QZCD and National Disability Insurance Agency - [2022] AATA 458

QZCD and National Disability Insurance Agency [2022] AATA 458 (17 March 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

NATIONAL DISABILITY INSURANCE SCHEME DIVISION

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No: 2021/10277

Re: QZCD

Applicant
And: National Disability Insurance Agency
Respondent
CORRIGENDUM

TRIBUNAL:  Senior Member K. Parker
DATE OF CORRIGENDUM:            29 March 2022
PLACE:           Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

At paragraph [37], footnote 3, insert the following reference:
Refer Child representatives | NDIS

........................[sgd]...........................................
Senior Member
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/10277
Re:QZCD
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:17 March 2022
Place:Adelaide

The Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that there is no reviewable decision before the Tribunal.
........................................................................
Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – child participant – parental responsibility – father seeking recognition as child representative – NDIA acknowledges father has parental responsibility but has not “enabled” him to do things the child is required or permitted to do under the National Disability Insurance Scheme Act (NDIS Act) – NDIA granted exclusive access to the mother of the NDIA’s myplace portal for the child – whether NDIA, by its conduct, has made a decision not to make a determination that the Father has parental responsibility for the child under s 75(3) of the NDIS Act – whether the NDIA, by its conduct, has made a decision under s 74(1)(b) of the NDIS Act to make a determination that it is appropriate that the mother, and not the father, has the right to do the things the child is required or permitted to do under the NDIS Act – Tribunal concludes that no reviewable decision made by the NDIA under Items 17 or 19 of s 99 of the NDIS Act and no internal review decision of a reviewable decision made under s 100 of the NDIS Act – Tribunal does not have jurisdiction in relation to this application for review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Children) Rules 2013 (Cth)
Cases
NNXF and National Disability Insurance Agency [2019] AATA 5552
Selkirk and NDIA [2021] AATA 3478
Secondary Materials
NDIS Operational Guidelines
NDIS Child Representative Guidelines
REASONS FOR DECISION
Member K. Parker
17 March 2022
INTRODUCTION

The Applicant, QZCD, is a child participant of the National Disability Insurance Scheme (NDIS). The NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
QZCD’s parents, who shall be referred to in these Reasons for Decision as the Father and the Mother, are not members of a couple and do not live together. The Father informed the Tribunal that QZCD lives with the Mother during the week and spends time with Father on the weekends.
For present purposes and put simply, an issue has arisen about who should be recognised by the National Disability Insurance Agency (NDIA) as the person under s 74(1)(a) of the NDIS Act, who can do things for and on behalf of QZCD that he is required or permitted to do under the NDIS Act. The Father wants to be “enabled”, by the NDIA, to do so.
The NDIA does not dispute that the Father has parental responsibility for QZCD but seemingly inconsistent with this position, it refuses to grant him access to the NDIS participant “myplace” portal (Portal) for QZCD. Further, the NDIA will not provide him with information about QZCD’s Statement of Participant Supports (SOPS) or NDIS plan. Nor has QZCD been included in the NDIS plan review processes.
There is a subtext to this case being that the Mother has applied for, and has been granted, an interim intervention order directed against the Father. The Father is contesting the making of this interim order and a final hearing about this issue will take place in due course.
By contrast, the NDIA has granted the Mother access to QZCD’s Portal and has provided her with information about QZCD’s SOPS and NDIS plan. The Mother has also been involved by the NDIA in the NDIS plan review processes for QZCD.
The Father has lodged an application with the Tribunal seeking relief in relation to this issue.
The NDIA resists the Father’s application to the Tribunal. In short, the NDIA contends that the Tribunal does not have jurisdiction for two reasons. The first reason is that the NDIA contends that no “reviewable decision” and consequently, no internal review decision of a “reviewable decision”, has been made by the NDIA. The second reason is that the NDIA contends that this application would serve no purpose because the NDIA already acknowledges that the Father has parental responsibility for the child. For those reasons, the NDIA contends that this application should be dismissed.
ISSUES
The issue to be decided is whether the Tribunal has jurisdiction under s 103 of the NDIS Act to deal with the application for review lodged by the Father.
LEGISLATIVE FRAMEWORK
The Administrative Appeals Tribunal is a creature of statute and was established by the enactment of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The source of the Tribunal’s jurisdiction arises under s 25 of the AAT Act. This section provides that an enactment may provide that applications may be made to the Tribunal for:
(a)review of decisions made in the exercise of powers conferred by that enactment; or
(b)review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
One such enactment which confers powers on the Tribunal to review certain decisions is the NDIS Act. Specifically, s 103 of the NDIS Act provides that applications may be made to this Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act. A review under s 100(6) involves a review by an NDIA “reviewer” of a “reviewable decision”.
In turn, s 99 comprises a table which lists decisions made under the NDIS Act that fall within the definition of a “reviewable decision”. Relevant to this application, the following decisions are listed in this table under s 99:
(a)Item 17: “a decision to make, or not to make, a determination in relation to a person” under paragraph 74(1)(b); and
(b)Item 19: “a decision to make, or not to make, a determination that a person has parental responsibility for a child” under subsection 75(2) or (3).
Sections 74 to 77 of the NDIS Act relate to child participants of the NDIS.
Section 74(1) of the NDIS Act sets out who has the right to do things that a child participant is required or permitted to do under the NDIS Act. This provision is reproduced below:
(1)If this Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to:
(a)the person who has, or the persons who jointly have, parental responsibility for the child; or
(b)if the CEO is satisfied that this is not appropriate – a person determined in writing by the CEO.
The definition of “parental responsibility” is set out in s 75 of the NDIS Act. Of relevance, this section provides as follows:
(1) For the purposes of this Act, a person has parental responsibility for a child if:
(a) The person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory; or
(b) Under a parenting order (within the meaning of the Family Law Act 1975):
(i)The child is to live with the person; or
(ii)The child is to spend time with the person; or
(iii)The person is responsible for the child’s long-term or day-to-day care, welfare and development.
…
(3) If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child the purpose of the Act.
…
(4) The National Disability Insurance Scheme rules may prescribe requirements within which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in deciding whether to make a determination under subsection … (3).
(5) A determination under subsection … (3) must be in writing.
…
Rules have been prescribed under s 75(4) of the NDIS Act. They are the National Disability Insurance Scheme (Children) Rules 2013 (Children Rules). The Children Rules introduce the concept of a “child’s representative”. It is not a term used in the NDIS Act itself. It means the person who is regarded as having the parental responsibility of the child for the purposes of the NDIS Act and able to do the things described in s 74(1)(a) of the NDIS Act.
The Tribunal notes Rules 3.2 and 3.3 of the Children Rules in particular, as reproduced below:
3.2 The child’s representative will normally be the person who has, or the persons who jointly have, parental responsibility for the child. (See section 75 of the Act and Part 4 of these Rules for how to determine who has parental responsibility.)
3.3However, in exceptional circumstances, the CEO might be satisfied that this is not appropriate. (For example, in a particular case, there might be a substantial degree of doubt as to what persons have parental responsibility under section 75 of the Act, and in view of this doubt, the CEO might be satisfied that it is not appropriate for the persons referred to in paragraph 3.2 to be the child’s representative.) In such circumstances, the CEO may determine that the child’s representative should be a different person, or a different group of persons. A person determined by the CEO in this way need not have parental responsibility.
Rules 4.1 and 4.2 of the Children Rules deal with “Who has parental responsibility?” and state as follows:
4.1There are different rules for determining who has parental responsibility, depending on whether or not the child has a guardian. Under these rules, in each case, the person with parental responsibility will either be:
(a)       the child’s guardian; or
(b)1 or more of the persons who satisfy parental condition 1 or parental condition 2.
4.2     The parental conditions are as follows:
parental condition 1 is that the person:
(a)       is a parent of the child; and
(b) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or a Territory.
parental condition 2 is that, under a parenting order (within the meaning of
the Family Law Act 1975):
(a)       the child is to live with the person; or
(b)       the child is to spend time with the person; or
(c)the person is responsible for the child’s long-term or day-to-day care, welfare and development.
[Persons who satisfy parental condition 1 or parental condition 2 will also satisfy paragraph 75(1)(a) or (b) of the Act]
Rules 4.7 and 4.9 of the Children Rules relate to child participants who do not have guardians and provide as follows:
Children who do not have guardians
4.7 If a child does not have a guardian, then any person who satisfies parental condition 1 or parental condition 2 has parental responsibility for the child.
4.8 Where this results in more than 1 person having parental responsibility for a child, the CEO is able to determine that 1 or more of those persons have parental responsibility for the child for the purposes of the Act. This is discretionary; the CEO does not need to make this determination (emphasis added).
[Paragraphs 4.7 and 4.8 summarise subsections 75(1) and (3) of the Act.]
4.9 When deciding whether to make a determination referred to in paragraph 4.8, the CEO is to have regard to the following:
(a)        the preferences (if any) of the child;
(b)        the views of any person who has parental responsibility for the child;
(c)   whether 1 or more of those persons are best placed to carry out the duties to children set out in section 76 of the Act and Part 6 of these Rules, taking into account:
(i)   existing arrangements that are in place between those persons and the child; and
(ii)which persons have responsibility for day-to-day parenting decisions; and
(iii) which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child;
(d)    whether 1 or more of those persons are willing and able to work together in the best interests of the child;
(e)   the desirability of preserving family relationships and informal support networks of the child;
(f)   for any of the persons:
(i)   where the CEO has asked the person to answer any questions or provide any information in relation to making a determination that applies to that person (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
(A)   any answers or information that have been provided by the person; and
(B)any refusal by the person to provide answers or information; and
(ii)   any relevant conviction for an offence under Commonwealth, State or Territory law; and
(iii)   any relevant information relating to the suitability of the person to work with children.
CONSIDERATION
The Tribunal considers that it must be satisfied of two elements when considering whether it has jurisdiction to undertake a review in this matter.
The first element is whether the NDIA has made a “reviewable decision” as described in either Items 17 or 19 of s 99. That is, whether the NDIA, by its conduct, has made a decision to make, or not to make, a determination:
(a)in relation to a person under paragraph 74(1)(b); or
(b)that a person has parental responsibility for a child under subsection 75(2) or (3).
If the Tribunal concludes that a reviewable decision has been made in this case, it must then consider the second element which is whether a decision has been made (or deemed to have been made) by an NDIA “reviewer” under s 100(6) of the NDIS Act.
The remarkable complexity in this case is that the NDIA has repeatedly stated that it acknowledges that the Father is a person with parental responsibility of QZCD for the purposes of the NDIS Act but has not acted consistently with those statements to enable him to exercise his rights under s 74(1)(a) of the NDIS Act. Instead, the NDIA has acted in a way as if it has made a determination that the Father does not have parental responsibility for QZCD for the purposes of the NDIS Act or is not a person who can do the things described in s 74(1)(a).
Specifically, and as mentioned above, the NDIA, despite stating that the Father has parental responsibility for the child, has only ever dealt with and given information to the Mother in relation to QZCD’s SOPS and NDIS plan, involved the Mother in the plan review processes, and has given the Mother exclusive access to the Portal for QZCD. The Father also wants to be duly recognised and to have access to the Portal.
The NDIA states on its website that the Portal is “a secure website portal on the Australian Government’s myGov website where you or a person you trust (a nominee or child representative) can access your NDIS information”. A person accessing this Portal is privy to information about a participant’s approved supports and the allocated funding for them. Portal access will also facilitate the payment of relevant service providers who are engaged to provide supports to a participant. The NDIA states on its website that the following things can be done on the Portal:[1]
See your current plan and previous plans.
Check your contact details.
See messages from the NDIS.
Create and view payment requests.
Create and manage service bookings.
Upload documents, including assessments or service agreements.
Share your plan, or parts of your plan, with your service providers.
Find service providers.
[1] Refer How to use the myplace portal | NDIS
The Father informed the Tribunal at the interlocutory hearing in this matter which took place on 8 February 2022 (Hearing), that no orders or parenting agreement exist which remove his parental responsibility for QZCD. The Father states that he had contacted the NDIA on 17 occasions between 19 August 2021 and 26 October 2021, seeking to be recognised as the “child representative” of the QZCD. All attempts by the Father to be granted access to the Portal, or to gain recognition by the NDIA as one of QZCD’s representatives under s 74(1)(a), have been to no avail.
The Tribunal finds that the NDIA has not “enabled” the Father to act, to any extent, as QZCD’s representative for the purposes of the NDIS Act or to access the Portal. On the evening prior to the Hearing, the NDIA lodged with the Tribunal and gave to the Father, a detailed set of submissions (NDIA’s First Submissions). In them, the NDIA acknowledges that the Father has parental responsibility of QZCD under s 75(1) of the NDIS Act because he is QZCD’s parent and has not ceased to have parental responsibility by an order made under the Family Law Act 1975 (Cth). The NDIA also acknowledges that no determination has been made by the CEO of the NDIA under s 75(3) of the NDIS Act, (that a person other than the Father has parental responsibility for the purposes of the NDIS Act).
In the NDIA’s First Submissions, it contends that:
(a)no “reviewable decision” has been made, and thus the NDIA cannot make an internal review decision under s100(6) of the NDIS Act;
(b)it follows that the Tribunal does not have jurisdiction to hear this application;
(c)the Father appears to seek review of a decision that he does not have parental responsibility, but this application is lacking in substance, because the Father does have parental responsibility of QZCD; and
(d)the Tribunal should dismiss this application either:
(i)under s 42A(4) of the AAT Act, on the basis that the Tribunal does not have jurisdiction; or
(ii)under s42B of the AAT Act on the basis that the application is lacking in substance or has no reasonable prospects of success.
The NDIA invited the Tribunal to have regard to the decision of Selkirk and NDIA [2021] AATA 3478 where the Tribunal considered that the ordinary meaning of the words “a decision to appoint a plan nominee” and “a decision to appoint a correspondence nominee” under Items 20 and 21 of s 99, does not include a decision not to appoint a plan or correspondence nominee, and such a decision was not a reviewable decision under s 99.
With respect, the NDIA’s reliance on this decision is misconceived. Any parallel the NDIA seeks to draw between Items 20 and 21 and Items 17 and 19 of s 99 is erroneous. Items 17 and 19 expressly refer to a decision “to make, or not to make, a determination”, whereas Items 20 and 21 do not contain the words “or not to make”.
At the Hearing of the present application before this Tribunal, the NDIA informed the Tribunal that it has not made a determination under s 74(1)(b) of the NDIS Act to the effect that the CEO of the NDIA was satisfied that it was not appropriate for the Father to be able to act for and on behalf of QZCD under s 74(1)(a). The NDIA’s representative confirmed that the NDIA did not dispute that the Father had parental responsibility for QZCD, but she said this did not necessarily mean that the Father would be granted access to the Portal. The Tribunal questioned why this was not the case in light of the operation of s 74(1)(a) of the NDIS Act and in the absence of any determination by the NDIA that a person, other than the Father, was to be QZCD’s sole child representative for the purposes of the NDIS Act.

To seek to better understand the NDIA’s position, the Tribunal directed that it lodge further written submissions after the Hearing. Specifically, the NDIA was required by the Tribunal to lodge further submissions by 15 February 2022 to address the matters discussed at the Hearing, so as to clarify and provide reasons for its position. The Tribunal also requested that the NDIA address the applicability of s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The NDIA lodged further submissions on 8 March 2022 (NDIA’s Second Submissions).
At the Hearing, the Tribunal also directed that the Applicant lodge written submission in reply. The Father lodged written submissions with the Tribunal on 28 February 2022 (Father’s First Submission) and 8 March 2022 (Father’s Second Submission). The Father states he completed this application for review by the Tribunal in a manner specified by the NDIA.
In this application for review, the Father asserts that the NDIA’s inaction gives rise to an implied decision having been made “not to make a determination” that he is a person who has parental responsibility for QZCD under the NDIS Act, and that this is a “reviewable decision”.
In the Father’s First Submissions, he refers the Tribunal to Rule 3.2 of the Children Rules. This rule provides as follows:
The child’s representative will normally be the person who has, or the persons who jointly have, parental responsibility for the child.
The Father also refers to an extract from the NDIA’s Operational Guidelines[2] as follows:
Child Representative
This implies that should anyone apply to be their child’s representative, as long as they are determined by the CEO to be a person with parental responsibility under the Act, they will automatically become the child’s representative.
[2] National Disability Insurance Scheme (NDIS) – link to NDIS Operational Guidelines published by the NDIA, and Child representatives | NDIS – link to specific NDIS guidelines regarding child representatives.
This guidance does not accurately reflect the relevant legislative provisions under the NDIS Act. The Tribunal was unable to find this extract, as quoted by the Father, on the NDIA’s website and guidelines.[3] The Tribunal notes that it may have been replaced with the following statement in the Operational Guidelines which is consistent with the legislative framework:
A child representative is usually a person or persons who have parental responsibility for a child under the laws for the NDIS. They do things and make decisions about the NDIS on behalf of a child participant. In most cases, a child’s parents or guardian will automatically be their representative.
It is unnecessary for a parent who has not ceased to have parental responsibility for a child, to make any application to the NDIA for a determination to be made to the CEO of the NDIA to the effect that they have parental responsibility under the NDIS Act or that they are entitled to act as the child’s representative under s 74(1)(a). By operation of s 74(1)(a), read in conjunction with s 75(1) of the NDIS Act, that right exists automatically. This approach is reflected in another part of the NDIA’s Operational Guidelines as follows (underlining emphasis added):
…
Who can be a child representative?
In most cases, the person or persons who have parental responsibility for a child will be the child representative. If you are the child’s parent or parents, this will be you.
This means when you apply for access to the NDIS for your child and they become a participant, you are automatically your child’s representative. You won’t need to apply to be a child representative. This is because those persons with parental responsibility will be the child representative for the purposes of the NDIS. We don’t need to make a decision about it. Learn more about what a child representative is and what do they do.
But we will ask you some questions to make sure you have parental responsibility for your child. For example, we will check if your child has a legal guardian. We will also need to check that you are who you say you are. For more information about this, see our Your privacy and information guideline.
If you are the child’s guardian you will usually be the child representative. Guardians are appointed under Commonwealth, state, or territory law to do things and make decisions on a child’s behalf. You will need to provide documents confirming you are the guardian and proof of your identity.
In particular cases, we may decide to change a child representative.
In some cases, a participant under 18 can make decisions for themselves. Learn more about when a child can represent themselves.
Section 74(1)(a) has the effect that provided the CEO has not made a determination under subsection 74(1)(b), which is the case in this application, and a person has parental responsibility for a child, either alone or jointly with someone else (in this case, the Father and the Mother have joint parental responsibility for QZCD), they are both automatically empowered to do a thing permitted or required to be done by or in relation to the child under the NDIS Act. This right is not contingent upon the NDIA making any further determination whatsoever, as reflected in the current version of the NDIS Operational Guidelines about child representatives.
Provided a person has parental responsibility of the child participant, as defined in s 75(1) of the NDIS Act, they have the right to act for the child, unless and until the CEO of the NDIA exercises their discretion under the NDIS Act to make a determination under s 75(3) that another specified person has parental responsibility for the child for the purposes of the NDIS Act, or a determination is made by the NDIA under s 75(1)(b) that another specified person is to do the things as described in s 74(1) of the NDIA Act. However, if no such determinations are made, all persons having parental responsibility for the child as defined by s 75(1), will have the automatic right to act as the child’s representative.
In this application, no determination has been made by the CEO of the NDIA under s 75(3) to the effect that only the Mother is to have parental responsibility for QZCD for the purposes of the NDIS Act, or that the Mother, but not the Father, is to be QZCD’s representative to do the things he is required or permitted to do under the NDIS Act under s 74(1)(b). In these circumstances, the Tribunal considers that the proper administration of the NDIS by the NDIA, pursuant to the NDIA’s functions under s 118 of the NDIS Act, calls for the NDIA to conduct itself in a way that will “enable” both the Mother and the Father to exercise their jointly held rights under s 74(1)(a) of the NDIS Act. If the NDIA does not act in a way that “enables” both of QZCD’s parents to exercise their respective rights under s 74(1)(a), in practical and real terms, the Tribunal considers that this is likely to constitute an instance of maladministration by the NDIA of the NDIS.
Returning to QZCD’s circumstances, QZCD spends time with the Father on weekends but otherwise lives with the Mother. No orders or parenting agreement has been made to extinguish the Father’s parental responsibility for QZCD. The CEO of the NDIA has not made any determination in respect of QZCD in relation to either of his parents, when it has a discretionary power to do so, under either s 75(3) or s 74(1)(b) of the NDIS Act. These facts are not contested by either party in this application.
Accordingly, and by operation of s 74(1)(a), if the NDIS Act requires or permits a thing to be done by or in relation to QZCD, the thing may be done either by his Father and/or his Mother, as they both have joint parental responsibility for him as defined by s 75 of the NDIS Act. It is inappropriate for the NDIA to have denied the Father the opportunity to do so in the absence of its CEO having made a determination under s 75(3) or s 74(1)(b) of the NDIS Act.
Has there been a “reviewable decision” and if so, has there been an internal review of that decision?
The Tribunal will now consider the first element referred to above in paragraph [21], being whether the NDIA’s conduct has in any way constituted a reviewable decision made by it under Items 17 and/or 19 of s 99 of the NDIS Act.
On 19 August 2021, the Father wrote to the NDIA, by email, requesting that he be added as a child representative of QZCD. The Father states in this email that he is the father of QZCD, has shared parental responsibility for him, and attached QZCD’s birth certificate.
The Father reports that his request did not result in him being added a child representative for his son. The Father lodged a complaint with the NDIA which was responded to on 21 October 2021 by a Senior Complaints Officer of the NDIA. This email contained information reflecting the general guidance that is provided on the NDIA’s website about the issue of child representation. At the end of this letter, the author states that “an active court order may be required in order for both parties to be added onto the participant’s file” and due to the provisions in the NDIS Act, consent must be granted by the participant’s representative before specific information held by the NDIA can be shared concerning QZCD. At the end of the letter, the author states, “I appreciate you contacting us to raise your concerns and I apologise that I have been unable to assist you any further at this stage”. The Father responded stating the in his view that his complaint remained unresolved and stating his reasons why he held this view.
On 28 October 2021, a different complaints officer at the NDIA contacted the Father. The complaints officer erroneously provided the Father with forms as required for a person seeking to be appointed as a plan nominee under the NDIS Act, which applies to adult participants. The same complaints officer emailed the Father again, the same day, to make the following request of him:
If you could please attend the closest NDIS office and provide them with:
1.      A copy of the latest interim parenting order confirming you are currently fulfilling your parental responsibilities (the document we discussed over the phone);
2.        Your son’s birth certificate with yourself named as a parent; and
3.        100 points of Identification.
In order for the NDIS to review and consider your request to be added as a contact/parent for the participant.
On 28 October 2021, the Father completed a NDIS “Application for a review of the reviewable decision” form. On page 3 of this form, the Father requested a review about “The decision not to make a determination a person has parental responsibility for a child”. He states that the date of the decision was unknown because he had not received written notification of the decision. He states that “the decision not to make a determination” was not in the best interest of his son. On page 4, the Father states he had been unable to access the information held by the NDIA relating to his son, and this had impacted on his ability to engage with service providers and to adequately support his son through his therapy. The outcome the Father sought from that review was that he be “added” by the NDIA as a child representative for his son. The Father lodged the application for review with this Tribunal on 27 December 2021.
The Tribunal understands why it appears to the Father that the NDIA has, by implication, made a decision not to make a determination that he has parental responsibility for QZCD or that the NDIA has made a determination that the Mother, but not the Father, can do the things required or permitted by QZCD to do, under the NDIS Act. This reflects the reality of NDIA’s actions to date as it has not enabled the Father to exercise those rights. However, the NDIA expressly acknowledges that the Father has parental responsibility for QZCD. By operation of s 74(1)(a) of the NDIS Act, the NDIA should have, but has not, enabled the Father to do the things required or permitted by QZCD to do under the NDIS Act.
However, the Tribunal considers that the conduct of the NDIA falls short of any decision having been made by the NDIA under ss 75(3) or 74(1)(b) not to make a determination that he has parental responsibility for QZCD or to make a determination that the Mother, but not the Father, can do the things required or permitted by QZCD to do, under the NDIS Act. As explained above, the Tribunal considers that instead, this is a case involving the NDIA acting inconsistently with provisions of the NDIS Act in a manner which is likely to constitute maladministration.
If this application proceeds to a review before the Tribunal, the limits of the scope of the Tribunal’s jurisdiction would be to decide whether a determination should be made as to whether the Father has parental responsibility for QZCD as defined in s 75 of the NDIS Act and/or whether it is appropriate that the Mother and the Father can do the things required or permitted by QZCD under the NDIS Act. But the Tribunal cannot force the NDIA to grant the Father access to the Portal and to otherwise implement any decision that the Tribunal may make upon review. The difficulty in this case lies in that the NDIA has already accepted that the Father has parental responsibility, so it follows that he already has the right to do the things required or permitted by QZCD under the NDIS Act by operation of s 74(1)(a) of the NDIS Act.
CONCLUSION
There is no necessity for any further decision to be made by the NDIA (or the Tribunal upon review) under the NDIS Act for the Father to establish the right to do the things in respect of QZCD as described in s 74(1)(a) of the NDIS Act, that the Father is seeking to do. The Father presently has the legal right to do those things. The question arises as to what the Father can do to compel the NDIA to acknowledge his rights and to facilitate him being able to do those things he has the right to do under s 74(1)(a) of the NDIS Act, such as accessing QZCD’s Portal, engage service providers, and to expend funds approved under QZCD’s plan (as well as being involved in periodic plan review processes).
The Tribunal does not have power to undertake a review under s 103 of the NDIS Act because no reviewable decision has been made under either Items 17 or 19 of s 99 of the NDIS Act and consequently, no decision has been made by the NDIA under s 100 of the NDIS Act of a “reviewable decision” under s 99 of the NDIS Act.
This is not a case where it could be argued that the NDIS Act requires the NDIA to make a decision in the current circumstances (for instance, a decision not to make a determination that a person has parental responsibility) within a prescribed period or at all. Such a decision is entirely discretionary. There is no positive obligation on the NDIA to exercise its discretion under s 74(1)(b) or under s 75(3) of the NDIS Act. For this reason, the circumstances in this application are distinguishable from those in NNXF and National Disability Insurance Agency [2019] AATA 5552 (NNXF) and the approach taken in that decision cannot be adopted in this case.
The Tribunal is therefore compelled to dismiss this application under s 42A(4) of the AAT Act on the basis that there is no reviewable decision before it, meaning the first mandatory element as referred to in [21] of these Reasons for Decision is not met in this case.
The Father may wish to seek legal advice about other avenues which may be open to him to compel the NDIA to recognise and to “enable” his rights to do things in respect of QZCD, as described under s 74(1) of the NDIS Act. This might include pursuing a complaint with the Commonwealth Ombudsman or it may involve seeking advice about whether he has any rights arising under s 7(1) of the ADJR Act. This provision is reproduced below:
Applications in respect of failures to make decisions
(1) Where:
(a)      a person has a duty to make a decision to which this Act applies;
(b)     there is no law that prescribes a period within which the person is required to make that decision; and
(c)     the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
This Decision should not be taken as the Tribunal condoning the approach taken by the NDIA in this case. Quite the opposite. The Tribunal makes a non-binding observation that it considers that the NDIA should immediately facilitate the Father being able to exercise his existing rights under s 74(1)(a) of the NDIS Act, or if it continues to consider it inappropriate that he does so, the NDIA should consider exercising its discretion under s 75(3) or s 74(1)(b) of the NDIS Act so as to enable the Father to seek a merits review of the NDIA’s determination by the Tribunal, if the exercise of such discretion is not made in his favour.
It may be that the NDIA considers that it has good reasons for taking the approach it has, given the subtext of this case, but those reasons should be brought to the surface and dealt with transparently and consistently within the regime provided for by the NDIS legislation, by respecting the rights of both parents (and not just one) who both have joint parental responsibility for a child participant of the NDIS in this case, and should be enabled by the NDIA to do the things they have a right to do under s 74(1)(a) of the NDIS Act.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

...........................[sgd]............................................
Associate
Dated: 17 March 2022

Date of hearing: 8 February 2022

Date final submissions received: 8 March 2022

Applicant: In person

Advocate for the Respondent: Ms Zoe Harwood

Solicitors for the Respondent: In-house Lawyer, National Disability Insurance Agency

Date of hearing:	8 February 2022
Date final submissions received:	8 March 2022
Applicant:	In person
Advocate for the Respondent:	Ms Zoe Harwood
Solicitors for the Respondent:	In-house Lawyer, National Disability Insurance Agency