TQNC and National Disability Insurance Agency
[2022] AATA 2735
•19 August 2022
TQNC and National Disability Insurance Agency [2022] AATA 2735 (19 August 2022)
AppID: TQNC and National Disability Insurance Agency
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/4281
Re:TQNC
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member, P. Smith
Date:19 August 2022
Place:Brisbane
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed on 16 May 2022.
....................[SGD] ....................
Member, P. Smith
Catchwords
PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – application for review – two decisions made by the Respondent – internal review decision made by a reviewer in respect of a decision to approve a statement of participants support in the Applicant’s Plan – no application for review made to the Tribunal within the prescribed time and no application for an extension of time made – no internal review decision made by a reviewer in relation to a decision not to conduct an unscheduled review of the decision on the basis of a change to the Applicant’s circumstances – request to the Tribunal to give the Applicant written reasons for its decision to dismiss the application for review.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 42A(4), 43(2A).
National Disability Insurance Scheme Act 2013 (Cth), ss 33(2), 34(1)(c), (d), 48, 48(2), 99, 99(d), 100, 100(6)(a), 103.
Cases
Napper and National Disability Insurance Agency [2021] AATA 2363
QDKH and National Disability Insurance Agency [2021] AATA 922
REASONS FOR DECISION
Member. P. Smith
INTRODUCTION
On 26 July 2022, the application for review filed with the Tribunal on 16 May 2022 by TQNC (the Applicant) was listed for an Interlocutory Hearing to determine whether there was a reviewable decision that could be reviewed by the Tribunal. At the hearing, the Applicant’s mother appeared for her son and a representative appeared for the National Disability Insurance Agency (the Respondent).
The Tribunal decided at the hearing to dismiss the Applicant’s application for review under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that there was no reviewable decisions for the Tribunal to review.
On 27 July 2022, the Applicant’s mother made a written request to the Tribunal to give written reasons for its decision to dismiss her son’s application for review on 26 July 2022. The Tribunal has determined that the request made to the Tribunal on 27 July 2022 by the Applicant’s mother is a request for written reasons under subsection 43(2A) of the AAT Act.
As requested by the Applicant, the Tribunal has prepared written reasons for its decision to dismiss the Applicant’s application for review on 26 July 2022. A copy of these written reasons for decision have been given to the Applicant within the prescribed time as set out in subsection 43(2A) of the AAT Act. The Respondent has also been given a copy of these written reasons.
THE APPLICATION
The Applicant is an eight-year-old boy and a participant of the National Disability Insurance Scheme (the NDIS). On 12 October 2022, the Respondent approved a statement of participants support in the Applicant’s Plan (Plan) under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a 12-month period commencing on 12 October 2021 and ending on 12 October 2022.
On 16 May 2022, the Applicant, with the assistance of his mother, applied to the Tribunal for review. In his application, the Applicant identified the decision the Applicant sought review of as the decision made by the Respondent on 28 April 2022 under section 48 of the NDIS Act not to conduct an unscheduled plan review of the Applicant’s Plan. For reasons given below, the Tribunal is satisfied that the decision of 28 April 2022 is not a reviewable decision by the Tribunal.
The Tribunal notes that the application filed by the Applicant on 16 May 2022 was not the correct Application Form to be filed when seeking a review of decisions made by the Respondent. The Application Form filed by the Applicant is the form used by parties who seek a second review from the Tribunal in respect of social security and child support decisions that are first made by the Social Security and Child Support Division of the Tribunal. Whilst the incorrect Application Form was filed, it was clear to the Tribunal that the Applicant was seeking a review of the decision made by the Respondent on 28 April 2022 not to conduct an unscheduled review of the Applicant’s Plan under section 48 of the NDIS Act.
THE ISSUE
The sole issue for the Tribunal to determine is whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act.
RELEVANT CHRONOLOGY
On 12 October 2021, a delegate of the Chief Executive Officer (the CEO) of the Respondent approved a statement of participant supports in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a 12-month period commencing on 12 October 2021 and ending on 12 October 2022. The Applicant received notification of the delegate’s decision in respect of the approval of the Applicant’s Plan on 12 October 2021.
On 13 October 2021, the Applicant’s mother requested that the Respondent conduct an internal review of the delegate’s decision under section 100 of the NDIS Act. The Applicant sought an increase in funding to the Applicant’s Daily Living Budget to an amount that had previously been approved by the Respondent in the Applicant’s 2020 Plan.
On 8 November 2021, a reviewer of the Respondent decided under subsection 100(6)(a) of the NDIS Act to confirm the delegate’s decision to approve a statement of participants support in the Applicant’s Plan. The reviewer decided to confirm the delegate’s decision because the Respondent was not satisfied on the evidence that the requested increase in support to the Applicant’s Daily Living Budget represented value for money under subsection 34(1)(c) of the NDIS Act in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support and will be, or is likely to be effective and beneficial, having regard to current good practice and evidence under subsection 34(1)(d) of the NDIS Act.
After receiving notification of the reviewer’s decision, on 10 November 2021, the Applicant's mother contacted the Respondent to express her concerns about the decision, with regards to the current level of funding included in her son’s Plan. The Respondent advised the Applicant’s mother that the Applicant can make an application for review to the Tribunal. The Applicant was also given the same advice in writing on 8 November 2021 when the Respondent gave the Applicant notice of their decision to confirm the delegate’s decision.
No application was made to Tribunal in respect of the internal review decision made on 8 November 2021 within 28 days after the Applicant received notification of the reviewer’s decision.
On 8 February 2022, the Applicant's mother made further contact with the Respondent to discuss the approval of another impairment in respect of the Applicant.
On 24 February 2022, the Respondent advised the Applicant’s mother to provide further information to the Respondent regarding the other impairment concerning the Applicant.
On 23 March 2022, the Applicant's mother made a request to the CEO of the Respondent under section 48 of the NDIS Act for an unscheduled review of the Applicant’s Plan on the basis that there had been a change to the Applicant’s circumstances.
On 28 April 2022, the Respondent decided under subsection 48(2) of the NDIS Act not to conduct the unscheduled review of the Applicant’s Plan, because the Respondent was not satisfied that sufficient evidence of a change to the Applicant’s circumstances had been provided to justify the CEO conducting an unscheduled review of the Applicant’s Plan. No internal review of that decision has been made by a reviewer of the Respondent.
PRINCIPLES
The Tribunal has in a number of cases considered questions relating to its NDIS jurisdiction. In Napper and National Disability Insurance Agency[1] (Napper), Deputy President Pascoe succinctly set out the principles relating to jurisdiction arising from the decision of Deputy President Constance in QDKH and National Disability Insurance Agency[2] . The principles arising from those cases, as summarised in Napper, are set out below[3]:
[1] Napper and National Disability Insurance Agency [2021] AATA 2363.
[2] Napper and National Disability Insurance Agency [2021] AATA 922.
[3] Napper and National Disability Insurance Agency [2021] AATA 2363 at [14].
(a) As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute, namely s 25(1) of the AAT Act, which relevantly provides that an enactment may provide that applications be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment;
(b) In every application that comes before it, the Tribunal must be satisfied that it has jurisdiction in accordance with the AAT Act. The parties cannot confer jurisdiction upon the Tribunal by consent;
(c) Section 100(3) is the provision of the NDIS Act that provides for applications to the Tribunal to review decisions made under that Act. Section 100(3) provides that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act;
(d) Section 100(6) of the NDIS Act provides that the reviewer, as soon as is reasonably practicable, make a decision confirming, varying or setting aside the reviewable decision;
(e) Section 99 of the NDIS Act provides an exhaustive list of reviewable decisions, that is, decisions that are reviewable by the reviewer. The decisions include “a decision under 33(2) to approve the statement of participant supports in a participant plan” (section 99, item (d));
(f) It is clear from the provisions of the NDIS Act that the review of the decision as to the supports to be included in a participant’s plan is a two-tiered process:
(i) A review by a reviewer;
(ii) A review of the reviewer’s decision by the Tribunal;
(g) The Tribunal’s jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by the NDIS Act;
.....
DISCUSSION
It is apparent from the principles referred to and summarized above at paragraph [18], that the Tribunal can only review an internal review decision made by a reviewer of the Respondent under subsection 100(6) of the NDIS Act.
The Application filed with the Tribunal on 16 May 2022 seeks a review of the decision made by the Respondent on 28 April 2022 not to conduct an unscheduled review of the Applicant’s Plan under section 48 of the NDIS Act. It is not an internal review decision made by a reviewer of the Respondent under subsection 100(6) of the NDIS Act.
As there has been no internal review decision made by a reviewer under subsection 100(6) of the NDIS Act in respect of the decision of 28 April 2022, the Tribunal does not have jurisdiction under section 103 of the NDIS Act.
The Respondent indicated at the hearing that a reviewer will now conduct an internal review in respect of the decision made on 28 April 2022. The Tribunal explained to the Applicant’s mother at the hearing, that if the Applicant is dissatisfied with the outcome of the internal review, the Applicant may seek a review of that decision by making a fresh application to the Tribunal within 28 days from the date the Applicant receives notice of the decision.
Turning to the question of whether the Tribunal has jurisdiction to review the decision made on 8 November 2021, the Tribunal notes that that decision is an internal review decision made by a reviewer of the Respondent under subsection 100(6) of the NDIS Act. It confirmed the decision that the Respondent’s delegate made on 12 October 2021 to approve a statement of participants support in the Applicant’s Plan. This decision is a reviewable decision that could be reviewed by the Tribunal as defined in subsection 99(d) of the NDIS Act. However, no application for review was made to the Tribunal within 28 days after the Applicant received notification of the internal review decision.
As stated above at paragraph [20], the application for review filed with the Tribunal on 16 May 2022 seeks review of the decision made by the Respondent on 28 April 2022. It does not seek a review of the decision made on 8 November 2021. Moreover, the Applicant has not made an application in writing to the Tribunal for an order to extend the time for the making of an application for review in respect of the decision made on 8 November 2021.
For the reasons given above, the Tribunal is satisfied that there is no reviewable decision for the Tribunal to review within the meaning of sections 99, 100 and 103 of the NDIS Act. As there is no reviewable decision for the Tribunal to review, it is appropriate that the application for review filed on 16 May 2022 be dismissed pursuant to subsection 42A(4) of the AAT Act.
DECISION
26.Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application filed on 16 May 2022.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member, P. Smith
.................................[SGD]................................
Associate
Dated: 19 August 2022
Date(s) of hearing: 26 July 2022 Advocate for the Applicant: Ms TQNC Solicitors for the Respondent: Ms A. Singh
0
2
0