Rowe and National Disability Insurance Agency

[2023] AATA 2762

Rowe and National Disability Insurance Agency [2023] AATA 2762 (28 August 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/1984

Re:Lachlan Rowe

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:28 August 2023

Place:Adelaide

The Tribunal declines to make an order under section 37(2) of the Administrative Appeals Tribunal Act 1975.

.........................[Sgnd]...............................................

Member I Thompson

CATCHWORDS

PRACTICE AND PROCEDURE - access request to become a participant in the NDIS rejected – decision affirmed on internal review – application for review by the Tribunal – Applicant’s request for a notice under section 37 (2) of the Administrative Appeals Tribunal Act 1975 to the Respondent to produce additional documents – order for production of documents not made.

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Confidential and Australian Prudential Regulation Authority [2005] AATA 1264

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Spicer Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77

REASONS FOR DECISION

Member I Thompson

August 2023

BACKGROUND

1. The applicant, Mr Rowe, made a request to access the NDIS. The Agency refused the request. The refusal was affirmed on internal review.  Mr Rowe lodged an application to the Tribunal for review of the internal review decision.  In the access request form, Mr Rowe listed his disabilities as attention deficit hyperactivity disorder – combined type (ADHD), sensory processing disorder and complex post-traumatic stress (PTSD).

2. Interlocutory hearings were convened in relation to two issues. One of them related to Mr Rowe’s objection to the Agency being granted leave to access documents produced under summons by two medical clinics. The Tribunal determined on 9 June 2023 that the Agency be granted leave to inspect those documents and written reasons were provided for that decision.

3. The other issue arose out of Mr Rowe’s request to the Agency to produce certain documents. He was not in a position to finalise his submissions about that request at previous interlocutory hearings. Accordingly, an interlocutory hearing by telephone was convened on 18 August 2023 at which oral submissions were made by both parties. In addition, the Tribunal had the benefit of the parties’ prior written submissions.

   THE REQUEST

4. Mr Rowe requested the Agency to produce documents which he listed as: –

   (a)“all agency file notes relating to my access request, internal review, and AAT Appeal

   (b)all logs of calls with myself and the agency regarding my access request, internal review, and AAT appeal

   (c)any decision-making matrices, rubrics or other documents used to determine the outcome of the original access application

   (d)the same of the above for the internal review decision

   (e)all agency correspondence internally and any other parties relating to my access request, internal review, and AAT appeal”

   LEGAL FRAMEWORK

5. Section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) sets out requirements for lodging of material documents with the Tribunal. Section 37(1) of the AAT Act states:

   (1)Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

   (a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

   (b)subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

6. The Agency, as the primary decision maker, is not necessarily required to produce every document in its possession regarding Mr Rowe’s application. The requirement for disclosure under s 37(1)(b) of the AAT Act is that every document which is relevant to the Tribunal’s review decision must be lodged. In order to be relevant, the document must be “connected with or pertinent to, the review of the decision by the Tribunal.” (Spicer Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77 at [19], per Deputy President Forgie).

7. In Confidential and Australian Prudential Regulation Authority [2005] AATA 1264, the Tribunal (President Downes) observed at [21], “what is relevant in proceedings before a tribunal conducting merits review of a decision is different to what is relevant in adversarial proceedings before a court.” That is because the review of the decision by this Tribunal requires determination “… whether the decision under review is the correct or preferable one on the material before the Tribunal…” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 per Bowen CJ and Deane J at 589).

8. The Tribunal may require other documents to be lodged. Section 37(2) of the AAT Act provides:

   “Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.”

9. In accordance with this provision, it is for the Tribunal to form the opinion about the documents and whether they may have relevance to the review of the decision by the Tribunal. 

   CONSIDERATION

10. The Agency lodged the T-Documents in accordance with s 37(1) of the AAT Act. They include correspondence from the Agency to Mr Rowe and material regarding his access request, together with reports and assessments from Mr Rowe’s treating psychiatrist and psychologist.

11. In his first written submission, Mr Rowe stated that the requested documents “would shed necessary light for the Tribunal on the reasoning for the Agency’s ruling counter to current and best practice medical advice and research and their own guidelines.”

12. The essence of Mr Rowe’s second written submission was similar to his first submission. It included reasons in support of his argument that the requested documents would be relevant to the Tribunal’s review. In particular, it was submitted that any decision-making documents that may have influenced the Agency in its decision may be of assistance to the Tribunal in coming to its decision.

13. The Agency’s counsel, Ms Carnell, provided a written submission together with copies of “additional documents” which comprised a copy of interaction records between the Agency and Mr Rowe in the period between 4 January 2022 and 10 March 2022, together with a copy of a letter dated 14 January 2022 from the Agency to Mr Rowe. At the interlocutory hearing, Mr Rowe acknowledged that he was satisfied that those documents comprise all the material in the Agency’s possession in regard to his request (b), namely all logs of his calls with the Agency regarding the access request, internal review, and AAT appeal. Accordingly, a direction under s 37(2) of the AAT Act was not pursued and is not required in relation to that request.

14. In the written submission, which was reiterated at the interlocutory hearing, Counsel for the Agency confirmed that there are no documents in Mr Rowe’s requested categories (c) & (d) regarding decision-making matrices and rubrics (or other documents) in relation to the original decision and the internal review decision. The reference to “other documents” is taken to be documents in the nature of and akin to decision making matrices and rubrics.

15. Mr Rowe did not accept the assurance. He contended that the Agency’s original decision and the internal review decision did not address the evidence and arguments that he provided in support of his access request. According to his submission, it followed that the original decision and internal review decision could only have been reached by the application of rubrics and decision-making matrices. Alternatively, if it is correct that those decision-making devices do not exist, he submitted that the Tribunal should set aside the internal review decision and grant him access to the scheme

16. Mr Rowe is unable to point to any documentary evidence to suggest that the matrices and rubrics exist. The Tribunal has the Agency’s assurance as a model litigant that the matrices and rubrics do not exist. Even if the material existed, an assessment of its apparent relevance to the review of the decision would be required. The Tribunal does not have any basis to make a direction under s 37(2) of the AAT Act regarding this request.

17. The remaining material which Mr Rowe requested would consist of Agency file notes regarding his access request, internal review, and AAT application, other than the interaction notes already provided, and all internal and external Agency correspondence regarding his matter. That is the material specified in his requests at (a) and (e).

18. The request to the Agency in category (a) was specifically for all file notes. To the extent that they include the material produced in response to request (b), they have been produced. That material comprises the interaction notes, and the letter dated 14 January 2022.

19. Counsel for the Agency submitted that the request for the remaining material in (a) and (e) should be rejected on the basis that the way in which the Agency conducted its review is not relevant and therefore the requested documents would not have a bearing on the determination of the substantive application.

20. Mr Rowe submitted that any decision-making documents that may have influenced the Agency in its decision should be lodged with the Tribunal as they may assist the Tribunal in coming to its decision. This submission and similar themes in his written submissions may reflect some misapprehension about the role of the Tribunal in merits reviews. The Tribunal is not a court presiding over and adjudicating in criminal or civil proceedings. Rather the Tribunal is conducting a review by standing in the shoes of the decision-maker to determine the correct or preferable decision. It is an exercise of executive or administrative power, not judicial power. The Tribunal must determine what the decision on review should be rather than determining whether the basis of the Agency’s decision was correct. It is important to keep these considerations in mind, as Mr Rowe went on to argue that if the requested decision-making documents do not exist, there would be no recourse for the Tribunal to uphold the Agency’s decision and consequently the Tribunal would be bound to grant him access to the NDIS. That contention is not correct.

21. The Tribunal is required to consider whether there are any documents in the remaining categories or a class of other documents that may be relevant to review of the decision. If the Tribunal is satisfied about relevance, it may direct lodgement of those documents pursuant to s 37(2) of the AAT Act. Mr Rowe did not provide any indication about other documents, or documents within a particular class of documents, in the possession or control of the Agency, which may be relevant. The Tribunal does not have any information before it to determine or even to infer that the Agency has other material relating to Mr Rowe’s application, let alone whether these types of documents may have any degree of relevance to the review.

22. In Mr Rowe’s written and oral submissions, the clear emphasis was the request for production of documents. In addition, however, he wrote in his second submission (at paragraph 12) that the Agency’s letter of decision did not provide clear or detailed reasons for rejecting his access request. In that way, it seems to be suggested that lodging additional documents which, by inference, must exist, would enable the Tribunal to understand the specific reasoning for the Agency’s decision.

23. The Agency wrote to Mr Rowe on 2 February 2022 in which it explained the outcome of his application to become a participant in the NDIS. That letter confirmed that he meets the age and residence requirements. It explained the Agency’s finding that he does not meet the disability requirements in relation to permanency of impairments and he does not meet the early intervention requirements for the same reason. An expansive explanation is found in the letter dated 10 March 2022 from the Agency to Mr Rowe with the result of the internal review. 6 pages of that 9-page letter comprise a summary of the internal reviewer's analysis of the documentary evidence and the applicable criteria in the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”) and in the NDIS (Becoming a Participant) Rules. The explanation includes a rationale for the conclusions which the internal reviewer reached in relation to each of the statutory criteria. The reasoning is not vague. It describes quite clearly the reasoning for refusing the access request.

24. In summary:

    (i)the Agency has lodged all additional documents in its possession in response to Mr Rowe’s request (b);

    (ii)there are no documents in the requested categories (c) and (d);

    (iii)in relation to Mr Rowe’s requests (a) & (e), the Tribunal has not formed the opinion that there are any other documents or documents in a particular class that may be relevant to the review; and

    (iv)there is no need for an order requiring the Agency to produce further material pursuant to s 37(2) of the AAT Act.

    DECISION

25. The Tribunal declines to make an order under section 37(2) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

......................[sgnd]...................................

Associate

Date of Decision:	28 August 2023
Date of Hearing:	18 August 2023
Representative for the Applicant:	Self-represented
Counsel for the Respondent:	Ms Emma Carnell HWL Ebsworth Lawyers