Rainbow and National Disability Insurance Agency

[2022] AATA 2127

Rainbow and National Disability Insurance Agency [2022] AATA 2127 (30 June 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/7489
NATIONAL DISABILITY INSURANCE SCHEME DIVISION	)

Re: Pauly Rainbow
Applicant

And: National Disability Insurance Agency
Respondent

CORRIGENDUM

TRIBUNAL:  Senior Member K. Parker

DATE OF CORRIGENDUM:            6 July 2022

PLACE:           Sydney

Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to replace the phrase “made by the Tribunal” appearing in paragraph [12] of its Reasons for Decision, with the phrase “made by the NDIA”.

.........................[sgd]..........................................

Senior Member

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/7489

Re:Pauly Rainbow

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:30 June 2022

Date of written reasons:        1 July 2022

Place:Melbourne

The Tribunal dismisses this application for review under subsection 42B(1)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the Tribunal is satisfied that taking into account the reconsideration decision by the Respondent on 8 March 2022 upon remittal under s 42D of the AAT Act, this application is now misconceived, lacking in substance and has no reasonable prospect of success.

.................[sgd].........................

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – application remitted for reconsideration – Applicant satisfied with reconsideration decision and requested additional funding in respect of medium-term accommodation received during period of earlier NDIS plan preceding the plan the subject of review – no internal review sought, or decision made in respect of statement of participant supports in the earlier NDIS plan – taking into account reconsideration decision, this application is now misconceived, lacking in substance and has no reasonable prospect of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K. Parker

30 June 2022

BACKGROUND

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

2. As relevant to this proceeding, the National Disability Insurance Agency (NDIA) approved a statement of participant supports (SOPS) forming part of Mr Rainbow’s NDIS plan which commenced on 2 March 2021 (First SOPS). The First SOPS approved funding for supports in the total amount of $51,842.02 to cover a notional period of three months.

3. Subsequently, a new SOPS was approved for Mr Rainbow commencing on 12 August 2021 (Second SOPS) approving total funding of $93,294.73 covering a notional period of six months. Mr Rainbow sought an internal review of the Second SOPS under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). A “reviewer” from the

4. NDIA made an internal review decision under subsection 100(6) of the NDIS Act in relation to the Second SOPS.

5. On 12 October 2021, Mr Rainbow sought review in relation to the decision to approve the Second SOPS. On 22 November 2021 and again, on 10 December 2021, following case management direction hearings before this Tribunal, this matter was remitted under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for reconsideration by the NDIA.

6. On 8 March 2022, the NDIA made a reconsideration decision, approving a new SOPS for Mr Rainbow which commenced on the same date (Third SOPS). The total funding approved by the NDIA in the Third SOPS is significantly increased and is in the amount of $300,840.60 covering a period of 12 months.

7. On 7 April 2022, the Tribunal was informed in writing that Mr Rainbow was satisfied with the outcome and the Third SOPS.

8. On 26 April 2022, the Tribunal was informed that Mr Rainbow, in effect, requested further funding for $3,000 in respect of medium-term accommodation received by him at the Holiday Inn between 2 and 6 July 2021 inclusive. The Tribunal notes that the dates upon which those accommodation services were received by Mr Rainbow fell within the period of the First SOPS.

9. Evidence was produced showing that the Holiday Inn made a decision to write off the debt that had arisen in respect of the medium-term accommodation received by Mr Rainbow at the Holiday Inn between 2 and 6 July 2021 inclusive. Mr Rainbow has nevertheless requested that the NDIA provide him with the funding to pay the Holiday Inn for the accommodation services he received during this period. The NDIA contends there is no longer an outstanding debt to be repaid by Mr Rainbow. The Tribunal does not consider it helpful to dwell upon a detailed consideration as to whether there are any outstanding amounts owed to the Holiday Inn by Mr Rainbow, for reasons that will become apparent from the following conclusions reached by the Tribunal under the heading “Consideration”.

10. On 28 June 2022, the NDIA lodged a written submission in support of its application that this proceeding be dismissed. An interlocutory hearing took place on 30 June 2022. Mr Rainbow did not attend. Mr Aaron Carpenter, a disability advocate, appeared as the Applicant’s representative at this hearing. Both parties were given the opportunity to make oral submissions in relation to the Respondent’s dismissal application. Mr Carpenter informed the Tribunal that Mr Rainbow did not wish to withdraw this application.

    CONSIDERATION

11. Jurisdiction would only arise under s 103 of the NDIS Act in relation to the approval of the First SOPS, if each of the following things had taken place:

    a)Mr Rainbow had requested an internal review under subsection 100(2) of the NDIS Act of the decision to approve the First SOPS;

    b)an NDIA “reviewer” had proceeded to make an internal review decision under subsection 100(6) of the NDIS Act; and

    c)Mr Rainbow had lodged an application for review with this Tribunal in respect of any such internal review decision.

12. On the evidence before the Tribunal, none of those things set out in 10a) to c) above, occurred. Mr Rainbow has not, at any time, requested an internal review under subsection 100(2) of the NDIS Act, in respect of the decision relating to the approval of the First SOPS.

13. For this reason, the Tribunal concludes that the requested funding for accommodation services that were provided between 2 and 6 July 2021 (being a period falling within the period of the First SOPS), does not fall within the scope of the Tribunal’s jurisdiction regarding this application numbered 2021/7489. This means that taking in account the reconsideration decision, the residual issue about the request for medium-term accommodation, is not an issue that the Tribunal has jurisdiction to determine. Given this conclusion, it is not necessary for the Tribunal to consider any further contentions made by the Tribunal, such as those set out in paragraph [25] of the NDIA’s written submissions dated 28 June 2022.

    CONCLUSION

14. Based on the matters set out in paragraph [10] and [11] above, the Tribunal dismisses this application for review under subsection 42B(1)(a) and (b) of the AAT Act, on the basis that taking into account the reconsideration decision made by the Respondent on 8 March 2022, the Tribunal is satisfied that this application is now misconceived, lacking in substance and has no reasonable prospect of success. The reason for this is that even though the Tribunal has jurisdiction to decide the primary application, once the Tribunal takes into account the reconsideration decision, the Tribunal lacks jurisdiction to determine the sole residual issue about funding for the medium-term accommodation received at the Holiday Inn, because it was received during the period of the First SOPS.

    I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

    …[sgd]……..………………………
    Associate
    Dated: 1 July 2021

    Date of the hearing:  30 June 2022

    Advocate for the Applicant:               A Carpenter

    Solicitor for the Applicant:                 Motiv8 & Disability Services

    Advocate for the Respondent:           C Juarez

    Solicitors for the Respondent:           Minter Ellison