SMYG and National Disability Insurance Agency - [2024] AATA 432

SMYG and National Disability Insurance Agency [2024] AATA 432 (15 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/1462 , 2023/0463
Re:SMYG
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:15 March 2024
Place:Sydney

The internal review decision of 27 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:

the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:
(i)Level 2 transport support from 24 September 2021 until the approval of the Applicant’s next plan on 21 September 2022;
(ii)Psychology: 30 hours per year;
(iii)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;
(iv)One year of School Leaver Employment Supports funding from the date of the implementation of this decision;
(v)Level 3 transport support from the date of the implementation of this decision;

The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports (the reassessment date).

All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(ii) to (v), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports until the reassessment date.

The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

...............[SGD]....................................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant has autism spectrum disorder (Level 2), development coordination disorder, social anxiety disorder, hypermobility spectrum disorder, intellectual disability, and weight over the healthy range - reasonable and necessary supports – whether the Tribunal has jurisdiction to order the Respondent to reimburse or backpay the Applicant for past transport supports – decision remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Hill and National Disability Insurance Agency [2023] AATA 3626
XXWC by his mother and National Disability Insurance Agency [2020] AATA 923
SECONDARY MATERIALS
The National Disability Insurance Scheme – Operational Guidelines –
Planning, (web page)
Including Specific Types of Supports in Plans Operational Guideline - Transport (web page)
REASONS FOR DECISION
Senior Member D Connolly
BACKGROUND TO REVIEW

The Applicant is aged 17 and has been diagnosed with autism spectrum disorder (level 2), developmental coordination disorder, social anxiety disorder, hypermobility spectrum disorder, an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SMYG and National Disability Insurance Agency

Details

AGLC: SMYG and National Disability Insurance Agency [2024] AATA 432
Case: [2024] AATA 432
Decision Date: 15 March 2024

CaseChat Overview and Summary

This matter concerned an application by SMYG (the Applicant) against the National Disability Insurance Agency (the Respondent) regarding the provision of reasonable and necessary supports under the National Disability Insurance Scheme. The Applicant, who has autism spectrum disorder, development coordination disorder, social anxiety disorder, hypermobility spectrum disorder, and an intellectual disability, sought reimbursement for past transport supports that had not been included in a previous plan. The Administrative Appeals Tribunal was required to determine whether it had the jurisdiction to order the Respondent to reimburse or backpay the Applicant for these past transport supports.

The Tribunal considered its powers under the National Disability Insurance Scheme Act 2013 (Cth), specifically section 99, which outlines the types of decisions that are reviewable. While the Tribunal was satisfied that Level 2 transport support was reasonable and necessary for the Applicant during the period of Plan A, and that other agreed supports such as psychology, pool membership, and School Leaver Employment Supports (SLES) were also reasonable and necessary, it concluded that it lacked the power to order the Agency to reimburse the Applicant for transport support that had not been funded in Plan A. The Tribunal noted that the Agency had subsequently included transport support in later plans and agreed that Level 3 transport support was reasonable and necessary once the Applicant was receiving SLES funding.

Despite acknowledging the Applicant's mother's request for reimbursement, the Tribunal determined that any such reimbursement for monies expended on transport support prior to the implementation of its decision, and the calculation of any reimbursed amount, was a matter for the Agency. Consequently, the Tribunal set aside the internal review decisions and remitted the matter for reconsideration. The directions included funding Level 2 transport support for a specific period, along with psychology, pool membership, and SLES funding, and Level 3 transport support from the date of implementation. The Respondent was directed to determine the appropriate mechanism for the provision of transport support funding and any reimbursement.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Any reimbursement for monies expended on transport support prior to the implementation of this decision, and the way in which any amount to be reimbursed is calculated, is a matter for the Agency. DECISION The internal review decision of 27 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:a.the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:(i)Level 2 transport support from 24 September 2021 until the approval of the Applicant’s next plan on 21 September 2022;(ii)Psychology: 30 hours per year;(iii)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;(iv)One year of School Leaver Employment Supports funding from the date of the implementation of this decision; (v)Level 3 transport support from the date of the implementation of this decision.b.The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports (the reassessment date).c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(ii) to (v), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports until the reassessment date.d.The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

Ratio Decidendi

Legal Principle Established

The Tribunal explained that its powers to make decisions are set out in the relevant law. It explained that reviewable decisions are listed in the NDIS Act (section 99) and that the relevant power in this case is the power to review a statement of participant supports. It indicated it may find it does not have jurisdiction to order the Agency to reimburse a particular amount.CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL The Tribunal notes the parties appear to have agreed, as set out in the draft terms of agreement provided to the Tribunal in October 2023, that the following supports are reasonable and necessary, to be included in a 24-month plan:(a)Psychology: 30 hours per year;(b)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;(c)School Leaver Employment Supports (SLES) funding: one year of SLES funding. Neither party raised any concern at the hearing about these supports being in dispute. The Tribunal is satisfied the only support in dispute is the reimbursement of transport support for the period of Plan A. The Respondent advised the Tribunal that the Agency has agreed that the Applicant’s transport support should be increased to Level 3 once he is receiving SLES funding, which the parties have agreed is a reasonable and necessary support. The Tribunal accepts the Applicant’s mother’s oral evidence that the Applicant had been funded, in his plan prior to Plan A, for transport support. Transport support was then not included in Plan A. However the Agency then included transport support in the Applicant’s Plan B and Plan C. The Tribunal has considered the Applicant’s Plan A statement of participant supports which sets out the Applicant’s background, the activities he attends, the challenges he faces and his goals and aspirations, including enrolment at TAFE, improving his motor skills, strength and coordination and increasing his participation and contribution in the home and his community. It notes the Respondent no longer objects to transport support being included in Plan A. Having regard to the material before it, the Tribunal is satisfied Level 2 transport support is a reasonable and necessary support for the Plan A period, 24 September 2021 to 24 September 2022. The Tribunal is also satisfied those supports now agreed on, set out above, being psychology, pool membership and SLES funding, are reasonable and necessary supports. Having regard to the Transport Guidelines and the Applicant’s goals and aspirations, the Tribunal agrees with the Respondent’s view that Level 3 transport support is reasonable and necessary, once he is receiving SLES funding. There is nothing before the Tribunal to indicate that any of the other supports provided in Plans A, B and C are not reasonable and necessary supports. The Tribunal has considered the Applicant’s request that the Tribunal order the Agency to reimburse the Applicant the equivalent amount that would have been paid if the transport support had been included in the Applicant’s statement of participant supports in Plan A. It is apparent that, had the Level 2 transport support been included in Plan A, a fortnightly deposit would have been paid for the support. Essentially the Applicant’s mother is now requesting that the Tribunal make an order that the Agency reimburse the equivalent amount. The Tribunal appreciates why she is making this request. However for the following reasons the Tribunal has concluded it does not have the power to make such an order.