Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2)

Case [2023] FCA 852

FEDERAL COURT OF AUSTRALIA

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

Review of: Isherwood and National Disability Insurance Agency [2021] AATA 3061
File number: SAD 181 of 2021
Judgment of: COLVIN J
Date of judgment: 28 July 2023
Catchwords: ADMINISTRATIVE LAW - appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) for judicial review of decision of the Administrative Appeals Tribunal - where the Tribunal affirmed the challenged decisions of the National Disability Insurance Agency - where various grounds alleged - where ground one alleged a failure to afford natural justice - where reports considered by Tribunal after oral hearing without any ability for the applicant to make submissions in relation to them - consideration of materiality when lack of procedural fairness - consideration of meaning of reasonable and necessary support - consideration of decision making process in s 34 of the National Disability Insurance Scheme Act 2013 (Cth) required by the Act - ground one upheld - other grounds dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 44

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 6, 13, 32, 33, 34, 36, 99, 100, 103, 202, 209

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) r 3.2
Cases cited:

Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335

Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Nathanson v Minister for Home Affairs [2022] HCA 26

National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181

National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415

Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Repatriation Commission v O'Brien (1985) 155 CLR 422

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15
Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 166
Date of last submissions: 25 July 2023
Date of hearing: 11 July 2023
Counsel for the Applicant: Dr SC Churches
Solicitor for the Applicant: Wearing & Blairs
Counsel for the Respondent: Mr PH d'Assumpcao
Solicitor for the Respondent: HWL Ebsworth Lawyers

ORDERS

SAD 181 of 2021
BETWEEN:

THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA AS LITIGATION REPRESENTATIVE FOR FELICITY ISHERWOOD

Applicant
AND:

NATIONAL DISABILITY INSURANCE AGENCY

Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

28 JULY 2023

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AGLC
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Case
[2023] FCA 852
Decision Date

CaseChat Overview and Summary

The Public Trustee of South Australia, acting as the litigation representative for Isherwood, brought an appeal against the National Disability Insurance Agency, seeking judicial review of the Administrative Appeals Tribunal's decision to affirm the Agency's decisions. The primary issue before the court was whether the Tribunal's decision was flawed on various grounds, including a failure to afford natural justice, a failure to consider independent, objective, and current evidence, and an alleged irrelevant consideration regarding the nature of Ms Isherwood's seizures. The court had to determine whether the Tribunal's approach to evidence, particularly the reliance on family members' accounts and the disregard of certain medical reports, constituted a procedural error or misapplication of the statutory requirements.

The court found that the Tribunal's consideration of certain medical reports after the hearing, without allowing the applicant an opportunity to make submissions, was a failure to afford natural justice. This procedural error was significant enough to materially affect the outcome, leading the court to uphold ground one of the appeal. The court also examined the Tribunal's reliance on family members' accounts and its rejection of other medical evidence, concluding that while the Tribunal was correct in its assessment of the evidence's reliability, the lack of procedural fairness was a critical issue. As such, the other grounds of appeal were dismissed, focusing on the procedural error as the primary reason for setting aside the Tribunal's decision.

The court ordered that the Tribunal's decision be set aside and the matter be remitted for reconsideration. The respondent was directed to pay 60% of the applicant's costs, with provisions for potential variation of the costs order within a specified timeframe. This ruling underscores the importance of procedural fairness in administrative law, particularly in the context of the National Disability Insurance Scheme, where the lived experiences of individuals with disabilities play a crucial role in determining their support needs.

Orders

Orders of the court

1. The decision made by the Administrative Appeals Tribunal on 27 August 2021 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3. The respondent pay 60% of the costs of the application such costs to be assessed on a lump sum basis by a registrar if not agreed.

4. There be liberty to the applicant or the respondent to apply within 10 days to vary the costs order.

5. The liberty provided by these orders may be exercised by filing a short outline of submissions of no more than three pages together with any necessary affidavit in support. If the liberty is exercised, the opposing party may within 10 days file a short outline of submissions of no more than three pages together with any necessary affidavit in response. Subject to further order, the question whether there should be any variation to the order as to costs shall be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For all those reasons, ground (1) has been established.Ground (2): The requirement for independent, objective and current evidence As has been explained, the Act seeks to provide support for the aspirations of people living with disability to be independent and to participate socially and economically in society and to exercise choice and control over their lives and any treatment or care they may require. Therefore, a determination as to whether a support is a reasonable and necessary support for the purposes of the Act requires an understanding of the particular circumstances of the individual from the perspective of that individual. Key to understanding the scope of the supports that may be reasonable and necessary supports for a particular person with a particular disability will be the lived experience of the person. In those instances where a participant in the NDIS is unable (or perhaps unwilling due to attributes of their disability) to provide evidence as to their circumstances and aspirations, the evidence of family members and those who care for the participant on a day-to-day basis will assume particular significance. There may be instances where the Tribunal forms the view that the evidence of family members and carers is not credible in the sense that there are reasons to conclude that it is not truthful or accurate. However, as explained below, that is not what occurred in the present case. At a number of points the Tribunal referred to the reliability of the evidence. It referred to the absence of 'reliable medical evidence' (para 112) and the absence of any 'independent reliable evidence about [Ms Isherwood's] functional capacity' (para 196). It stated that the opinions of Ms Isherwood's mother and sister were accepted as being genuinely held but then reasoned that it was not satisfied 'that this is reliable evidence about the applicant's medical condition, giving rise to her presentation and what are reasonable and necessary supports in accordance with s 34 of the Act' (para 211). It concluded that the evidence of Mr Allen did not assist the Tribunal because the medical report to which it referred was not before the Tribunal (even though it received the report after the hearing) and found that the report was otherwise based upon the opinion of Ms Isherwood's mother as to her 'functional capacity needs' (paras 109-110). The Tribunal used different terminology in rejecting the evidence of Dr Jenkins, the general practitioner whose evidence was relied upon to support the position of Ms Isherwood. As to Dr Jenkins, the Tribunal concluded that it did not accept Dr Jenkins 'as a reliable expert witness upon whose opinion the Tribunal can rely' (para 188). This was a finding as to credibility of the opinion's expressed by Dr Jenkins in her report. The basis for that finding was the following:(1)Dr Jenkins was unable to give evidence of any consultation she had with Ms Isherwood over all the time that she had been her general practitioner (para 180);(2)her report contained no factual observations made by Dr Jenkins of Ms Isherwood in day to day life and she had not observed her at her home (para 180);(3)Dr Jenkins did not make any medical diagnosis of Ms Isherwood and relied on the diagnosis of specialist medical practitioners (para 180);(4)her report simply signed off on observations and descriptions of what Ms Isherwood required such that the report expressed the opinions and observations of Ms Isherwood's mother and sister and not those of Dr Jenkins, an approach which was characterised as 'wholly unsatisfactory' (paras 181‑182); and(5)Dr Jenkins must have known that insofar as the report that she signed referred to seizures and tonic-clonic or myoclonic seizures the report from Dr Norton previously received by her 'clearly indicated that [Ms Isherwood] had not suffered from such a seizure for a number of years and that the episodes observed were in fact arguably functional and behavioural and were not true epileptic seizures' (para 184).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It follows that ground (5) has not been established.Ground (6): Alleged irrelevant consideration concerning views in the additional medical documents that Ms Isherwood's seizures were more likely functional than neurological The contention advanced as to ground (6) was to the effect that the Tribunal took into account an irrelevant consideration by giving significance to views expressed in the additional medical documents (particularly the report of Dr Norton) that Ms Isherwood's recent seizures were more likely functional than neurological when there was no evidence that the distinction had any effect upon her care needs. The submissions referred to the Tribunal's reasons concerning the significance of evidence which was said to refer to the non-epileptic basis for the seizures, particularly the reference in the report of Dr Norton to the effect that Ms Isherwood's 'major issues' were arguably 'functional and behavioural' and not the consequence of seizures. It was said that this diverted the Tribunal from determining whether the supports in issue were reasonable and necessary irrespective of the basis for the manifestations in the behaviour of Ms Isherwood. Implicit in this complaint is a view that the behaviour is an outcome of Ms Isherwood's disability. Further, it ignores the extent to which the supports were supported on the basis that Ms Isherwood was suffering from seizures. In effect, the submissions supporting ground (6) complained of the consequence of the fact that Ms Isherwood was not given an opportunity to make submissions concerning the course of the Tribunal proceedings and the significance of the contents of the additional medical reports before the Tribunal proceeded to rely upon those reports in its reasons. However, it could not be said to be irrelevant, in the relevant sense, for the Tribunal to have regard to the additional medical reports (noting the lack of procedural fairness in that course for reasons given in relation to ground (1)). It follows that ground (6) has not been established.Ground (7): Failure to take into account relevant considerations by not considering the evidence of Mr Allen The contention advanced as to ground (7) was that the Tribunal failed to take into account relevant considerations by concluding that the opinions of Mr Allen were based on information from family members when significant aspects of his report were based on his own observations and professional expertise. The written submissions as to this ground began by referring to the reasoning of the Tribunal (at para 210) that the evidence of Mr Allen and Mr Gardiner as to the functional capacity of Ms Isherwood was based on information provided by Ms Isherwood's mother and family and 'not independent observation'. It then referred to the fact that the report of Mr Allen referred to a medical summary in a report which was not before the Tribunal (para 109) and in consequence his report could only be given limited weight (para 110). It was then submitted that the report upon which Mr Allen relied was actually produced as one of the additional medical reports (described as the Scheffer/Myer report) and therefore that criticism must fall away. On that basis it was submitted that the Allen report was relevant to the decision because it was based upon the views expressed in the Scheffer/Myer report.