budget was to be Agency managed. Prior to this decision, the Respondent had specified in several previous approved statements of participant supports that the management of the funding in the Applicant’s Core Supports Budget was to be Plan managed. This arrangement permitted Ms Krzeva to receive payment for providing care and support to the Applicant. This arrangement ceased on 21 September 2021 when the management of the funding in the Applicant’s Core Supports Budget was changed to Agency managed.
On 27 September 2021, after conducting an internal review, the Respondent decided to confirm the delegate’s decision. The Respondent decided, having regard to sections 43 and 44 of the NDIS Act, Part 3 of the National Disability Insurance Scheme (Plan Management) Rules 2013, the National Disability Insurance Scheme (Nominees) Rules 2013 and the Nominees Operational Guidelines for Appointment of Nominees, to confirm the delegate’s decision because the Respondent was not satisfied that a change in the management of the funding of the Applicant’s Core Supports Budget would not present an unreasonable risk to the Applicant. This is the issue that will be heard by the Tribunal at a substantive hearing expected in the month of November 2022.
ISSUES IN THE PROCEEDING
Over the course of this proceeding, a preliminary issue arose in respect of whether the reviewable decision should be remitted to the Respondent’s delegate under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for further consideration. The basis of the Respondent’s request to the Tribunal to make an order under section 42D of the AAT Act is twofold.
Firstly, the management of the funding in the Applicant’s Core Supports Budget is to be changed from Agency managed to Plan managed. The parties and the Applicant’s representatives agree that the management of the funding of the Applicant’s Core Supports Budget should be Plan managed, because this will give the Applicant more extensive access to registered and non-registered service providers. This is during the period that the application for review is being considered.
Secondly, in order that the Respondent can, if the matter is remitted, recommend to the delegate that the Applicant’s Plan – the subject of this review – include a prohibition similar to the one that was ordered by Senior Member Parker in the decision of Anassis and National Disability Insurance Agency[1] (Anassis).
[1] Anassis and National Disability Insurance Agency [2022] AATA 622 at [78(c)].
In effect, an order similar to that made by Senior Member Parker in Anassis will, if the matter is remitted, prohibit the expenditure of funding in the Applicant’s Core Supports Budget from being used to pay Ms Krzeva, or any other immediate or extended family members or friends of the Applicant, to provide support to the Applicant (either as a support worker or in any other capacity). The Applicant’s representatives do not consent on the Applicant’s behalf that an order under section 42D of the AAT Act should be made because of what the Respondent intends to do if the matter is remitted to the Respondent’s delegate as seen in the case of Anassis.
The other aspect of the issues being considered at this stage of the proceeding is the Applicant’s request to the Tribunal to make an order under subsection 41(2) of the AAT Act to stay the reviewable decision. The stay order is sought on the basis that if, on remittal, the Respondent decides when reconsidering their decision to include a prohibition in the Applicant’s statement of participant supports as seen in the case of Anassis.
A Telephone Directions Hearing was held at the Tribunal on 11 August 2022 so that the parties and their representatives could make oral submissions to the Tribunal in respect of the preliminary issues that are identified and summarised above at paragraphs [7]-[12].
RELEVANT LAW
Section 42D of the AAT Act sets outs the power to remit matters to decision-makers for further consideration. Relevantly, subsection 42D(1) of the AAT Act provides that; at any stage of a proceeding for review of a decision, other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Subsection 42D(2) of the AAT Act provides that; if a decision is remitted by the Tribunal to the person who made it, the person may reconsider the decision and may:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and make a new decision in substitution for the decision set aside.
Subsection 42D(3) of the AAT Act provides that; if a person varies the decision the application is taken to be an application for review of the decision as varied, and the person who made the application may either proceed with the application for review of the decision as varied or withdraw the application.
Subsection 42D(4) of the AAT Act provides that; if the person sets the decision aside and makes a new decision in substitution for the decision set aside, the application is taken to be an application for review of the new decision and the person who made the application may either proceed with the application for review of the new decision or withdraw the application.
Subsection 42D(5) of the AAT Act provides that; if an order is made under section 42D the person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision – that period; and
(b) in any other case – the period of 28 days beginning on the day on which the decision was remitted to the person.
Subsection 42D(6) of the AAT Act provides that; the Tribunal, may on the application of the person, extend the period applicable under subsection (5).
Subsection 42D(7) of the AAT Act provides that; if the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2), (a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
Subsection 42D(8) of the AAT Act provides that; if the person affirms the decision, the proceeding resumes.
Section 42D of the AAT Act is a discretionary power that can be exercised by the Tribunal at any stage of a proceeding for review. The consent of both parties is not necessary for the Tribunal to remit a reviewable decision under section 42D of the AAT Act for further consideration[2]. Section 42D of the AAT Act does not specify or limit the circumstances in which the Tribunal may exercise the discretion to remit a reviewable decision to the Respondent’s delegate for further consideration.
[2] N1112 v Minister for Immigration and Multicultural Affairs [2000] FCA 1597 at [17], per Emmett J.
Section 42D of the AAT Act does not permit the Tribunal to give any direction as to the way in which the Respondent’s delegate undertakes his or her reconsidered decision[3].
[3] Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2010] AATA 935 at [3]; Negi and National Disability Insurance Agency [2022] AATA 1423 at [24]; Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140 at [15].
Section 41 of the AAT Act deals with the operation and implementation of a decision that is subject to review before the Tribunal. Relevantly, subsection 41(2) of the AAT Act provides that the Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
It is noted that subsection 41(2) of the AAT Act does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
In Re Scott and Australian Securities and Investments Commission[4], President Downes (as his Honour then was) set out a non-exhaustive list of factors to be considered when determining an application for a stay. That list included:
(a) the prospects of success of the substantive review application;
(b) the consequences for the Applicant of the refusal of the stay;
(c) the public interest;
(d) the consequences for the Respondent in carrying out its functions depending upon whether a stay is granted or not;
(e) whether the application for review would be rendered nugatory if a stay were not granted; and
(f) any other matters that are relevant, amongst which are the length of time that the decision has already been in place and the gap between the date of the hearing of the hearing of the stay application and the date set for the hearing of the review application.
[4] Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [3].
In Birdseye v Tax Practitioners Board[5], Logan J stated that the Tribunal should not adopt a ‘checklist approach to the detriment of appreciating the overall statutory task as set out in section 41(2)’ of the AAT Act.
[5] Birdseye v Tax Practitioners Board [2020] FCA 1235 at [20], per Logan J.
discussion
The Tribunal does not consider it appropriate at this stage of the proceeding to exercise its discretion under section 42D of the AAT Act for the following reasons.
The substantive issue in dispute is yet to be determined by the Tribunal. The substantive issue in dispute will be heard by the Tribunal at a hearing expected in November 2022.
The Respondent’s proposed intention to recommend to the delegate to include a prohibition in the Applicant’s statement of participant supports, similar to the one that was ordered by Senior Member Parker in Anassis, has not been considered by the Tribunal following a substantive hearing. This was the approach taken by Senior Member Parker in Anassis.
Whilst the Applicant and his representatives have, since 21 September 2021, had limited choice in respect of the selection of which registered and non-registered service providers can provide core supports to the Applicant, the Tribunal observes that the Applicant is not currently without core supports.
The Tribunal has the power on review to change the reviewable decision and the power to direct the Respondent’s delegate to reconsider his or her decision by exercising the powers under subsection 43(1) of the AAT Act after a substantive hearing of the issues in dispute has been conducted[6].
[6] See sections 34J, 40 and 43 of the AAT Act.
It is noteworthy that the prohibition intended by the Respondent has potentially serious consequences for the Applicant and Ms Krzeva. It is considered inappropriate to remit the matter in order that the Respondent can include the prohibition in circumstances where the Tribunal has not yet tested the evidence of the parties with the benefit of a substantive hearing.
It is noted by the Tribunal that no decision has been made by the Respondent’s delegate to include in the Applicant’s statement of participant supports a prohibition similar to the one that was ordered by Senior Member Parker in Anassis. As no decision has been made by the Respondent and no order is being made under section 42D of the AAT Act, the Tribunal is of the view that there is nothing to stay.
decision
For the reasons given above, the Tribunal refuses the request made by the Respondent for an order under section 42D of the AAT Act to remit the reviewable decision to the Respondent’s delegate for further consideration. The Tribunal also refuses the Applicant’s request for an order under subsection 41(2) of the AAT Act for a stay.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Member, P. Smith
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Associate
Dated: 6 October 2022
Date(s) of hearing: 11 August 2022 Date final submissions received: 11 August 2022 Advocate for the Applicant: Mr R. Walton Solicitors for the Applicant: Ms K. Kline Counsel for the Respondent: Mr J. Sproule Solicitors for the Respondent: Ms E. Hulme
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