Simmons and National Disability Insurance Agency
[2023] AATA 27
•6 January 2023
Simmons and National Disability Insurance Agency [2023] AATA 27 (6 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/9991
Re:Troy Simmons
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member P Smith
Date:6 January 2023
Date of written reasons: 17 January 2023
Place:Melbourne
DECISION
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 19 July 2021 to approve a statement of participant supports in the Applicant’s Plan is not a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan A).
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 25 March 2022 to approve a statement of participant supports in the Applicant’s Plan is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan B).
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 21 July 2022 to approve a statement of participant supports in the Applicant’s Plan is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan C).
The Tribunal is satisfied that the email sent by the Senior Complaints Officer of the National Disability Insurance Agency to Peter David Simmons on 23 August 2022 is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth).
.................................[SGD].......................................
Member P Smith
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Jurisdiction of the Tribunal – Whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) – Sections 160 and 163 of the Evidence Act 1995 (Cth).
Legislation
Evidence Act 1995 (Cth), ss 160, 163
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 48, 99, 100, 103
Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2), 29(7), 42A(1A), 42A(4)
Cases
Napper and National Disability Insurance Agency [2021] AATA 2363
QDKH and National Disability Insurance Agency [2021] AATA 922
Rogers and National Disability Insurance Agency [2022] AATA 2809NNXF and National Disability Insurance Agency [2019] AATA 5552
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013, Pt 3.4
National Disability Insurance Agency Operational Guidelines, Sustaining Informal Supports, cl 11.1
REASONS FOR DECISION
Member P Smith
17 January 2023
Troy David Simmons (the Applicant) is a 42-year-old participant of the National Disability Insurance Scheme (the NDIS). He has several diagnosis, including Acquired Brain Injury (ABI), Epilepsy, chronic polysubstance drug use and Parkinsonism for which he receives supports funded under the NDIS. He lives alone in Melbourne in a two-bedroom unit. His unit is managed by a Public Authority from Mount Waverley in Victoria.
The Applicant is assisted in this proceeding by his father, Peter David Simmons (Mr Simmons). Mr Simmons is the Applicant’s Plan Nominee and under an Enduring Power of Attorney has the power to make decisions on behalf of his son relating to the Applicant’s medical treatment and matters to do with his finances.
Mr Simmons made an application to the Tribunal on 8 December 2022 on behalf of his son seeking a review of a decision of the National Disability Insurance Agency (the Respondent). Attached to the application is an email Mr Simmons received from a Senior Complaints Officer (SCO) of the Agency on 23 August 2022 in response to a letter of complaint Mr Simmons made to the Minister for the National Disability Insurance Scheme and the Minister for Government Services, the Hon Bill Shorten MP (the Minister) on 11 July 2022. Mr Simmons identifies the email of 23 August 2022 as the decision he wants the Tribunal to review.
The Respondent has identified three other decisions they have made in respect of the Applicant that may be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
The three decisions identified by the Respondent in their written submissions were all made by delegates of the Chief Executive Officer (the CEO) of the Respondent to approve a statement of participant supports (SOPS) in the Applicant’s Plan under subsection 33(2) of the NDIS Act. The first decision was made by the Respondent on 19 July 2021 (Plan A). The second decision was made by the Respondent on 25 March 2022 (Plan B). The third decision was made by the Respondent on 21 July 2022 (Plan C).
A Telephone Interlocutory Hearing (the TIH) was held on 6 January 2023 to determine whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act. Mr Simmons and a solicitor for the Respondent appeared at the TIH and made submissions to the Tribunal addressing this jurisdictional question.
CHRONOLOGY
Before I deal with the question of whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act, it is necessary that I set out in some detail the events that have led to the present jurisdictional issue.
On 19 July 2021, a delegate of the CEO of the Respondent approved SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a 12-month period starting on 19 July 2021 and ending before 19 July 2022, the date specified in the Applicant’s Plan by which the CEO was required to reassess Plan A.
Plan A included funding to the Applicant’s Core Supports Budget and Capacity Building Supports Budget to a total amount of $65,451.80.
Between 19 July 2021 and 19 July 2022, the Respondent says there were many changes to the Applicant’s circumstances, including the Applicant being incarcerated and being admitted to hospital.
Notice of the delegate’s decision to approve a SOPS in the Applicant’s Plan on 19 July 2021 under subsection 33(2) of the NDIS Act was given solely to Mr Simmons which the Respondent sent by post addressed to Mr Simmons at his address in Victoria.
The Respondent says that on or around 9 September 2021 they initiated a telephone call to Mr Simmons. The Respondent says that during this telephone conversation, Mr Simmons told the NDIA staff member that the Applicant’s Support Co-ordinator was working with the Applicant to access appropriate supports and that the Applicant’s current Plan (presumably a reference to Plan A) was presently meeting his son’s needs. However, shortly after this telephone conversation, on a date not specified on the records held by the Respondent, Mr Simmons contacted the Respondent and requested to understand if a ‘plan review’ in respect of the Applicant’s Plan was in progress.
On 21 October 2021, Mr Simmons contacted the Respondent and requested the status of a ‘plan review’. He was advised that no ‘plan review’ had been undertaken by the Respondent with respect to Plan A.
On 18 January 2022, Mr Simmons made further contact with the Respondent and again asked about the status of the ‘plan review’ that he had enquired about on 21 October 2021. The Respondent advised Mr Simmons that there was no current plan review in progress but that he could submit a request to the Respondent to conduct an unscheduled plan review in respect of Plan A under section 48 of the NDIS Act.
On 19 January 2022, a written request to the Respondent to review Plan A was submitted by the Applicant by way of a ‘Change of Circumstances Form’. The form was signed and dated by the Applicant on 9 December 2021. The Applicant said on his form that a plan review was required because there had been changes to his circumstances. The Applicant said on his form that his support needs had changed as his ABI now prohibited him from living independently. The Applicant said on his form that the funding in Plan A did not allow for the Applicant’s increased support needs. The Applicant said on his form that he had assessments to support his current needs and would therefore like an urgent review. The Applicant said on his form that he would like the Respondent to consider his recent reports and reassess his ability to live independently. He also said on his form that he wanted the Respondent to include Supported Independent Living (SIL) in his Plan.
On 25 January 2022, a delegate of the CEO of the Respondent decided within the prescribed time of 14 days under subsection 48(2) of the NDIS Act to conduct a plan review of Plan A.
After conducting an unscheduled review of Plan A, on 25 March 2022, a delegate of the CEO of the Respondent approved a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a 12-month period commencing on 25 March 2022 and ending before 25 March 2023 the date by which the CEO was required to reassess Plan B.
Plan B included a significant increase in funding to the Applicant’s Core Supports Budget and Capacity Building Supports Budget from Plan A to a total amount of $101,245.46.
The Respondent says they notified Mr Simmons of the delegate’s decision made on 25 March 2022 to approve a SOPS in the Applicant’s Plan by post addressed to Mr Simmons at his address in Victoria.
On 1 April 2022, Victoria Police contacted the Respondent and advised that Mr Simmons was no longer willing to provide informal support to the Applicant.
On 21 April 2022, the Applicant’s Support Co-ordinator contacted the Respondent to enquire about the Applicant’s SIL support review application.
On 29 April 2022, Victoria Police made further contact with the Respondent to confirm that the Applicant was or had been arrested. It was not clear to the Respondent from this communication if the Applicant was or had actually been incarcerated.
On 1 May 2022, Mr Simmons made further contact with the Respondent and noted ‘Troy already has a NDIS plan which unfortunately has not been a success as he is unable to connect with his support workers’.
On 4 May 2022, Mr Simmons contacted the Respondent and requested a plan review. He also submitted supporting evidence relating to the Applicant’s disability which the Respondent says Mr Simmons uploaded to the Respondent’s system later that day.
On 5 May 2022, a man who identified himself as Steven from Epic Support Services contacted the Respondent and requested a plan review and the Respondent give their approval so that the Applicant can receive SIL and/or Specialist Disability Accommodation (SDA).
On 5 May 2022, the Respondent provided written confirmation that they had received a request to review the supports in Plan B.
The Respondent says other than providing written confirmation that they had received a request to review the supports in Plan B, the Respondent did not take any action or steps to undertake a plan review or an internal review.
On 11 July 2022, Mr Simmons wrote a letter of complaint to the Minister to raise the following concerns:
·The NDIS plan has not had adequate funding to cover the services he requires to stabilise his well being which is further complicated by drug use.
·A plan review meeting conducted with NDIS on Wednesday 23rd February 2022 did not address the complexity of his needs which should include carer overnight stays according to his doctor and mental health worker.
·The reason I am contacting you is that despite many conversations with NDIS staff, which has produced conflicting and contradictory answers, I cannot achieve a clear and concise answer to the following question: Can a family member fulfill the role of a support worker and be paid from the NDIS funding?
·The reason in seeking clarification to this issue is that I have been fulfilling the role of a crisis support worker as some of the calls have been from doctors, ambulance staff and emergency workers when my son has had severe epileptic episodes or suicidal behaviour often in the middle of the night.
…
·The difficulty is that until he is stabilised, support workers have been unable to engage with my son as his behaviour has been erratic and unreliable.
The Respondent says Mr Simmons’ letter of complaint was uploaded to the Respondent’s system on or around 17 August 2022.
On 19 July 2022, a delegate of the CEO of the Respondent, decided within the prescribed time of 14 days to conduct a review of Plan B under section 48 of the NDIS Act.
After conducting an unscheduled review of Plan B, on 21 July 2022, a delegate of the CEO of the Respondent approved a SOPS in the Applicant’s Plan for a 12-month period starting on 21 July 2022 and ending before 21 July 2023 the date by which the CEO must reassess Plan C.
Plan C includes a slight increase in funding to the Applicant’s Core Supports Budget and Capacity Building Supports Budget from Plan B to a total amount of $103,938.58.
Like in July of 2021, the Respondent notified Mr Simmons of the delegate’s decision made on 25 March 2022 to approve a SOPS in the Applicant’s Plan by post addressed to Mr Simmons at his address in Victoria.
On 18 August 2022, Mr Simmons and the SCO referred to in paragraph [2] had a telephone discussion about Mr Simmons letter of 11 July 2022.
On 23 August 2022, Mr Simmons received an email from a SCO of the Agency in response to his letter of complaint dated 11 July 2022. The email response advised Mr Simmons that a decision had been made regarding the supports requested to be included in the Applicant’s Plan. Specifically, the email to Mr Simmons included the following:
Under the NDIS Act 2013 Section 34.1 (e) would not be met. The provision of the support needs to take into account what is reasonable to expect families, carers and informal networks to provide. The funded supports are to coordinate with but not replace family, carer and informal supports. Also Section 34.1(c) of the NDIS Act would not be met as it does not represent value for money for family/informal supports to be paid carers.
…
Sustaining a participant’s informal supports through the provision of funded Core Supports is an integral component of ensuring the participant can meet their NDIA goals, that their wellbeing is maintained and that their informal support network is sustained.
The Operational Guidelines, Sustaining informal supports also states that the “NDIA will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.”
We acknowledge this may not be the outcome you were hoping for and intend for this information to provide guidance on the requirements around the requested support.
On 25 August 2022, Mr Simmons received further email correspondence from the Respondent explaining how he could seek a review of the Applicant’s Plan under section 48 of the NDIS Act.
LEGAL PRINCIPLES
The Tribunal has on several occasions considered questions relating to the Tribunal’s jurisdiction in NDIS matters within the meaning of sections 99, 100 and 103 of the NDIS Act. In Napper and National Disability Insurance Agency[1] (Napper), Deputy President Pascoe set out the principles on the Tribunal’s jurisdiction in NDIS matters arising from the decision of Deputy President Constance in QDKH and National Disability Insurance Agency[2] The principles arising from those cases, as summarised in Napper, are set out below[3]:
[1] [2021] AATA 2363.
[2] [2021] AATA 922.
[3] Napper at [14].
(a)As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute, namely s 25(1) of the AAT Act, which relevantly provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment;
(b)In every application that comes before it, the Tribunal must be satisfied that it has jurisdiction in accordance with the AAT Act. The parties cannot confer jurisdiction upon the Tribunal by consent;
(c)Section 103 is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 103 provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act;
(d)Section 100(6) of the NDIS Act provides that the reviewer, as soon as is reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision;
(e)Section 99 of the NDIS Act provides an exhaustive list of reviewable decisions, that is, decisions that are reviewable by the reviewer. The decisions include “a decision under 33(2) to approve the statement of participant supports in a participant plan” (section 99, item (d));
(f)It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:
(i)A review by a reviewer;
(ii)A review of the reviewer’s decision by the Tribunal;
(g)The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;
DISCUSSION
38.The sole issue for the Tribunal to determine is whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
39.The Tribunal does not have the power to simply consider any decision made by the Respondent. The power of the Tribunal is conferred by statute. The Tribunal can only review what statute permits it to review.
40.The Tribunal has the power to dismiss an application for review without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal[4].
[4] See the dismissal power the Tribunal has under subsection 42D(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
41.The Respondent has correctly identified three decisions they made in respect of the Applicant each resulting in the approval of three SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act by a delegate of the CEO. The first decision was made on 19 July 2021. It relates to the approval of Plan A. The second decision was made on 25 March 2022. It relates to the approval of Plan B. The third decision was made on 21 July 2022. It relates to the approval of Plan C.
42.The Tribunal considers the decisions made by delegates of the CEO of the Respondent on 19 July 2021, 25 March 2022 and 19 July 2022 to be relevant to the question of whether there is a reviewable decision that could be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
43.The Tribunal considers the email Mr Simmons received from the Respondent on 23 August 2022 and identified by Mr Simmons as the decision he wants the Tribunal to review to also be relevant to the question of whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
Decision made on 19 July 2021 to approve Plan A
The decision made on 19 July 2021 under subsection 33(2) of the NDIS Act is a reviewable decision within the meaning of section 99 of the NDIS Act. It could be reviewed first by a reviewer of the Respondent and then by the Tribunal as set out under sections 100 and 103 of the NDIS Act.
Mr Simmons could have sought an internal review of the decision made on 19 July 2021 after receiving notice of the decision, either by making a verbal, written or in person request to the Respondent in accordance with subsection 100(3) of the NDIS Act. Any request for an internal review was to be made by Mr Simmons within three months after receiving notice of the decision made on 19 July 2021.
As stated earlier, notice of the delegate’s decision to approve a SOPS in the Applicant’s Plan on 19 July 2021 was given solely to Mr Simmons. The notice was sent by the Respondent by post addressed to Mr Simmons at his address in Victoria. It does not appear that the records held by the Respondent show on which date the notice was sent to Mr Simmons by post, therefore, in the circumstances, the presumptions contained in sections 160 and 163 of the Evidence Act 1995 (Cth) (the Evidence Act) apply to the present case.
Subsection 160(1) of the Evidence Act relevantly provides that it is presumed (unless evidence sufficient to raise doubt about the presumption is presented) that a postal article sent by prepaid post addressed to a person at a stated address in Australia or in an external territory was received at that address on the seventh working day after the day it was posted.
Subsection 163(1) of the Evidence Act relevantly provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
Any request by Mr Simmons under section 100 of the NDIS Act to conduct an internal review of the decision made by the Respondent’s delegate on 19 July 2021 within the statutory timeframe of three months, would have needed to have been made to the Respondent by no later than 31 October 2021.
Mr Simmons contacted the Respondent sometime in September 2021 and requested to understand if a ‘plan review’ in respect of the Applicant’s Plan was in progress. Mr Simmons also contacted the Respondent on 21 October 2021 to request the status of a ‘plan review’. He was advised by the Respondent that no review of the Applicant’s Plan had been undertaken. Mr Simmons made further contact with Respondent on 18 January 2022 and again asked about the status of the plan review that he had enquired about previously on 21 October 2021. Again, Mr Simmons was advised that no plan review of the Applicant’s Plan had been undertaken by the Respondent.
51.Senior Member Buxton in Rogers and NDIA[5] (Rogers) stated at [41] of her decision that due to the ‘beneficial nature of the scheme, and the general principle guiding the Respondent to support persons with disability in communications with the Agency, a beneficial approach is to be taken in the interpretation of communications from persons affected by reviewable decisions within that three-month period’. Having regard to those observations, the Tribunal has considered whether the contact made to the Respondent by Mr Simmons in September 2021 and on 21 October 2021 and 18 January 2022 should be interpreted as a request for an internal review under section 100 of the NDIS Act which the Respondent says they failed to act upon.
52.The Tribunal does not consider that the contact made by Mr Simmons in September 2021, on 21 October 2021 and 18 January 2022 were requests to the Respondent for an internal review of the decision in respect of Plan A. Rather, the Tribunal considers that the contact made by Mr Simmons on each of those occasions were merely enquiries about the status of a plan review that had never been requested either by himself or the Applicant. Therefore, the Tribunal is satisfied that this is not a reviewable decision.
53.The Tribunal notes that the written request made by the Applicant on 19 January 2022 to the Respondent on the basis of there being a change to the Applicant’s circumstances was indeed a request for an unscheduled review of his Plan under section 48 of the NDIS Act which the Respondent decided to conduct within the prescribed time of 14 days. This request was considered and resulted in a new SOPS being approved under subsection 33(2) of the NDIS Act on 25 March 2022. The Applicant’s request was not a request for an internal review.
Decision made on 25 March 2022 to approve Plan B
[5] [2022] AATA 2809.
The decision made on 25 March 2022 under subsection 33(2) of the NDIS Act is a reviewable decision within the meaning of section 99 of the NDIS Act. It could be reviewed first by a reviewer of the Respondent and then by the Tribunal as set out under sections 100 and 103 of the NDIS Act.
Mr Simmons could have sought an internal review of the decision made on 25 March 2022 after receiving notice of the decision, either by making a verbal, written or request in person to the Respondent in accordance with subsection 100(3) of the NDIS Act. Any request for an internal review was to be made by Mr Simmons within three months after receiving notice of the decision made on 25 March 2022.
As stated earlier, notice of the delegate’s decision to approve a SOPS in the Applicant’s Plan on 25 March 2022 was given solely to Mr Simmons. The notice was sent by the Respondent by post addressed to Mr Simmons at his address in Victoria. It does not appear that the records held by the Respondent show on which date the notice was sent to Mr Simmons by post, Therefore, in the circumstances, the presumptions contained in sections 160 and 163 of the Evidence Act apply to the present case.
Any request by Mr Simmons under section 100 of the NDIS Act to conduct an internal review of the decision made by the Respondent’s delegate on 25 March 2022 within the statutory timeframe of three months, would have needed to have been made to the Respondent by no later than 6 July 2022.
Mr Simmons contacted the Respondent on 4 May 2022 to request a plan review. He also submitted supporting evidence relating to the Applicant’s disability which the Respondent says Mr Simmons uploaded to the Respondent’s system later that day. A further request for a plan review was made by Epic Support Services on 5 May 2022, for the Applicant to receive SIL and/or SDA.
The Respondent concedes that other than providing written confirmation that they had received a request to review the supports in Plan B, the Respondent did not take any action or steps to undertake a plan review in respect of the requests made on 4 and 5 May 2022.
Having regard to the observations made by Senior Member Buxton in Rogers[6] that any communication that could be interpreted as a request for review should be construed in a manner that was beneficial towards the Applicant, the Tribunal is satisfied that the request made by Mr Simmons and Epic Support Services is a request to the Respondent for an internal review that was made within the prescribed period of three months as required under section 100 of the NDIS Act.
[6] Rogers at [41].
The Respondent concedes that other than providing written confirmation that they had received a request to review the supports in Plan B, the Respondent failed to conduct a review in respect of the Applicant’s Plan in response to the two requests made on 4 and 5 May 2022. The Tribunal considers the Respondent’s failure to conduct a review of the supports in respect of Plan B is a “deemed decision” as was seen in the case of NNXF and NDIA[7]. This constitutes a reviewable decision for the purpose of section 99 of the NDIS Act.
Decision made on 21 July 2022 to approve Plan C
[7] [2019] AATA 5552.
The decision made on 21 July 2022 under subsection 33(2) of the NDIS Act is a reviewable decision within the meaning of section 99 of the NDIS Act. It could be reviewed first by a reviewer of the Respondent and then by the Tribunal as set out under sections 100 and 103 of the NDIS Act.
Mr Simmons could have sought an internal review of the decision made on 21 July 2022 after receiving notice of the decision, either by making a verbal, written or in person request to the Respondent in accordance with subsection 100(3) of the NDIS Act. Any request for an internal review was to be made by Mr Simmons within three months after receiving notice of the decision made on 21 July 2022.
As stated earlier in my reasons, notice of the delegate’s decision to approve a SOPS in the Applicant’s Plan on 21 July 2022 was given solely to Mr Simmons. The notice was sent by the Respondent by post addressed to Mr Simmons at his address in Victoria. It does not appear that the records held by the Respondent show on which date the notice was sent to Mr Simmons by post. Therefore, in the circumstances, the presumptions contained in sections 160 and 163 of the Evidence Act applies to the present case.
Any request by Mr Simmons under section 100 of the NDIS Act to conduct an internal review of the decision made by the Respondent’s delegate on 21 July 2022 within the statutory timeframe of three months, would have needed to have been made to the Respondent on or before 2 November 2022.
Operating on the presumption in section 160 of the Evidence Act and noting that no evidence sufficient to raise doubt about the presumption was adduced, the Tribunal is satisfied that Mr Simmons did not receive notice of the decision to approve Plan C by post until 2 August 2022.
The Tribunal considers Mr Simmons letter of complaint the Respondent received on 17 August 2022 to be a request for an internal review of Plan C within the prescribed time of three months as required under section 100 of the NDIS Act.
The Tribunal has interpreted the letter of 11 July 2022 to be a written request to the Respondent for an internal review of the decision made to approve Plan C. Although the letter of complaint is dated 11 July 2022 and was prepared for the purpose of making a complaint to the Minister about the Respondent, the Tribunal notes that Mr Simmons uploaded a copy of this letter to the Respondent’s system on 17 August 2022. The date Mr Simmons uploaded the letter was done within the three-month time period in which an internal review request could be made under section 100 of the NDIS Act.
Email received by Mr Simmons on 23 August 2022 from the Respondent
As stated earlier, the Tribunal considers the email Mr Simmons received on 23 August 2022 to be relevant to the question of whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
The email Mr Simmons received from the Respondent on 23 August 2022 was sent in response to the letter of complaint that Mr Simmons sent to the Minister on 11 July 2022. In his letter, Mr Simmons said ‘that despite many conversations with NDIS staff, which has produced conflicting and contradictory answers, I cannot achieve a clear and concise answer to the following question: Can a family member fulfill the role of a support worker and be paid from the NDIS funding?’.
The email from the SCO stated that the information set out in his email has been provided in response to the query Mr Simmons made on 11 July 2022. The SCO stated in his email that ‘evidence shows that family members providing care is generally not good practice because of the impact on those relationships. Therefore, the NDIS generally does not fund family members to provide supports particularly in the long term’.
The email from the SCO referred to the reasonable and necessary criterion under section 34 of the NDIS Act that must be satisfied before a support can be funded and to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support for Participant Rules)[8] and the National Disability Insurance Agency Operational Guidelines, Sustaining Informal Supports[9] (the Operational Guidelines).
[8] See Part 3.4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013.
The SCO stated that subsection 34(1)(c) and (e) of the NDIS Act would not be met. The SCO stated that subsection 34(1)(c) would not be met because it does not represent value for money for family/informal supports to be paid carers. The SCO stated that subsection 34(1)(e) would also not be met because this provision of the support needs to consider what is reasonable to expect families, carers, and informal networks to provide. ‘The funded supports are to coordinate with but not replace family, carer and informal supports’.
The Tribunal has interpreted the email of 23 August 2022 to be in effect a decision made by a reviewer of the Respondent under section 100 of the NDIS Act. The Tribunal has come to this position for the following three reasons.
The first reason is that Mr Simmons uploaded a copy of his letter of complaint, although dated 11 July 2022, by uploading it to the Respondent’s system on 17 August 2022 shortly after he was given notice of the delegate’s decision to approve Plan C. This letter was also uploaded to the Respondent’s system by Mr Simmons within the prescribed time of three months for the making of a request to the Respondent for an internal review as required under section 100 of the NDIS Act.
The second reason is although the SCO is not a reviewer and makes no reference in his email to section 100 of the NDIS Act, a fair reading of the email suggests to the Tribunal that the SCO has, in effect, decided whether a family member of a participant can be paid or reimbursed for costs relating to care they may have provided to that person as a support worker. For instance, at paragraph [2] of his email, the SCO has effectively decided that any request for payment or reimbursement for costs related to providing care as a support worker to a family member who is a participant would not meet the reasonable and necessary criterion in subsections 34(1)(c) and (e) of the NDIS Act or meet the requirements in Part 3.4 of the Supports for Participants Rules 2013 and/or clause 11.1 of the Operational Guidelines.
The third reason is notwithstanding the stated purpose of the email of 23 August 2022 being described as “intend[ed] for this information to provide guidance on the requirements around the requested support”, it is apparent to the Tribunal that Mr Simmons has understood this email to be a reviewable decision made by a reviewer of the Respondent under section 100 of the NDIS Act.
Therefore, the Tribunal is satisfied that the email of 23 August 2022 is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
Other matters
The application for review made to the Tribunal on 8 December 2022 identified the email of 23 August 2022 as the decision Mr Simmons wanted the Tribunal to review within the meaning of sections 99, 100 and 103 of the NDIS Act. It did not identify the decisions made by the Respondent’s delegates to approve Plans A, B and C.
The application for review made by Mr Simmons was lodged with the Tribunal outside of the prescribed time of 28 days for the making of an application for review[10]. Any application for review to the Tribunal in respect of the decisions to approve Plan B and C would also be outside of the prescribed time of 28 days.
[10] Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the prescribed time for making applications for review to the Tribunal.
At the TIH, Mr Simmons confirmed with the Tribunal that he wants the Tribunal to review the reasonable and necessary supports in relation to Plans B and C, including the Applicant’s request for SIL and/or SDA as well as his request to receive payment or to be reimbursed for costs related to the care Mr Simmons provides to his son as a support worker.
To ensure that the requests to review the reasonable and necessary supports in relation to Plans B and C, including the Applicant’s request for SIL and/or SDA and Mr Simmons request to receive payment or reimbursement can all be determined together by the Tribunal, Mr Simmons will need to make a fresh application for review to the Tribunal. Any fresh application to the Tribunal should identify Plans B and C and the email of 23 August 2022 as the reviewable decisions that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
If Mr Simmons wishes to make a fresh application for review in respect of the decisions to approve Plans B and C and the email of 23 August 2022, he will also need to lodge with his application an Application for Extension of Time for the Making an Application for Review of Decision because all of those decisions are outside of the prescribed time for the making of an application for review.
At the TIH, the Respondent indicated to Mr Simmons and to the Tribunal that if Mr Simmons were to make a fresh application seeking a review of the decisions to approve Plans B and C and the email of 23 August 2022, they would not oppose the application being made outside of the prescribed time of 28 days.
The Tribunal notes that before any fresh application for review is made together with any Application for Extension of Time for the Making an Application for Review of Decision, it may be more appropriate for Mr Simmons to withdraw his current application for review by providing notification to the Tribunal in writing of his intention to withdraw the application[11].
[11] See subsection 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth).
CONCLUSION
For the reasons I have given, the Tribunal is satisfied that the decision to approve Plan A on 19 July 2021 is not a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
The Tribunal is satisfied that the decisions to approve Plans B and C and the email of 23 August 2022 are reviewable decisions that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
DECISION
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 19 July 2021 to approve a statement of participant supports in the Applicant’s Plan is not a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan A).
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 25 March 2022 to approve a statement of participant supports in the Applicant’s Plan is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan B).
The Tribunal is satisfied that the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 21 July 2022 to approve a statement of participant supports in the Applicant’s Plan is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth) (Plan C).
The Tribunal is satisfied that the email sent by the Senior Complaints Officer of the National Disability Insurance Agency to Mr Simmons on 23 August 2022 is a reviewable decision within the meaning of sections 99, 100 and 103 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of
...............................[SGD]......................................
Associate
Dated: 17 January 2023
Date of hearing: 6 January 2023 Advocate for the Applicant: Mr P Simmons Solicitors for the Respondent: Ms D Parra, National Disability Insurance Agency
[9] See clause 11.1 of the National Disability Insurance Agency Operational Guidelines, Sustaining Informal Supports.
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