TJTP and National Disability Insurance Agency

[2023] AATA 1983

TJTP and National Disability Insurance Agency [2023] AATA 1983 (6 July 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2023/3218

Re:TJTP

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 July 2023

Place:Melbourne

The Tribunal finds the decision made by the Respondent on 16 March 2023 (the Applicant’s 16 March 2023 NDIS plan approval) is a decision made pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). Accordingly, the Tribunal has jurisdiction to review this decision under section 103 of the NDIS Act.

The Tribunal grants the Applicant’s application for an extension of time made on 5 July 2023 under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) and extends the time for the Applicant to make an application for review of a decision to 9 May 2023.

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

Dr L Bygrave, Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – whether application made for a reviewable decision – identifying the reviewable decision – Tribunal has jurisdiction – extension of time application – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

6 July 2023

BACKGROUND

1. The Applicant, TJTP, is nine years old and a participant in the National Disability Insurance Scheme (NDIS). He has been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, intellectual disability and anxiety. TJTP has two siblings who are also participants in the NDIS and his mother is the sole carer of the three children.

2. On 9 May 2023, the Applicant’s mother lodged an application for review of a ‘decision’ dated ‘9 May 2023’ with the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).

3. The National Disability Insurance Agency (NDIA) subsequently requested an interlocutory hearing to determine whether the Tribunal has jurisdiction to review the decision.

4. The matter was heard by the Tribunal on 5 July 2023. The NDIA helpfully filed written submissions on 3 July 2023 setting out a chronology of the Applicant’s NDIS plan approvals and requests for internal reviews made by the Applicant’s mother. The NDIA also submitted the Tribunal does have jurisdiction to determine the Applicant’s request for review but sought clarity about the date of the reviewable decision.

   RELEVANT LEGISLATION

5. Part 6 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) sets out the review of decisions. Relevantly, section 103 of the NDIS Act provides for applications to be made to the Tribunal for review of a decision made by a reviewer of the NDIA under subsection 100(6). Subsection 100(6) of the NDIS Act states:

   100 Review of reviewable decisions

   …

   (6) The reviewer must, as soon as reasonably practicable, make a decision:

   (a) confirming the reviewable decision; or

   (b) varying the reviewable decision; or

   (c) setting aside the reviewable decision and substituting a new decision.

   CONSIDERATION

6. Written submissions by the NDIS dated 3 July 2023 set out a chronology of the Applicant’s NDIS plan approvals from 14 February 2023 to 21 June 2023 and ensuing requests by the Applicant’s mother for the NDIA to undertake an internal review of these decisions under section 100 of the NDIS Act. This chronology included:

   ·14 February 2023. The Applicant’s NDIS plan was approved, and the Applicant’s mother requested an internal review of this NDIS plan on various dates from 14 February 2023 to 24 February 2023. These requests were characterised by the NDIA as requests for a plan review under section 48 of the NDIA Act on 24 February 2023 in error.

   ·16 March 2023. The Applicant’s NDIS plan was approved. This was sent to the Applicant’s mother on 4 April 2023.

   ·9 May 2023. The payment team at the NDIA explained to the Applicant’s mother that a requested support program for TJTP had been declined in his 16 March 2023 NDIS plan. The Applicant’s mother lodged an application for review to the NDIS Division of the Tribunal for a ‘decision’ dated ‘9 May 2023’.

   ·11 May 2023. The Applicant’s mother requested an internal review.

   ·21 June 2023. The Applicant’s NDIS plan was approved.

7. I am satisfied the Applicant had three different NDIS plans approved on the following dates: 14 February 2023, 16 March 2023 and 21 June 2023. I am further satisfied that the Applicant’s mother requested the NDIA to undertake an internal review following the 14 February 2023 and 16 March 2023 NDIS plan approval decisions. I consider the application to the Tribunal made by the Applicant’s mother for review of a ‘decision’ dated ‘9 May 2023’ was in relation to the Applicant’s NDIS plan that was approved on 16 March 2023, which did not include a support program for TJTP requested by his mother. It is clear, from both the written correspondence filed by the Applicant’s mother and her oral submissions to the Tribunal on 5 July 2023, that the decision by the NDIA to decline this requested support program for TJTP was (at least in part) the matter she was seeking to have reviewed.

8. Consistent with submissions made by the NDIA, I am satisfied that both the Applicant’s 16 March 2023 NDIS plan approval and 21 June 2023 NDIS plan approval can be characterised as internal review decisions made by the NDIA under subsection 100(6) of the NDIS Act. I am therefore satisfied the Tribunal has jurisdiction to review these decisions in accordance with section 103 of the NDIS Act.

9. At the interlocutory hearing on 5 July 2023, cognisant of the current circumstances of the Applicant and his mother, the NDIA submitted that the preferred approach is to consider the Applicant’s NDIS plan approval dated 16 March 2023 as the relevant decision that is under review by the Tribunal. The NDIA contended this would then allow further NDIS plans, made after the decision under review, to also be considered by the Tribunal pursuant to section 103 of the NDIS Act.

10. Based on all information before the Tribunal, I am satisfied the Applicant’s 16 March 2023 NDIS plan approval is a decision made by the NDIA pursuant to subsection 100(6) of the NDIS Act and, accordingly, the Tribunal has jurisdiction to review this decision under section 103 of the NDIS Act once a valid application is made.

11. On 5 July 2023, the Applicant lodged an application with the NDIS Division of the Tribunal under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) seeking an extension of time to make an application to review a decision. The NDIA provided written submissions on 5 July 2023 that it did not oppose this application. Given the circumstances and considering the particular facts of this case, the Tribunal finds it is reasonable to grant the Applicant’s application for an extension of time and extends the time for the Applicant to make an application for review of a decision to 9 May 2023. I find that a valid application has now been made to the Tribunal.

    DECISION

12. The Tribunal finds the decision made by the Respondent on 16 March 2023 (the Applicant’s 16 March 2023 NDIS plan approval) is a decision made pursuant to subsection 100(6) of the NDIS Act. Accordingly, the Tribunal has jurisdiction to review this decision under section 103 of the NDIS Act.

13. The Tribunal grants the Applicant’s application for an extension of time made on 5 July 2023 under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) and extends the time for the Applicant to make an application for review of a decision to 9 May 2023.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[sgd].........................................

Associate

Dated: 6 July 2023

Date of interlocutory hearing:	5 July 2023
Applicant:	Self-Represented
Advocate for the Respondent:	James Vercoe
Solicitors for the Respondent:	National Disability Insurance Agency - AAT Dispute Resolution & Litigation Branch