PLDW and National Disability Insurance Agency

[2023] AATA 88

PLDW and National Disability Insurance Agency [2023] AATA 88 (3 February 2023)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/0422

Re:PLDW

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member K. Parker

Date:3 February 2023

Date of written reasons:        6 February 2023

Place:Brisbane

The Tribunal finds that the Respondent made a decision on 17 January 2023 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) in respect of a request by the Applicant for funding for a home lift to be included in his statement of participant supports in his NDIS plan. The Tribunal is satisfied that this is a decision which is reviewable by the Tribunal under s 103 of the NDIS Act, operating in conjunction with s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

Accordingly, the Tribunal has decided not to dismiss this application under s 42A(4) of the AAT Act and it will proceed in the usual manner.

..............................[SGD]...........................................

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – decision in relation to request for a home lift to be funded under the NDIS – whether Tribunal has power to review the decision – whether decision was made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) – confusion caused by the occurrence of holistic plan review process at the same time that the internal review took place under s 100 of the NDIS Act – Tribunal satisfied decision was made under s 100(6) – Tribunal has power to review decision –Tribunal decided not to dismiss application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K. Parker

6 February 2023

1. PLDW is a participant in the National Disability Insurance Scheme (NDIS).

2. This application was listed before the Tribunal for an interlocutory hearing on 3 February 2023 after an issue had arisen about whether the Tribunal has power to undertake a review as sought by PLDW’s mother. Confusion seems to have arisen because there was an overlap of an internal review process under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and a holistic plan review process which commenced in November 2022. The Tribunal was required to consider whether a decision has been made by a “reviewer” of the NDIA under s 100(6) of the NDIS Act in respect of a request for funding for a home lift under the NDIS.

   background

3. When PLDW’s plan was being reviewed in early 2022, PLDW’s mother arranged for a Complex Home Modification Template to be completed by her. PLDW’s treating occupational therapist signed this form on 9 February 2022. On this form, a request was made to the NDIA for funding for a home lift proposed to be used as a disability-related support by PLDW.

4. On 25 February 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) made a decision under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of PLDW’s NDIS plan. The SOPS did not include any funding for the requested home lift.

5. On 27 July 2022, PLDW’s mother requested an unscheduled plan review of PLDW’s NDIS plan under s 48 of the NDIS Act. On 29 July 2022 the NDIA agreed to undertake the unscheduled plan review. One of the supports requested by PLDW was funding for a home lift.

6. On 18 August 2022, PLDW’s mother spoke to the NDIS Local Area Coordinator who informed her that PLDW’s request for funding for a home lift had been declined and there was nothing they could do about it.

7. PLDW’s mother later became aware that PLDW had a right to seek interval review of the decision not to approve funding for a home lift, by making a request under s 100(2) of the NDIS Act within three months of the decision.

8. On 14 October 2022, PLDW’s mother requested that the NDIS issue a letter advising of the outcome of its decision about the home lift.

9. PLDW’s mother states in a letter to the Tribunal that on 15 November 2022, on behalf of PLDW, she lodged an NDIS Request for Review of a Decision Form signed by PLDW’s mother on 10 November 2022, seeking review of the “home modification” decision on 18 August 2022.

10. On 17 January 2023, a representative of the NDIA contacted PLDW’s mother by telephone to inform her that PLDW’s request for a home lift had been declined.

11. On 25 January 2023, the NDIA sent a letter to PLDW’s mother which had the heading “decision explained”. This letter explained in detail the reasons for the decision which PLDW’s mother was notified about by telephone on 17 January 2023, including an explanation for why the NDIA considered the criteria under s 34(1) of the NDIS Act were not met in respect of the request for funding for a home lift.

    consideration

    Does the Tribunal have the power to undertake a review in this applcation?

12. Initially, the NDIA contended that no decision had been made by the NDIA under s 100(6) of the NDIS Act in respect of the request for funding for a home lift for PLDW, because the request by PLDW’s mother for an internal review under s 100 of the NDIS Act had been “merged” with PLDW’s plan review process, which began on 2 November 2022.

13. At the interlocutory hearing, the NDIA’s legal representative contended that the decision of the NDIA to approve a new SOPS for PLDW dealt with some aspects of the requested supports but did not constitute an internal review decision under s 100(6) of the NDIS Act. The Tribunal notes that a new 12-month SOPS was approved for PLDW on

    
    

    16 January 2023, approving total funding of $103,633.06 with no provision in it for funding for a home lift. The NDIA submitted that if the Tribunal accepts this contention, it is still required to complete the “s 100” internal review and that it had until 15 February 2023 to do so.

14. The Tribunal spent some time at the interlocutory hearing addressing the factual background in this matter with the parties. The Tribunal enquired of the NDIA whether it considered there to be any reason why the Tribunal should not find that the decision of the NDIA not to approve funding for the home lift, notified to PLDW’s mother by telephone on 17 January 2023, after PLDW had lodged a s 100(2) request on 15 November 2022, should not be regarded a decision under s 100(6) of the NDIS Act. Appropriately, the NDIA’s legal representative conceded that it was open to the Tribunal to make such a finding.

15. The Tribunal finds that the decision of the NDIA on 17 January 2023 to decline the funding for the internal home lift, was an internal review decision made under s 100(6) of the NDIS Act, in response to PLDW’s internal review request made on 15 November 2022 under s 100(2) of the NDIS Act. The Tribunal’s finding that a decision was made by the NDIA on 17 January 2023 not to grant funding for a home lift is supported by the fact that the reasons for this decision were later explained in detail in its letter dated 25 January 2023.

    conclusion

16. The Tribunal concludes that a “reviewer” of the NDIA made a decision under s 100(6) of the NDIS Act in respect of whether funding should be approved under PLDW’s NDIS plan to pay for a home lift. This decision was made after PLDW’s mother, on PLDW’s behalf, had made a request for an internal review under s 100(2) of the NDIS Act.

17. Accordingly, the Tribunal is satisfied that this decision is reviewable by the Tribunal and that it has the power to undertake a review in respect to this application under s 103 of the NDIS Act, operating in conjunction with s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will not dismiss this matter under s 42A(4) of the AAT Act and it will proceed in the usual manner.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

..............................[SGD]..........................................

Associate

Dated: 6 February 2023

Date of hearing:	3 February 2023
Advocate for the Applicant:	PLDW’s mother
Advocate for the Respondent:	Mr James Vercoe, NDIA lawyer