QQNH and National Disability Insurance Agency
[2016] AATA 220
•23 February 2016
QQNH and National Disability Insurance Agency [2016] AATA 220 (23 February 2016)
Division
NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number
2016/0251
Re
QQNH
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 23 February 2016 Date of written reasons 7 April 2016 Place Adelaide The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the applicant’s application for review is dismissed.
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Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE – Jurisdiction – Whether internal review conducted – Consideration of when statement of participant supports was in fact approved by CEO – Internal review of reviewable decision by “reviewer” not completed at time of application for review – Tribunal does not have jurisdiction – Application dismissed.
LEGISLATION
National Disability Insurance Scheme Act 2013, ss 33, 99, 100, 103
REASONS FOR DECISION
Deputy President K Bean
7 April 2016
The applicant in this matter is a child who qualifies for assistance under the National Disability Insurance Scheme (NDIS)[1]. Her mother is acting and speaking for her in relation to the application.
[1] As she is a child, the Tribunal has made a confidentiality order preventing disclosure of her identity.
Following the expiration of her previous plan, a new plan was put in place with respect to the applicant’s supports under the NDIS, in late 2015. However, an issue has arisen between the parties as to when the decision to implement and/or approve that plan was made, and whether that decision has been subject to internal review within the National Disability Insurance Agency (NDIA). This in turn has led to a disagreement between the parties as to whether the Tribunal has jurisdiction in this matter.
PROCEDURAL HISTORY
The relevant procedural history of the matter is that on 18 January 2016, the applicant’s mother on her behalf filed an application for review with the Tribunal, seeking review by the Tribunal of the applicant’s most recent plan. However, on 4 February the NDIA’s legal representative, Mr Fagg, advised the Tribunal that no internal review had been undertaken of the decision the subject of the application. He submitted that the Tribunal therefore lacked jurisdiction to deal with the application and the application should be dismissed.
The matter was accordingly listed for a jurisdiction hearing before me on 17 February 2016, at which the applicant and her mother were represented by Ms Whittard of Brain Injury SA and the respondent was represented by Mr Fagg.
On 23 February 2016, I decided that the Tribunal did not have jurisdiction with respect to the applicant’s application, and gave oral Reasons for that Decision. On 16 March 2016, the applicant requested written Reasons for my Decision, and these Reasons have been prepared in answer to that request.
I will first set out the applicable statutory framework and discuss the factual background before addressing the question of jurisdiction more directly.
THE STATUTORY FRAMEWORK
Not all decisions made under the National Disability Insurance Scheme Act 2013 (the Act) are reviewable. The decisions which are reviewable are set out in s 99 of the Act and relevantly include:
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(d)a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan;
Section 100 provides for review of a reviewable decision by a “reviewer” who is required to confirm or vary the reviewable decision, or set aside the reviewable decision and substitute a new decision. Section 103 confers jurisdiction on this Tribunal to review “a decision made by a reviewer under subsection 100(6)”.
THE FACTUAL SETTING
As I understand the position, the communications relevant to this matter commenced with discussions in September 2015 between the applicant’s mother and staff of the NDIA in relation to the content of the applicant’s new plan, given the applicant’s then current plan was due to run out on 10 October 2015.
Following those discussions, on 1 October 2015, an email was sent to the applicant’s mother enclosing a copy of a proposed new plan, with a start date of 11 October 2015. The plan was marked “Draft”, however the applicant’s mother understood that it was in effect the new plan for her daughter, with total supports amounting to $43,644.00. The covering email attaching the plan stated “This was the plan I discussed with you on the phone. I am also aware that there are some discussions in progress and anticipate that it will change”.
From the material I have, it appears that prior to 6 October, the applicant’s mother then wrote to the Elizabeth office of the NDIA querying a number of aspects of the draft plan. In that email she also sought to have funding “extended” to ensure “current level of supports until the appeal process is finalised”.
In response to those queries and requests, by email to the applicant’s mother dated 6 October, an NDIA Planner[2] agreed to add a number of things to the plan, and explained why she did not consider that some of the things requested could be included in what was described as “this next plan”. The Planner also made reference in her email to the applicant’s “current plan”, being the one which was about to expire, and indicated that the Assistant Director – Quality (the ADQ) was going to let the Planner know about “extending the plan”, (apparently referring to the then current plan). She also advised that “the decision about [the applicant’s] therapeutic supports has been passed on to [the ADQ] as part of our internal review process and I have forwarded him your thoughts”. This email did not reflect any decision at that stage as to the issue of therapeutic supports, or precisely what therapeutic supports were to be included in the “next plan”.
[2] On 5 May 2016 at the respondent’s request and with the consent of the applicant, a confidentiality order was made pursuant to which the names of certain NDIA staff members were required to be replaced by reference to their roles.
Subsequent to that, on 3 November 2015, an email exchange occurred between the applicant’s mother and the ADQ. In that exchange, the applicant’s mother made reference to a form for seeking internal review and queried where to send this. The ADQ advised her that as he was a delegate of the CEO with “power to decide a request for a reviewable decision”, she could send the form to him.
In accordance with that advice, on 5 November, the applicant’s mother sent an email to the ADQ, attaching her “Application for review of a reviewable decision”. In that application, she sought review of a decision of 2 October 2015 and set out the aspects of the plan that she was not happy with and wanted changes to. She also outlined her concerns in detail in her covering email, and the changes she was seeking to her daughter’s plan. She requested that her request for review be “backdated to the 2nd of October as a matter of formality”.
The ADQ replied to this email on 6 November, acknowledging the request for internal review, and effectively indicating he would action that request, and review “the decision”. He also referred the applicant’s mother to the NDIA’s internal review guidelines, noting that a delegate “makes a decision based on the material before them at that time”.
On 23 November 2015, the ADQ sent an email to the applicant’s mother advising that he had completed a “review of the three parts of the decision as you requested”. However, he does not appear to have provided a final version of the plan at this stage, and it is not clear from his email to what extent or precisely how he purported to confirm, vary or set aside any earlier decision. He advised in his email that he was seeking an “independent medical expert review my conclusion about the level of therapy supports”, and that he was arranging for the “current plan to be extended again for a period of 4 weeks”, with some additional funding to be included in the extended plan.
From the information before me, it appears that the next relevant event was that a draft copy of the proposed new plan was sent to the applicant’s mother on 11 December 2015, and the final version of the plan was uploaded to her website portal on 22 December 2015. I note that Mr Fagg has advised that a copy of the new plan, dated 22 December, was also sent to the applicant’s mother on 22 December 2015, together with a “factsheet” on her review rights.
On the basis of these communications, it is easy to see why the applicant’s mother formed the impression that, as at 22 December, the content of her daughter’s plan had already been internally reviewed, and the final plan was the outcome of an internal review process. In effect, that was what the relevant NDIA staff communicated to her.
However, the issue for me is what occurred as a matter of law, and whether a decision of a reviewer pursuant to s 100 has been made, which the Tribunal has jurisdiction to review.
APPLICANT’S CONTENTIONS
The applicant contends in effect that a “primary” reviewable decision was made in early October 2015, and communicated to the applicant on or about 2 October 2015. She then sought internal review of that decision, which occurred, with the final outcome of the review being the approved plan of 22 December 2015. Although this issue was not addressed at the hearing, I infer that she contends that the reviewer’s decision in effect varied the “primary” decision, as the approved amount and precise nature of the supports in the plan were changed.
CONSIDERATION
In order to support this analysis, as I pointed out at the hearing, it is necessary to identify both a valid “primary” reviewable decision and a decision by a “reviewer”, satisfying the requirements of the Act.
The first question which arises therefore is whether a decision was made or communicated by the NDIA in early October 2015 which amounted to a “reviewable decision” within the meaning of s 99. As the applicant relies on the reviewable decision having been made pursuant to s 33(2) of the Act, it is also relevant to have regard to that provision in addressing this issue.
Subsection 33(2) of the Act relevantly provides as follows:
(2)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.
It follows that a primary decision will have been made when there was a determination, by or on behalf of the CEO, to approve a statement of the supports in the applicant’s “next plan”, being the plan which was to replace that which had been due to expire on 10 October 2015.
As I have already acknowledged, the task of identifying when that decision was made is made more difficult by the unclear and ambiguous nature of many of the Agency’s communications with the applicant’s mother. I accept that, on one construction, at least some of these communications could be viewed as suggesting that the statement of supports in the draft plan sent to the applicant’s mother on 1 October 2015 had been approved by the CEO, perhaps on the basis that the staff member who forwarded this was a delegate of the CEO, and that the draft plan in conjunction with the contents of the relevant email amounted to a primary decision to approve a statement of supports consisting of the draft plan, as amended in the email. On that construction of events, that decision was subsequently reviewed by the ADQ, as the “reviewer”, culminating in the final plan of 22 December 2015.
After careful consideration however, I have concluded that the better view is that, despite their poorly worded and often ambiguous communications, neither the Planner (who sent the email of 1 October 2015) or any other NDIA staff member actually made a decision, as delegate of the CEO, to approve the statement of supports in the applicant’s “next plan” in or around early October 2015. In reaching that conclusion, I have had particular regard to the following:
·The plan forwarded on 1 October 2015 was clearly marked “draft”;
·It was not clear at that stage that the draft plan had been “approved” on behalf of the CEO;
·Both parties made reference shortly after 1 October to the current plan being extended (which I note did occur), suggesting an understanding that the new plan or “next” plan had not yet been finalised or taken effect;
·The NDIA’s subsequent email of 6 October 2015 clearly indicated that the plan forwarded on 1 October was not final, and changes were made to the plan in that email. However, the Planner did not address all of the issues which had been raised at that stage, indicating for example that the question of therapeutic supports had been referred to the ADQ. In effect, it was not clear as at 6 October what the final content of the “next plan” would be; and
·There was no clear statement that a reviewable decision had been made, or as to what the applicant’s review rights were.
Accordingly, despite the fact that the ADQ in effect encouraged the applicant’s mother to lodge an application for internal review, and purported to receive and action that application for review (of a decision dated 2 October 2015), I am not persuaded, on balance, that a primary decision “approving” the statement of supports in the applicant’s next plan was made on or around 2 October, or at any time prior to that internal review request being lodged. Clearly there was ongoing consideration by the Agency as to what the applicant’s supports should be and what her next plan should contain, and the issue was being “reviewed” by the Agency in that sense. However, on my analysis, it was not until the Agency’s deliberations about the next plan had reached a conclusion and the applicant’s mother was sent a version of the plan which was not in draft form and which was marked “Plan approved: 22 December 2015” that a decision to approve the plan under subs 33(2) was made on behalf of the CEO.
It also follows, on my analysis, that it was not until that point that a reviewable decision was made under s 99, which could be reviewed under s 100.
As internal review of the decision to approve the plan on 22 December 2015 has not yet been completed[3], unfortunately there is as yet no decision by a reviewer under s 100 which can be reviewed by the Tribunal under s 103. The Tribunal therefore does not have jurisdiction with respect to the application lodged on 18 January 2016.
[3] I understand this was requested prior to my Decision and was completed subsequent to my Decision.
As Mr Fagg acknowledged, it is extremely unfortunate that the applicant’s mother was not better assisted and informed by the NDIA as to the decision-making and merits review process, and what part of the process was in fact occurring at which time. It is clear that part of the reason the applicant’s mother was misled (unintentionally) is that the Agency staff she dealt with did not themselves understand the applicable merits review framework. As this matter makes clear, the phrase “internal review” can be used to describe the process of ongoing consideration of the content of a plan before it is finalised, and escalation of certain issues to more senior staff. However, that is not the same thing as a formal “internal” review by a reviewer of a reviewable decision pursuant to s 100 of the Act. It is important for Agency staff to understand this distinction, and correctly explain the distinction to participants. Clearly that did not occur in this case.
Nevertheless, the Tribunal’s jurisdiction must of course be determined by reference to whether a reviewable decision and an internal review of that reviewable decision have in fact taken place under the Act.
For the reasons I have given, I have concluded that only the first of these had occurred when the application for review was lodged, and that application in effect seeks review of what I regard as a primary reviewable decision which had not been reviewed under s 100. As review by a reviewer under s 100 is a precondition to the Tribunal having jurisdiction under s 103, it follows that the Tribunal does not have jurisdiction with respect to the application, and the application must therefore be dismissed.
Of course, once the internal review process which is currently underway has been completed, if the applicant’s mother is not satisfied with the decision of the reviewer, she will then be entitled to seek review of that decision by the Tribunal, and I would expect the Tribunal would have jurisdiction with respect to any such application.
DECISION
The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the applicant’s application for review is dismissed.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ............. [Sgd] .........................................
Associate
Dated 7 April 2016
Dates of hearing 17 February and 23 February 2016 Advocate for the Applicant Ms T Whittard
Brain Injury SASolicitors for the Respondent Mr S Fagg
National Disability Insurance Agency
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