QDKH and National Disability Insurance Agency - [2021] AATA 922

QDKH and National Disability Insurance Agency [2021] AATA 922 (16 April 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2019/4503
NATIONAL DISABILITY
INSURANCE SCHEME DIVISION  )
Re: QDKH
Applicant

And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL: Deputy President J W Constance
DATE OF CORRIGENDUM: 24 May 2021
PLACE: Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to “section 102” in paragraph 23 of the decision is replaced with “section 103”.

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J W Constance
Deputy President
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/4503
Re:QDKH
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:16 April 2021
Place:Sydney

In this application, the Tribunal does not have jurisdiction to determine the Applicant’s claim for supports other than supports relating to intensive feeding therapy and one on one support during the Applicant’s attendance at school.
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Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE - NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision not to approve certain supports – where the parties reached agreement in respect of those supports – where the Applicant requested the Tribunal consider additional supports – where additional supports not subject to internal review – jurisdiction of the Tribunal – Tribunal has no jurisdiction to consider additional supports
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 99, 100, 103
CASES
Fuad and Telstra Corporation Limited (2004) 39 AAR 496; [2004] AATA 1182
Shi v Migration Agents Registration Authority (2008) 248 ALR 390
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION

In this application it is clear that the Tribunal has jurisdiction to review a decision of 27 June 2019, made by a reviewer within the National Disability Insurance Agency refusing the Applicant’s request for intensive feeding therapy and one on one support at school.
A question has arisen as to the Tribunal’s jurisdiction to determine the Applicant’s requests for supports additional to those referred to above (additional supports).
For the reasons which follow I have decided that the Tribunal does not have jurisdiction to determine the Applicant’s entitlement to the additional supports.
LEGISLATION PROVIDING FOR THE JURISDICTION OF THE TRIBUNAL
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth)
As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute. To find the starting point we need to turn to subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
We must look to another Act of the Commonwealth Parliament to ascertain the Tribunal’s power to review particular decisions. In this case it is the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Section 103 of the National Disability Insurance Scheme Act 2013 (Cth)
Section 103 is the provision of the NDIS Act which provides for applications to the Tribunal to review decisions made under that Act. It provides:
Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
The “reviewer” referred to in section 103
Subsection 100(5) provides:
If:
(a) the decision-maker receives a request for review of a reviewable decision; or
(b) the decision-maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the decision-maker must cause the reviewable decision to be reviewed by a person (the reviewer):
(c) to whom the decision-maker's powers and functions under this section are delegated; and
(d) who was not involved in making the reviewable decision.
Decisions made by a reviewer under subsection 100(6)
Subsection 100(6) provides:
The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
The “reviewable decision” referred to in subsection 100(6)
Section 99 provides an exhaustive list of reviewable decisions, i.e. decisions that are reviewable by the reviewer. The decisions include “a decision under 33(2) to approve the statement of participant supports in a participant’s plan” (section 99, item (d)).
The statement of participant supports
Subsection 33(2) provides:
A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
BACKGROUND
The Applicant’s plan of 5 April 2019[1]
[1] T44 at 287.
In this Plan, provision was made for the following supports for the Applicant:
·Core Supports: purchase of basic and standard assistive technology and funding to allow the Applicant to access specialised home and school-based assistance;
·Capacity Building Supports: funding for plan management, support coordination and Early Childhood intervention supports for improved daily living.
The Applicant’s request for review
On 18 April 2019 a verbal request for an internal review of the supports provided in the Plan was made on behalf of the Applicant.
The relevant part of the Agency’s note of this request reads as follows:
I spoke with child representative…she was not happy with her son’s plan either, in particular, she feels the supports are not sufficient to accommodate his complex feeding needs. She also highlighted that his goals were drastically changed and did not reflect the discussions at all. She has expressed disappointment that the NDIA are changing people’s goals without consulting them first. I have taken a verbal RORD from her and placed it in the system.
Interaction Record. Thu Apr 18 2019 09:57:01 GMT+1000 (AUS Eastern Standard Time)[2]
[emphasis added]
[2] T41 at 265.
The Agency’s records show that during a discussion with the Applicant’s mother on 14 May 2019, a review of the Applicant’s support at school was requested. The need for additional support for feeding therapy was reiterated. The Interaction Notes included:
[The Applicant’s mother] advised that [the Applicant] is very good at maths and has a good memory but due to his eating issues he is not interacting as he should at school and they would like more 1-1 in the classroom. [Emphasis added].[3]
[3] T41 at 268.
The reviewable decision
On 27 June 2019 a reviewer, acting in accordance with section 100 of the Act, decided:
1. One on one support 5 days per week during school to assist with [the Applicant’s] transitioning between classes, access to programs in the classroom and eating is not reasonable and necessary.
2. Access to intensive feeding therapy program is not reasonable and necessary.[4]
[4] T2 at 5.
The application to the Tribunal
On 24 July 2019 the Applicant applied to the Tribunal to review the reviewable decision.
In response to the question “Why do you claim the decision is wrong?”, the Applicant’s representative stated:
Support at school and intensive therapy is reasonable and necessary.[5]
[5] T1 at 2.
The additional supports requested
The parties have reached agreement as to the provision of the intensive feeding therapy support and the additional support at school. Both parties have requested that the Tribunal proceed to determine whether the following four supports requested by the Applicant were reasonable and necessary:
·three hours support per week at home by way of positive behaviour therapy;
·additional support on Saturday between 9am and 5pm;
·additional speech therapy supports, including the provision of funding for
travel and payment of administration fees; and
·additional occupational therapy supports, including the provision of funding for travel and payment of administration fees.
The additional supports were requested during the alternative dispute resolution procedure conducted by the Tribunal, i.e. after the application for the review of the reviewable decision was lodged in the Tribunal. They were not considered by the reviewer.
The Applicant’s argument
The Applicant has argued that the Tribunal’s function on review is to review the entirety of the decision to approve the statement of participant supports. This is because section 99, item 4 of the NDIS Act specifies that the decision that is reviewable is the decision to approve the statement of participant supports. By virtue of subsection 43(1), the Tribunal has all the powers and discretions of the original decision maker. If follows that the Tribunal, in exercising its powers on review, is reviewing the decision to approve the statement of participant supports in its entirety.
It is only as a matter of usefulness that a participant particularises the supports which they consider should be changed or included. Doing so does not limit the Tribunal’s task of reviewing whether the decision to approve the statement of participant supports, as a whole, was correct.
ISSUE AS TO THE JURISDICTION OF THE TRIBUNAL
The issue which has arisen is, does the Tribunal have jurisdiction to determine whether the additional supports are reasonable and necessary in accordance with the NDIS Act.
DISCUSSION
It is clear from the provisions of the NDIS Act referred to above, that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:
·a review by a reviewer;
·a review of the reviewer’s decision by the Tribunal.
The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by section 102 of the NDIS Act.
In Fuad and Telstra Corporation Limited, the Tribunal President, Justice Downes, said:
… all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.[6]
[6] (2004) 39 AAR 496; [2004] AATA 1182 at [5].
It is important to note that the President referred to “matters put before the decision-maker”. [Emphasis added]. These are the matters in respect of which the Tribunal has jurisdiction.
Material provided to the Agency before the reviewable decision was made
As referred to above, the decision as to the statement of supports to be included in the Applicant’s plan was made on 5 April 2019. The reviewable decision was made on 27 June 2019.
One of the documents provided to the Tribunal by the Agency bears the NDIS Logo and is entitled ECEI Family Service and Support Information for an NDIS PLAN REVIEW.[7] It is dated 26 March 2019. The following appears in the document:
[7] T29.
In addition the family have requested 5 hours every Saturday to fund a carer that can provide support to both [the Applicant]…As such 2.5 hours/week for 48 weeks of in home care supports are being requested for [the Applicant] to provide additional care and support to [the Applicant’s parents]. This will allow increased supervision, allow the family to access the community, for [the Applicant] to develop his social skills and build parent capacity. [Emphasis added].
Below are the hours being requested by the family. Reasonable and necessary has been discussed with [the Applicant’s mother] in regards to funding in this category, and more specifically the difference between in-home care and child care.
·7:30am-9:00am and 3:00pm-6:30pm each weekday, totalling 25 hours a week. For a period of 6 months (to allow [the Applicant] to have the opportunity to develop his ability to eat in settings outside of home, and then transition to a mainstream Before and After School Care setting). 637.5 hours in total.
·2 hours of support at school each weekday to support [the Applicant’s] feeding, 10 hours/week during school terms. 410 hours in total.
·2.5 hours of support each Saturday to allow [the Applicant’s parents] to sustain their caring role and allow [the Applicant] to access the community and build social skills. 120 hours in total.
·37.5 hours/week in total or 1,167.5 hours over 12 months is being requested.
Goal
For [the Applicant] to be able to access food before and after school to support his energy, learning and nutritional needs, to develop his ability to eat in the school setting, and for [the Applicant’s parents] to receive support to allow them to sustain their caring role.[8]
[8] T29 at 189.
The Agency also provided to the Tribunal a copy of a letter dated 12 September 2018[9] from the Principal of the Primary School attended by the Applicant. After detailing the additional supervision required to manage the Applicant’s behaviour the Principal stated:
The family require additional funding to support his development in the areas of occupational therapy, speech therapy and behaviour management. Due to his difficult behaviour, they also require extra resources for care in the home for their Nanny whilst they work, as well as respite care as his behaviour has significant impact on family life. [Emphasis added].
[9] T19 at 66.
A Speech Pathology Assessment Report dated November 2018[10] held by the Agency, included the following recommendations, based on the assessment results and the Applicant’s participation in therapy at the time:
1.    Weekly 1 hour speech therapy to target expressive and receptive language skills.
………………..
2.    Access to weekly psychology/ Occupational Therapy to support social skills development, behaviour, self-occupation and independent living skills.
…………………
3.    Respite support for social skill development, behaviour management and to target feeding skills in new environments.[11] [Emphasis added].
[10] T24 at 154.
[11] T24 at 156-157.
The Agency also held a Speech Pathology Progress Summary report dated 17 December 2018. This report provided information as to the Applicant’s situation at the time and outlines recommendations for continued speech therapy services for ongoing development and support.[12]
[12] T25 at 160.
A report of a Speech Pathologist dated 17 April 2018[13] was produced by the Agency. It contains recommendations for:
·regular weekly speech pathology intervention;
·regular weekly occupational therapy intervention;
·group therapy to target social skill development. [Emphasis added]
[13] T40C at 252-253.
It is apparent from the documents referred to in the preceding five paragraphs that information relating to each of the additional supports now being requested on behalf of the Applicant was before the Agency on 5 April 2019, when the decision as to the supports to be included in the Applicant’s plan was made. However, it does not follow that those supports were put before the decision-maker as part of the request being considered.
The decision before the Tribunal
The decision under review in these proceedings is the decision of the reviewer made on 27 June 2019. The interaction notes of 18 April 2019 and 14 May 2019 show that the request for review of supports referred only to the intensive feeding program and the additional support for the Applicant while he was at school. This was confirmed by the application for review by the Tribunal which stated that the review requested related to “supports for school and intensive therapy”.
A review of the additional supports was not requested until after these proceedings were commenced – the internal review process prescribed by the Act has not taken place and, as a result, there is no reviewable decision as described by section 103 of the NDIS Act.
If I accepted the Applicant’s argument, a review before the Tribunal may require a wide ranging review of all supports contained in a participant’s plan, including potential supports, which had not been previously subject to internal review. It is not in the interests of good public administration to bypass the two-tiered review process provided for by the NDIS Act, thus denying the Agency the opportunity to resolve the issues without an appeal to the Tribunal.
In reaching this conclusion, I do not suggest that parties to an application before the Tribunal cannot discuss and agree upon supports other than those before the Tribunal. The parties should be encouraged to resolve as many of the issues between them as possible. However, they must keep in mind that the final decision of the Tribunal (be it by consent or after a contested hearing) can only deal with those matters that are within its jurisdiction. Of course, in accordance with the principles set out in Shi v Migration Agents Registration Authority,[14] the Tribunal will make its decision based on the evidence before it at the time of the decision.
[14] (2008) 248 ALR 390.
I appreciate that the Applicant’s mother did not understand that the Tribunal jurisdiction was limited in the way I have set out. However, in every application that comes before it, the Tribunal must be satisfied that it has jurisdiction in accordance with the AAT Act. The parties cannot give the Tribunal jurisdiction by consent. The Applicant is free to request the Agency to consider his requests for the additional supports.
CONCLUSION
In this application, the Tribunal does not have jurisdiction to determine the Applicant’s claim for supports other than supports relating to intensive feeding therapy and one on one support during the Applicant’s attendance at school.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 16 April 2021

Date(s) of hearing: 1 October 2020

Date final submissions received: 27 November 2020

Solicitors for the Applicant: L Ash, Legal Aid NSW

Solicitors for the Respondent: C Bilboe, National Disability Insurance Agency

Date(s) of hearing:	1 October 2020
Date final submissions received:	27 November 2020
Solicitors for the Applicant:	L Ash, Legal Aid NSW
Solicitors for the Respondent:	C Bilboe, National Disability Insurance Agency