SBZQ and National Disability Insurance Agency - [2021] AATA 3496

SBZQ and National Disability Insurance Agency [2021] AATA 3496 (29 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/2538
Re:SBZQ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Member K Buxton
Date:29 September 2021
Place:Brisbane

The Tribunal refuses to dismiss the review application.
......................[SGD]...........................
Member K Buxton

Catchwords
PRACTICE AND PROCEDURE — National Disability Insurance Scheme Act 2013 (Cth) — jurisdiction — whether authority to lodge review application — parental responsibility — whether substantive or procedural defect — application may be validated retrospectively — Tribunal has jurisdiction to determine the application
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25, 27, 29, 30, 42D
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 74, 75, 100, 103
Cases
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Hartley Poynton Ltd v Ali [2005] VSCA 53
HFGC Nominees (No 2) Pty Ltd v. Hancock as Liquidator of 246 Arabella Investments Pty Ltd (In Liq) [2010] FCA 1005
NNXF and National Disability Insurance Agency [2019] AATA 5552
Re ACN 092 138 442 Pty Ltd (In Liq) and the Commissioner of Taxation [2013] AATA 690
REASONS FOR INTERLOCUTORY DECISION
Member Buxton
Background

The Applicant for review is a ten-year-old girl with complex health issues and a history of trauma. Since April 2018 she has been in the care of her foster mother, Ms Pedrotti who, together with her fiancé, meets the day to day needs of the Applicant.[1] Since December 2019 the Secretary of the Department of Families, Fairness and Housing (the Secretary) has been appointed as guardian of the Applicant.[2]
[1] Applicant’s Statement of Facts, Issues and Contentions dated 20 July 2021 at para [8].
[2] A “Care by the Secretary Order” dated 20 December 2019 provided that parental responsibility for SBZQ was conferred on the Secretary on that date – Written submissions lodged by the Respondent on 17 September 2021, referring to a document lodged with the Tribunal on 20 July 2021.
The Applicant is a participant in the National Disability Insurance Scheme (NDIS) administered under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). According to information prepared by the Respondent in this case, the Applicant resides with her foster parents, is supported by child protection, and has diagnoses of Down syndrome, intellectual disability, severe sleep apnoea, global developmental delay, dental caries, Eustachian tube dysfunction, Rotational nystagmus and Moderate oropharyngeal dysphagia, together with autistic traits for which she is awaiting assessment.[3]
[3] Respondent’s Statement of Issues dated 15 December 2020 at para [4].
On 30 April 2020, an application was made to the Tribunal to review a decision of a reviewer made under section 100 of the NDIS Act on 2 April 2020.[4] The reviewer’s decision had been made following a request for internal review of a decision by a delegate of the CEO of the Respondent made on 17 February 2020 to approve a Statement of Participant Supports pursuant to subsection 33(2) of the NDIS Act.[5] Each of the Applicant’s internal and external review rights have been exercised by Ms Pedrotti on behalf of the Applicant, and Ms Pedrotti contends that the Applicant’s approved Statement of Participant Supports does not contain funding for certain supports that are reasonable and necessary.[6]
[4]     T-documents, T1.
[5]     T-documents, T1M.
[6]     T-documents, T1.
This review application has proceeded through various stages over the past eighteen months, including eight case conferences attended by the parties. The decision under review has been re-made in January 2021 following a remittal by the Tribunal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The review application was listed for a substantive hearing in early October 2021.
On 15 September 2021 an interlocutory hearing was conducted during which both the Secretary, on behalf of the Applicant and as her legal guardian, and the Respondent decision-maker, submitted that the review application should be dismissed because, when that review application was lodged on behalf of the Applicant at the direction of Ms Pedrotti, Ms Pedrotti did not have authority so direct. The effect of the submission is that the Applicant was limited in how she was able to exercise her review rights as only the Secretary could validly lodge an application on her behalf and that, when her review application was lodged on her behalf by someone other than the Secretary, this affected her substantive right to proceed with a review application (in other words, as something more than a procedural defect).
The Tribunal notes that the Applicant is a participant in the NDIS and a person whose interests are affected by a reviewable decision. The Tribunal is satisfied that there is no question of standing as the Applicant is clearly contemplated by the AAT Act as a person entitled to exercise her administrative review rights. Ultimately, despite the Applicant having earlier raised the issue of standing, neither the Secretary, on behalf of the Applicant and as her legal guardian, nor the Respondent decision-maker, submitted to the contrary during the interlocutory hearing.
The Respondent contends that the issue for determination by the Tribunal is not whether the Applicant had standing to apply for review, or indeed whether Ms Pedrotti had standing to apply to the Tribunal in her own capacity (as had been earlier suggested by lawyers acting for the Applicant), but rather whether Ms Pedrotti had the authority to make the review application on behalf of the Applicant.
In this case, the review application was not physically lodged by the Applicant herself. She is a child with disabilities. She relies on others to take care of her and to take steps necessary on her behalf to ensure her rights are exercised. Ms Pedrotti asked Ms Duane, an advocate, to lodge the Applicant’s review application with the Tribunal and this occurred on 30 April 2020.[7]
[7] T-documents, T1.
Until relatively recently, the Secretary had not been involved with, or concerned with, any aspect of the Applicant’s participation in the NDIS (including in relation to this application). This task appears to have (at least informally) been left to Ms Pedrotti as a result of inaction by the Secretary. Until relatively recently, the Respondent had not concerned itself with whether the foster mother of the Applicant, known to be a child in care, held the relevant authority to communicate with the Respondent on behalf of the Applicant or take any relevant steps under the NDIS Act, notwithstanding that it is plain from the material that the Respondent was well aware that the applicant was a child in care.
It is against that background that the Secretary, and the Respondent, at this very late stage in the progression of this review application, each submitted that Ms Pedrotti required legal authority to lodge the review application on the Applicant’s behalf but lacked such authority, and further submitted that the resulting review application was a nullity. The impact of this submission, if correct, is likely to be catastrophic to the Applicant’s substantive right to pursue her review application (including to the decision made by the Respondent pursuant to a remittal purportedly made in the course of this review under section 42D of the AAT Act). Having regard to the seriousness of the impact of these submissions on the ten-year-old Applicant, the Tribunal will therefore carefully consider whether it is appropriate to determine that the Tribunal lacks jurisdiction to determine her review application because of the way in which the Application was lodged.
THE TRIBUNAL’S POWER TO REVIEW A DECISION
General provisions
The Tribunal’s review powers are created by, and limited to, those given to it by Parliament in an enactment. The Tribunal has power to review particular decisions only where an enactment specifies such a power. This follows from the provisions of section 25 of the AAT Act which relevantly states:
“(1)      An enactment may provide that applications may be made to the Tribunal:
(a)       for review of decisions made in the exercise of powers conferred by    that enactment;
…
(3)Where an enactment makes provision in accordance with subsection (1) …, that enactment:
(a)       shall specify the person or persons to whose decisions the provision    applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)       may specify conditions subject to which applications may be made.”
Where an enactment provides that an application may be made to the Tribunal for review of a decision, such an application may only be made in the manner prescribed by section 29 of the AAT Act and by certain persons. In relation to persons who may apply for review, subsection 27(1) provides that:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.”
The parties to a proceeding for review of a decision are specified in subsection 30(1) of the AAT Act. Relevantly, a party to a review application includes, “any person who, being entitled to do so, has duly applied to the Tribunal for review of the decision”. Pursuant to section 103 of the NDIS Act, applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6) of the NDIS Act. Such a reviewable decision was made in this case.
Modification by the enabling act
Subsection 25(6) of the AAT Act provides that provisions of the AAT Act may be added to, excluded or modified by an enactment that provides for applications to be made to the Tribunal. Such modifications may shed light on whether an applicant has duly applied to the Tribunal for review.
Chapter 4, Part 4 of the NDIS Act contains particular provisions with respect to children who are (or who have requested to become) participants in the scheme. Subsection 75(1) has the effect of deeming the Secretary, on becoming the legal guardian of the Applicant, to be the person with parental responsibility for the Applicant. Subsection 74(1) of the NDIS Act provides that, where the NDIS Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to ‘the person who has, or the persons who jointly have, parental responsibility for the child’ (paragraph 74(1)(a)) or ‘if the CEO is satisfied that this is not appropriate—a person determined in writing by the CEO’ (paragraph 74(1)(b)).
An application to the Tribunal for review may be made under section 103 of the NDIS Act, and therefore the making of such an application is a ‘thing’ that the NDIS Act permits to be done. Where, as here, the Applicant is a child, it follows the making of an application to the Tribunal for review of a reviewable decision is a ‘thing’ the NDIS Act permits to be done in relation to a child.
Shortly after the interlocutory hearing, the Respondent lodged written submissions, including the following submissions in relation to the significance of those provisions of the NDIS Act:[8]
“20. As at both 30 April 2020 (the date the application was lodged) and today’s date, the Secretary is SBZQ’s legal guardian. The Secretary has ‘parental responsibility’ for SBZQ pursuant to section 75 of the NDIS Act.
21. Ms Pedrotti was not SBZQ’s child representative pursuant to section 74(1)(a) at the time the review application was made to the Tribunal, as parental responsibility had been conferred on the Secretary to the exclusion of all other persons.
22. There is no evidence in the Respondent’s records of the CEO making a determination in writing pursuant to section 74(1)(b) of the NDIS Act that Ms Pedrotti was SBZQ’s child representative.
23. In any event, the CEO could not have made such a determination without the Secretary’s (or relevant Minister’s) agreement in writing to the determination: section 74(1A) of the NDIS Act. There is no evidence in the Respondent’s records of any such agreement by the Secretary or Minister.
24.In the result, Ms Pedrotti did not have the legal authority, pursuant to section 74 of the NDIS Act, to authorise Ms Duane to lodge an application in the Tribunal on SBZQ’s behalf.”
[8] Respondent’s submission on jurisdiction dated 17 September 2021, para [20]-[24].
The Tribunal is to consider those submissions within the relevant statutory setting and having proper regard to the interpretation of the relevant statutory provisions. The provisions of the NDIS Act work together with those of the AAT Act to create a pathway for merits review, by the Tribunal, of particular decisions made under the NDIS Act. In NNXF and National Disability Insurance Agency[9] (NNXF), in a joint decision of Justice Thomas and Deputy President Britten-Jones, the preferable approach when construing together the relevant provisions of the AAT Act and the NDIS Act was stated thus: [10]
“24.The NDIS Act and the AAT Act are beneficial legislation and the policy behind these statutes is to promote opportunities for persons aggrieved by a decision to have that decision reviewed and to ensure that the correct and preferable decision is made.
25.The sections of each Act should be construed harmoniously and justly so as to achieve the purposes outlined in each Act, and consistently with the “General principles guiding actions” set out in s 4 of the NDIS Act (“the General Principles”).
26. As Kirby P observed in Commr of Stamp Duties v Permanent Trustee Co Ltd[11], this approach facilitates the sensible operation together of the two statutes mentioned, avoiding inefficiency and a capricious outcome which would seriously impede or discourage the availability of beneficial statutory provisions.”
[9] [2019] AATA 5552.
[10] Ibid at [24] – [26].
[11] (1987) 9 NSWLR 719 at 723-724.
In the context of merits review, the Tribunal is to have regard to section 2A of the AAT Act. Subsection 2A(b) provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
The particular facts of this case
During the interlocutory hearing some limited information was provided to the Tribunal by Ms Pedrotti, by the advocate, Ms Duane, who had lodged the review application and by representatives employed by the Department of Families, Fairness and Housing (the Department), Mr Sherlock and Ms Allen.
It appears from statements made by Ms Pedrotti during the interlocutory hearing that the Applicant became a participant in the NDIS after she came into the care of Ms Pedrotti and her fiancé, although that is not entirely clear. The Applicant arrived in the home of Ms Pedrotti on 12 April 2018.[12] The appointment of the Secretary as guardian of the Applicant did not occur until 20 December 2019.[13]
[12] Applicant’s Statement of Facts, Issues and Contentions dated 20 July 2021 at para [8].
[13] A “Care by the Secretary Order” dated 20 December 2019 provided that parental responsibility for SBZQ was conferred on the Secretary on that date – Written submissions lodged by the Respondent on 17 September 2021, referring to a document lodged with the Tribunal on 20 July 2021.
Ms Allen is assigned to the relevant regional unit undertaking child and family services work and first met with Ms Pedrotti and the Applicant, in order to manage her case, in November 2020 (almost a year after the appointment of the Secretary as guardian of the Applicant). It was indicated by Mr Sherlock, in answer to a question put by the Tribunal, that, prior to November 2020, it was likely that due to the Secretary having been appointed as guardian for many children, a specific officer to liaise between the Secretary and Ms Pedrotti had not yet been allocated. This was consistent with Ms Pedrotti’s statement that, before the involvement of Ms Allen, no-one from the Department was looking after the Applicant and she (not unreasonably) took the view that part of her role was to advocate for the Applicant.
Based on the limited information available to the Tribunal it appears that, until at least November 2020, the Applicant has had no choice but to rely on Ms Pedrotti to assist her to exercise her rights on a day-to-day basis, notwithstanding the appointment of the Secretary to assist her as her legal guardian.
Consideration
The Secretary and the Respondent both submitted that the lodgement of a review application at the Tribunal is a task that could only be undertaken on behalf of the Applicant by the Secretary. They each submitted that, as the Secretary did not cause the review application to be lodged, that application was a nullity, or of no effect.
The Secretary and the Respondent submitted that the filing of a review application under subsection 27(1) of the AAT Act is a “thing to be done by or in relation to a child” as contemplated by subsection 74(1) of the NDIS Act.
The Secretary submitted that to read subsection 27(1) of the AAT Act in a way that allows for any person other than the legal guardian of the Applicant to lodge a review application had the potential to lead to bizarre or unintended consequences in other review applications as the class of persons who could purport to exercise review rights would be unnaturally enlarged. The Tribunal is not concerned here with other review applications, but with determining the interlocutory issue raised by the parties in this application. Here, the review application was lodged by an advocate at the direction of the Applicant’s foster mother and day-to-day carer. It is for the Tribunal to consider only whether the application has been duly lodged.
The mischief with which the Secretary’s submission is concerned appears to be that the Secretary, being Applicant’s legal guardian, was unaware that the review application was lodged on behalf of the Applicant by Ms Pedrotti. This mischief has been created by the absence of any meaningful contact between the Secretary and Ms Pedrotti and contributed to by the Respondent’s apparent lack of interest, until now, in ensuring that the Applicant has been represented in any relevant process by a person with parental authority.
The issue concerned is procedural, or administrative, in nature. The Applicant has review rights, but her legal guardian did not sign or lodge her application, or direct that it be signed or lodged. However, any factual question of the review application proceeding without proper notice have long been resolved by the Secretary being made aware of the review application before it had been finally determined. So far as the Tribunal can tell, this occurred sometime after November 2020 when Ms Allen became involved in the management of the Applicant’s case. After that point, the Secretary could have made an election at any time to take steps in this application to correct the administrative error, on the part of the Secretary, in not having provided the Applicant access to a person with proper authority to lodge the review application. Alternatively, it has been open to the Secretary to withdraw, resolve or otherwise participate in the application. There appear to be a number of further options available to the Secretary, as the entity with parental responsibility for the Applicant, to determine the future of this application.

Firstly, neither party expressly addressed the issue of whether the Applicant, through the Secretary, intends to apply to the Tribunal to amend her review application nunc pro tunc, on the basis that the Secretary retrospectively authorises or directs the making of this review application. There is nothing in the language of subsections 25(1) or 27(1) of the AAT Act, or of the NDIS Act, that would preclude this simple solution to overcome the procedural irregularity.[14] If the Secretary could have made the review application on 30 April 2020 the Secretary can indicate that it does so now and can apply to have the review application reflect the Secretary’s intention. Such a solution would be consistent with the beneficial reading of the legislation urged by the majority in NNXF and broadly consistent with the objects of both the AAT Act and the NDIS Act. I cannot see why such an application could not be initiated by the Applicant, through the Secretary, in writing.
[14] Hartley Poynton Ltd v Ali [2005] VSCA 53 at [73] per Ormiston JA. See also HFGC Nominees (No 2) Pty Ltd v. Hancock as Liquidator of 246 Arabella Investments Pty Ltd (In Liq) [2010] FCA 1005, Perram J; Re ACN 092 138 442 Pty Ltd (In Liq) and the Commissioner of Taxation [2013] AATA 690, SM Redfern.
Secondly, the Tribunal considers that, given that Ms Pedrotti lodged the review application on 30 April 2020, and given that application has since been brought to the attention of the Secretary, it is open to the CEO of the Respondent, in consultation with the Secretary, to take steps under paragraph 74(1)(b) and subsection 74(1A) of the NDIS Act to:
(a)Seek the written agreement of the Secretary of the Department, under subsection 74(1A) of the NDIA Act, to make a determination that it was not appropriate for the Secretary to lodge the review application dated 30 April 2020; and
(b)If such agreement is provided, make a determination under paragraph 74(1)(b) of the NDIS Act that it was appropriate that the review application dated 30 April 2020 be lodged under subsection 27(1) of the AAT Act by, or at the direction of, Ms Pedrotti, on behalf of the child.
The Tribunal asked the parties if they wished to make submissions on this particular course of action. The Secretary declined to do so. The Respondent submitted that, “as the CEO has not formed the state of satisfaction required by section 74(1)(b) as a preliminary matter to the CEO making a determination pursuant to 74(1)(b), it would be impermissible for the CEO to make such a determination or to take any steps pursuant to section 74(1A)” and, for “completeness”, also submitted such a step could not be taken retrospectively. It seems trite that the CEO would need to ask the Secretary whether it was appropriate for the review application to have been lodged on the Applicant’s behalf by Ms Pedrotti, rather than by the Secretary, before forming a view about that. The submissions are responsive to the question in form only, and do not provide substantive assistance to the Tribunal in determining the question as to which submissions were invited. There appears to be no statutory prohibition upon the CEO making relevant enquiries of the Secretary in order to form the necessary “state of satisfaction”, or upon such a step being taken retrospectively. The Respondent provided no authority in support of either such proposition. It is a matter for the Secretary and the Respondent whether they wish to take steps within their control to cure what they each say is a defect in this application.
Finally, the parties may consent to a resolution of the application on whatever terms they consider appropriate. There is no question that the Secretary can now take whatever steps in the exercise of parental responsibility for the Applicant that are considered appropriate by the Secretary in respect of the Applicant’s rights.
It is a matter for the parties whether they seek to pursue any of the identified options. Any perceived defect or flaw in the form of the application, arising from the Applicant not being able to exercise her review rights through the Secretary acting on her behalf at the relevant time, and which led to her review application being lodged by a person other than the Secretary is procedural or administrative in nature, and does not impact the Applicant’s substantive rights. As such, the administrative error is capable of being cured. It is also a matter for the Applicant through her guardian, if it considers that the application is flawed, lacks jurisdiction, or is otherwise a nullity, to withdraw that application. In doing so, it is a matter for the Secretary to exercise, appropriately, the powers granted to it as guardian of the Applicant, and to discharge its duties to the Applicant as the person with parental responsibility under the NDIS Act.
In any event, in circumstances where neither the Respondent nor the Secretary has, until relatively recently, concerned itself with who has proper authority to take steps on behalf of the Applicant in relation to her participation in the NDIS and, in particular, this review application, it is open to the Tribunal to accept (until it is demonstrated to the contrary) that Ms Pedrotti has been permitted by the action (or inaction) of both the Secretary and the Respondent to lodge the review application on behalf of the Applicant. Further, it is open to the Tribunal to conclude that the Applicant may exercise her substantive rights through her caregiver and that her actions may subsequently, and at any time prior to the final determination of the Applicant, be ratified by the Secretary. There is no basis to undermine the Applicant’s properly constituted review application as a result of the conduct of the Secretary and no basis to dismiss the Applicant’s review application at the Secretary’s request. The information provided, and submissions made, by the Secretary and by the Respondent have not sufficiently established that the review application is a nullity or that the Tribunal lacks jurisdiction to determine it. As in all review applications, jurisdiction remains a live matter of which the Tribunal must be satisfied when making a final determination and it is, of course, open to the parties to raise any extant issues of jurisdiction at the time of substantive hearing of this review application.
The Respondent submitted that it was proper for the review application to be dismissed on the basis that the Tribunal lacked jurisdiction. Presumably, the Respondent was inviting the Tribunal to exercise inherent jurisdiction to control its’ own process. The Applicant, through the Secretary, submitted that it was proper for the review application to be dismissed on the basis that the decision was not reviewable, under subsection 42A(4) of the AAT Act. I am not satisfied that it is proper to dismiss the review application under subsection 42A(4) of the AAT Act, or on the basis that the Tribunal lacks jurisdiction to consider it. The review application was lodged in respect of a reviewable decision by, or on behalf of, a child who is a participant in the NDIS with the requisite standing. To the extent that the review application contains an administrative error, that is capable of rectification on application by the Secretary on behalf of the Applicant. It is a matter for the Secretary to take what ever next steps it considers appropriate having regard to the facts of this case and the Secretary’s relevant statutory obligations and duties. Unless and until some such further step is taken, the Tribunal will continue its statutory task of conducting this review.
It follows that the Tribunal refuses to dismiss the review application.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton

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Associate
Dated: 29 September 2021

Dates of Hearing:
15 September 2021

Final Submissions Received:

Legal representative for the Applicant (through the Secretary, Department of Families, Fairness and Housing):

Advocate for the Applicant (through her Foster Mother, Ms Pedrotti):

20 September 2021

Mr T Noonan, Victoria Legal Aid

Ms Duane, Grampians Disability Advocacy

Counsel for the Respondent: Ms S Roeger, Australian Government Solicitor