VXVL and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered a jurisdictional issue in the matter of VXVL (the Applicant) and the National Disability Insurance Agency (the Respondent). The Applicant, a participant in the National Disability Insurance Scheme (NDIS) with severe epilepsy and other complex needs, sought a review of a decision by the NDIA to approve a statement of participant supports. This decision had set aside an earlier decision and substituted a new one, but the Applicant contended that the revised plan did not include sufficient funding for all reasonable and necessary supports, specifically mentioning home modifications and a suitable stove top as "additional supports" not previously considered. The Respondent did not dispute the Tribunal's jurisdiction over most aspects of the decision under review but argued that the Tribunal lacked jurisdiction to consider these additional supports, relying on previous AAT and Federal Court decisions.

The central legal issue before the Tribunal was whether its jurisdiction to review the NDIA's decision extended to considering "additional supports" that were not specifically raised by the Applicant during the internal review process. The Respondent contended that if an internal review decision was confined to issues identified by the applicant, then the Tribunal's review jurisdiction would be similarly confined. This submission was based on the principle that the Tribunal "stands in the shoes" of the primary decision-maker and exercises the same powers and is subject to the same constraints. The Tribunal was required to determine the scope of its review jurisdiction in relation to the statutory question posed to the primary decision-maker under the National Disability Insurance Scheme Act 2013 (Cth).

The Tribunal reasoned that the primary decision-maker's function under subsection 33(2) of the NDIS Act is to approve a statement of participant supports, a decision made by the CEO (or delegate) based on various considerations, not solely on the participant's requests. While participants' goals and needs are to be considered, the ultimate decision rests with the CEO. The Tribunal found no statutory obligation for a participant to identify specific supports during an internal review, nor any basis to limit the Tribunal's consideration of other supports when reviewing the statutory question of whether to approve a statement of supports. The Tribunal noted that the Respondent could not identify any statutory support for such a limitation. Citing High Court authority, the Tribunal affirmed that its review jurisdiction is defined by the statutory question before the primary decision-maker, requiring it to address the same question and consider the same factors.

The Tribunal concluded that its jurisdiction was not confined to the specific issues raised by the Applicant during the internal review. The statutory question before the primary decision-maker was whether to approve a statement of participant supports, which involves considering all relevant factors under section 33(5) of the NDIS Act. Therefore, the Tribunal had jurisdiction to consider the additional supports, as these fell within the scope of the primary decision-maker's function and the statutory question posed. The Tribunal's final orders were not detailed in the provided text, but the determination was that it possessed jurisdiction to consider the additional supports.