Re SHGH and National Disability Insurance Agency
[2018] AATA 674
•27 March 2018
SHGH and National Disability Insurance Agency [2018] AATA 674 (27 March 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/5784
Re:SHGH
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:27 March 2018
Place:Sydney
The Tribunal retains jurisdiction to determine this application after the review of the Applicant’s plan dated 4 September 2017.
...............[sgd].........................................................
J W Constance
Deputy PresidentCATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – jurisdiction – review of participant supports – participant plan due to end before application for review can be determined – alteration of reviewable decision by consent of the parties – manner of recording agreement to alter reviewable decision – Tribunal retains jurisdiction to determine application for review.
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 26, 42D.
National Disability Insurance Scheme Act 2013 ss 34, 37, 47, 48, 49, 99, 100, 103.
CASES
SSBV and National Disability Insurance Agency [2017] AATA 2174.
REASONS FOR DECISION
Deputy President J W Constance
27 March 2018
BACKGROUND
The Applicant is a child under 18 years. He is a participant in the National Disability Insurance Scheme set up under the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”). In these proceedings and in his dealings with the National Disability Insurance Agency (“the NDIA”), he is represented by his parents.
Under a plan dated 28 April 2017 the Applicant was receiving funding for specified therapies, being reasonable and necessary supports as defined in section 34 of the NDIS Act. On 8 June 2017 the Applicant requested a review of this plan.
By letter of 5 September 2017 the NDIA advised the Applicant that the decision relating to the supports in his plan had been changed and that he would be provided with six months funding for intensive therapies. A new plan was put in place which commenced on 4 September 2017 and which was to be reviewed by 4 March 2018.[1] This plan included the changed reasonable and necessary supports.
[1] The document forwarded to the Applicant with the letter of 5 September 2017 stated that the plan would be reviewed by 4 December 2017. The Tribunal has been informed by the NDIA that the correct time for review is by 4 March 2018.
The Applicant does not agree with the decision of 5 September 2017. As it is a “reviewable decision” under the NDIS Act he applied to the Tribunal to have the decision reviewed. This application was made on 24 September 2017. His reasons for seeking that the reviewable decision be set aside are that the level of support provided does not fully fund the program required and that the plan should be for a period of 12 months rather than six.
By 4 March 2018, the date by which the plan was to be reviewed, the parties were not ready to have the application determined. In these circumstances the parties asked the Tribunal for directions as to the future conduct of the application. They agree that the current level of funding for the therapies should continue until the Tribunal makes its decision.
THE APPLICANT’S ARGUMENT
It is argued on behalf of the Applicant that the matter should be remitted to the NDIA in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). It is put that this would allow the NDIA to issue a new plan in the same terms as the current plan; the Tribunal would then have jurisdiction to review the ongoing provision relating to the funding of the supports.
Section 42D provides, in part:
(1)At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2)If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and make a new decision in substitution for the decision set aside.
If a remitted decision is changed, subsection 42D(4) permits an applicant to choose to continue the proceedings before the Tribunal or to accept the new decision. Subsection 42D(8) provides that if a decision on remittal is affirmed the proceeding in the Tribunal resumes.
NDIA’S ARGUMENT
NDIA argues that the appropriate course is that, without the matter being remitted, it should prepare a new plan which replicates the existing plan. The new plan would commence on 4 March 2018 and provide for a review date of 4 September 2018 “thus preserving the Tribunal’s jurisdiction and the utility of continuing with these proceedings”.[2] The review date was chosen to allow time for the present proceedings to be finalised and to simplify the calculation of the value of the new supports.
DISCUSSION
[2] Respondent’s Submissions 9 February 2018 para 23.
The reviewable decision
As in all applications to the Tribunal, it is essential to determine the actual decision the Tribunal is being asked to review.
In this application the decision under review is the decision to include in the plan funding for intensive therapeutic supports calculated on the basis of decreasing therapy hours over the six month period of the plan, being 4 September 2017 to 4 March 2018. The Tribunal is not conducting a review of the plan as a whole. This is made clear by the provisions of the NDIS Act.
Section 99 of the Act sets out those decisions of the Chief Executive Officer which are reviewable. It is to be noted that while a decision not to conduct a review of a participant’s plan[3] is reviewable (subsection 99(f)), there is no corresponding provision for the review of a decision to conduct a review of a plan. This is understandable as section 99 gives a participant the right to seek a review of decisions relating to the supports included in the plan. The participant’s statements of goals and aspirations which is included in a plan may be changed by the participant at any time.[4]
Subsection 99(d) of the NDIS Act provides the right to seek a review of a decision approving participant supports
[3] Section 48 of the NDIS Act provides for the review of a plan, either at the request of the participant or on the CEO’s own initiative.
[4] NDIS Act s 47.
The review presently being conducted by the Tribunal, being a review of the Applicant’s supports, is permitted by subsection 99(d) which provides:
Each of the following decisions of the CEO is a reviewable decision:
…
(d)a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan;
Once there has been a review of the CEO’s decision by a reviewer within the NDIA,[5] an applicant has a right to seek a review of the reviewer’s decision in the Tribunal.[6]
[5] NDIS Act s 100(5).
[6] NDIS Act s 103.
Restriction on variation of a reviewable decision once it is before the Tribunal
Section 26 of the AAT Act provides that once a reviewable decision is before the Tribunal it cannot be varied by the decision-maker without the consent of the applicant and the Tribunal.
Section 26 of the AAT Act relevantly provides:
(1)Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
…
(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
Agreement to vary the reviewable decision in this matter
In order to ensure that the Applicant continues to receive the necessary supports pending the resolution of the application before the Tribunal, the parties agreed as follows:
The parties wish to alter the decision of 5 September 2017 as follows:
1. the funding for Improved Daily Living is increased from $20,410 to $40,820, as a reasonable and necessary support under section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act); and
2. the date by which the Respondent must review the plan under Division 4 of the NDIS Act is amended to be 4 September 2018.
In accordance with subsection 26(1)(b) of the AAT Act, on 1 March 2018 the Tribunal consented to the making of the agreed alterations. Please refer to paragraphs 30-32 of these reasons for further comment as to the manner of recording such an agreement.
Reviewing a plan
Section 48 of the NDIS Act provides that a participant may request a review of a plan at any time and the CEO is required to conduct that review “as soon as reasonably practicable”.[7] In addition, at the CEO’s own initiative, the CEO may conduct a review of a plan at any time.[8]
[7] NDIS Act ss 48(1)-(3).
[8] NDIS Act s 48(4).
The CEO must conduct a review of a participant’s plan before the plan’s review date. However, if for any reason this does not occur there is nothing to suggest that the plan does not continue in force. It is clear from the wording of section 37 of the NDIS Act that, provided a participant continues to be a participant in the scheme, a plan continues until it is replaced by another plan under Division 4 of Chapter 3 of the NDIS Act.
Section 37 of the NDIS Act provides:
When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a)received the participant’s statement of goals and aspirations from the participant; and
(b) approved the statement of participant supports.
(2)A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(3)A participant’s plan ceases to be in effect at the earlier of the following times:
(a) when it is replaced by another plan under Division 4;
(b) when the participant ceases to be a participant.
Section 49 provides that once a review of a plan is conducted “the CEO must facilitate the preparation of a new plan with the participant”.
Applying these provisions to this application
As soon as the consent of the Tribunal to alter the reviewable decision was obtained, the parties were free to implement the agreement they made in accordance with section 26 of the AAT Act to increase the funding of the therapies from $20,410 to $40,820.
It is clear from the agreement of the parties referred in the document evidencing the Tribunal’s consent that it is intended that the new funding amount is for the period of 12 months from 4 September 2017 rather that for a period of six months from that date. As the alteration of the decision under review was made with the consent of the parties, the altered decision becomes the reviewable decision in accordance with section 26 of the AAT Act.
Once the agreement between the parties came into force, it follows that a new plan must be implemented to replace the existing plan. This is consistent with subsection 37(2) of the NDIS Act which provides that a plan cannot be varied after it comes into effect, but can be replaced under Division 4.
With a new plan in place providing support to the Applicant until 4 September 2018, the Tribunal will continue with its review of the decision relating to the level of those supports from 4 September 2017 onwards. The decision will cover the period of two plans – that of 4 September 2017 and the plan which replaces that plan. I reiterate that it is the decision relating to the supports being provided, not the plan itself, which is under review.
I have not accepted the argument put on behalf of the Applicant that the matter should be remitted under section 42D of the AAT Act.
In my view a remittal would delay the proceeding as the Tribunal would have to put the matter on hold until the reconsideration took place. However I do note that section 42D does provide for the Tribunal to place a time limit on the reconsideration process.
More importantly I am concerned that if a decision remitted for reconsideration is affirmed, the Tribunal can only consider that decision, the effect of which would cease on the new plan coming into effect, in this application, on or shortly after, 4 March 2018. When a decision has been altered, as is the case here, I am of the view that the Tribunal has jurisdiction to review the altered decision up until the time of the Tribunal’s final decision on the merits of the application.
The correct manner of recording the agreement
As I have already mentioned, the agreement between the parties came about following a directions hearing held by me in relation to the parties’ request for guidance as to how this matter should proceed after 4 March 2018, being the time set for the review of the plan which commenced on 4 September 2017. I signified the Tribunal’s consent to that agreement.
On further reflection, as I prepared these reasons for decision I came to the conclusion that an agreement to alter the review date should be recorded as a notation to the Tribunal’s consent rather than as part of the terms of the consent. My reason for this change is that, consistently with the reasoning I have set out above, the review date of the plan is not part of the reviewable decision. The reviewable decision relates only to the reasonable and necessary supports.
In my view the correct manner of recording the agreement (including the agreement as to the period of the new plan which is to be put in place), is as follows:
The parties wish to alter the decision of 5 September 2017 as follows:
1. the funding for Improved Daily Living is increased from $20,410 to $40,820, as a reasonable and necessary support under section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act).
……[sgd]……
Deputy President
Note
It is noted that the parties have agreed that the date by which the plan put in place to effect this alteration will be reviewed is 4 September 2018.
This note should appear after the signature indicating the Tribunal’s consent to the agreed alteration.
The Tribunal’s decision in SSBV and National Disability Insurance Agency [2017] AATA 2174 (17 October 2017)
In preparing these reasons I have given careful consideration to the Tribunal’s decision in the above matter. In that application, as in the one before me, the Applicant was seeking a review of a decision relating to the amount of support provided under a plan.
In the reasons for decision in the SSBV application the Tribunal accepted the NDIA’s concession that the Tribunal had jurisdiction to extend the date of the Applicant’s current plan. However I note that this issue was not argued before the Tribunal on that occasion. For the reasons which I have set out I regret that I cannot agree with the Tribunal’s decision in this regard.
CONCLUSION
The Tribunal retains jurisdiction to determine this application after the review of the Applicant’s plan dated 4 September 2017.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...............[sgd].........................................................
Associate
Dated: 27 March 2018
Date of hearing: 13 February 2018 Solicitors for the Applicant: Mr G McAleese, Legal Aid New South Wales Solicitors for the Respondent: Mr N Lavender, Wisewould Mahoney Lawyers
5
1
0