Steley and National Disability Insurance Agency

[2021] AATA 2539

Steley and National Disability Insurance Agency [2021] AATA 2539 (27 July 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/8621

Re:Aaron Steley

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Buxton

Date:27 July 2021  

Place:Brisbane

The Tribunal has jurisdiction to consider whether funding related to the Applicant’s prosthetic eye and physiotherapy and/or exercise physiology sessions should be included within the Applicant’s statement of participant supports.

...................................[SGD].....................................

Member Buxton

Catchwords

PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where Applicant applied to Tribunal to review a decision to approve the statement of participant supports in the Applicant’s plan – where additional supports not considered within internal review decision – jurisdiction of the Tribunal – Tribunal has jurisdiction to consider matters that were before the primary decision-maker.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 43.
National Disability insurance Scheme Act 2013 (Cth) ss 31, 33, 34, 48, 99, 100, 103.
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 2, 4.
Cases
BWLK and National Disability Insurance Agency [2021] AATA 1631 (8 June 2021)
Dunstan and National Disability Insurance Agency [2021] AATA 2406 (16 July 2021)
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019)
Fuad and Telstra Corporation Limited [2004] AATA 1182 (3 November 2004)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
QDKH and National Disability Insurance Scheme [2021] AATA 922 (16 April 2021)
VXVL and National Disability Insurance Scheme [2021] AATA 1709 (14 June 2021)

Young and National Disability Insurance Scheme [2021] AATA 1555 (2 June 2021)

REASONS FOR DECISION

Member Buxton

27 July 2021

1. The National Disability Insurance Agency (“the Respondent”) asserts that the Tribunal does not have jurisdiction, in determining the substantive review application before it, to consider particular supports for which Mr Aaron Steley (“the Applicant”) has sought funding. The Respondent has asked the Tribunal to determine that issue as a discrete question in advance of the hearing and determination of the substantive review.

2. The Applicant, a participant in the National Disability Insurance Scheme (“the NDIS”), is legally blind and has one prosthetic eye. On 31 December 2020, the Applicant applied to the Tribunal, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), for review of a decision of the Respondent dated 10 December 2020 (”the decision under review”). The decision under review, made under subsection 100(3) of the NDIS Act, affirmed an earlier decision to approve a statement of supports in the Applicant’s plan, made under subsection 33(2) of the NDIS Act (“the primary decision”).

3. As a result of the primary decision the Applicant’s funded supports were set out in a participant’s plan which commenced on 13 October 2020 and had a review date of 13 October 2021 (“the Applicant’s Plan”). The Applicant was dissatisfied with the primary decision as he did not consider that the plan contained sufficient funding for his reasonable and necessary supports pursuant to subsection 34(1) of the NDIS Act. On 14 October 2020, the Applicant made a verbal request to the Respondent for internal review of the primary decision and on 10 December 2020, a reviewer from the Respondent made the decision under review. The Applicant remained dissatisfied with the decision and he applied to the Tribunal for review.

4. In the course of preparing the application for review before the Tribunal, the Applicant has identified certain supports, being funding related to his prosthetic eye and either physiotherapy or exercise physiology sessions (“the additional supports”), that he considers to be reasonable and necessary, but which have not been included in his participant’s plan. References to physiotherapy and exercised physiology have been used interchangeably by the parties in their oral and written submissions, although they do not appear to be exactly same kind of support. For the reasons given below, it is not necessary to further explore this factual issue, and reference to the additional supports is intended to encompass both physiotherapy and/or exercise physiology.

5. The Respondent has requested that the Tribunal determine the discrete jurisdictional issue in this review application, being “whether the Tribunal has jurisdiction to determine if a prosthetic eye and exercise physiology sessions are “reasonable and necessary” for the purposes of the NDIS Act.” The parties participated in an interlocutory hearing by telephone on 1 June 2021, during which they each made oral submissions and they subsequently each prepared substantial written submissions as to the Tribunal’s jurisdiction.

6. The Respondent contends for a particular construction of the NDIS Act which, it submits, places a limitation upon the power to vary a statement of participant supports during the internal review process and, in turn, limits the Tribunal’s power to vary the decision under review.[1] The Respondent further submits that, where a reviewable decision has been confined by issues identified by an applicant during the internal review process, the jurisdiction of the Tribunal is similarly confined,[2] and relies upon the reasoning in the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (“CPJ16”).[3] The Respondent also relies upon the reasoning in the decision of QDKH and National Disability Insurance Scheme[4] (“QDKH”).[5]

   [1] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [22].

   [2] Ibid, [24].

   [3] [2019] FCA 2033, esp. [61].

   [4] [2021] AATA 922 (16 April 2021).

   [5] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [28]. This decision has been citied with approval in BWLK and National Disability Insurance Agency [2021] AATA 1631 (8 June 2021) and Young and National Disability Insurance Agency [2021] AATA 1555 (2 June 2021).

7. The High Court in Frugtniet v Australian Securities and Investments Commission[6] (“Frugtniet”),[7] described the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to re-consider afresh the question before the primary decision maker and to address the same question the primary decision-maker was required to address. In this review application, the question for the Tribunal on review is whether to “approve” a “statement of participant supports” under subsection 33(2) of the NDIS Act.

   [6] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).

   [7] Frugtniet, [14] - [15].

8. In VXVL and National Disability Insurance Agency[8] (“VXVL”), in a setting similar to the application now before me, the parameters of that review were examined in some detail, in order to determine a similar jurisdictional question. Subsection 33(2) of the NDIS Act provides that the statement is to be “prepared with the participant” and “approved by the CEO”. The parameters of the review are therefore those to be considered by the CEO in deciding whether to approve the statement of participant supports. The scope of the primary decision in this case is of the same nature as that described in VXVL:[9]

   The statutory provisions relevant to the preparation of a participant’s plan are set out in Chapter 3, Part 2 of the NDIS Act. Principles related to the preparation, review and replacement of plans are set out in section 31 of the NDIS Act, which includes a requirement that these processes should, so far as reasonably practicable, be individualised and facilitate tailored and flexible response to the individual goals and needs of the participant. It is the CEO, not the participant, who must adhere to those principles.

   A plan must include a statement of goals and aspirations, and subsection 33(1) of the NDIS Act provides that this statement is to be prepared by the participant and that this may be done with support. Once a participant’s goals are defined, these are to be incorporated into the deliberations of the CEO (or delegate) in approving a statement of supports for that participant under Chapter 3, Part 2 of the NDIS Act.

   [Footnotes omitted]

   [8] [2021] AATA 1709 (14 June 2021).

   [9] VXVL, [9] - [10].

9. Subsection 33(5) of the NDIS Act lists factors relevant to whether the CEO will approve a statement of participant supports. These include the participant’s statement of goals and aspirations, any relevant assessments conducted in relation to the participant and the reasonable and necessary supports, specified under subsection 34(1) of the NDIS Act, that are to be funded. In approving the statement of participant supports, the CEO is to have regard to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (“the Supports for Participants Rules”).[10] It is incumbent upon the CEO to identify and take into account a variety of factors, including the participant’s goals, their aspirations, any assessments of the participant with a particular emphasis on their needs, strengths, limitations and any risk factors. The CEO may also consider any supports identified or requested by the participant, although there is no statutory obligation upon the participant to identify such supports[11]. In exercising powers under subsection 33(2) of the NDIS Act, the primary decision maker is to consider these relevant considerations whether or not the participant has identified or requested particular supports.

   [10] Supports for Participants Rules, rules 2.2, 2.4 and 4.1.

   [11] Ibid, rule 2.4

10. In reviewing the decision to approve, or not approve, a statement of participant supports, the Tribunal must take account of the same considerations as those before the primary decision-maker in reviewing the exercise of the power to approve a statement of supports under subsection 33(2) of the NDIS Act. The Respondent submits that the review function of the Tribunal in this case is further limited, in respect of the additional supports, by the extent to which the Applicant “put before” the internal reviewer a request for those supports and where the internal review delegate did not consider those in the decision under review.[12]

    [12] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [28].

11. The Applicant submits that the Tribunal’s jurisdiction is not so limited and includes consideration of the additional supports and any other relevant supports ‘that could of formed part of the primary decision’.[13] The Applicant submitted that Parliament’s intention to create an entitlement to external merits review, by the Tribunal, of the Respondent’s reviewable decisions has been realised by sections 99 to 103 of the NDIS Act.[14] The Applicant submits that the Tribunal is to undertake a full merits review of all relevant aspects leading to approval under subsection 33(2) of the NDIS Act requiring the Tribunal to arrive at the correct decision as to that statement of participant supports.[15] The Applicant further submits that it was not for him to identify or request particular supports and that it was the underlying object or purpose of the NDIS Act that the Scheme itself, through the CEO of the Respondent, is to ensure that participants receive reasonable and necessary supports.[16]

    [13] Applicant’s Outline of Submissions on Jurisdiction dated 25 June 2021, [59].

    [14] Ibid, [21] – [24].

    [15] Ibid, [19].

    [16] Ibid, [15], [18] and [34].

12. Further, the Applicant submits that the Respondent’s contentions as to the fetter upon the Tribunal’s jurisdiction would result in an absurd and manifestly unreasonable result. The Applicant submitted, in particular, that:[17]

    “21.The NDIA’s contentions in relation to the interpretation of the relevant internal and external review provisions of the NDIS Act, as set out in Chapter 4 Part 6 (sections 99 to 103), have the effect of:

    ·     limiting the effectiveness of and access to reasonable and necessary supports intended to be provided by the Scheme to people with disability by the Scheme,

    ·     creating confusion and a level of complexity to the administration of the internal and external review process that participants will struggle to understand and respond to,

    ·     creating confusion and a level of complexity to the administration of the internal and external review process which the NDIA exacerbates by failing to support people with disability in all their dealings and communications with the Agency and provide participant’s with procedural fairness,

    ·     creating confusion and a level of complexity to the administration of the internal and external review process which the NDIA then seeks to take advantage to the disadvantage of participants.,

    ·     defeating the underlying object and purpose of the legislation. 

    [17] Ibid, [21].

13. In any event, the Applicant also submits that, as a question of fact, the additional supports were each requested to be included in the primary decision.[18] Neither the primary decision maker, nor the reviewer, have included the additional supports in the approved statement. The question now before the Tribunal for determination in this review is what stipulated supports are to be included in the approved statement of participant supports. The Applicant submits that he has consistently required the additional supports and that he requested that the additional supports be considered by the Respondent at all times material to the making of both the primary decision and the decision under review.

    [18] Applicant’s Outline of Submissions on Jurisdiction dated 25 June 2021, [49]. The Applicant relies on the extracted interaction notes in paragraphs 4 to 7 of the Respondent’s Submissions on Jurisdiction dated 11 June 2021 to demonstrate this fact.

14. The Respondent has not identified any particular document (such as a form to be completed by a participant requesting review) or single statutory requirement as being determinative of the factual question “what was scope of the requested review”. The Respondent simply submits that the Applicant has not requested a review that included consideration of the additional supports and the Applicant submits that he has done so. This factual conflict leads me to observe a practical difficulty with the Respondent seeking, on an interlocutory basis (that is, prior to all other matters in the review having been determined), and without a full hearing, to assert that an Applicant has not requested a particular support and that, therefore, the Tribunal has no jurisdiction to consider that support as part of its deliberations. If that were the legally correct approach but, as here, the Applicant refuted the factual accuracy of the contention, the parties may be entitled to a hearing with respect to that issue. During that hearing, the relevant witnesses of fact for the Respondent may include the primary decision-maker, the reviewer and any employee or agent of the Respondent charged with communicating with the Applicant and maintaining records of relevant interactions.

15. The Applicant indicated in his written submissions that, if such factual questions were to be determined, he ought to be given access to all original documents in the possession or under the control of the Respondent and its agents and be at liberty to make further submissions.[19] Procedural fairness would ordinarily dictate that the documents be produced and any relevant witnesses be made available to be cross-examined by the Applicant. It is difficult to see any alternative if it were necessary for the Tribunal to determine disputed factual questions of this nature. This would be a cumbersome and time-consuming process and would potentially be inconsistent with the Tribunal’s charter to deliver merits review that is economical, informal and quick. That is perhaps a good explanation as to why, in merits review before the Tribunal, such analysis is not required. Instead, the Tribunal is simply required to consider again the broad question before the original decision-maker and must take into account the same considerations that were relevant to that decision-maker.  

    [19] Applicant’s Outline of Submissions on Jurisdiction dated 25 June 2021, [59].

16. A further difficulty in the particular factual setting of this case is the references to the additional supports in the extracts of the interaction notes produced by the Respondent, which appear to support the Applicant’s submissions that the Respondent was on notice of his requests for the additional supports at the time of the internal review. Expressly, references to “physiotherapy” appear in the interaction notes of communications involving the reviewer and the decision under review refers to “sessions … requested to build (the Applicant’s) physical capacity”.[20] Multiple references to the prosthetic eye appear in the interaction notes created by the original decision-maker on or about the date of the decision.[21] No references were made expressly to funding related to the prosthetic eye in the interaction notes involving the reviewer.[22] However where (as here) a request has been made under subsection 100(3) of the NDIS Act for a decision to be reviewed, subsection 100(5) of the NDIS Act requires the decision-maker to “cause the reviewable decision to be reviewed by a reviewer”. Therefore, although the Applicant was required to initiate the review by an oral or written “request”, it is the decision-maker (and not the Applicant) who must “cause” the decision to be reviewed. There is no statutory support in section 100 of the NDIS Act for the suggestion by the Respondent that the Applicant must do any more that “request” a “review”. If the Tribunal’s jurisdiction to review the additional supports in this case was dependent upon the Applicant taking reasonable steps to identify particular supports to be reviewed, the Applicant in this case appears to have done so sufficiently (to the extent that such a conclusion can be reached by considering the limited number of documents produced only and without further testing of the available evidence). It would be a surprising result indeed if an applicant, who had clearly informed the Respondent (by informing the original decision-maker) that he wished for particular supports to be reconsidered on review could nonetheless not have those supports further considered when exercising his review rights because he did not separately inform the Respondent again when seeking internal review (by informing the reviewer). However, for the reasons expressed below, this factual question does not determine the scope of the Tribunal’s review jurisdiction in this case.

    [20] T-Documents, T2.

    [21] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [4].

    [22] Ibid, [6].

17. The Respondent made the following submissions (consistent with the Tribunal’s approach in the matter of QDKH) that the Tribunal lacks jurisdiction to consider the additional supports:[23]

    [23] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [25] - [29].

    25. Where the statute conferring jurisdiction on the Tribunal to review a particular decision contains limitations on the decision-maker’s powers, the Tribunal is similarly constrained.

    26.Further, where the reviewer undertakes the review on that limited basis, the internal review decision will also be limited and that will then determine the scope of the Tribunal’s jurisdiction.

    27.      In CPJ16, Rares J observed in a similar context that, where a reviewable

    decision has been confined to any particular issue and the decision-maker

    gives reasons limited to that issue, the application for review in the Tribunal is only of “that” decision on “that” ground. This is similar to the position
    identified by Justice Downes in Fuad v Telstra Corporation Limited (2004) 33 AAR 496; [2004] ATA 1182 at [5].

    28.      The same limitations as set out above were also correctly identified by

    the Tribunal in QDKH v National Disability Insurance Agency [2021] AATA

    922 which determined that the Tribunal had no jurisdiction to consider any

    requests for additional supports which had not been “put before” the original decision-maker.

    29.In other words, the Tribunal has no power to review a matter which has not previously been the subject of a review by the Agency.

    [Footnotes omitted]

1. There are two parts to this submission. This first is that a “statute conferring jurisdiction on the Tribunal…contains limitations on the decision-maker’s powers”. The second is that the “reviewer undertakes the review on that limited basis”.

2. As to the first part of the Respondent’s submission, I have set out above the statutory parameters of the Tribunal’s review function when considering an application to review a decision to approve a statement of participant supports under subsection 33(2) of the NDIS Act. The Respondent submits that “limitations” on that function are said to arise from a particular construction of sections 99 to 103 of the NDIS Act.

3. The Respondent submits that, once the CEO was satisfied that it was proper to approve a statement of participant supports under subsection 33(2) of the NDIS Act, having regard to the matters in section 34(2) of the NDIS Act, it is relevant to consider subsections 37(1) and (2):

   (1)      A participant’s plan comes into effect when the CEO has:

   (a)      received the participant's statement of goals and aspirations

   from the participant; and

   (b)      approved the statement of participant supports.

   (2)      A participant's plan cannot be varied after it comes into effect, but can

   be replaced under Division 4. (emphasis added)

4. The Respondent submits that, as a result, a participant’s plan comes into effect when the CEO has received the participant’s statement of goals and aspirations and approved the statement of participant supports and that plan ceases to be in effect only when, either, it is replaced by another plan (under Division 4 of Part 2 of Chapter 3 (“Division 4”) of the NDIS Act); or when the participant ceases to be a participant in the NDIS. As the plan (including the approved statement of participant supports) cannot be varied, only replaced,[24] the effect of the Respondent’s submission is that, following approval of the statement of participant supports, the plan for an ongoing participant in the scheme can be “varied” only under subsection 48(1) of the NDIS Act, which permits the CEO to conduct a review of the participant’s plan at any time as a result of new circumstances.

   [24] NDIS Act, s 37.

5. This submission does not appear to take account of the fact that, after a statement of participant supports is approved, both internal review rights (created by section 99 of the NDIS Act) and external review rights to the Tribunal (created by section 103 of the NDIS Act) may be exercised. In that case, if the review, leads to a different outcome the “decision” to approve the supports, and the plan that results from that decision, may be the plan as varied by operation of the decision as varied. Subsection 37(2) of the NDIS Act does not operate to prevent such a process. Changes to the approved plan are not only permitted, but plainly contemplated, by the statutory scheme for internal and external review. So long as the decision-maker exercising review jurisdiction (whether internally by a reviewer or externally by the Tribunal) does so by re-making the decision to approve the statement of participant supports under subsection 33(2) of the NDIS Act, then the supports which a participant submits ought to be included in the approved plan are plainly within the jurisdiction of each decision-maker exercising review power. The proper reading of subsection 37(2) is as a fetter on the powers of the CEO to vary the participant’s plan (arising from an original decision, or as it stands after the review rights of the participant, if exercised, have been exhausted) to ensure that this can occur only in the circumstances identified in Division 4 and thus providing a participant with some stability. To the extent that the Respondent has submitted, in this case, that by operation of subsection 37(2) of the NDIS Act, the Tribunal lacks jurisdiction to vary, on review, a decision made under subsection 33(2) of the NDIS Act by including, in the plan to be approved, supports that were not included initially, or on review, but which, in the Tribunal’s view, ought to be included in order for the Tribunal to arrive at the correct or preferable decision, such a submission is not supported by a proper reading of the statutory provisions identified.

6. If their circumstances change, a participant can seek a review under section 48 of the NDIS Act, or the CEO may initiate a review. This is the “Division 4” review referred to in subsection 37(2) of the NDIS Act. However, that process is not available to a participant whose circumstances have not changed but who still wish further supports to be included in their plan. This is because, as the Respondent accepts, the trigger for such a review must be “new” or “changed” circumstances.[25] Therefore, a review under subsection 48(1) of the NDIS Act would not necessarily take place where the participant contends that their funded supports are inadequate to address their current, unchanged, circumstances. Merits review rights have been expressly created for this purpose. Although a participant may make a request under subsection 48(1) “at any time”, the CEO may decide not to undertake the requested review. The construction of section 37 of the NDIS Act apparently contended for by the Respondent may leave a participant who has not successfully identified, on review, a particular support that is reasonable and necessary, with no basis to access the support. If the support had been incorrectly omitted from a plan resulting from an original decision under subsection 33(2) of the NDIS Act, or a review decision under section 100 of the NDIS Act, and the participant’s circumstances had not changed, the participant’s only option would be to wait until for consideration of the next statement of participant supports when the current plan ends. This could be some years into the future. The Tribunals accepts the Applicant’s submission that such a construction is not supported by the plain words of the statute and would not be consistent with the statutory intent of the NDIS Act. The Tribunal does not accept that to be the correct construction. It follows that the Tribunal does not consider the Tribunal to be undertaking a review on the limited basis contended for by the Respondent in the first part of its submission.

   [25] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [17].

7. The second part of the Respondent’s submission is that the Tribunal’s jurisdiction is limited by the way in which the internal reviewer undertook the review task. The Respondent maintains that “the jurisdictional question arises because the prosthetic eye and exercise physiology sessions were not requested by the Applicant when the internal reviewer made the decision to vary the CEO’s decision on 10 December 2020 under section 100(6) of the NDIS Act”.[26]

   [26] Ibid, [8].

8. This gives rise to both a legal question and a factual question. As to the factual question, I have already noted that the disclosed extracts of the interaction records do not appear to support the factual contentions that scaffold the Respondent’s submissions as to jurisdiction. The notes of the Applicant’s interactions with the Respondent plainly identify that the Applicant disagreed with the primary decision and communicated his intention to the original decision-maker to seek internal review and to have the additional supports considered on review.

9. The Respondent did not submit that the additional supports were outside the scope of the primary decision-maker’s function and such a submission is not available based on the facts in this case. The Applicant had a prosthetic eye at the time of the original decision and this circumstance has not changed. The Applicant identified issues in relation to his gait in his statement of participant goals, and there is no evidence before the Tribunal suggesting that the Applicant’s goals have changed. However, the Respondent submits that, where supports are not specifically requested or raised by a participant during the process to internally review the primary decision (which is, in the Respondent’s submission, the way in which things are to be “put before” a reviewer),[27] those supports cannot be considered by the Tribunal when reviewing that internal review decision, regardless of whether or not they are reasonable and necessary.[28] Further, the Respondent submits that where an Applicant identifies only certain issues in a request for internal review or during the internal review process, the internal reviewer is confined to determine only those issues, and the jurisdiction of the Tribunal is similarly confined.[29]

   [27] As defined by ss 100(5) of the NDIS Act.

   [28] Respondent’s Submissions on Jurisdiction dated 11 June 2021, [28].

   [29] CPJ16, esp. [61].

10. An issue arose in a similar context the matter of VXVL, where the reasons given for the determination of a jurisdictional issue included the following summary of the Tribunal’s statutory task on review:[30]

    “A decision to approve a participant’s statement of supports under subsection 33(2) of the NDIS Act is made by the primary decision maker following an assessment of relevant considerations. It is not made by the participant, nor is it made as a result of requests made by a participant. If a participant makes such requests, the decision maker is required to consider them in addition to other matters expressly to be taken into account, but it is the CEO, not the participant, who is to exercise the powers and discretions under subsection 33(2) of the NDIS Act. No obligation is placed upon any participant to “request” any particular support. That approach is consistent with the statutory scheme when considered more broadly. According to subsection 31(j) of the NDIS Act, the preparation and review of plans is to “facilitate tailored and flexible responses to the goals and needs of the participant”. The objects of the Act include the provision of “reasonable and necessary supports for the participant” and that people with a disability should be supported in all their dealings with the agency to maximise their choice and control, as appropriate. If the CEO (or delegate) does not identify sufficient supports in the approved plan then the decision to approve that plan can be reviewed internally by a reviewer[31] then externally by the Tribunal, whilst exercising the same powers and subject to the same limitations of the primary decision-maker.

    When an Applicant seeks internal review of a primary decision approving a plan of participant’s supports there is no statutory obligation to identify which particular supports are sought and, even if particular supports are sought, there is no apparent basis to limit the extent to which other supports may be considered by the Tribunal in a reconsideration of the statutory question posed by subsection 33(2) of the NDIS Act.”

    [Footnotes omitted]

    [30] VXVL, [17] - [18]

    [31] NDIS Act, ss 100(5).

11. The significance of a matter being “put before” a decision-maker was also considered and expanded upon in the following terms in VXVL, as the basis for the scope of the Tribunal’s task on review:[32]

    A “matter” is “put before” the primary decision-maker by reference to the statutory question to be answered by that decision-maker, not by a request for internal review of the primary decision. Once the four corners of the question before that decision maker are identified they cannot later be limited by the conduct of an applicant when seeking merits review of the primary decision. It is, of course, open to an applicant to identify particular aspects of a reviewable decision with which they disagree, but that does not relieve the reviewer from re-making as a whole the decision under review.

    [32] VXVL, [21].

12. At the centre of the Respondent’s submission is the contention that, despite the broad nature of the power to approve under subsection 33(2) of the NDIS Act, that power is narrowed to exclude consideration of any issue not expressly identified by a participant seeking review, but the Respondent has not identified any statutory provision to support that contention. Instead, the Respondent cites a line of authority that it not determinative of the issue now before me as it does not relate to the same, or a materially similar statutory scheme. The Respondent submitted that the approach adopted by the Tribunal in the decision of QDKH should also be adopted in this case. This line of authority was also considered in VXVL where I expressed the view that I did not consider these cases to be determinative of the issue. Each member of the Tribunal is required to exercise the statutory function to reach to correct (or preferable) decision in the context of the issues before it. In this case I respectfully depart from the approach taken in QDKH with respect to those authorities and adopt the same approach as I took in VXVL in respect of the significance of those decisions as follows:[33]

    In both Fuad and CPJ16 consideration was given to the scope of the primary-decision maker’s task, not the way in which that task may have been approached by an internal reviewer. In Fuad, the Tribunal was required to re-consider all elements of the primary decision, including various threshold questions. In CPJ16, the Tribunal was not required to consider determinations of statutory questions that had not been made in the primary decision. In this case, the CEO, or delegate, is to decide whether to approve a statement of participant supports.

    That scope is to be determined by the primary decision-maker who is to approve it: the CEO (or delegate) under subsection 33(2) of the NDIS Act. The nature of the question that the primary decision-maker is required to address under subsection 33(2) of the NDIS Act, when deciding whether to approve a plan of participant’s supports, is set out in detail above, and includes the task of deciding the reasonable and necessary supports to be included. A reviewer, standing in the shoes of the original decision-maker, is required to conduct a merits review and determine, again, the various elements that are to comprise the statement of participant supports in order to either affirm the decision to approve that statement or set that decision aside and substitute it with a decision to approve a different statement of participant supports. The Tribunal, in conducting a review of the reviewable decision, is required to undertake the same task, whether or not the reviewer turned his or her mind to all of the matters properly before the primary decision-maker. As the High Court recently stated in Minister for Immigration and Border Protection and Makasa, “the function of the AAT … is “to do over again” that which was done by the primary decision-maker.

    [33] VXVL, [24] – [25].

13. The Supports for Participants Rules provide guidance as to the range of matters to be considered by the CEO when exercising the power under subsection 33(2) of the NDIS Act. Rule 2.4 of the Supports for Participants Rules provides that the CEO may consider supports in a plan either in relation to a particular support or a package of supports to achieve an outcome. If the participant has identified or requested particular supports, the CEO will also have regard to these.”

14. In Dunstan and National Disability Insurance Agency[34] (“Dunstan”) the Tribunal considered the interaction between section 33 of the NDIS Act and rule 2.4 of the Supports for Participants Rules and noted:[35]

    This rule emphasises what is already apparent in the words of section 33. Development of a statement of participant supports is an exercise into which Applicants have input, but it is the CEO who ultimately determines what goes into the statement of participant supports which the CEO then approves.

    [34] [2021] AATA 2406 (16 July 2021).

    [35] Dunstan, [92].

15. The Tribunal in Dunstan went on to determine that the review jurisdiction of the Tribunal in cases such as this is sufficiently broad to include consideration of reasonable and necessary supports even if they were not identified during the internal review process:[36]

    93….Under the NDIS Act the preparation of a participant’s plan and the approval of a statement of participant supports is the product of a statutory duty imposed upon the CEO by reason of a person being a participant in the scheme. In performing that duty, the CEO is not responding to a claim for reasonable and necessary supports but is deciding what should be approved having regard to the statutory framework.

    94. Given how open the initial decision to approve is, it is difficult to read in any significant restriction as the matter moves through the review process. If evidence and submissions are put to the Tribunal which support the inclusion of items in the statement of participant supports which the Tribunal decides to approve, there is no obvious basis on which those can be disregarded.

    [Footnotes omitted]

    [36] Dunstan, [93] - [94].

16. The Tribunal respectfully agrees with the reasoning in Dunstan. It is plainly open to the CEO, when “specifying”, under section 34(1) of the NDIS Act, to consider various supports and choose which of those will be funded in the “approved” statement of participant supports. Just as it is the role of the CEO (and not the participant) to determine that certain supports are not to be included in the approved plan, it is also the role of the CEO (and not the participant) to determine that certain supports are to be included in the approved plan, and the CEO alone who must undertake that decision-making task by considering the matters identified in subsection 34(1) of the NDIS Act. This approach accounts for the variety of users of the scheme who may have widely varying capacities to identify for themselves the appropriate supports based on their goals and needs. I do not, therefore, accept that the review before the Tribunal is to be undertaken on the limited basis contended for by the Respondent in the second part of its submissions.

17. The Tribunal’s jurisdiction to review a decision made under subsection 33(2) of the NDIS Act is not narrowed by the conduct of a participant, when initiating an internal review under section 100 of the NDIS Act, failing to identify, particular aspects of the decision with which they disagreed or particular supports that should have been included. It is open to a participant to ask that the whole of the decision be re-considered by reference to the participant’s goals and needs, and without specifying the correct or preferable decision. The Applicant in this case has submitted that this is precisely what he did, and that he provided additional information about a range of supports he was seeking. However, it is sufficient in this case that the Applicant requested review under section 100 of the NDIS Act, then applied to the Tribunal for review under section 103 of that Act.

18. It follows that I am not satisfied that the additional supports fall outside the Tribunal’s jurisdiction in the current review Application. The Tribunal has the same powers and discretions as the original decision-maker.[37] The Tribunal is required to re-make the decision to approve the statement of supports having regard to the obligations and limitations of subsection 33(2) of the NDIS Act.

    [37] Administrative Appeals Tribunal Act 1975 (Cth), ss 43(1).

    DECISION

19. The Tribunal determines that it has jurisdiction to consider whether funding related to the Applicant’s prosthetic eye and physiotherapy and/or exercise physiology sessions should be included within the Applicant’s statement of participant supports.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

…………………[SGD]………………..
Associate
Dated: 27 July 2021

Final Submissions Received: 25 June 2021

Representative for the Respondent: Christopher Bilboe, National Disability Insurance Agency