Taylor and National Disability Insurance Agency
[2021] AATA 1042
•16 April 2021
Taylor and National Disability Insurance Agency [2021] AATA 1042 (16 April 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5184
Re:Arlene Taylor
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 16 April 2021
Date of written reasons: 28 April 2021
Place:Canberra
The Tribunal dismisses the application under review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.
...........................[sgd].................................
Member W Frost
Catchwords
PRACTICE AND PROCEDURE – application for dismissal under s 42B of the Administrative Appeals Tribunal Act 1975 – whether the application should be dismissed – whether application is frivolous, vexatious, misconceived or lacking in substance – whether application is futile or being pursued for a collateral purpose – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 28, 42B, 43
Freedom of Information Act 1982
National Disability Insurance Agency Act 2013 ss 33, 37, 48, 100, 103
Ombudsman Act 1976
Privacy Act 1988
Cases
Abrahams v Comcare (2006) 93 ALD 147
Attorney-General v Wentworth (1988) 14 NSWLR 481
General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125
Re Filsell and Comcare [2009] AATA 90
Re Kowalski and Repatriation Commission [2008] AATA 903
Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923
REASONS FOR DECISION
Member W Frost
28 April 2021
INTRODUCTION
This decision relates to the Tribunal’s dismissal of the application brought by the Applicant, Dr Arlene Taylor, pursuant to subsection 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), because it was satisfied that the application had become ‘frivolous, vexatious, misconceived or lacking in substance’. Last year, Dr Taylor sought review by the Tribunal of a decision made by the Respondent, the National Disability Insurance Agency (NDIA) regarding her statement of participant supports for the National Disability Insurance Scheme (NDIS).
In March this year, the NDIA applied to the Tribunal for dismissal of Dr Taylor’s application pursuant to section 42B of the AAT Act. The Tribunal held an interlocutory hearing by Microsoft Teams regarding the NDIA’s dismissal application and the Tribunal considered the materials filed in the proceeding, including the written and verbal submissions received from both parties in relation to the NDIA’s dismissal application.
On balance, the Tribunal was satisfied that Dr Taylor’s application for review of the NDIA’s decision should be dismissed pursuant to subsection 42B(1)(a) of the AAT Act. Accordingly, the application was dismissed without the Tribunal proceeding to review the NDIA’s decision. The Tribunal read out a short statement of its reasons at the interlocutory hearing. Following that hearing, Dr Taylor requested a statement of the Tribunal’s written reasons. These are those written reasons for the dismissal of Dr Taylor’s application.
LEGISLATION
Section 2A of the AAT Act provides as follows:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
Subsection 43(1) of the AAT Act provides the Tribunal with power to make a decision:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Subsection 42B(1) of the AAT Act gives the Tribunal the power to dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
BACKGROUND
In April 2018, Dr Taylor became a participant in the NDIS.
Relevantly for this proceeding, on 1 July 2020, a delegate of the CEO of the NDIA made a decision under subsection 33(2) of the National Disability Insurance Agency Act 2013 (NDIS Act) to approve a statement of participant supports for Dr Taylor.
On 27 July 2020, following Dr Taylor requesting an internal review of the NDIA’s decision made on 1 July 2020, a delegate of the CEO made a decision (the reviewable decision) under subsection 100(6) of the NDIS Act to set aside and substitute the earlier decision with a decision to approve a different statement of participant supports for Dr Taylor. This decision resulted in a new NDIS plan for Dr Taylor by the operation of subsection 37(1) of the NDIS Act.
On 26 August 2020, Dr Taylor sought review by the Tribunal of the reviewable decision, pursuant to section 103 of the NDIS Act. This is the application before the Tribunal. Dr Taylor’s application for review to the Tribunal stated, among other things, that: ‘I had my NDIS review and they ignored large amounts of evidence and didn't fund my reasonable and necessary supports’; and ‘I haven't received reasonable and necessary supports backed by evidence, not (sic) have I received funding for most major goals’.
In November 2020, another delegate of the CEO of the NDIA conducted a review of Dr Taylor’s plan pursuant to subsection 48(5) of the NDIS Act.
On 27 November 2020, the delegate made a decision under subsection 33(2) of the NDIS Act to approve Dr Taylor’s statement of participant supports. This decision resulted in Dr Taylor receiving a new NDIS plan, which replaced her plan from July 2020 that is the subject of the application before the Tribunal.
In December 2020 and January 2021, the NDIA made further decisions under subsection 33(2) of the NDIS Act and each of these two decisions resulted in a new NDIS plan for Dr Taylor.
The NDIA decisions in November 2020, December 2020 and January 2021 each brought with them a right for Dr Taylor to request an internal review by the NDIA under section 100 of the NDIS Act, and the potential for further review by the Tribunal under section 103 of the NDIS Act. The Tribunal does not, in this application, have jurisdiction in relation to these three subsequent decisions of the NDIA that resulted in new NDIS plans and statements of participant supports for Dr Taylor funded by the NDIA. The Tribunal's jurisdiction in this application is limited to the NDIA’s decision on 27 July 2020 approving a statement of participant supports in Dr Taylor’s NDIS plan that was in force for 4 months until 27 November 2020.
CONTENTIONS
Dr Taylor
Pursuant to directions made by the Tribunal, on 9 April 2021, Dr Taylor provided the following written submissions opposing the NDIA’s dismissal application in advance of the interlocutory hearing:
1) The NDIS Plan issued to me on 29 July 2020 is one where the decision to approve that statement of supports (as an internal review of a previous plan issued on 1 July 2020) is a reviewable decision under section 103 of the NDIS Act 2013.
2) Section 26 off [sic] the AAT Act 1975 states that a decision being reviewed by the AAT cannot be altered except through the tribunal (unless exempted under s42D of the AAT Act or both parties consent to the alteration of the original decision.
3) The Respondent correctly states the AAT has no jurisdiction to determine the reasonable and necessary supports that should be in any plans issued after 29 July 2020. The more recent plans are not alterations of the original plan but are “replacements” of the 29 July 2020 plan (as per the NDIS Act 2013).
4) The decision made regarding the funding for the 29 July 2020 Plan remains a reviewable decision and there is merit and worth (as well as fairness) in allowing the application currently before the tribunal to proceed. The AAT remains within its jurisdiction to review the decision from 29 July 2020 and assess whether or not the NDIA appropriately funded supports required, and made appropriate decisions based on the evidence that was available to the NDIA at the relevant time. It is highly relevant and important that even though the Respondent and Applicant in this matter understand that there are now increased needs (with evidence provided in reports given to the Respondent after 29 July 2020) that the decision of 29 July 2020 is one that remains reviewable and a proper review of that decision and whether or not the NDIA appropriately funded according to evidence available at that time is relevant to further decisions the NDIA will make about my personal NDIS funding (and that of other people).
5) The Respondent is seeking to avoid accountability for a decision and to remove the capacity of an individual participant (and other participants) to obtain clarity around how evidence is assessed and funding needs determined. The ability of any NDIS Participant to seek clear explanations (that can inform how they approach the provision of evidence and information to the NDIA for future planning and funding needs) is equally as important as any remedy for an underfunded plan that has not been replaced at such time when the AAT reviews the decision in question.
6) To allow the Respondent to have an application dismissed when they have still failed to explain their reasons for providing or not providing relevant funding, and in circumstances where they replaced a plan and use that as an argument to seek not to have their decision making held accountable in a forum of open justice, sets a dangerous precedent that will no doubt only encourage the Respondent to provide inadequate funding, in NDIS Plans of a short duration, thereby limiting NDIS Participants from seeking appropriate explanations, reviews and remedy in the future (and harming all relevant participants.
7) I am not seeking to have the AAT assess what is required in my current NDIS Plan (or future ones - noting another Plan Review is occurring presently). I seek a review of the relevant decision from 29 July 2020 for the purposes of understanding the Respondent’s decision making process so that I can avoid further issues with not receiving appropriate levels of funding (and not receiving reasons from the Agency) behind their decisions ultimately leaving me at risk. I also seek this review to safeguard me and other participants from the inappropriate use of replacement plans, or short-duration plans that are underfunded and won’t allow for someone to survive through an AAT appeal without replacement, to be used as a tool by the Respondent to avoid accountability for their decisions.
8) I put to the Tribunal that the fact the Respondent remains unwilling to provide reasons behind their decisions for the 29 July 2020 Plan, all subsequent plans, and my previous plans, is a strong indicator that the Respondent is actively avoiding accountability for its decisions and actions and is attempting to abuse its ability to replace plans (including with short-duration and underfunded ones) as a further mechanism to avoid accountability.
9) In circumstances where the AAT determines in this application that my plan was underfunded based on the evidence available for the 29 July 2020 decision, I would then have the option to sue the NDIA for relevant harms suffered as a result of that underfunding (as per the NDIS Act 2013). In my own attempts to preserve funding (based on advice that I would be left with none once it ran out) I was grossly under supported and experienced a substantial decline in my functioning during the period 29 July 2020 to 27 November 2020. I also suffered a serious delay in the approval of a new wheelchair that was urgently required and that the Respondent refused to fund using my open AAT application as an excuse. I have only received that wheelchair today after being advised this morning it was available for me to collect: This involved making an urgent and impromptu trip to Young, NSW, in order to secure this critical piece of assistive technology in a timely fashion. I am not stating it is definitely my intention to take further recourse against the Respondent should the AAT proceed with this matter and then determine I received inadequate funding, but that will be an option and one I may be denied in circumstances where this application is dismissed.
10) Dismissing this application removes any ability of vulnerable NDIS Participants to obtain answers independently from the NDIA who are currently not cooperative or forthcoming on many occasions regarding how they make funding decisions. This conduct from a Commonwealth Agency needs to stop and be actively discouraged.
It is not outside the jurisdiction of the AAT to hear this application for review. It is also not an inappropriate appeal to hear because the Respondent continues to refuse to provide me, and many other participants, clarity around their decisions leaving us with a “hit and miss” strategy for getting what our providers and us understand to be critical reasonable and necessary supports approved.
NDIA
The NDIA contended that Dr Taylor’s application for review should be dismissed under section 42B of the AAT Act on the grounds that it was frivolous, vexatious, misconceived or lacking in substance, had no reasonable prospect of success or was otherwise lacking in substance.
The NDIA acknowledged that Dr Taylor’s application did not have these characteristics at the time she made that application in August 2020 and that, in this regard, its dismissal application did not reflect on her personally.
In summary, the NDIA’s written submissions dated 14 April 2021 in support of its dismissal application were that:
(a) the Tribunal does not have jurisdiction in relation to the decision that resulted in Dr Taylor's current and operative NDIS plan;
(b) the Tribunal has jurisdiction in relation to a plan that is no longer in force;
(c) Dr Taylor’s application before the Tribunal can serve no purpose for her in that the Tribunal can provide her with no greater benefit than the decision sought to be reviewed; and
(d) Dr Taylor seeks to invoke the power of the Tribunal in relation to matters which are not part of the decision under review.
CONSIDERATION
Having regard to all the circumstances, the Tribunal is satisfied that Dr Taylor’s application should be dismissed pursuant to subsection 42B(1) of the AAT Act.
The Tribunal in Re Filsell and Comcare [2009] AATA 90 (Filsell) at [33] set out the relevant principles in considering the dismissal power in section 42B of the AAT Act, as follows:
(a) The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].
(b) The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare (2006) 93 ALD 147 at [24], per Madgwick J.
(c) The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129–130.
(d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(e) Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal's time and resources will be wasted, and the tribunal's ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
(f) Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33]–[35]. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B.
(g) Section 42B presupposes that the tribunal has jurisdiction, since it empowers the tribunal to dismiss the application, and also in appropriate cases, to direct that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction. If the tribunal has no jurisdiction to review the decision in question, it would not have power to take the steps contemplated by s 42B.
Put simply, the power in section 42B of the AAT Act is to be used carefully by the Tribunal. However, if an application can serve no purpose for the applicant, it should not continue to use the Tribunal’s time and resources.[1] The Tribunal in Williams also found that an application should be dismissed if it is futile or being pursued for a collateral purpose.[2]
[1] Re Williams and Australian Electoral Commission(1995) 38 ALD 366; Re Currey and Australian Community Pharmacy Authority[2007] AATA 1963; (2007) 99 ALD 106.
[2] At 373.
The Tribunal has previously exercised (or indicated that it would exercise) the dismissal power in section 42B of the AAT Act where ‘the Tribunal's jurisdiction provides for no better outcome that which [an Applicant] has achieved’[3] and where ‘satisfied that a successful application would have no practical effect’.[4] The Tribunal in Irving also considered ‘the expense that would be incurred by the respondent in the proceedings’.
[3] Re Thomson and Comcare [2017] AATA 34. See also Re Knight and Comcare(1994) 36 ALD 417 at 423; and Re Bergen and Secretary, Department of Social Security(1994) 36 ALD 717 where the Tribunal found that it would be unable to make a decision that would provide the applicant with any greater benefit than was provided by the decision sought to be reviewed.
[4] Re Irving and Repatriation Commission (1997) 46 ALD 20. See also the ACT Administrative Appeals Tribunal decision in Re Canberra Raiders Sports Club and Commissioner for ACT Revenue(1999) 59 ALD 229.
The Tribunal’s jurisdiction is limited in this application. The decision under review before the Tribunal relates to the approval of the statement of participant supports in an NDIS plan of Dr Taylor’s that is no longer in force. It commenced in July 2020 and ended in November 2020. The Tribunal's review of the NDIA’s decision from July 2020 could, pursuant to subsection 43(1)(c) of the AAT Act, result in it being set aside and another decision taking its place, whether by substitution by the Tribunal or upon reconsideration by the NDIA. This would result in a change in Dr Taylor’s statement of participant supports in her NDIS plan that took effect in July 2020 and ended in November 2020. Accordingly, any such change would be limited to a period of time which has now passed. That is, the decision would never take effect due to the existence of a separate, current NDIS plan and associated statement of participant supports for Dr Taylor.
In this regard, a review by the Tribunal of the statement of participant supports from July to November 2020 can be of no present or prospective effect in relation to Dr Taylor’s current funding under the NDIS. A decision of the Tribunal favourable to Dr Taylor would have no substantive effect, as the NDIS plan to which the decision under review relates is no longer in force. That NDIS plan has been replaced on multiple occasions since November 2020, and there is also a current review underway in relation to Dr Taylor’s most recent NDIS plan. Subject to the outcome of that present review by the NDIA, it is open for Dr Taylor to request an internal review by the NDIA and then, potentially, merits review by the Tribunal of that NDIA internal review decision, a mechanism that has been available to her in relation to earlier planning decisions made by the NDIA since November 2020.
For these reasons, any change in Dr Taylor’s statement of participant supports ordered by the Tribunal pursuant to the current application before it would have no practical effect, as expressed by the Tribunal in Irving.
The Tribunal also notes that there are avenues available to Dr Taylor other than, and more appropriate to, those of the Tribunal for Dr Taylor to have matters addressed which are outside the jurisdiction of the Tribunal. These matters may be considered, pursuant to Filsell, to be a ‘collateral purpose’ other than adjudication of the application before the Tribunal. For example, Dr Taylor could have sought a statement of reasons from the NDIA in relation to the decision under review pursuant to section 28 of the AAT Act. She also has the ability to access documents from the NDIA under the Freedom of Information Act 1982 and to access her personal information from the NDIA under the Privacy Act 1988. Additionally, pursuant to the Ombudsman Act 1976, Dr Taylor can make a complaint about an action that relates to a matter of administration taken by the NDIA, while noting Dr Taylor’s reservations about this body expressed at the interlocutory hearing.
Finally, it is unclear why a decision of the Tribunal is required for Dr Taylor to potentially ‘sue the NDIA for relevant harms’. The Tribunal's review process is not a requisite step for any future litigation in relation to such matters. Accordingly, for the Tribunal to conduct its review for that purpose, even in part, would be contrary to the Tribunal’s objectives in section 2A of the AAT Act. In this regard, the Tribunal considers the expenditure of further resources by it and the parties in relation to this application would also be contrary to those objectives.
On balance, the Tribunal is satisfied that the application has become frivolous and vexatious pursuant to subsection 42B(1)(a) of the AAT Act. It would therefore be futile for the application to continue and inappropriate to further use the time and resources of the Tribunal in this proceeding. It would also be unproductive to put the NDIA to the expense that would be involved in the matter proceeding to a hearing for what would, if Dr Taylor were successful, amount to no practical benefit in terms of the present and future support provided to her under the NDIS.
While the NDIA’s dismissal application is successful in this proceeding, the Tribunal cautions against the potential use of such applications as a mechanism to seek to remove the ability of an NDIS participant (or prospective participant) to have a decision of the NDIA reviewed by the Tribunal, noting that it does not consider this to be the basis of this particular application made by the NDIA. For the reasons set out above, the circumstances in this proceeding warrant the use of the Tribunal’s dismissal power. As noted by the NDIA, Dr Taylor has also had the opportunity to seek the review of multiple decisions of the NDIA which were made after, and in effect replaced, the decision the subject of this application.
To be clear, Dr Taylor’s application to the Tribunal in August last year was not frivolous or vexatious at that time; it was validly made and it was open to her to make such an application following internal review by the NDIA in July 2020. However, given the scope of decision under review and the subsequent NDIS plans made by the NDIA for Dr Taylor that have replaced the plan contained in the reviewable decision, that application has been rendered futile and any future success would have no practical effect and provide no better outcome to Dr Taylor.
In this regard, Dr Taylor’s present concerns in relation to her current reasonable and necessary supports funded by the NDIA are matters that should be pursued with the NDIA in the first instance and, if required, subsequently with the Tribunal through a new application.
DECISION
The Tribunal dismisses the application for review pursuant to subsection 42B(1) of the AAT Act.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
.............................[sgd]...........................................
Associate
Dated: 28 April 2021
Date(s) of hearing: 16 April 2021 Date final submissions received: 14 April 2021 Applicant: By MS Teams Solicitor for Respondent: Mr Alexander Gent, HWL Ebsworth Lawyers
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