Ters and National Disability Insurance Agency

[2019] AATA 312

Ters and National Disability Insurance Agency [2019] AATA 312 (23 January 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/4863

Re:Charbel Ters

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:23 January 2019

Date of written reasons:        28 February 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that it has jurisdiction in this matter that is confined to the issue of whether or not the Respondent should conduct a review of the Applicant’s plan. The Tribunal is satisfied that the application for review is misconceived. The Tribunal, pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act1975 (Cth), dismisses the application

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

Mrs J C Kelly, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – characterisation of decision made by Chief Executive Officer – whether decision to not review plan or decision to approve the statement of participant supports – decision not to review plan – misconceived application to Tribunal  – application dismissed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 48(1), 48(2), 99, 100(2), 100(5)(b), 100(6), 103

CASES

Nairn and NDIA [2017] AATA 242

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

28 February 2019

1. On 24 August 2018, Mr Ters applied to have this Tribunal review the decision the National Disability Insurance Agency (the Agency) made on 3 August 2018 (the internal review decision).

2. The questions the Tribunal has to decide are the scope of the review it can undertake and whether that review should proceed.

3. During the hearing, the Tribunal canvassed in detail the relevant facts and law with Mr Ters, his representative Mr Jones, and Mr Lay, the Agency’s representative, and made clear its reasons for deciding that the review was confined to whether or not the Agency should review Mr Ters plan and concluding that, in the circumstances, the review application should be dismissed.   A summary of those reasons follow.

4. Mr Ters was granted access to the National Disability Insurance Scheme on 15 June 2016.  He has had plans dated 1 September 2016, 27 January 2017 and 24 January 2018. The latter plan has led to the current application in the Tribunal.

5. On or about 3 May 2018, Mr Ters’ support co-ordinator requested that the Agency review the 24 January 2018 plan decision (the internal review).  Mr Ters requested increased funding for assistive technology and improved daily living and sought funding for car modifications.  That is, he was seeking changes to the statement of supports in his plan under (sections 33 and 34 of the Act).

6. On 3 August 2018, the Agency notified Mr Ters of the outcome of the internal review which he has requested the Tribunal to review.

7. The language of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) is confusing.

8. Put simply, section 100 provides for the review within the Agency of decisions made under provisions of the Act specified in section 99, that is, internal review. The Tribunal has jurisdiction to review internal review decisions.

9. Section 100(2) of the Act requires a person to request an internal review of a decision within three months after receiving notice of the decision.  The provision is mandatory.  There is no power to extend the period.

10. Mr Ters requested review of the decision made on 24 January 2018 on 3 May 2018, which was outside the mandatory period of three months. There was no right to an internal review of that decision. 

11. Therefore, the request made on 3 May 2018 was treated as a request to the Chief Executive Officer (the CEO) of the Agency to conduct a review of a participant’s plan “at any time”, under section 48(1) of the Act. 

12. Section 48(2) of the Act provides that the CEO must decide whether or not to conduct the review within 14 days after receiving the request and if no decision is made within that period, the CEO is taken to have decided not to conduct the review.

13. Section 100(5)(b) of the Act requires the Agency to automatically review the deemed decision not to conduct a review of the plan, that is an internal review.  That is the appropriate characterisation of the decision made on 3 August 2018.  It was an internal review decision made pursuant to section 100(6) of the Act and may be reviewed by the Tribunal pursuant to section 103 of the Act.

14. In Nairn and NDIA, Deputy President Forgie considered section 48 of the Act.  She said:

    The issue to be decided is whether or not to conduct a review… The issue does not extend to decided wider issues such as whether a new statement of participant’s supports should be prepared under s 33(2) having regard to the matters in s 34 of the NDIS Act.[1]

    [1] [2017] AATA 242 at [61].

15. As referred to earlier, Mr Ters believes that some of his supports are inadequate and other others he requires have not been met at all.  This Tribunal cannot address the issue of whether a new statement of supports should be prepared.

16. It is clear from the history of the matter reflected in the recent reviewable decision and other documentation, and in Mr Ters obvious frustration with the Agency, that even if he were successful and the Tribunal decided that a review should be conducted, and the Agency conducted the review, the process will not enable Mr Ters to achieve his objectives in relation to supports. 

17. It emerged during the course of discussions with the parties, that a report by an Occupational Therapist dated 9 July 2018 had been provided to the Agency supporting Mr Ters’ claim for a new commode chair. The reviewable decision sets out documents taken into account.  It does not identify the 9 July 2018 report.  There was discussion about how the Agency would deal with the report which might assist Mr Ters, but it was not fruitful.   

18. The Tribunal has concluded that it has jurisdiction to review the decision dated 3 August 2018, but has decided to dismiss the application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) because in the circumstances, it is misconceived.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 28 February 2019

Date(s) of hearing:	23 January 2019
Advocate for the Applicant:	Mr T Jones, Spinal Cord Injuries Australia
Solicitors for the Respondent:	Mr D Lay, Wisewould Mahony Lawyers