Shanney and National Disability Insurance Agency
[2022] AATA 827
•22 April 2022
Shanney and National Disability Insurance Agency [2022] AATA 827 (22 April 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/6369
Re:Robert SHANNEY
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:22 April 2022
Place:Sydney
The Tribunal decides that it has jurisdiction to review the statement of participant supports approved by the Respondent on 22 February 2022 as part of the application for review filed on 7 September 2021.
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Member P Smith
CATCHWORDS
PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – JURISDICTION – whether the Tribunal has jurisdiction to review a new plan approved by the Respondent as part of the application for review – where the Respondent did not advance a position on whether the Tribunal has jurisdiction – where previous decisions of the Tribunal in similar circumstances considered – Tribunal satisfied there is jurisdiction to review the new plan as part of the current application.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42D
National Disability Insurance Scheme Act 2013 (Cth), s33(2), s48(5)
CASES
Holland and National Disability Insurance Agency [2021] AATA 92
SSLP and National Disability Insurance Agency [2021] AATA 4207
REASONS FOR DECISION
Member P Smith
22 April 2022
This is an application made by Mr Robert Shanney (the Applicant) to the Tribunal to review an internal review decision made by a reviewer of the National Disability Insurance Agency (the Respondent) on 12 August 2021. The internal review decision confirmed a decision made by a delegate of the Chief Executive Officer (CEO) of the Respondent dated 10 March 2021 to approve a statement of participant supports pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (the NDIS Act) for the period commencing on 10 March 2021 and ending on 10 March 2022.
The Applicant is a 59 year old man. He has an intellectual impairment, Type 2 Diabetes Mellitus, Sleep Apnoea and Trachoma.
In the course of these proceedings, on 7 February 2022, the Applicant’s Advocate wrote to the Respondent’s solicitor proposing that the parties’ consent to remitting the internal review decision to the Respondent for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Later that day, the Respondent’s solicitor advised the Applicant’s Advocate that she would seek instructions from the Respondent about whether they would consent to a section 42D remittal.
However, on 23 February 2022, the Applicant’s Advocate advised the Respondent’s solicitor that the Applicant had received notification from the Respondent that they had approved a new plan pursuant to subsection 48(5) of the NDIS Act for the period commencing on 22 February 2022 and ending on 23 February 2023. This was done without any reference to the Applicant or these proceedings and before any agreement had been reached between the parties regarding the terms of a section 42D order.
No order was made by the Tribunal under section 42D of the AAT Act to remit the internal review decision to the Respondent for reconsideration.
As a result of the new plan being approved, the Respondent requested that the matter be listed for an Interlocutory Hearing to consider whether the Tribunal has jurisdiction to review the Applicant’s new plan as part of his application for review.
An Interlocutory Hearing by telephone was held on 7 April 2022 to consider the jurisdiction question. The Applicant and his Advocate appeared before the Tribunal. The Applicant’s Advocate provided written submissions to the Tribunal prior to the Interlocutory Hearing and spoke briefly to them at the hearing. The Respondent’s solicitor also appeared before the Tribunal at the hearing. The Respondent’s solicitor indicated to the Tribunal in her email to the Tribunal of 29 March 2022 that in the circumstances the Respondent did not wish to advance a position on the jurisdiction question. This was confirmed at the hearing.
The Respondent also confirmed at the hearing that the new plan approved on 22 February 2022 is materially the same plan, with minor adjustments in prices, that was approved on 10 March 2021, the subject of the review currently before the Tribunal.
The Applicant’s written submissions dated 7 April 2022 set out comprehensive arguments in support of the submission that the Tribunal has jurisdiction to review the new plan as part of his application for review. He has referred to the decision of Senior Member Parker in SSLP and National Disability Insurance Agency [2021] AATA 4207 (SSLP) and the decision of Deputy President Constance in Holland and National Disability Insurance Agency [2021] AATA 92 (Holland) submitting based on these two decisions the Tribunal has jurisdiction to review the new plan as part of his application for review. The Respondent also refers to these two decisions in their email correspondence of 29 March 2022.
The Tribunal has carefully considered the Applicant’s written submissions and the reasons given by Senior Member Parker in SSLP and the reasons given by Deputy President Constance in Holland. The Tribunal is therefore satisfied on that basis that the Tribunal has jurisdiction to review the plan approved by the Respondent on 22 February 2022 as part of the application for review filed on 7 September 2021.
DECISION
The Tribunal decides that it has jurisdiction to review the statement of participant supports approved by the Respondent on 22 February 2022 as part of the application for review filed on 7 September 2021.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
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Associate
Dated: 22 April 2022
Date(s) of hearing: 07 April 2022 Advocate for the Applicant: Ms B Horne Solicitors for the Respondent: Ms S Miller, SPARKE HELMORE
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