Rogers and National Disability Insurance Agency

[2022] AATA 2809

Rogers and National Disability Insurance Agency [2022] AATA 2809 (26 August 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2021/5467      

Re:Mark Rogers  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K Buxton

Date:26 August 2022  

Place:Brisbane

The Tribunal has jurisdiction to consider whether Specialist Disability Accommodation should be specified as a reasonable and necessary support in the decision under review.  A favourable decision can be given effect by the Respondent.

The Tribunal does not have jurisdiction, in this review application, to review subsequent decisions made under section 33(2) of the NDIS Act. It is a matter for the parties to determine if the Applicant wishes to have these decisions reviewed, and if the Applicant has requested, or wishes to request, review of those decisions.

If appropriate, any subsequent decision made under section 100 of the NDIS Act may be considered together with this review application.

................[SGD]..............
Senior Member K Buxton

Catchwords

PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision to approve the statement of participant supports in the Applicant’s plan – where subsequent decisions made about participant supports – jurisdiction of the Tribunal – Tribunal has jurisdiction to consider whether Specialist Disability Accommodation should be specified as a reasonable and necessary support - Tribunal does not have jurisdiction to consider subsequent decisions made under section 33(2) of the NDIS Act.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 25, 43, 44.
National Disability insurance Scheme Act 2013 (Cth) ss 4,31, 33, 34, 48, 99, 100, 103.

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 2, 4.

Cases

Castlemaine and National Disability Insurance Agency [2019] AATA 4240

DZNB and National Disability Insurance Agency [2022] AATA 1326 [2022] AATA 1326

Ewin and National Disability Insurance Scheme [2018] AATA 4726

FDFF and National Disability Insurance Agency [2020] AATA 3385

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16

Holland and National Disability Insurance Agency [2021] AATA 92

KRGB and National Disability Insurance Agency [2019] AATA 144

Macdonald and National Disability Insurance Agency [2021] AATA 2459

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

NNXF and National Disability Insurance Agency [2019] AATA 5552

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

QZHH and National Disability Insurance Agency [2018] AATA 1465

Re Joseph and Repatriation Commission (1989) 18 ALD 766

Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865

RTRH and National Disability Insurance Agency [2022] AATA 205

Shanney and National Disability Insurance Agency [2022] AATA 827

Steley and National Disability Insurance Agency [2021] AATA 2539

VXVL and National Disability Insurance Agency [2021] AATA 1709

Williamson and National Disability Insurance Agency [2019] AATA 2944

XXWX and National Disability Insurance Agency [2020] AATA 923

ZCPY and National Disability Insurance Agency [2017] AATA 3052

REASONS FOR DECISION

Senior Member K Buxton

25 August 2022

Background

1. The Tribunal has been asked to determine, in advance of the hearing and determination of the substantive review in this case, a discrete question about the scope of the jurisdiction of the Tribunal. In determining the substantive review application before it, the Tribunal is to consider a particular support, being a nominated housing type of Specialist Disability Accommodation (“SDA”), for which Mr Mark Rogers (“the Applicant”) has sought funding.

2. The Applicant is a participant in the National Disability Insurance Scheme (“the NDIS”) and is currently funded for SDA but has not taken up this support because he wishes to be funded for a different housing type.[1] On 11 August 2021, the Applicant applied to the Tribunal, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), for review of a decision of the Respondent dated 3 August 2021 (”the decision under review”).[2] The decision under review, made under subsection 100(3) of the NDIS Act, affirmed an earlier decision to approve a statement of participant supports in the Applicant’s plan, made under subsection 33(2) of the NDIS Act (“the primary decision”).[3] A decision under that provision is identified, in section 99 of the NDIS Act, as one of a finite list of decisions that may be internally reviewed by a reviewer and, if necessary, externally reviewed by the Tribunal. The Applicant’s funded supports were set out in a participant’s plan, incorporating the approved statement of participants supports approved in the primary decision, commenced on 17 May 2021, and had a review date of 17 May 2022.[4] Subsequently, the NDIA has made two further decisions, approving statements of participant supports under section 33(2) of the NDIS Act on 11 August 2021 and 17 June 2022 and two further plans have issued which do not change the SDA support from that provided for in the decision under review (that is, they maintain the status quo).

   [1] T-documents, T9; NDIS Plan dated 17 June 2022.

   [2] Ibid, T1.

   [3] Ibid, T2.

   [4] Ibid, T9.

3. The Applicant has requested that the Tribunal determine a discrete jurisdictional issue in this review application, being ‘that the succession of statements of participant supports and NDIS plans (being two plans issued by the NDIA after the reviewable decision, dated 11 August 2021 and 17 June 2022) do not remove or limit the Tribunal’s jurisdiction to hear and determine this application.’[5] The parties each prepared written submissions as to the Tribunal’s jurisdiction and invited a determination of the jurisdictional issue on the papers, without the need for a hearing.

   [5] Applicant’s Outline of Submissions on Jurisdiction dated 22 July 2022, [33].

4. Both parties accept that the Tribunal has jurisdiction to conduct the review of the single reviewable decision of the Respondent, made on 3 August 2021. [6] The Tribunal agrees that the existence of a subsequent decision under section 33(2) of the NDIS Act does not remove the Tribunal’s jurisdiction to review an earlier decision also made under section 33(2).[7]

   [6] Ibid, [29]; Respondent’s Submissions in Reply on Jurisdiction dated 12 August 2022, [3].

   [7] Williamson and National Disability Insurance Agency [2019] AATA 2944 (20 August 2019), [25] and [28] and the decisions that have followed it, some of which are discussed in more detail later in these reasons.

5. The second aspect of jurisdictional inquiry raised by the Applicant is more nuanced. The Applicant wishes the Tribunal to express a view about the scope of the decision, and whether that scope is limited by subsequent decisions to approve statements of participant supports from which no reviewable decision has yet been made.[8]

   [8] Applicant’s Outline of Submissions on Jurisdiction dated 22 July 2022, [28].

6. In my view, there is a short answer to this question and a longer answer. In short:

   a.Jurisdiction to determine this review application is not removed by the making of subsequent decisions under section 33(2) of the NDIS Act, and by the issuing of subsequent participant plans. Those subsequent decisions are also reviewable, and the prudent course is for the Applicant to consider carefully whether he wishes to exercise those review rights to ensure continuity of jurisdiction.

   b.The Applicant does not need to seek further review if he is positively satisfied with all aspect of those decisions. However, if his circumstances have changed over time, in a way that may affect his entitlement to funded supports, the result of the review of subsequent decisions may differ depending on the period for which the support is sought and from when the Tribunal determines that the support should be specified in the statement of participant supports. If the only issue for the Applicant is the level of funding for SDA, the Applicant should consider whether his circumstances have changed over time such that he may not have satisfied certain criteria, or otherwise been entitled to the funded support, until a time covered by a later decision.

   c.A section 100 review will have been requested where the Respondent is satisfied that the Applicant has communicated an intention to seek that review, in whatever way, within three months of notification of the decisions made on 11 August 2021 and 17 June 2022.

   d.As part of its decision in this current review application, the Tribunal may specify a future review date as part of the re-exercise of the express power under section 33(2)(c) of the NDIS Act, and section 39 of the NDIS Act requires this to be given effect. Therefore, a decision in this review specifying that SDA be funded at a different level to that in the decision under review can expressly be given effect until the review date specified by the Tribunal.

   e.Alternatively, or in addition, the Agency may be invited to provide to the Tribunal undertakings to give effect to the Tribunal’s findings (by incorporating these into a new statement of participant supports by engaging Chapter 3, Part 2, Division 4 of the NDIS Act which will lead to a subsequent decision) and not to make inconsistent future decisions.

7. In deference to the detailed submission received, particularly from the Applicant, and because there are a cohort of cases currently before the Tribunal in which a similar jurisdictional question arises, I will also provide a somewhat longer answer that considers various issues including some conflicting decisions of the Tribunal.

   Determining Jurisdiction before the substantive hearing

8. Jurisdiction is a matter for the Tribunal in each review application and the question remains live until the review is finally determined.[9]  From time to time, the Tribunal accedes to a reasonable request from the parties to consider a question of jurisdiction on an early, interlocutory basis because the answer to that question will assist in determining the parameters of the review. Such a request has been made in these proceedings.

   [9] See discussion in Re Joseph and Repatriation Commission (1989) 18 ALD 766, [55] - [59].

9. Where an affirmative position as to jurisdiction is expressed by a member of the Tribunal before the final determination, this does not have the character of a decision from which a right of appeal lies under section 44 of the AAT Act.[10] Given jurisdiction remains a live issue, and it is therefore possible that the Tribunal may form a different view before the matter is finally determined, great care must be exercised to ensure that an early finding as to jurisdiction does not deprive a party of an extant right, or encourage a party to forgo such a right in the expectation that the Tribunal’s affirmative view is binding when it is not. Where a party is discouraged to exercise review rights because the Tribunal has expressed the view that there is no need to do so, that unexercised right may be forever lost. The Tribunal therefore has a responsibility to ensure that any such views, whether expressed on an interlocutory basis or in the reasons for a substantive decision, are consistent with settled law and the orthodox approach to be taken in the administrative review setting and are supported by a proper construction of the enabling legislation.

   [10] See discussion in Re Joseph and Repatriation Commission (1989) 18 ALD 766, [55] - [59].

10. In considering the jurisdictional issue in this case it is necessary to consider only the potential jurisdictional limitations upon a decision which is favourable to the Applicant as an unfavourable decision will not change his funded supports. In so doing, the Tribunal has not considered the substantive issues in this case and should not be interpreted as expressing any views or findings as to the merits of the substantive Application.

11. The Tribunal notes that legislative changes which take effect from 1 July 2022[11] will alter the approach for reviewable decisions made after that date. After 1 July 2022, a review in the Tribunal of a decision under section 33(2) will be taken to also be a review of any subsequent decisions made under section 33(2) (and, indeed, any variations which can now be made under section 47A of the NDIS Act).[12] A participant will no longer be able to pursue internal merits review rights under section 100 of the NDIS Act for those subsequent decisions and those decisions will proceed directly to the Tribunal for review. For review applications such as this, the legislative position prior to 1 July 2022 continues to apply and it is necessary to determine how this case, and others in that cohort, should proceed.

    [11] Introduced on 1 July 2022, as a result of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth), schedule 1, item 49.

    [12] NDIS Act, s 103.

    The Applicant’s concerns

12. The Applicant seeks to avoid a situation where a potential jurisdictional issue arising from the impact of a later decision could be raised after expiration of the three-month period for requesting an internal review of a later decision. This is an understandable concern.

13. A participant will likely have many plans administered under the scheme, meaning multiple decisions for each participant will be made by the CEO under section 33(2) following multiple review or reassessment processes which take place under section 48 of the NDIS Act. Each plan is in effect for a finite period that begins at the time funded supports are available (generally, the date of the decision) [13] and continues until the date a new plan is put into effect.[14] In theory, after the Tribunal has made a decision specifying the funding of a particular support to be included in the statement of participant supports, there is nothing to prevent the Agency from electing to engage the process under section 48 of the NDIS Act and to make a new decision that the support is not to be funded. If that were to occur, the participant would have merit review rights[15] and if the matter came before the Tribunal for a further consideration, the Tribunal would likely make a finding consistent with its’ earlier decision. In practice, Commonwealth agencies are well aware of their obligation to avoid such an undesirable and circular process, and good administrative practice ordinarily gives rise to co-operation between Commonwealth agencies to ensure that effect is given, by a Respondent agency, to a decision of the Tribunal.

    [13] Provision is made, in section 37(1), for a participants first plan to come into effect when the CEO has received the participants goal and approved the statement of participant supports. Subsequent plans are to be replaced only under Division 4: NDIS Act, s 37(3).

    [14] Ibid.

    [15] The notes to section 37(1) and 49 of the NDIS Act make clear that the new section 33(2) decision, following the Division 4 process, is reviewable because it is a decision identified in section 99 of the NDIS Act.

14. In relation to the implementation of the Tribunal’s decision in such a statutory setting, the High Court in Minister for Immigration and Border Protection v Makasa (“Makasa”)[16] described the following observations as ‘generic’ to the operation of the Tribunal, and as ensuring that the powers exercised by the Tribunal on review cannot subsequently be re-exercised by the Agency in a way that defeats the effect of the Tribunal’s decision:[17]

    Looking to the generic operation of the AAT Act, an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review". The function of the AAT, in other words, is "to do over again" that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review. (references omitted)

    [16] [2021] HCA 1 (3 February 2021).

    [17] Makasa, [50] –[51] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ.

    The scope of review

15. The Tribunal on review exercises the same powers and discretions as the original decision-maker.[18] In this case, the Tribunal is required to re-make the original decision to approve the statement of supports having regard to the obligations and limitations of subsection 33(2) of the NDIS Act.

    [18] AAT Act, s 43(1).

16. The High Court in Frugtniet v Australian Securities and Investments Commission (“Frugtniet”),[19] confirmed the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to re-consider, afresh, the question before the primary decision maker and to address the same question the primary decision-maker was required to address.[20] In QDKH and the National Disability Insurance Agency (“QDKH”)[21] a Full Court of the Federal Court, applying Frugtniet, stated that the review of a decision whether to ‘approve’ a ‘statement of participant supports’ under subsection 33(2) of the NDIS Act was informed by the scope of that provision.[22]  As the High Court recently stated in Makasa, ‘The function of the AAT … is “to do over again” that which was done by the primary decision-maker.’ [23]

    [19] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).

    [20]  Frugtniet, [14]-[15]; [51].

    [21]  QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

    [22] Ibid, [10(b)].

    [23]  Makasa, [50].

17. In QDKH, the Court made clear that, when undertaking merits review of a decision under section 33(2) of the NDIS Act, the Tribunal was not limited to considering supports that the Applicant had requested.[24] Rather, the re-exercising of the CEO’s powers in “approving” a statement of participant supports requires the Tribunal, standing in their shoes, to undertake the ‘collaborative process’ whereby ‘the CEO is required to “facilitate” the preparation of a participant’s plan (s 32(1)) and to prepare the statement of participant supports “with” the participant (s 33(2)).’[25] There is no suggestion that the decision in QDKH expands the jurisdiction beyond the re-exercise, or re-making, of the original section 33(2) decision.[26] Whilst the Tribunal may have regard to evidence that was not before the original decision maker, the Tribunal cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or the question before the original decision-maker.[27]

    [24]  QDKH, [7(c)].

    [25]  Ibid, [7(d)].

    [26]  Ibid, [7(b)].

    [27]  See discussion in Frugtniet at [14]-[15], per Kiefel CJ, Keane and Nettle JJ.

18. Therefore, only those supports that could have been included within the original decision are within the jurisdiction of the Tribunal on review.[28] In RTRH and the National Disability Insurance Agency (“RTRH”),[29] the Tribunal noted that a review of a section 33(2) decision involved reconsideration of supports from the date of the original decision and observed: [30]

    A decision to refuse to include a support sought by a participant in an SPS is like any other negative decision in respect of a claimed benefit: it is made at a point in time and, on review, should a decision favourable to the person be made, the person is entitled to recover the cost of the support from the time the support was first capable of being provided or funded under the plan in which the SPS under review was instrumental. There is no express or implied provision in the NDIS Act that requires any different conclusion.

    [28] Steley and National Disability Insurance Agency [2021] AATA 2539 (27 July 2021), [29]; VXVL and National Disability Insurance Agency [2021] AATA 1709 (14 June 2021), [28].

    [29] [2022] AATA 205 (9 February 2022).

    [30] Ibid, [98].

1. Each plan must contain a statement of participant supports, prepared with the participant, and approved by the CEO under section 33(2) of the NDIS Act. The mechanics of the preparation and replacement of participants plans is dealt with in Chapter 3, Part 2, Division 2 of the NDIS Act (“Division 2”) which provides that the plan of an ongoing participant will cease to be in effect only when it is replaced by another plan under Chapter 3, Part 2, Division 4 of the NDIS Act (“Division 4”).[31] This process is complete when a new decision is made by the CEO under section 33(2) of the NDIS Act.[32] Even though a statement of participants supports must specify the date by which, or the circumstances in which, the Agency is to reassess the plan under Division 4,[33] the plan will not cease to have effect on that date unless it has been replaced under Division 4.[34] The note to section 37(1) and 49 of the NDIS Act makes clear that the new section 33(2) decision, following the Division 4 process, is reviewable because it is a decision identified in section 99 of the NDIS Act.

   [31] NDIS Act, s 37(3).

   [32] See NDIS Act s 49 and Note 2 to s 49 which aids interpretation. When Division 4 powers are exercised after 1 July 2022, a decision may also be made to vary a plan, following the removal of the prohibition in s 37(2) and the insertion of a new s 47A. These provisions do not apply to the reviewable decision or the two subsequent decisions as each was made prior to 1 July 2022.

   [33] NDIS Act, s 33(2)(c).

   [34]  Williamson, [25], cited with approval in FDFF and National Disability Insurance Agency [2020] AATA 3385 (4 September 2020) (Senior Member Kelly), [26]; NDIS Act, s 37(3).

2. The Applicant has applied to the Tribunal for review of a single decision of the NDIA. Since then, two plans have been issued by the NDIA after the reviewable decision, dated 11 August 2021 and 17 June 2022 following two decisions made under s 33(2) of the NDIS Act. By virtue of section 37(3) of the NDIS Act, those plans have applied from 17 May 2021 to 11 August 2021 (plan one, the subject of this review application), 11 August 2021 to 1 June 2022 (plan two) and 17 June 2022 to 16 September 2022 (plan three).

3. When a decision to approve a statement of participant supports, contained within a plan, is reviewed under section 100 of the NDIS Act, the reviewer must re-exercise the statutory power under section 33(2) and, therefore, it is open to the reviewer to consider the supports that could have been specified for the period for which the decision is in effect, but not others. The Tribunal is then to undertake the same task, or ‘do over’, when a review application is lodged with the Tribunal in accordance with section 103 of the NDIS Act.

4. For genuinely changed circumstances arising during the period of a plan, a mechanism exists to have those supports considered under section 48 of the NDIS Act during the period of the plan. Any resulting further decision under s 33(2) of the NDIS Act would generate fresh review rights. The participant can elect whether to pursue those rights. There may be no need to do so, if the participant is not dissatisfied with the later decision. The later decision stands entirely separate and apart from the earlier decision that was made in the factual setting before the circumstance of the participant changed. An application to review the earlier of these decisions cannot, without express statutory provision, become an application to review the later decision.

   The conflict in approaches

5. The Applicant has correctly identified that conflicting decisions of the Tribunal, and no definitive guidance from the Federal Court, have fuelled his concerns. The Applicant annexed to his submissions a substantial list of decisions touching upon this issue and it is illuminating to traverse the development of the relevant inconsistency in the approach by the Tribunal in a roughly chronological way.

6. In ZCPY and National Disability Insurance Agency (“ZCPY”)[35] where a subsequent section 33(2) decision had been made prior to the decision of the Tribunal to fund a one-off support,[36] the Agency voluntarily gave, and the Tribunal accepted, ‘an undertaking to the Tribunal that it [was] prepared to reflect any findings made by the Tribunal in relation to this support in the pending new NDIS plan for the Applicant’.[37] This is the kind of sensible inter-agency behaviour that supports the practical application of a statutory scheme and is consistent with good administrative decision-making on the part of the Respondent.

   [35] [2017] AATA 3052 (4 December 2017).

   [36] Ibid, [1].

   [37] Ibid, [8].

7. The Tribunal, identically constituted, was offered a similarly worded undertaking in QZHH and National Disability Insurance Agency (“QZHH”)[38] but the undertaking was rejected with the following explanation:[39]

   It is commendable that the NDIA has sought to deal with this jurisdictional challenge in a pragmatic way by proffering the undertaking referred to in paragraph [49]. However, upon close examination it appears that this is not necessary. For the reasons expanded upon below, I consider that the previous December 2016 Plan, containing the statement of participant supports under review, is enlivened when the Tribunal makes its decision upon review and the enlivened plan (and the approved statement of participant supports within it) will have current operation and continue into the future, until replaced by another NDIS plan…

   When this Tribunal makes its decision in this application, standing the shoes of the reviewer, the effect of it will be to approve the statement of participant supports forming part of the December 2016 Plan. It follows then, by force of s 37(1) of the Act, that the Applicant’s December 2016 Plan containing the (newly) approved statement of participant supports, will come into effect. The second and only other requirement under s 37(1) of the Act has already been met, namely, that the CEO has received the participant’s statement of goals and aspirations.[11] (underlining added)

   [38] [2018] AATA 1465 (31 May 2018).

   [39] Ibid, [52], [58].

8. The same approach was then taken by the Tribunal (identically constituted) in Ewin and National Disability Insurance Scheme (“Ewin”),[40] Castlemaine and National Disability Insurance Agency (“Castlemaine”),[41] Whitby-Smith and National Disability Insurance Agency (“Whitby-Smith”),[42] and SSLP and National Disability Insurance Agency (“SSLP”).[43] The Tribunal in SSLP expressly stated that the construction engaged sought to adopt a ‘purposive approach, rather than an unduly technical one’.[44] In all of these cases, the Tribunal determined that, on review, a decision to set aside and substitute a new statement of participant supports would; ‘trigger the operation of s 37(1) of the NDIS Act, provided the NDIA has received the participant’s goals and aspirations as required by s 37(1)(a), and a new plan will come into effect for the participant by force of s 37(1).’[45] The Tribunal noted that no Federal Court authority provided authoritative guidance on the relevant jurisdictional issue.[46] What is being proposed in these decisions is that, rather than undertaking a review of a single decision under section 33(2) of the NDIS Act, the Tribunal assumes a broader, all-encompassing jurisdiction to consider funded supports for any time after the date of the original section 33(2) decision because the Tribunal’s decision will create a new plan for the entire period (so long as the participant’s goals have been received).

   [40] [2018] AATA 4726 (21 December 2018),[310]; [315].

   [41] [2019] AATA 4240 (16 October 2019).

   [42] [2021] AATA 3446 (28 September 2021).

   [43] [2021] AATA 4207 (8 November 2021).

   [44] Ibid, [28].

   [45] Ewin, [295], adopting the reasoning in an earlier decision of the Tribunal, constituted by the same member, in QZHH and National Disability Insurance Agency [2018] AATA 1465 (31 May 2018).

   [46] Ibid, [284].

9. There are four issues arising from this approach:

   a.In merits reviews, where an Applicant is successful, the Tribunal does not create a new decision but, rather, the original decision is replaced with the Tribunal decision on review;

   b.A new plan can only come into effect under section 37(3) of the NDIS Act when the process in Division 4 has been engaged, and a new section 33(2) decision made;

   c.Without careful regard to the circumstances of each case, and of the participant at the time of each s 33(2) decision, the Tribunal may take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or the question before the original decision-maker;[47] and

   d.This approach has the effect of discouraging participants to exercise further review rights because, if correct, there is no need to do so. However, if incorrect, those rights may be forever lost.

   [47]  See discussion in Frugtniet at [14]-[15], per Kiefel CJ, Keane and Nettle JJ.

10. The Tribunal, variously constituted, has taken a more conservative approach (correctly, in my respectful view) on several occasions since Ewin and decided that each decision made by the CEO under section 33(2) of the NDIS Act is separately reviewable. In Williamson and National Disability Insurance Agency (“Williamson”)[48] the Tribunal (constituted by Deputy President Forgie) considered the extent to which the Tribunal’s jurisdiction to review a decision under section 33(2) of the NDIS Act might be affected by future decisions under the same provision. The Tribunal stated:[49]

    Once the Agency has made another plan and replaced the earlier plan, payments will be made under that later plan from the date it comes into effect. That will be so even if the participant has made an application for review of the decision made by a reviewer under s 100(6) in relation to the CEO’s approval of the statement of participant supports made under s 33(2). The earlier plan will no longer be in effect, but it may still be the subject of review in relation to the statement of participant supports. If the participant wishes to make a further application to the Tribunal for review of a decision made by a reviewer under s 100(6) and his or her application in relation to the earlier decision has not yet been resolved, the two will run side by side.

    [48] [2019] AATA 2944 (20 August 2019), see also XXWX and National Disability Insurance Agency [2020] AATA 923 at [121] – [124] (“XXWX”).

    [49] Ibid, [13].

11. In FDFF and National Disability Insurance Agency (“FDFF”)[50] the Tribunal determined, consistently with Williamson, that the Tribunal’s jurisdiction was ‘limited in effect to the period when Plan 1 and the statement of supports approved for the purpose of that plan, were in effect.’[51] The Tribunal further noted that section 43(6) of the AAT Act (which provides that the Tribunal decision takes effect from the day on which the decision under review had effect unless otherwise ordered) does not change the operation of the NDIS Act.[52]

    [50] [2020] AATA 3385 (4 September 2020) (Senior Member Kelly).

    [51] FDFF, [26].

    [52] FDFF, [26].

12. The Tribunal in RTRH considered the conflicting authorities and respectfully departed from the construction taken in cases including Ewin on the basis that:[53]

    …the reviewer’s decision is taken to be the decision of the original decision-maker, the CEO, and unless s 37(3) is engaged the existing plan has continuing effect. In this regard, a decision under s 100(6)(c) is no different for the purposes of the NDIS Act than any other decision under s 100(6). If anything, the language of s 100(6)(c) underscores the point: the reviewer’s decision is substituted for the CEO’s decision. In such circumstances, the reviewable decision is replaced with the reviewer’s decision, and the reviewer’s decision has effect from the date the reviewable decision had effect (subject to any different order or decision in the circumstances of any case). Thus, on this latter point, again with the greatest respect, I must depart from the construction adopted in Ewin’s case and those that have followed it.

    [53] RTRH, [162].

13. I respectfully agree with the reasoning in Williamson, FDFF and RTRH.[54] The review process is not the same as replacement of a plan under Division 4, and therefore subsection 37(1) of the NDIS Act has no work to do in the implementation of the decision on review. The proper reading of subsection 37 of the NDIS Act is ‘to ensure that a plan can be replaced only in the circumstances identified in Division 4 and thus providing a participant with some stability.’[55]  These decisions are consistent with the application of orthodox and well-established principles of administrative law. The guidance provided by these cases is that, if a later decision is made and the level of funded support remains in dispute, it is prudent to seek review. There is no question that the later decision is reviewable. There exists no superior court authority suggesting that a different approach should be taken. In Frugtniet, Kiefel CJ, Keane and Nettle JJ stated:[56]

    …the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

    [54] Williamson, [13]; FDFF, [26]; RTRH, [162]. See also DZNB and National Disability Insurance Agency [2022] AATA 1326 [2022] AATA 1326 (20 May 2022) per Member Webb, [37] – [38]; Macdonald and National Disability Insurance Agency [2021] AATA 2459 (23 July 2021) per DP Meagher, [64], [72] - [73]; XXWX, [121] – [124].

    [55] Steley, [22]; RTRH, [119] – [120].

    [56] Frugtniet at [14]-[15].

14. For completeness, in Holland and National Disability Insurance Agency (“Holland”),[57] the Tribunal determined that it was not necessary to lodge a new application for review in respect of subsequent plans as ‘such bureaucratic “red tape” is to be avoided unless it is mandated by the legislation.’[58] In my respectful view, separate review rights are mandated by the legislation and cannot be exercised without invoking the review jurisdiction of the Tribunal through s.103 of the NDIS Act.[59]  The fact that legislation has recently been introduced to allow for this process to happen automatically strongly suggests that, prior to the 1 July 2022 amendments, the legislation did not allow for such an approach.

    [57] [2021] AATA 92 (Deputy President Constance).

    [58] Ibid, [43].

    [59] Cf Shanney and National Disability Insurance Agency [2022] AATA 827 (22 April 2022) (Member P Smith) where Tribunal determined that a subsequent section 33(2) decision, which has not been subject the subject of a section 100 review was nonetheless reviewable by the Tribunal.

15. It may be tempting for the Tribunal, when faced with what appears to be an unintended jurisdictional conundrum, to settle upon the preferred outcome first, then work backwards in order to justify that outcome. In doing so, comfort could arguably be found in a passage from a decision of the Tribunal, constituted by Deputy President McCabe and Member Bygrave, in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services (“Re Pauling”)[60] in which the Tribunal stated:[61]

    There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right.

    [60] [2018] AATA 3865 (11 October 2018).

    [61] Ibid, [26].

16. In KRGB and National Disability Insurance Agency[62] Deputy President Forgie was concerned to note, in response to that passage, that the Tribunal cannot ‘set things to right’ in the determination of jurisdiction to review a decision of the Agency if the relevant legislation does not provide for it.[63]

    [62] [2019] AATA 144 (11 February 2019).

    [63] Ibid, [13], although it is worth noting that there is a distinction between jurisdictional error, as discussed in Re Pauling, and jurisdictional scope, as discussed in Williamson.

17. One of the objectives set out in the AAT Act is the provision of a mechanism of review that promotes public confidence in the decision-making of the Tribunal.[64] On any jurisdictional issue where the Tribunal may diverge in its view, and where the law is not settled by superior court authority, the Tribunal should be very cautious, reluctant even, to conclude that it is not necessary for a party to exercise an intermediate review right and apply for review of a reviewable decision in order for the Tribunal to have jurisdiction.[65] If, during the life of the review, a Court concludes that unexercised rights lead to a want of jurisdiction, this is not something that a statutory tribunal can ‘set to right’. I respectfully suggest that such decision-making risks the even greater danger of ‘under-thinking’ jurisdiction or looking for ways of trying to ‘set to right’ that which is beyond power.

    [64] AAT Act, s 2A.

    [65] Cf: the approach taken by the majority in NNXF and National Disability Insurance Agency [2019] AATA 5552 (23 December 2019), which lead to differing approaches being made in similar cases and, ultimately, to legislative reform to impose a time frame for review under section100 and remove any doubt.

18. One of the difficulties with relying upon individual decisions as containing general guidance as to jurisdiction is that each review will turn on its individual facts. The type of support, how it is proposed to be funded and whether the support is ongoing are all relevant factors in deciding whether review rights need to be pursued for subsequent section 33(2) decisions. Further relevant factors include any changes in circumstances, capacity, or goals. Whether it is necessary that review rights be pursued in respect of a subsequent section 33(2) decision depends on whether the further supports could have formed part of the original decision, and whether there is any aspect of the subsequent decision(s) not within the scope of the original decision.

19. The effect of the inconsistent approaches from the Tribunal appears to have been threefold:

    a.The Agency no longer offers undertakings (although it would be helpful if this procedure were to now resume for the cohort of cases affected by this issue);

    b.Applicants would be forgiven for understanding that they did not need to seek review of subsequent decisions with which they were dissatisfied, without regard to their individual circumstances and needs; and

    c.The legislation has now been amended to automatically fold subsequent decisions made under section 33(2) of the NDIS Act into an existing review at the Tribunal, whether or not the participant is dissatisfied, thus expanding the scope of reviews before the Tribunal.[66]

    [66] NDIS Act, s 103 (from 1 July 2022).

20. It is tolerably clear that, in relation to decisions not impacted by the legislative changes that took effect on 1 July 2022, separate decisions have given rise to separate review rights which a participant may choose to exercise or not to exercise. Further, good administrative practice would ordinarily give rise to co-operation between Commonwealth agencies to ensure that effect is given by the Respondent agency to a decision of the Tribunal where its decision is inconsistent with subsequent decisions.

    There may be limitations in the scope of the earlier decision

1. Whether subsequent section 33(2) decisions limit the scope of the Tribunal’s review of an earlier section 33(2) decision, and thereby impact the participant’s access to supports determined by the Tribunal to be reasonable and necessary, will depend on the nature of the supports determined to be reasonable and necessary and any relevant change in the participant’s circumstances. Subsequent decisions will impact or intersect with the Tribunal’s decision on review only if a participant is not able to demonstrate that the support should have been funded for the period affected by the earlier decision but is able to do so for a period covered by a subsequent decision. For example, a decrease in availability of informal supports, or a hastening of functional impairment, may happen over time and may be circumstances relevant to the funding of a support. For this reason, the prudent course is to seek review of any decision in which the support could have been funded.

2. Once a decision is made by the Tribunal on review, it is for the NDIA to give effect to that decision. Insofar as the Tribunal’s decision impacts any subsequent inconsistent decisions, or ongoing powers to make such decisions, various mechanisms are available to safeguard the Applicant:

   a.An undertaking may be offered by the Agency that it will give effect to any findings made by the Tribunal in relation to the support in future decisions for the Applicant, and it may, depending on the nature of the support, be appropriate to limit that undertaking in time, or until the Applicant has a change in relevant circumstances.

   b.It is open to the Tribunal, if making a different decision as to the supports specified in the statement of participant supports, to also specify a review date for that decision is no sooner than the last review date specified in any subsequent decision.[67] When the Tribunal’s decision replaces the decision under review, finding as to the period for which the statement of participant supports remains in place must be given effect under section 39 of the NDIS Act, as that decision becomes a determining factor in the administration of the scheme.[68]

   c.If the Agency decides to exercise its power under the recently introduced section 47A of the NDIS Act [69] to ‘vary’ the current ‘plan’[70] by changing the date on which it is to be reassessed,[71] then by operation of the recently amended section 103 of the NDIS Act the Applicant’s review application at the Tribunal would be taken to also be an application to review the varied decision.

   d.If a subsequent decision is reviewed internally, the participant can also seek external review to the Tribunal. Whether or not it is appropriate that the applications are heard together will depend on administrative matters internal to the Tribunal.

   [67] When re-exercising the power under s 33(2)(c) of the NDIS Act.

   [68] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [85]; RTRH and National Disability Insurance Agency [2022] AATA 205 (9 February 2022), [163].

   [69] Introduced on 1 July 2022, as a result of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).

   [70] Not the Statement of Participant Supports.

   [71] Currently 16 September 2022.

3. A request for internal review must be made within three months of notification of the decision and there is no mechanism within the NDIS Act to extend this time. However, given the beneficial nature of the scheme, and the general principle guiding the Respondent to support persons with disability in communications with the Agency,[72] a beneficial approach is to be taken in the interpretation of communications from persons affected by reviewable decisions within that three-month period. Section 100(3) of the NDIS Act describes a very simple process by which a participant in the scheme who is affected by, and dissatisfied with, a decision, may request review. No special words are needed, and the request may be orally or in writing.[73] It is quite possible that, by virtue of the communications between the parties in relation to the Applicant’s request for SDA, the Applicant has conveyed his dissatisfaction with the subsequent decisions. Once such a communication is received, section 100(4) of the NDIS Act mandates that the person receiving the request is to make a note of the request and the decision is then to be reviewed.[74]

   [72] NDIS Act, s 4(9).

   [73] Ibid, s 100(3).

   [74] Ibid, s 100(5).

   Conclusions

4. The Tribunal has jurisdiction to consider whether SDA of the kind sought by the Applicant should be specified as a reasonable and necessary support in the decision under review.  A favourable decision can be given effect by the Respondent if the only support sought by the Applicant is a specific type of SDA, which could have been specified in the decision under review. However, if there is any aspect of the subsequent plans with which he remains dissatisfied, and those could not have formed part of the decision under review, he may to pursue his rights to review the subsequent reviewable decision(s) with which the Applicant disagrees. The Tribunal does not have jurisdiction to consider whether the type of SDA sought by the Applicant should be specified as a reasonable and necessary support in subsequent decisions made under section 33(2) of the NDIS Act based on any later, changed, circumstances. That inquiry goes beyond the re-exercise of the original statutory power.

5. It is a matter for the parties to determine if the Applicant wishes to have these decisions reviewed, and if the Applicant has requested, or wishes to request, review of those decisions, or if the latest decision is to be varied (and thereby folded into this review).

   DECISION

6. The Tribunal has jurisdiction to consider whether SDA should be specified as a reasonable and necessary support in the decision under review.  A favourable decision can be given effect by the Respondent.

7. The Tribunal does not have jurisdiction, in this review application, to review subsequent decisions made under section 33(2) of the NDIS Act. It is a matter for the parties to determine if the Applicant wishes to have these decisions reviewed, and if the Applicant has requested, or wishes to request, review of those decisions.

8. If appropriate, any subsequent decision made under section 100 of the NDIS Act may be considered together with this review application.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton.

…………[SGD]…………..
Associate
Dated:  26 August 2022
Final Submissions Received: 12 August 2022
Representative for the Applicant: Ms Muirhead, Legal Aid Queensland.
Representative for the Respondent: Ms Hunt, Australian Government Solicitor.