People with Disabilities (NSW) Inc. v Minister for Disability Services (CSD)

[2000] NSWADTAP 18

Appeal Panel

CITATION:	People with Disabilities (NSW) Inc. -v- Minister for Disability Services (CSD) [2000] NSWADTAP 18
PARTIES:	APPELLANT People with Disabilities (NSW) Inc. RESPONDENT Minister for Disability Services
FILE NUMBER:	009005; 009007
HEARING DATES:	14/06/2000
SUBMISSIONS CLOSED:	06/14/2000
DATE OF DECISION:	09/12/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Rees N - Judicial Member; Houlahan L - Member
CATCHWORDS:	opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	994012, 994013
DATE OF DECISION UNDER APPEAL:	12/20/1999
LEGISLATION CITED:	Disability Services Act 1993
CASES CITED:
REPRESENTATION:	APPELLANT G Kirk, solicitor RESPONDENT G Williams, solicitor
ORDERS:	Appeal No 009005 People with Disabilities (NSW) Inc. v Minister for Disability Services and Intellectually and Physically Handicapped Children’s Association of New South Wales; 1. Order 2 in Matter No 994013, relating to the Whitehall and Mannix Children’s Home is set aside; 2. The issue of whether a reviewable decision has been identified is remitted for reconsideration; Appeal No 009007 People with Disabilities (NSW) Inc. v Minister for Disability Services; 1. Order 2 in Matter No 994012, relating to the Warrah School Society is set aside; 2. The issue of whether a reviewable decision has been identified is remitted for reconsideration.

1 In two parallel decisions made on the papers on 20 December 1999, the Community Services Division dismissed for want of jurisdiction applications for review lodged by the appellant, People With Disabilities (NSW) Inc. (PWD) to which the Minister for Disability Services (the Minister) was the first or only respondent.

2 The applications related to recurrent funding agreements for 1999-2000 made in the exercise of powers conferred by the Disability Services Act 1993 (the Act) on the Minister between the Ageing and Disability Department (the Department) and two eligible organisations, the Intellectually and Physically Handicapped Childrens’ Association of New South Wales (the Association) and the Warrah School Society.

3 These two applications will be referred to respectively as the Whitehall and Mannix application (named after the Home administered by the Association to which the funding related) and the Warrah application. In the case of the Whitehall and Mannix application, the Tribunal decided in its decision of 20 December 1999 to join the Association as a second respondent.

4 In each case, the order under appeal is that dismissing the application for want of jurisdiction. The Tribunal’s essential point was that the applications had not identified decisions which were reviewable by the Tribunal.

5 The provisions relevant to the Tribunal’s jurisdiction are s 40(1)(a) Community Services (Complaints, Review and Monitoring) Act 1993 which is referable in turn to s 20(a) of the Act. That provision confers review jurisdiction on the Tribunal in relation to:

‘(a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1, …’

6 The appeal is made on both procedural and substantive grounds.

Background

7 Over several years PWD has sought to test and challenge various decisions of the Minister in relation to implementation of the aims and principles of the Act.

8 In the applications filed on 26 July 1999 PWD sought to challenge the recurrent funding decisions for 1999. Each application had a prior history.

9 In 1996 PWD had initiated a number of challenges to approvals given by the Minister to transition plans. The Tribunal has jurisdiction to review such approvals. Those applications which had been filed in the Community Services Appeals Tribunal, the predecessor Tribunal to this Tribunal, had been adjourned since that time pending attempts at resolution of several similar challenges by PWD. Those attempts were ultimately unsuccessful. One of the issues that the Tribunal was called upon to address when the present applications were lodged related to whether the 1996 applications could be revived.

10 While this appeal relates to the 1999 applications, it is necessary to refer to the 1996 applications. In the course of this decision, for convenience, a distinction will be made between the ‘1996 applications’ which go to the transition plan approvals; and the ‘1999 applications’ which go to the recurrent funding agreements.

The Applications

11 At the time of lodgment of the applications, 26 July 1999, PWD did not identify the decisions which it sought to have reviewed. As the above chronology indicates neither funding agreement had in fact been made at that point.

12 PWD lodged its applications on 26 July 1999. The applications for review were expressed in very rudimentary terms.

13 In the Warrah application the reviewable decision was identified as:

‘a decision to approve financial assistance to the Warrah School Society under s 10 of the Disability Services Act 1993 to operate the Banksia, Glenny, Macs, Orana, Red Gum, Waratah, and Wattle Tree residences.’

14 In the Whitehall and Mannix application, the reviewable decision was identified as:

‘a decision to approve financial assistance to the Intellectually and Physically Handicapped Childrens Association under s 10 of the Disability Services Act 1993 to operate the Whitehall and Mannix Childrens Centres.’

15 As to the date of the decision and the date upon which the applicant received the decision, the answers given in both applications were ‘not known’ and ‘not notified’ respectively.

16 It transpired after directions given on 27 October 1999 that within an eight day period after the applications were lodged there were funding agreements made by the Minister: in the case of the Whitehall and Mannix services the agreement was dated 27 July 1999; and, in the case of the Warrah services the agreement was dated 3 August 1999. (See Exhibit A in the appeal proceedings.)

Decision of Tribunal

17 In the decisions delivered on 20 December 1999, the Tribunal adopted substantially the submissions of the Department, for the Minister, filed on 19 November 1999. Those submissions were to the effect that, properly construed, recurrent funding agreements did not fall within s 10(2) of the Act.

Procedural Fairness

18 PWD’s main grievance, especially as presented in oral submissions to the Appeal Panel, was that it had not anticipated, having regard to the directions made by the Tribunal principally on 12 August 1999 and 27 October 1999 that the question of jurisdiction (the s 20(a) question) would be addressed in its decision of 20 December 1999.

19 It contended that the question posed by the Tribunal in its decision - ‘whether PWD had identified a reviewable decision made by the Minister to approve financial assistance’ - to the Association (in the Whitehall and Mannix case), and to the Warrah School Society in the other case - came as a surprise to it.

20 PWD contended that it had only understood its assent (at the directions hearing on 27 October 1999) to having the Tribunal decide certain matters on the papers as extending to the out of time question. The out of time question had two aspects: the main one was whether the 1996 applications should be permitted to proceed; and the question had also been raised by the Department as to whether the 1999 applications were also out of time.

21 PWD asserted in its written of grounds of appeal, and reiterated at hearing, that:

‘(a) the issue identified by the Minister for preliminary determination had been a contention that the application for review of approval was out of time;
(b) no allegation had been made that no reviewable decision existed;
(c) the Minister contended that there had been an approval pursuant to s 10 of the Act; and
(d) directions had been given to the parties to file submissions only on the ‘out of time’ issue.’

22 The procedures of the Tribunal are, appropriately, relatively informal. In this instance applications with little detail was accepted. The lack of detail in the applications as lodged on 26 July 1999 belied the fact that they sought to raise, as had the 1996 applications, issues of great significance. They concern the extent to which the Government in its funding decisions as they relate to the funding of services for people with disabilities is bound to observe the aims and requirements of the Act in particular the landmark provisions set out in Schedule 1 to the Act.

23 Preliminary Conference and Directions Hearings: The Tribunal held a preliminary conference on 12 August 1999.

24 The directions made on 12 August clearly delineated the existence of, in effect, two applications as being raised by each of the cases: (1) the application of 1996 seeking to review the Minister’s decision to adopt transition plans in relation to each of the organisations; and (2) the applications of 26 July 1999 relating to approvals of financial assistance for the 1999-2000 year.

25 In the case of the 1999 applications the same direction was made, being:

‘Ageing and Disability Department to make a submission that the application is out of time by 24 September 1999. PWD to make a submission in reply by 8 October 1999.’

26 For reasons noted on the Registry file, the parties were unable to adhere to the timetable, and extensions were granted.

27 The Department had on 30 August 1999 transmitted a submission direct to PWD. It related to the out of time questions. That submission was filed with the Tribunal on 4 November 1999. In its submission in reply filed on 30 September 1999 PWD responded to the Department’s submission. The Department’s submission of 30 August 1999 does not address the question of whether the 1999 applications relate to a reviewable decision.

28 In its submission of 30 September 2000, paragraphs 1 to 25 of the PWD submission address the issue of whether the Tribunal should allow the 1996 applications to proceed (PWD was successful); and the balance, paragraphs 26 to 32, replied on the issue of whether the 1999 applications were out of time. The Department had contended, in effect, that the 1999 applications should be treated as time barred as they sought to re-agitate the 1996 applications by another route.

29 There was a directions hearing held on 27 October 1999. The relevant directions are those under the heading, ‘s 20(a) Application’:

‘1. Minister to file and serve continuation of funding agreement together with any relevant correspondence in relation to the funding of [Whitehall and Mannix Children’s Home/ Warrah School Society services, as appropriate] for the 1999/00 financial year by 3 November 1999.
2. PWD to file and serve any submissions re out of time issue re s 20(a) application by 10 November 1999.
3. ADD [the Department] to file and serve any submissions in reply by 17 November 1999.
4. Tribunal to make decision on out of time issue on the papers following receipt of submissions.’

30 The power to make a decision on the papers, as it is often referred to, is conferred by s 76 of the Administrative Decisions Tribunal Act 1997, as follows:

’ 76 Circumstances in which hearing may be dispensed with

The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.’

31 Direction 1 was met by the Department.

32 Direction 2 was the subject of a short letter from PWD to the Registry dated 12 November 1999 the only substantive point made being that the dates shown on the agreements now released to it showed that the 1999 applications were within time.

33 Direction 3 was the subject of submissions in reply dated 19 November 1999. It was in this submission that the Department raised in writing for the first time the proposition that the funding agreement between the Department and an eligible organisation does not constitute an approval for the provision of financial assistance under s 10(1)(b) of the Act. It is this submission that is quoted in the Tribunal’s reasons for decision and by which it was persuaded.

Minister’s Submissions

34 As to the question of procedural fairness, in its written submissions the Crown Solicitor, for the Department and the Minister, submitted that there was not a denial of procedural fairness in this case because PWD was aware of the Minister’s submission that the funding agreements in issue did not constitute a s 10 approval. There is no evidence before the Tribunal to support that point. At the hearing of the appeal Mr Williams of the Department referred to oral exchanges which had occurred between the parties at the preliminary conferences. All the Tribunal has on this point is the official record of the Tribunal, and it contains no material which would indicate that the jurisdictional issue was to be considered by the Tribunal.

35 In any case the submission on behalf of the Minister continued that even if the Appeal Panel were to find that there was a lack of procedural fairness it should not set the decision aside as the decision of the Tribunal on the substantive point, because the Tribunal was correct in law in determining that the funding agreements in issue did not fall within the parameters of s 10 and accordingly were not reviewable.

Assessment

36 It is clear, we consider, from the procedural history that the Department’s submissions of 19 November 2000 were the first to address in writing the question of whether there was a reviewable decision identified by the two applications. This submission fell outside the scope of a submission in reply. The prior written exchanges had all related to the ‘out of time’ issues. The Minister’s submissions asserted that PWD knew that the jurisdictional issue was a live one. Mr Williams who appeared at the appeal hearing made similar assertions. But there is no evidence before the Panel on this question. The official record of the Tribunal is in narrow terms.

37 The facility that the Tribunal has to make decisions on the papers is a valuable one which must be exercised in conformity with considerations of procedural fairness. PWD should have been given a formal opportunity to provide written submissions in reply to those lodged by the Department on 19 November 1999. Those submissions went beyond the out of time question. PWD should have been placed on notice by the Tribunal that the question of whether a reviewable decision had been identified would be examined in the ruling, not merely the ‘out of time’ question. The process miscarried.

38 The safest course, we consider, is to set aside the decision to dismiss the applications and to remit the ‘reviewable decision’ issue to the Tribunal for further consideration in light of the detailed submissions now made in the context of the appeal by the parties and in accordance with any further directions. The question should be able to be disposed of quickly.

39 As this conclusion implies, the Appeal Panel does not see it as appropriate for it to go on and deal with the substantive issue. The question raised is an important one concerning the scope of the Tribunal’s jurisdiction to review of funding decisions made by the Minister in relation to disability services.

40 Because of that, it is preferable that it be addressed first by the Community Services Division of the Tribunal which has primary responsibility for dealing with the review of administrative decisions (as prescribed) made in the community welfare portfolio of government.

Decision

41 The appeals are upheld.

Orders

Appeal No 009005

1. Order 2 in Matter No 994013, relating to the Whitehall and Mannix Children’s Home is set aside.
2. The issue of whether a reviewable decision has been identified is remitted for reconsideration.

Appeal No 009007

1. Order 2 in Matter No 994012, relating to the Warrah School Society is set aside.
2. The issue of whether a reviewable decision has been identified is remitted for reconsideration.