Rodrigues and National Disability Insurance Agency

[2016] AATA 1095

Rodrigues and National Disability Insurance Agency [2016] AATA 1095 (20 December 2016)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:               2016/6610

Re:Virginia Rodrigues

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:20 December 2016

Date of written reasons:        13 January 2017

Place:Sydney

The Tribunal does not have jurisdiction to determine the application for review lodged by the applicant on 6 December 2016.

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

Senior Member J F Toohey

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – whether Tribunal has jurisdiction to review decision concerning the applicant’s plan – no internal review – no reviewable decision – no jurisdiction

LEGISLATION

National Disability Insurance Scheme Act 2013 ss 32, 33, 48, 49, 99, 100, 103

REASONS FOR DECISION

Senior Member J F Toohey

13 January 2017

Background

1. The National Disability Insurance Agency (NDIA) administers the National Disability Insurance Scheme (NDIS) and makes decisions under the National Disability Insurance Scheme Act 2013 (the Act) about matters such as who qualifies to be a participant in the scheme and the reasonable and necessary supports that will be funded. 

2. The Administrative Appeals Tribunal can review many (though not all) decisions made by the NDIA.  Before it can do so, however, there must first have been a review of the decision by a reviewer appointed by the CEO of the NDIA.  I will refer to this as internal review. 

3. The applicant in this case, Virginia Rodrigues, has a serious and complex disability, and is a participant in the NDIS.  She has asked the Tribunal to review a decision by the NDIA about her reasonable and necessary supports.  As there has not been an internal review by the NDIA, the Tribunal has no jurisdiction to review the decision.

4. These written reasons reflect reasons given orally at a hearing on 20 December 2016.  

   Ms Rodrigues’ application to the Tribunal

5. On 22 November 2016, the NDIA approved a plan for Ms Rodrigues which specified matters including the reasonable and necessary supports that would be funded under the NDIS.  Ms Rodrigues was advised of the decision to approve her plan by letter dated 22 November 2016 which stated:

   If you think a decision made by the NDIA about you is wrong, you can submit an application for internal review within three months of receiving this notice.

   The letter advised that the request could be made in writing, in person or by telephone, and stated:

   When asking for a review, you should explain why you think the decision is incorrect. The staff member who works on the internal review will not have been involved in the earlier decision.  They may want to talk to you directly as part of this process.

6. On 6 December 2016, Ms Rodrigues lodged an application for review with the Tribunal.      

7. When the Tribunal received her application, a Tribunal officer telephoned Ms Rodrigues’ sister, Ms Banton who is her representative, to say it appeared there had been no internal review by the NDIA and it appeared the Tribunal did not have power to review the decision about Ms Rodrigues’ reasonable and necessary supports.

8. Ms Banton provided the officer with a copy of an email from the NDIA dated 2 December 2016 which stated:

   I contacted our National Office about the possibility of another review and was told this was not possible.  Virginia’s plan has been built twice now – the most recent with Quovus recommendations included.

   What can happen though is a review triggered if Virginia needs to find alternative accommodation. [….]

   You are able of course to appeal this decision to the AAT as we previously discussed.

9. Where the email referred to Ms Rodrigues’ plan being “built twice”, it appears to refer to the fact that the plan approved on 22 November 2016 was the third plan prepared for her by the NDIA since she became a participant in the NDIS.  According to Ms Banton, there had been difficulty finding services suitable to provide the supports approved in the earlier plans and so a third plan was prepared after a detailed “Model Options Report” was provided by Quovus consultancy.

10. According to Ms Banton, the third plan was still inadequate and she wanted it reviewed on Ms Rodrigues’ behalf.  She understood there had been an internal review by the NDIA, and she asked the Tribunal to review the plan.  For the following reasons, there is presently no decision that the Tribunal has power to review.

    Review of participants’ plans

11. The NDIA must help each participant in the NDIS to prepare a plan setting out his or her goals and aspirations, and the reasonable and necessary supports for which funding will be provided: ss 32 and 33.

12. Each plan must include a date by which, or the circumstances in which, the NDIA will review it: s 33(2)(c). The CEO of the NDIA must review the plan before the review date, or when the circumstances specified in the plan arise: s 48(5).

13. The Act also provides that participants’ plans may be reviewed as follows. 

    Review of a reviewable decision

14. Part 6 of Chapter 4 of the Act concerns Review of Decisions. Section 99 lists 26 decisions that are reviewable decisions. They include a decision to approve the statement of supports in a participant’s plan: s 99(d).

15. A person affected by a reviewable decision may ask the CEO of the NDIA to review it within three months after it has been made: s 100(2). On receiving the request, the CEO must appoint a reviewer who must review the reviewable decision as soon as reasonably practicable. The reviewer must confirm or vary the reviewable decision, or set it aside and make a new decision in its place: s 100(6). This process is commonly referred to as an internal review.

16. A person who is dissatisfied with a reviewer’s decision can ask the Tribunal to review that decision: s 103. Decisions made by a reviewer under s 100(6) are the only decisions of the NDIA that the Tribunal has power to review.

    Reviewing and changing participants’ plans

17. Division 4 of Part 2 of Chapter 3 of the Act concerns Reviewing and changing participants’ plans. 

18. A participant may ask the CEO to conduct a review his or her plan at any time: s 48(1). Although not stated in so many words, this form of review appears intended for situations where a participant believes his or her plan needs reviewing because a change of circumstances means his or her needs have changed.

19. The CEO must decide within 14 days after receiving such a request whether or not to review the plan: s 48(2). If the CEO decides to review the plan, the CEO must complete the review as soon as reasonably practicable: s 48(3), and must help the participant to prepare a new plan: s 49. The statement of supports approved by the CEO in the new plan is a reviewable decision: s 99(d). A participant who is dissatisfied with the statement of supports in the new plan may seek internal review by a reviewer and, if still dissatisfied after the internal review, may seek review by the Tribunal.

20. A decision by the CEO not to review the plan is a reviewable decision: s 99(f). A participant who is dissatisfied with the decision may seek internal review by a reviewer and, ultimately, by the Tribunal. The same applies if the CEO does not make a decision within 14 days, in which case he or she is taken to have decided not to conduct the review: s 48(2).

    Has the Tribunal power to review the statement of supports in Ms Rodrigues’ plan?

21. The process that led to a third plan being approved for Ms Rodrigues is not clear from the documents before the Tribunal. The reference in the email to Ms Banton to earlier plans being “rebuilt” suggests a review under s 48 (whether under s 48(2) at Ms Banton’s request, or under s 48(4) on the CEO’s initiative) to better suit Ms Rodrigues’ circumstances. For present purposes, however, it makes no practical difference. There has been no decision by a reviewer under s 100(6) that the Tribunal can review.

22. The NDIA’s letter dated 22 November 2016 to Ms Rodrigues clearly stated that the third plan started on that date and would be reviewed on 22 November 2017; further, that she could seek internal review if she disagreed with the decision.  That has not occurred.

23. The advice to Ms Banton, that the Tribunal could review the statement of supports in the plan approved on 22 November 2016, was incorrect.  No criticism of the officer who gave that advice is intended.  The review provisions might appear straightforward but it is not hard to see how they can become confused, especially where plans have been remade.

    Conclusion

24. As there has not been a decision by a reviewer made under s 100(6) of the Act to confirm, vary or set aside the statement of supports in the plan approved for Ms Rodrigues on 22 November 2016, or a decision by a reviewer to confirm, vary or set aside a decision under s 48(2) to refuse to review that statement of supports, there is no decision which Tribunal has jurisdiction to review.

I certify that the preceding 24 (twenty - four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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Associate

Dated: 13 January 2017

Date of hearing:	20 December 2016
Advocate for the Applicant:	Ms Y Banton
Solicitors for the Respondent:	Mr S Fagg, National Disability Insurance Agency