Shada and National Disability Insurance Agency

[2023] AATA 258

Shada and National Disability Insurance Agency [2023] AATA 258 (23 February 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2023/0541          

Re:Jibrael Shada

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member K. Parker

Date:23 February 2023

Place:Sydney, by videoconference

The Tribunal sets aside the decision of the Respondent confirming its earlier decision not to grant the Applicant's request for a reassessment of his NDIS plan under s 48 of the National Disability Insurance Scheme Act 2013 (Cth) (s 48 reassessment) and substitutes it with a decision to grant the Applicant's request for a s 48 reassessment.

The s 48 reassessment will now be undertaken by the Respondent.

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

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of decision not to grant Applicant’s request for a reassessment to be undertaken under s 48 of the National Disability Insurance Scheme Act 2013 (Cth) – Respondent consents to the reassessment being undertaken – Tribunal sets aside decision under review and in substitution decides that the Respondent is to undertake a reassessment of the Applicant’s NDIS plan

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K. Parker

23 February 2023

1. The Applicant, Mr Jibrael Shada, seeks review of a decision by a “reviewer” of the Respondent, National Disability Insurance Agency (NDIA), made under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 9 December 2022, to confirm an earlier decision by a different delegate of the Chief Executive Officer of the NDIA not to grant a request by Mr Shada that the NDIA undertake a reassessment of his NDIS plan under s 48 of the NDIS Act (Decision Under Review).

2. With the consent of the parties, the matter was heard substantively on 22 February 2023, following a directions hearing, at which time the NDIA informed the Tribunal that its position had changed and that it consented to undertaking a reassessment under s 48 of the NDIS Act. Ms Sahar Shada, the Applicant’s sister and plan nominee, and Mr Shada’s support coordinator informed the Tribunal about the urgent circumstances of Mr Shada, given his severe disability.

3. Mr Shada’s support coordinator explained that there were 51 days remaining in Mr Shada’s plan and only $13,000 of core support funding remained (from the original total of $527,000, to cover a notional period of 12 months). Ms Shada informed the Tribunal and the NDIA that Mr Shada remained living independently and she considers that it is appropriate that he is funded for 1:1 supports, and active overnight support every night of the week. Ms Shada considers it not appropriate that Mr Shada live with another NDIS participant, as anticipated would be the case for the final three months of Mr Shada’s current NDIS plan (and funded as such). 

4. Given the NDIA’s position has changed since it made the Decision Under Review, and further information and reports are now available, to expedite matters (and with the consent of both parties to this proceeding), the Tribunal will now deicide this matter substantively.

5. The Tribunal sets aside the decision of the NDIA on 9 December 2022, confirming its earlier decision not to grant the Applicant's request for a reassessment of his NDIS plan under s 48 of the NDIS Act (s 48 reassessment), and substitutes it with a decision to grant Mr Shada’s request for a s 48 reassessment.

6. This means that a s 48 reassessment will now be undertaken by the NDIA in respect of Mr Shada’s NDIS plan.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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

Associate

Dated: 23 February 2023

Date of hearing:	22 February 2023
Advocate for the Applicant:	Ms Shada, Applicant's sister/plan nominee
Solicitors for the Respondent:	Mr Zac McCaughan, Minter Ellison