SSLP and National Disability Insurance Agency
[2021] AATA 4207
•8 November 2021
SSLP and National Disability Insurance Agency [2021] AATA 4207 (8 November 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/3899
Re:SSLP
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member K. Parker
Date of Decision: 8 November 2021
Date of Written Reasons: 12 November 2021
Place:Melbourne
The Respondent has requested that the Tribunal dismiss this application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the Applicant’s National Disability Insurance Scheme (NDIS) statement of participant supports approved on 28 July 2021 during a remittal by the Tribunal, differently constituted, in this proceeding under s 42D of the AAT Act and resulting NDIS plan, has now been superseded by a new statement of participant support approved by the Respondent on 24 September 2021 resulting in a new NDIS plan for the Applicant.
On 8 November 2021, the Tribunal decided that despite the succession on 24 September 2021 of the Applicant’s statement of participant supports dated 28 July 2021, that the Tribunal has jurisdiction to hear and decide this application. The Tribunal is not satisfied that this application is “frivolous, vexatious, misconceived or lacking in substance”; “has no reasonable prospect of success”; or “is otherwise an abuse of the process of the Tribunal” by reason of the succession of the Applicant’s statement of participant supports on 24 September 2021. The Tribunal does not agree with the Respondent’s contention that this proceeding lacks utility.
On this basis, on 8 November 2021, the Tribunal refused the Respondent’s application to dismiss this application under s 42B(1) of the AAT Act.
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Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – Respondent sought dismissal of application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – whether proceeding lacks utility – whether Tribunal lacks jurisdiction – Applicant’s National Disability Insurance Scheme (NDIS) statement of participant supports and NDIS plan superseded by subsequent statement of participant supports and NDIS plan – characterisation of the decision under review – Tribunal satisfied that it has jurisdiction – Tribunal satisfied proceeding has utility – application to dismiss this proceeding under s 42B(1) of the AAT Act dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
National Disability Insurance Scheme Act 2013 (Cth)Cases
Re Ewin and National Disability Insurance Agency [2018] AATA 4726Re Holland and National Disability Insurance Agency [2021] AATA 92
REASONS FOR DECISION
Member K. Parker
8 November 2021
This application for review was lodged on 14 June 2021. The Applicant is an 11-year old child who has a rare congenital condition of Wolf-Hirschhorn Syndrome resulting in profound lifelong and permanent functional impairments. The Applicant has also suffered a prolonged seizure resulting in right-sided weakness and hypotonia. The Applicant has been granted access as a participant of and receives supports under the National Disability Insurance Scheme (NDIS).
Evidence has been lodged with the Tribunal indicating that the Applicant has complex and high support needs. The Applicant’s parents are separated and they both work full time. The Applicant’s parents share the care of the Applicant, with the mother providing most of the care. The Applicant’s parents are also responsible for caring for the Applicant’s two younger siblings. The Applicant’s mother provides most of the care. At times, including at the present time, the Applicant’s maternal grandparents provide informal support to the Applicant’s family.
The Applicant’s parents consider that the level of supports provided to the Applicant under the NDIS is insufficient and does not meet her needs. At a directions hearing on 31 August 2021, the Tribunal prioritised the listing of this application for a substantive hearing. The Tribunal considered it appropriate to do so, taking into account the reported circumstances of the Applicant. The substantive hearing of this application was listed to commence on 8 November 2021.
At the time of lodgement of this application, the Applicant sought review of an internal review decision made by a delegate of the CEO of the Respondent on 18 May 2021. The effect of the internal review decision by the Respondent was to set aside a decision of a different delegate of the CEO of the Respondent on 25 February 2021 to approve a statement of participant supports (SOPS) in respect of the Applicant to be included in her NDIS plan of the same date, and to substitute it with a new decision to approve a new SOPS dated 18 May 2021, which included some, but not all, of the Applicant’s requests to add or increase several supports to her SOPS which was approved on 25 February 2021.
On 22 July 2021, the Tribunal, differently constituted, remitted this matter under s 42D of the AAT Act. During this remittal, in effect, the Respondent “rolled over” the Applicant’s existing supports on a pro rata basis by the approval of a new SOPS in respect of the Applicant on 28 July 2021. This resulted in the commencement of a new NDIS plan for the Applicant on 28 July 2021.
Section 42D(4) of the AAT Act provides as follows:
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
The Respondent made a new decision upon remittal, that is, the decision to approve a new statement of participant supports dated 28 July 2021. The Applicant has not withdrawn the application and has proceeded with it. The effect of s 42D(4) of the AAT Act is that the decision under review is the decision to approve the new SOPS that was made on 28 July 2021, without the inclusion of the additional or increased supports that have been requested by the Applicant.
On 27 August 2021, the Respondent, with the consent of the Applicant, requested that the Tribunal remit the matter under s 42D of the AAT Act to, once again, roll over the Applicant’s existing supports on a pro rata basis. The Tribunal, as presently constituted, declined this request, and provided written reasons on 31 August 2021 explaining why the Tribunal did not consider it appropriate to do so. The Tribunal stated in those written reasons, as follows:
The Tribunal considers that the Respondent is at liberty, under the legislative scheme, to put in place a new proposed SOPS (and plan), without any such remittal being made by the Tribunal. Upon doing so, the Tribunal considers that to do so would not limit or remove the Tribunal’s jurisdiction to hear this application for review.
The Tribunal’s reasons for reaching this view have been outlined in detail in its previous decision in Re Ewin and National Disability Insurance Agency [2018] AATA 4726 at paragraphs [280] to [295]. The Tribunal also notes the decision in Re Holland and National Disability Insurance Agency [2021] AATA 92 with which it agrees with the approach adopted by Deputy President Constance and observations made by him in this decision. The Tribunal acknowledged to the parties at the Direction Hearing that other members of the Tribunal have taken a different view in relation to this issue and that it has not yet been the subject of a detailed judicial consideration in the context of the NDIS being a scheme that is still relatively young. However, this application will be heard by the Tribunal as presently constituted. As stated, this Tribunal considers that the requested remittal is unnecessary, and it declines the Respondent’s request, albeit subject to the consent of the Applicant.
The Respondent made the same request again on 13 September 2021 and in the alternative, sought orders under s 26 of the AAT Act relating to the purported alteration of a decision under review.
On 15 September 2021, Registry informed the Respondent as follows (underlining added):
I refer to your email dated 13 September 2021. I also refer to the communication received from the Darwin Community Legal Centre on 9 September 2021. Those emails and attachments have been referred to and considered by the Presiding Member.
Member Parker remains of the view, for the reasons previously stated, that the Tribunal has jurisdiction to hear and determine this application even if the Applicant’s plan is replaced by other plans between the lodgement of her application and the final determination of this application by the Tribunal.
The Tribunal has considered the alternative request made, by consent of the parties, for the Tribunal to give consent under s 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to alter the decision under review. In doing so, the Tribunal has considered the decisions of Deputy President Constance as referred to in your email. Based on the Tribunal’s stated view about the Tribunal’s jurisdiction, the Tribunal does not consider it appropriate to give consent to alter the decision under review in this application, in the context of the NDIA seeking to roll over existing supports for a further period. This may take place independently of the present application before the Tribunal and in the absence of an order under s 26(1). If this occurs, the Presiding Member’s view is that the Tribunal’s jurisdiction to hear and determine this application remains and she will proceed to hear and determine this application in the usual manner.
The Registry of the Tribunal received correspondence from the Applicant on 15 September 2021 stating as follows (underlining added):
Thank you for your email, and Member Parker’s quick consideration of the requests.
Our consent to the s26(1)(b) application is based on the NDIA position that unlike the approved plan the extension the NDIA is willing to consent to is by stating some of the core supports in the plan. This is a variation to the current plan, hence the request the Tribunal consent under s26(1)(b). Whereas we have made it clear that the preferred interim solution for the Applicant would be a unvaried roll-over of the plan, the NDIA has not offered this solution. Has Member Parker taken into account that the application under s26(1)(b) does include a variation?
I would also like to emphasise that the urgency for getting some sort of interim funding in place is increasing every day. This Thursday will mark four weeks without core funding for [SSLP]. As [SSLP] needs significant support with most activities of daily living the situation for the family has gotten untenable, and risks to [SSLP] and her family are considerable.
We respectfully request for the Tribunal to consider at its earliest convenience, to avoid further delays for [SSLP].
The Registry of the Tribunal wrote to the parties on 16 September 2021 stating as follows (underlining added):
I refer to the email received from Ms Brugmans at 2.26pm yesterday.
The Tribunal has been under the impression, until now, based on the representations from the parties, that the funding in the proposed new SOPS that the NDIA intends to put in place for the Applicant will reflect, on a pro-rata basis, the types of supports and level of funding previously approved in the Applicant’s current SOPS (and plan). If that position has changed, the Tribunal requests that both of you urgently advise the Tribunal if the level of funding and types of supports to be offered to the Applicant under the proposed new SOPS will be altered or different from the existing SOPS. If so, please particularise those alterations in detail and I will refer that information to Member Parker for her further consideration. For instance, what does Ms Brugmans mean in her email that the NDIA is willing to consent to an extension “by stating some of the core supports in the plan”?
Member Parker has asked me to clarify for the parties, in particular, Ms Brugmans, that the Tribunal is an independent body and separate from the NDIA. Other than by the Tribunal making its final decision in this application (which will happen after the substantive hearing has taken place), the Tribunal has no power to force the NDIA to take any steps or to offer a particular type of new SOPS and plan to the Applicant pending the Tribunal’s decision. This is a matter that rests between the Applicant and the NDIA.
Further, the NDIS Act or AAT Act does not give the Tribunal a power to grant interim relief to the Applicant, such as requiring the NDIA to put in place an interim SOPS, in the context of this case. The Tribunal is sympathetic to the urgent circumstances of the Applicant, but this is a matter for the NDIA to take on board, because there is nothing the Tribunal can do about it at this stage. The NDIA is at liberty to put in place a new SOPS and plan without any further interim intervention from the Tribunal.
On the same day, the Applicant’s representative sent a response to the Registry of the Tribunal to advise that the funding being proposed by the Respondent in the proposed new statement of participant supports was a “two month extension is the same level as previously agreed upon”, with a difference that some of the supports were now “stated supports”, whereas before the funding for those supports was able to be used flexibly in the previous plan.
On 16 September 2021, the Registry of the Tribunal wrote to the parties to inform them as follows (underlining added):
I refer to Ms Brugmans’ email sent at 3.17pm today. I have referred this email to the Presiding Member.
Member Parker wishes to thank Ms Brugmans for providing further clarification to the Tribunal. Given that the proposed types of supports and level of funding, on a pro-rata basis, has not altered, the Tribunal has asked me to convey to the parties that she does not consider it appropriate in the circumstances to consent to an alteration of the decision under review under s 26 of the NDIS Act. The Tribunal considers that this provision is intended to be used when, say for instance, the NDIA has conceded one or more, but not all, of the supports in dispute and wishes to alter the decision under review to reflect this concession, and to give immediate effect to it.
The Tribunal does not consider that to be the case here, based on the information provided in Ms Brugmans’ email.
Thereafter, as indicated in paragraph [30] of the Respondent’s Submissions lodged in support of its dismissal application, the Respondent subsequently decided to undertake an unscheduled plan review under s 48 of the NDIS Act of the Applicant’s plan. This resulted in a delegate of the CEO of Respondent making a decision on 24 September 2021 to approve a further SOPS for the Applicant. At paragraph [30], the Respondent states that the duration and supports in the 24 September 2021 NDIS plan “differs in particular aspects from the previous plan”, as confirmed by Mr Richard Knowles, counsel for the Respondent, at the hearing on 8 November 2021. This resulted in the commencement of a new NDIS plan for the Applicant on 24 September 2021.
The Tribunal notes that there is a noticeable increase in the level of funding for supports approved for the Applicant, resulting from the plan review under s 48 of the NDIS Act. For instance, the SOPS dated 28 July 2021 approved total funding of $69,240.07 (of which $24,569.17 comprised funding for core supports) for a notional plan period of five months. By comparison, the SOPS approved by the Respondent on 24 September 2021 approved total funding of $81,271.12 (of which $45,443.60 comprised funding for core supports) for a notional plan period of three months. These SOPS do not show a complete breakdown of how the global figures for funding were calculated by the Respondent. For instance, it is not clear from the face of the SOPS how many hours of support worker services have formed the basis of the calculation of the global figure given for core supports in those statements.
The Tribunal was not informed before 24 September 2021 that the Respondent had decided to undertake a review under s 48 of the NDIS Act, the result of which was that the NDIA approved an overall higher level funding of supports for the Applicant, as appearing in the Applicant’s SOPS dated 24 September 2021. This more recent SOPS was only provided to the Tribunal on 21 October 2021.
On 18 October 2021, the Respondent wrote to the Registry of the Tribunal to request that the Tribunal dismiss this proceeding under s 42B(1) of the AAT Act. Under s 42B(1), the Tribunal may dismiss an application, at any stage of the proceeding, if the Tribunal is satisfied that the application is “frivolous, vexatious, misconceived or lacking in substance”; “has no reasonable prospect of success”; or “is otherwise an abuse of the process of the Tribunal”.
On 22 October 2021, the Respondent lodged detailed submissions as to why the Tribunal should dismiss this proceeding. The Respondent contends that this proceeding lacks utility. On 26 October 2021, the Applicant lodged detailed submissions opposing the Respondent’s dismissal application.
The Tribunal informed the parties that it considered it appropriate to deal with the Respondent’s dismissal application at the commencement of the substantive hearing of this application which was due to commence on 8 November 2021. The Tribunal heard oral submissions from both parties about the Respondent’s dismissal application on 8 November 2021.
In paragraphs [3] and [4] of the Respondent’s Submissions in support of its dismissal application, the Respondent contends that this proceeding is only concerned with the SOPS in the Applicant’s plan dated 25 February 2021 which it contends was only in effect from this date until 23 September 2021. The Respondent contends that there is no utility in the proceeding currently before the Tribunal because the Applicant’s former plan which contains the SOPS (which the Respondent contends is the subject of this review), is no longer in effect and has been superseded. The Respondent contends that the Tribunal can only make a decision in respect of the SOPS in “that outdated plan”, and does not have the power to make a decision in respect of the SOPS approved on 24 September 2021, in the Applicant’s current NDIS plan.
Later in the Respondent’s submissions, at paragraph [32] and [33], inconsistent with its earlier contentions at paragraphs [3] and [4], the Respondent contends that the Tribunal has jurisdiction and power to review the Respondent’s decision dated 28 July 2021 to approve a new statement of participant supports for the Applicant. Mr Knowles clarified for the Tribunal on 8 November 2021, that the Respondent considers that the decision under review to be its decision dated 28 July 2021.
The Tribunal does not agree with the Respondent’s narrow construction of the NDIS Act in relation to the issue of what, if any, implications arise from the succession of a participant’s SOPS and NDIS plan between the time of reconsideration of the decision under review upon remittal, and when this application is ultimately decided by the Tribunal.
The Tribunal has closely considered the Respondent’s detailed submissions in paragraphs [39] to [58] and Mr Knowles’s oral submissions on 8 November 2021, as to why it considers that the jurisdiction and power of the Tribunal has been delimited by the reviewable decision which is the subject of the internal review. The Respondent contends that since 28 July 2021, the reviewable decision was the decision on this date to approve a SOPS for the Applicant. The Respondent contends that the Applicant’s plan dated 28 July 2021 which was “the subject of” the reviewable decision, ceased to be in effect when it was replaced by the Applicant’s most recent SOPS and NDIS plan on 24 September 2021, as an “unambiguous consequence” of s 37(3) of the NDIS Act. The Respondent contends that the Applicant’s most recent NDIS plan “stands unaffected by the Tribunal’s review in this proceeding”, and that the Tribunal does not have jurisdiction in relation to it, because it has not been the subject of a decision under s 100 of the NDIS Act. For that reason, the Respondent contends that no application could be made under s 103 of the NDIS Act for review of that decision by the Tribunal.
With great respect, the Tribunal does not agree with the Respondent’s interpretation of the relevant provisions of the NDIS Act. The Tribunal’s position remains as previously indicated to the parties that the Tribunal does not consider that the succession of the Applicant’s SOPS and NDIS plan has the effect of removing or limiting the Tribunal’s jurisdiction to hear and determine this application. The reason for this arises from manner in which the Tribunal interprets the relevant provisions of the NDIS Act as outlined in detail in this Tribunal’s previous decision in Re Ewin and National Disability InsuranceAgency [2018] AATA 4726 (Ewin) at paragraphs [280] to [295], which, for reasons of brevity, the Tribunal will not reproduce here. The Tribunal does not agree with the Respondent’s contention at paragraph [54] of its written submissions that the Tribunal had misconstrued s 37 of the NDIS Act in Ewin.
The Tribunal’s approach is consistent with the approach of Deputy President Constance in Re Holland and National Disability Insurance Agency [2021] AATA 92.
The Tribunal’s approach prefers an interpretation of the relevant NDIS Act provisions referred to by the Tribunal in paragraphs [280] to [295] in Ewin, which adopts a purposive approach, rather than an unduly technical one. Such an approach is appropriate in the context of beneficial legislation such as the NDIS Act.
For the above reasons and primarily based on the Tribunal’s interpretation of the legislative provisions as outlined in Ewin, the Tribunal is satisfied that it has jurisdiction to hear and decide this application, despite the succession of the Applicant’s SOPS and NDIS plan, since the date upon which a SOPS was approved on 28 July 2021 resulting from a previous remittal under s 42D of the AAT Act by the Tribunal, differently constituted.
CONCLUSION
The Tribunal has jurisdiction to hear and decide this application for review. On this basis, the Tribunal does not agree with the Respondent’s contention that this proceeding lacks utility. The Tribunal is not satisfied that this application is “frivolous, vexatious, misconceived or lacking in substance”; “has no reasonable prospect of success”; or “is otherwise an abuse of the process of the Tribunal” by reason of the succession on 24 September 2021 of the Applicant’s earlier SOPS and NDIS plan dated 28 July 2021.
For these reasons, on 8 November 2021, the Tribunal refused the Respondent’s application to dismiss this application under s 42B(1) of the AAT Act.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.
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Associate
Dated: 12 November 2021
Date of hearing and oral decision:
8 November 2021
Advocate for the Applicant: Ms. Judy Harrison and Ms. Jessica Brugmans Solicitors for the Applicant: Darwin Community Legal Centre Counsel for the Respondent: Mr. Richard Knowles Solicitor for the Respondent: Mr. Riley Ingham, HWL Ebsworth
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