Roebig and National Disability Insurance Agency - [2024] AATA 3594

Roebig and National Disability Insurance Agency [2024] AATA 3594 (10 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2023/4742
Re:Narelle Roebig
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member J Toohey
Date of decision: 10 October 2024
Place:Brisbane

The Tribunal refuses to dismiss the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that it has no reasonable prospect of success.
Pursuant to section 25(4A) of the AAT Act the Tribunal determines that the scope of the review is limited to determining whether the reinstalment of side controller for the Applicant’s power wheelchair is a reasonable and necessary support.
..........[SGD]...............
Member J Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – section 29 – when a person ceases to be a participant – entered a residential care service on a permanent basis after turning 65 – whether person entitled to be paid NDIS amounts – period after ceasing to be a participant – period before ceasing to be a participant – section 37 – when plan ceases to be in effect
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – section 42B – dismissal where application has no reasonable prospect of success – section 25(4A) – determining scope of review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
McVeigh and National Disability Insurance Agency [2021] AATA 69
Nohmen and National Disability Insurance Agency [2023] AATA 20
Palin and National Disability Insurance Agency [2023] AATA 94
Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 247
REASONS FOR DECISION
Member J Toohey
BACKGROUND

The Applicant lodged an appeal with the Administrative Appeals Tribunal (the Tribunal) on 29 June 2023. This appeal related to a decision of a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Agency) dated 29 June 2023 which approved a statement of participant supports in a plan which commenced on 22 February 2023 under section 33 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
On 25 May 2024, the Agency applied for dismissal on the basis that the appeal had no reasonable prospect of success pursuant to s42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
SUMMARY OF SUBMISSIONS
The Agency relies on the operation of section 29(1)(b) of the NDIS Act. For completeness, section 29 states that:
(1) A person ceases to be a participant in the National Disability Insurance Scheme when:
(a) the person dies; or
(b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c) the person's status as a participant is revoked under section 30; or
(d) the person notifies the CEO in writing that he or she no longer wishes to be a participant.
Note: Residential care service and home care have the same meanings as in the Aged Care Act 1997.
(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.
The Agency submits that the Applicant turned 65 years of age on 24 December 2022. A Resident Agreement states that the Applicant entered residential care services on a permanent basis on 31 May 2023 which is 158 days after she turned 65 years of age.
The Applicant’s brother, guardian, and representative in these proceedings, submitted that the Applicant was not made aware that the residential care agreement was permanent and that entering into this agreement would mean that her NDIS participant status would cease.
CONSIDERATION
I accept that the Applicant did enter a residential care service on a permanent basis on 31 May 2023 and therefore section 29(1)(b) applies such that the Applicant ceased to be a participant of the NDIS on that date.
As Senior Member Parker set out in Nohmen[1]:
This provision does not rely upon a decision being made by the NDIA or any other person before the operation of s 29(1)(b) takes effect. It will take effect automatically by operation of that provision. Nor are there any exclusions or exemptions to this provision under the NDIS Act, or a discretion conferred upon the NDIA (or the Tribunal upon review) not to apply it to a person due to extenuating circumstances.
[1] Nohmen and National Disability Insurance Agency [2023] AATA 20, at paragraph 14.
Deputy President Meagher (as Justice Meagher then was) also considered the operation of section 29 in McVeigh[2] and found that:
A ‘reviewable decision’ is defined in section 9 of the NDIS Act as having ‘the meaning given by subsections 99(1) and (2)’. Section 99(1) of the NDIS Act sets out the decisions which are reviewable in table form and includes reference to the provisions under which such reviewable decisions are made. Subsection 99(1) of the NDIS Act makes no mention of a decision made pursuant to subsection 29(1) of the NDIS Act. As such, decisions made pursuant to subsection 29(1) of the NDIS Act are not decisions which the Tribunal can review. Accordingly, the Tribunal’s jurisdiction is not enlivened.
[2] McVeigh and National Disability Insurance Agency [2021] AATA 69, at paragraph 15.
The Applicant has raised concerns about the circumstances under which the Applicant agreed to enter residential care. These concerns are not matters that the Tribunal has any discretion to consider. The Tribunal also does not have jurisdiction to review or change the outcome of the operation of section 29(1)(b).
I accept the Agency’s submission that, section 37(3)(b) of the NDIS Act, means the Applicant's plan ceased to be in effect on 31 May 2023. Therefore, the Tribunal's jurisdiction to review the Applicant's statement of participant supports is confined to the period from 22 February 2023 (the start of the Applicant's NDIS plan for which the statement of participant supports is currently under review) to 31 May 2023.
I also accept that the key supports that the Applicant seeks, being supported independent living (SIL) supports and specialist disability accommodation (SDA), had not been arranged prior to 31 May 2023. As these are prospective, or ‘forward-looking’ supports, any finding of the Tribunal that these supports were reasonable and necessary could not be implemented after the Applicant ceased to be a NDIS participant. Such prospective supports are clearly covered by section 29(2):
(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.
For this reason, I consider that there is no reasonable prospect of the

Applicant succeeding in relation to SIL or SDA supports.
New issue raised: power wheelchair controller
An interlocutory hearing on 6 August 2024 the Applicant’s brother also raised that the relocation of a controller for the Applicant’s Power Wheelchair (PWC) was a support that was in contention. The Applicant had received a PWC funded by the NDIS, but the controller was placed at the back for use by a support worker, rather than on the side arm which would be usable by the Applicant. As this support had not previously been raised, the parties were directed to provide submissions and any supporting information by 6 September 2024.
The Tribunal sought clarification on the submissions made by the Agency in relation to the PWC controller and the Agency further submitted on 25 September 2024 that:
The Applicant's plan for the period 22 February 2023 to 22 February 2024 contained Capital Support funding of $30,650.09 for a power wheelchair (PWC) with customisation for the Applicant’s day-to-day mobility and to access her local community. During the period from the commencement of the Applicant’s plan on 22 February 2023, until the date when the Applicant ceased to be a participant on 31 May 2023 (relevant period), it was open to the Applicant to utilise her Capital Support funding flexibly to purchase a PWC and any ancillary equipment of her choice, including a side controller. The Respondent submits that had the applicant sought additional funding for the purchase and/or installation of the side controller during the relevant period, the Respondent would not have been able to fund the request as the Applicant’s plan already included funding which could be used for this purpose: rule 5.1(c).
That is to say, regardless of whether or not a side controller independently met the criteria under s34(1) during the relevant period (which is not conceded), the Agency would have been precluded from providing additional funding for the side controlled on the basis that it would represent a duplication of supports: rule 5.1(c). On this basis, the Respondent has not considered and has not made submissions regarding whether or not a side controller was a reasonable and necessary support during the relevant period.
In light of the above, the Agency’s position regarding the Applicant’s request for a side controller can be summarised as follows:
During the period from 22 February 2023 to 31 May 2023, the Respondent was precluded from providing additional funding for the purchase and/or installation a side controller, on the basis of rule 5.1(c); and
From 31 May 2023 onwards, the Respondent was/is precluded from providing support to the Applicant, on the basis of s29(2) (as the Applicant has ceased to be a Participant).
I am not persuaded that the Agency is necessarily precluded from providing a support to the Applicant after they have ceased to be a participant. Section 29(2) applies to ‘NDIS amounts … that would otherwise have been funded in respect of a period after he or she ceased to be a participant’. In my view, this leaves open the possibility that a participant could be reimbursed for an amount in respect of a period before they ceased to be a participant.
As Senior Member Buxton has observed in Pavlakis[3], the Tribunal is reviewing the statement of participant supports in a plan, rather that the plan itself. If a support is found to be reasonable and necessary, then it could be reimbursed by the Agency for a past period, regardless of whether a subsequent plan had been put in place by the Agency.
[3] Pavlakis and National Disability Insurance Agency [2023] AATA 2485, at [38].
As Senior Member Goward observed in Palin[4], costs incurred prior to participant entering the scheme would not be reimbursable. Consistent with the reasoning in Palin and Pavlakis, in my view, the Agency could reimburse a participant for the cost of a support which was payable while a participant had a statement of participant supports. I consider that section 29(2) is designed to prevent payments in relation to future supports but does not prevent reimbursement for supports that a participant was entitled to while they were a participant.
[4] Palin and National Disability Insurance Agency [2023] AATA 94, at [42].
Impact on dismissal application
My view that section 29(2) potentially permits payments for past periods is not conclusive. This matter is not constituted to me and I am only considering this dismissal application on an interlocutory basis. It would be open to the constituted member to reach a different conclusion.
The Agency summarised the principles to be applied in considering applications for dismissal based on no reasonable prospects as set out by Deputy President Alpins in Paraponiaris[5] as follows:
a. the Tribunal must exercise a high degree of caution before dismissing an application;
b. a high degree of certainty about the ultimate outcome of the proceeding is needed;
c. the application must lack any prospect of success which can properly be said to meet the standard of being reasonable;
d. where an application requires resolution of a real issue or issues of fact, it is not enough for the Tribunal to form the view that an Applicant is unlikely to succeed in respect of those issues;
e. where an application requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that it has no reasonable prospect of success unless there is no room for doubt about the proposition of the law upon which the success of the application depends; and
f. where the success of an application depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of s42B(1)(b).
[5] Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [19] to [34].
If the only issues before the Tribunal were the prospective supports of SIL and SDA, I would dismiss the matter. I cannot see any way that the Applicant would be able to satisfy the Tribunal that the Applicant is entitled to be paid for these prospective supports now that the Applicant has ceased to be a participant.
However, in relation to the PWC controller, I do not consider there is a high degree of certainty about the ultimate outcome. It is better to take a caution approach in relation to this support. It is at least arguable that this is a support that should be able to be reimbursed despite the Applicant ceasing to be a participant.
I do not see any power in the AAT Act for the Tribunal to partly dismiss a matter. As Deputy President Jarvis found in Westbrook[6]:
I have considered whether, for that reason, that part of the application for review should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, I do not think that on its proper construction s 42B applies to part of a proceeding. Where Parliament intended the Act to refer to a part of a proceeding, or a matter arising out of a proceeding, it has used express words to that effect, as appears in s 42C of the AAT Act. No such words are used in s 42B. I have accordingly concluded that there is no power to dismiss a part of a proceeding under s 42B.
[6] Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 247 at [13].
The Tribunal is empowered to determine the scope of the issues that is considers under section 25(4A) of the AAT Act. I consider that it is appropriate to determine that the only issue to be considered by the Tribunal is whether moving the controller for the Applicant’s PWC is a reasonable and necessary support.
Decision
The Tribunal refuses to dismiss the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it has no reasonable prospect of success.
Pursuant to section 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal determines that the scope of the review is limited to determining whether the reinstalment of side controller for the Applicant’s power wheelchair is a reasonable and necessary support.
…………………[SGD]………………
Associate
Dated: 10 October 2024
Date of Hearing:  6 August 2024
Applicant:  Ms N Roebig
Representative for the Applicant: Mr P Roebig
Solicitor for the Respondent:         C Laizans