QDKN and National Disability Insurance Agency

[2024] AATA 123

QDKN and National Disability Insurance Agency [2024] AATA 123 (6 February 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/9163

Re:QDKN  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member D. Barker

Date:6 February 2024

Place:Sydney

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 24 November 2023.

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

Member D. Barker

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – National Disability Insurance Scheme – whether a decision is a reviewable decision – whether a support coordinator has standing to make an application – no internal review decision – application not reviewable – application under review dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Napper and National Disability Insurance Agency [2021] AATA 2363

Napper and National Disability Insurance Agency [2021] AATA 922

REASONS FOR DECISION

Member D. Barker

6 February 2024

1. The Applicant is a participant of the National Disability Insurance Scheme (the NDIS).

2. The Applicant is assisted with decision making by the NSW Public Guardian.

3. On 29 June 2023, a decision was made by the National Disability Insurance Agency (the NDIA) with regard to a Statement of Participant Supports (SOPS) associated with the Applicant’s NDIS Plan relevant for the period 29 June 2023 – 28 June 2024 (the 29 June 2023 Plan decision).

4. On 21 August 2023, the Applicant’s support coordinator made a request for an internal review by the NDIA of the 29 June 2023 Plan decision.

5. On 29 September 2023, the NDIA wrote to the Applicant to inform her that the NDIA had made a decision about her home and living supports (the Home and Living decision).

6. On 24 October 2023, a decision was made by a NDIA reviewer (an internal review decision) following their review of the 29 June 2023 Plan decision. In submissions filed with the Tribunal by the Respondent, they note that no section 100 internal review decision outcome letter regarding the internal review of the Agency’s 29 June 2023 Plan decision was provided to the Applicant.[1] Submissions filed by the Respondent further note that the NDIS Plan that was approved on 24 October 2023 incorporates and implements the supports outlined in the Home and Living Decision made on 29 September 2023.[2]

   [1] Respondent submissions filed with the Tribunal, 8 January 2024.

   [2] Respondent submissions filed with the Tribunal, 18 January 2024.

7. On 10 November 2023, the NDIA reassessed the Applicant’s support needs as a result of an unscheduled review under the provisions of section 48 of the National Disability Insurance Scheme Act 2013(Cth) (the NDISAct). This resulted in a new NDIS plan decision and SOPS relevant to the period 10 November 2023 – 9 November 2024 (the 10 November 2023 Plan decision).

8. On 24 November 2023, the Applicant sought a review by the Tribunal of the 10 November 2023 Plan decision.

9. On 7 December 2023, the Tribunal wrote to the NDIA regarding the review application and noted that a copy of an internal review decision was not filed with the Tribunal in association with the review application and requested a copy, if available, of the relevant internal review decision. No internal review decision was filed with the Tribunal in response to this request.

10. On 12 December 2023, the Tribunal wrote to the Applicant and Respondent informing them that an Interlocutory Jurisdiction Hearing by telephone had been listed for this matter at 10.00 am on 9 January 2024 (the interlocutory hearing).

11. On 12 December 2023, the Tribunal received a copy of a letter from the NSW Public Guardian, which stated amongst other things that the Public Guardian consents to Charmaine Alley of Agile Support Services in her capacity as Support Coordinator to act as a third party on behalf of the Applicant for the purpose of service provision under the NDIS.

12. The Tribunal has considered the oral submissions of the representatives for the Applicant and Respondent at the interlocutory hearing. The Tribunal has also considered the written submissions filed by the parties prior to and following the interlocutory hearing.

13. For the reasons set out below, the Tribunal is satisfied that the 10 November 2023 Plan decision is not reviewable by this Tribunal. On that basis, the Tribunal dismisses this application under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

    The parties’ contentions with respect to jurisdiction

14. At the interlocutory hearing of this matter, there was common ground that the Applicant’s circumstances are complex and challenging and that there is a need for timely consideration of the role of the NDIS in most effectively and appropriately responding to the Applicant’s current support needs. Notwithstanding that the Tribunal concurs with this view, the Tribunal explained that the purpose of the interlocutory hearing was to determine whether it has the legal authority to undertake the requested review.

15. In relation to the whether the Tribunal has jurisdiction in this matter, the submission filed by the Respondent on 8 January 2024 made the following contentions:

    a)In the Applicant’s Application for Review of Decision (Application) (filed on 24 November 2023), the Applicant nominates an Agency decision received on 10 November 2023 as the decision for review.

    b)The Agency decision which the Applicant refers to as being received on 10 November 2023, appears to be the Agency’s (original/reviewable) planning decision made on 10 November 2023 and not an Internal Review Decision.

    c)The Agency decision of 10 November 2023 is not a s 100(6) decision (of a s 99 reviewable decision) made by the Agency’s internal reviewer to confer jurisdiction on the Tribunal pursuant to s 103(1).

    d)The Agency does not have a record of receiving a request from the Applicant for an internal review of the planning decision made on 10 November 2023.

    e)The Agency respectfully submits that the Tribunal ought to dismiss the Applicant’s Application on the basis that the Tribunal’s jurisdiction is not enlivened under s 103(1), as no s 100(6) decision has been made on 23 August 2023.

16. At the interlocutory hearing, the Applicant’s support coordinator expressed concern that what may have been an error made by them in filling out the AAT review application form may result in delay in the Applicant’s support needs being reviewed and responded to. The support coordinator explained that whereas they had identified the date of decision which they asked the Tribunal to review was the Applicant’s 10 November 2023 Plan decision, it was the Home and Living Decision of 29 September 2023 which needs to be reviewed. The support coordinator explained that they did not actually receive the Home and Decision letter until 29 December 2023, as it was initially sent to a supported residential location where the Applicant had resided on a short-term basis, but where they were no longer residing.

17. The Respondent spoke to their written submissions and confirmed that the position of the NDIA continued to be that the 10 November 2023 Plan decision, which the Tribunal has been asked to review, was an original decision and the Tribunal does not have jurisdiction to review it. The Respondent noted that the 10 November 2023 Plan decision could be potentially reviewed by an NDIA reviewer, but as there had been no request for the NDIA to undertake an internal review of this decision, there is not a decision which the Tribunal has jurisdiction to review. 

18. The Respondent, however, requested that the Tribunal provide consent for time following the hearing to consider and prepare further submissions as to whether the delay in the Applicant receiving the 29 September 2023 Home and Living Decision impacted the jurisdictional issues under consideration in this interlocutory matter. The parties also took the opportunity at hearing to discuss alternate pathways to facilitate a prompt and timely reassessment of the Applicant’s support needs in the event the Tribunal was to determine it does not have jurisdiction to undertake the requested review. These alternate pathways include the Applicant requesting an internal review by the NDIA of the 10 November 2023 Plan decision.

19. On 10 January 2024, and in response to a request made by the Tribunal at hearing, the Respondent emailed the Tribunal and Applicant with the information that the estimated time frame for a fast track section 100 review of the NDIA’s 10 November 2023 decision is approximately 30 days.

20. On 18 January 2024, the Tribunal received further written submissions from the Respondent which indicated their position that the Tribunal lacks the jurisdiction to undertake the requested review remained the same, namely that the 10 November 2023 Plan decision, which the review application indicates the Applicant sought review of, is an original, reviewable decision and not an internal review decision. The Respondent submits that as there is no section 100(6) internal review decision and the Tribunal’s powers to undertake a review are not enlivened by section 103(1) of the NDIS Act. The Respondent’s submissions also provided further comment as to alternate pathways to request review and reassessment of the Applicant’s support needs.

21. On 23 January 2024, the Applicant’s support coordinator sent the Respondent and Tribunal an email indicating they would apply for a ‘fast track s100’.

    CONSIDERATION

22. The Tribunal has noted the communication from the Applicant’s support coordinator which suggests they will pursue one of the alternate pathways discussed by the parties to facilitate the timely review and reassessment for the Applicant’s support needs in light of the challenging and complex situation the Applicant is currently facing. The Tribunal is mindful that the Applicant’s communication of 23 January 2024 could be taken as an indication they were not wishing to continue with the review application. However, this is unclear and given the need to avoid undue further delay through seeking clarification of this issue, the Tribunal has proceeded to determine the interlocutory jurisdictional issue.

23. The Tribunal’s power to review particular decisions is derived from specific enactment provisions in relevant Commonwealth legislation, in conjunction with section 25(1) of the AAT Act, which states:

    Tribunal may review certain decisions

    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.

24. The relevant enactment in this case is section 103 of the NDIS Act. Subsection 103(1) states that:

    Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

    Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.

25. Principles relating to the Tribunal’s jurisdiction in relation to the NDIS are discussed in  the decision of Deputy President Constance in QDKH and National Disability Insurance Agency[3] and Deputy President Pascoe in Napper and National Disability Insurance Agency. The principles arising from those cases, as summarised in Napper, are set out below:[4]

    [3] Napper and National Disability Insurance Agency [2021] AATA 922.

    [4] Napper and National Disability Insurance Agency [2021] AATA 2363 at [14].

    (a) As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute, namely s 25(1) of the AAT Act, which relevantly provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment;

    (b) 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 confer jurisdiction upon the Tribunal by consent;

    (c) Section 100(3) is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 100(3) provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act;

    (d) Section 100(6) of the NDIS Act provides that the reviewer, as soon as is reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision;

    (e) Section 99 of the NDIS Act provides an exhaustive list of reviewable decisions, that is, 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 plan” (section 99, item (d));

    (f) It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:

    (i) A review by a reviewer;

    (ii) A review of the reviewer’s decision by the Tribunal;

    (g) The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;

    .....

26. The AAT review application form, in clarifying whether a review application is lodged within the required time frame, asks the question ‘Date you received the decision you want reviewed.’  The  date nominated in the  Applicant’s review application filed with the Tribunal on 24 November 2023  is ‘10 Nov 2023’. A document filed with the Tribunal in relation to the review application is a copy of the Applicant’s 10 November 2023 NDIS Plan decision. The Tribunal is satisfied that this plan approval decision is the decision which the Tribunal is asked to review in the review application lodged with the Tribunal on 24 November 2023. The Tribunal is further satisfied that the Applicant’s 10 November 2023 Plan decision is a reviewable decision pursuant to the criteria in sections 99(1) and 99(2) of the NDIS Act.

27. The Tribunal notes the concern expressed by the Applicant’s support coordinator as to whether their requesting a review of the 10 November 2023 Plan decision, rather than an earlier plan, has compromised the timely review and reassessment of the Applicant’s support needs. The Tribunal understands this concern and that there are factors, such as correspondence from the NDIA to the Applicant either not being sent or changes in the Applicant’s residential address not being updated with the NDIA, which may have contributed to the current situation.

28. However, it is not for the Tribunal to alter the detail on the review application form so as to change the decision which it has been asked to review. The Tribunal finds that the 10 November 2023 Plan decision is a type of decision itemised in section 99(1) of the NDIS Act and is therefore a type of decision which the NDIA can be asked to review. However, the Tribunal finds that the 10 November 2023 Plan decision is not a review of a decision made by a reviewer under section100(6) of the NDIS Act. As such, section 103 of the NDIS Act is not met and the Tribunal has no power to review that decision.

29. Subsection 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. Having regard to all the evidence in this case, the Tribunal has formed the view this is the appropriate action to take.

    DECISION

30. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application filed on 24 November 2023.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

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

Associate

Dated: 6 February 2024

Date(s) of hearing:	9 January 2024
Advocate for the Applicant:	C. Alley, Agile Suport Services
Solicitors for the Respondent:	J. Burston, National Disability Insurance Agency