Vance and National Disability Insurance Agency

[2019] AATA 3948

Vance and National Disability Insurance Agency [2019] AATA 3948 (17 September 2019)

Division:GENERAL DIVISION

File Number(s):      2019/4068

Re:Jacob Vance

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:17 September 2019

Date of written reasons:        30 September 2019

Place:Adelaide

For the reasons given orally, the Tribunal has jurisdiction to hear the application.

...........[Sgnd]..................................

Senior Member B J Illingworth

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY - JURISDICTION – dependent upon application being made for a reviewable decision – identifying reviewable decision – whether decision made under s 48 or s 100 – Tribunal has jurisdiction

LEGISLATION

National Disability Insurance Scheme Act 2013

REASONS FOR DECISION

Senior Member B J Illingworth

30 September 2019

1. At the conclusion of the directions hearing of this matter, I delivered my decision finding that the Tribunal has jurisdiction to hear the matter and gave oral reasons for my decision. The Applicant requested written reasons.

2. I have reviewed the transcript of my reasons and made minor amendments to it. I formally adopt it as a written statement of my reasons in answer to the Applicant’s request. I attach a copy of the transcript as amended.

3.       I certify that the following 11 paragraphs (eleven) are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....[Sgnd]..............................

Associate

Dated: 30 September 2019

Date of hearing:	17 September 2019
Applicant’s Representative:	Ms S. Landmark of Northern Territory Legal Aid Commission by telephone
Respondent’s Representative:	Mr C. Reid of National Disability Insurance Agency by telephone

ORAL DECISION OF SENIOR MEMBER B J ILLINGWORTH

1. SENIOR MEMBER: By letter dated 26 November 2018, the National Disability Insurance Agency (“the Respondent”) advised the Applicant that a statement of participant supports in his National Disability Insurance Scheme plan had been approved, a copy of which plan was attached to the letter. That plan was effective on and from 26 November 2018. 

2. Although the date of receipt of that letter and attached plan, at first instance, was an issue, I do not now need to decide that question. Albeit, I accept that there is no evidence as to the date of receipt of the plan such that provisions of the Acts Interpretation Act 1901 and Evidence Act 1995 apply which presume a postal article to be received, in the absence of evidence to the contrary, seven days from the date of the posting of that plan to the Applicant.

3. In any event, I have before me a Plan Review Request Form dated 1 March 2019. This request form indicates that the Applicant was seeking an unscheduled plan review, as opposed to an internal review of the decision, in relation to the plan dated 26 November 2018.

4. The Respondent has provided a copy of the interaction records for the period 7 March 2019 to 5 April 2019 inclusive. I called for those records to see if it provided some assistance as to whether or not what followed was in fact a section 48 unscheduled plan review or a request pursuant to s 100(3) for internal review of the statement of participant supports of the first plan provided to the Applicant.

5. I note that in those interaction records, it records that planner CIT829 Chelsea made contact with the Applicant's representatives to discuss plan funding concerns due to a section 48 request. That record continues on 11 March 2019 and again refers to an unscheduled plan review at participant request.

6. The record further indicates that, on 13 March 2019, planner CIT829 Chelsea was developing a second plan as opposed to a variation of the statement of participant supports of the plan dated 26 November 2018. I note that second plan was submitted on 13 March 2019. That plan was approved and dated 5 April 2019.

7. By letter dated 16 April 2019, the Respondent wrote to the Applicant’s mother and referred to a request dated 13 March 2019 for an internal review of the decision of the Respondent to approve the statement of participant supports in the Applicant's plan. I find that the date of 13 March 2019, which obviously predates the second plan, must be wrong. I note the date of 13 March 2019 is the date on which the planner CIT829 Chelsea submitted that second plan for approval.

8. Nonetheless, reference to that date and its link to that second plan is further confirmation that what the Respondent was in fact doing was undertaking a section 48 review and then substituting a second plan for that original plan provided.

9. I also note that the letter that was subsequently sent to the Applicant on 16 April 2019 is headed "The outcome of your internal review request" and provides a reference number 431037010. I am satisfied that this letter details the outcome of the internal review request in relation to that second plan dated 5 April 2019, which informed the Applicant of his right to apply for external review to the Administrative Appeals Tribunal within 28 days.

10. I am satisfied that letter dated 16 April 2019 was received by the Applicant on 21 June 2019 and hence the 28 days operated from that date of receipt. The Applicant filed an application for review with the Administrative Appeals Tribunal on 9 July 2019; within 28 days of receipt of that letter on 21 June 2019. The decision that is the subject of the application is referred to as a decision made on 5 April 2019, being the date of the second plan implemented following the section 48 review, with a decision reference 431037010. 

11. Accordingly, I find that the application for review is in relation to the second plan dated 5 April 2019, which was the subject of an internal review decision dated 16 April 2019, and which decision was received by the Applicant on 21 June 2019. Further, I therefore find that the Tribunal has jurisdiction to deal with the application that is before it. 

    END OF ORAL DECISION