Waites and National Disability Insurance Agency

[2024] AATA 3276

Waites and National Disability Insurance Agency [2024] AATA 3276 (19 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/3711

Re:Dane Waites  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K Bean

Date:19 August 2024

Date of written reasons:        9 September 2024

Place:Sydney

The application for review is dismissed pursuant to section 42A(4) of the AdministrativeAppeals Tribunal Act 1975 (Cth).

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

Member K Bean

CATCHWORDS

NDIS – written reasons for oral decision – application for review – compensation recovery – Applicant received compensation in settlement agreement – request for review of three separate decisions – first decision whether request for reasons was made out of time – second decision whether letter indicating future application of Compensation Reduction Amount to Applicant’s Plan constituted a reviewable decision – third decision whether letter indicating no special circumstances constituted a reviewable decision – Tribunal determined no reviewable decisions – matter dismissed pursuant to section 42A(4)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

SECONDARY MATERIALS

National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013

REASONS FOR DECISION

Member K Bean

9 September 2024

1. The Applicant, Mr Dane Waites, is a participant in the National Disability Insurance Scheme (NDIS), having been granted access on the basis of his profound intellectual disabilities, Level 3 Autism and Bipolar Disorder.  His application to the Tribunal has been made on his behalf by his litigation guardian, Mr Thomas Ligeti, assisted by his mother, Ms Junee Waites.

2. Mr Waites’ application was lodged on 4 June 2024, and effectively seeks review of three decisions in relation to a compensation recovery amount raised and a Compensation Reduction Amount (CRA) allegedly applied by the Respondent arising from compensation received by Mr Waites pursuant to a settlement in 2021, for $900 000 plus party-party costs.

3. Jurisdiction hearings were held on 8 July and 12 August 2024, and I delivered an oral decision on 19 August 2024.  On that day, Mr Ligeti requested written reasons for my decision and this Statement of Reasons has been prepared in response to that request.

   THE DECISIONS 

4. The first decision the Applicant seeks to have the Tribunal review relates to a decision of the Respondent to issue a recovery notice on 16 September 2021, which required the defendant in the personal injury action brought by Mr Waites to pay from Mr Waites’ settlement sum an amount of $78,278.83. 

5. Mr Ligeti says that on 11 November 2023, he sought review of this decision on Mr Waites’ behalf. However, despite numerous follow up emails, no internal review has ever been undertaken. This raises the issue of whether the Respondent has failed to make an internal review decision as requested, with the consequence that it is taken to have affirmed the original decision for the purposes of subsection 25(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), resulting in a deemed internal review decision which can be reviewed by the Tribunal.

6. The second decision the Applicant seeks to have reviewed relates to a letter of 2 October 2023, in which the Respondent advised Mr Waites that, as a result of his compensation settlement, it had assessed a CRA of $755,781.63, which may be deducted from Mr Waites’ NDIS plan at the rate of approximately $25,000 per year over a period of 31 years. 

7. The third decision is contained in a letter of 23 January 2024, in which the Respondent appeared to advise Mr Waites that it had determined there were no special circumstances to justify any change in its CRA estimate. 

8. Mr Ligeti contends that, on 10 February 2024, he sought review of both the CRA and “special circumstances” decisions on behalf of Mr Waites, but, again, he has not been advised of any internal review decision.  This also raises the question of whether the Respondent has failed to make internal review decisions within the time required, resulting in additional deemed decisions, which are reviewable by the Tribunal.

9. Although the Respondent contends the Tribunal does not have jurisdiction with respect to any of these decisions, Mr Ligeti maintains that it does and has provided considered and detailed submissions in support of that contention.

10. I will address jurisdiction with respect to each of the three decisions in turn.

    RECOVERY NOTICE

11. As I have already noted, it is clear on the material provided that on 16 September 2021, the Respondent issued a recovery notice to the defendant’s insurer for the amount referred to by Mr Ligetti.  A copy of the notice was given to Mr Waites’ then solicitors, which also contained information as to how to seek an internal review. 

12. I accept Mr Waites would have had standing to seek review of this decision, and if an actual or deemed internal review decision had subsequently been made, this Tribunal would have had power to review that decision, as provided by s 99 and 103 of the National Disability Insurance Scheme Act 2013 (the NDIS Act). However, pursuant to s 100 (2) of the NDIS Act, any internal review request was required to be made within 3 months or 90 days of notification of the decision and this did not occur. I accept the Agency’s submission that there is no discretion provided by s 100(2) to extend the timeframe provided in s 100.

13. Mr Ligeti contends that the recovery notice did not comply with s 100 of the NDIS Act as it did not contain adequate reasons. However, although I acknowledge the reasons given were brief, I consider the reasons given to have been sufficient to comply with the Act.

14. Mr Ligeti also contends the notice did not contain sufficient notice of Mr Waites’ right to seek internal review. However, the notice did contain a standard statement of the recipient’s review rights, including the three-month timeframe, the address to which any internal review request should be directed, and advice that if the recipient was not happy with the result of the internal review decision, they could seek further review by this Tribunal. In my view, the Recovery Notice therefore sufficiently complied with the requirements of s 100, such that the applicable 3-month timeframe commenced from when the Notice was received by Mr Waites’ solicitors. Therefore, although Mr Ligeti has sought review of the decision to issue the recovery notice more recently, those requests were out of time and were not required to be actioned by the Respondent.

15. It follows that, as no internal review request was made within the required timeframe of 3 months, there is a no actual or deemed internal review decision with respect to the recovery notice and the Tribunal does not have jurisdiction with respect to the decision to issue the recovery notice.

    CRA AND SPECIAL CIRCUMSTANCES COMMUNICATIONS

16. With respect to the Respondent’s communications to Mr Waites in relation to the CRA amount and the absence of special circumstances, the first and most fundamental issue is whether either or both of these communications reflect or contain a decision which is reviewable under the NDIS Act.

17. As I have already indicated, the communications relied upon by Mr Ligeti with respect to this issue include the Respondent’s letter of 3 October 2023 giving an estimate of the CRA which was expected to be applied to Mr Waites’ future plans and how this had been calculated.  Mr Ligeti also relies on the Respondent’s letter of 23 January 2024 advising that it had been decided there were no special circumstances, and the CRA amount to be applied to Mr Waites’ future plans would not be reduced. 

18. Section 99 of the NDIS Act sets out the particular decisions made by the Respondent which are subject to internal review, and potentially reviewable by this Tribunal. The decisions which may be reviewed comprise only a proportion of those the Respondent is authorised to make. Reviewable decisions include a decision to issue a recovery notice of the kind I have already referred to, and a decision to approve a statement of participant supports as part of a participant’s plan.

19. The only two types of decisions I have identified in s 99 that are potentially relevant here are a “decision to approve a statement of participant supports in a participant’s plan” made under s 33(2) of the NDIS Act, and a decision to vary a participant’s plan pursuant to s 47A(1) of the NDIS Act.

20. Mr Ligeti has submitted it is unclear whether Mr Waites’ most recent plan, attached to a letter from the Respondent of 12 January 2024, reflected the application of a CRA. However, having carefully reviewed the content of this plan, I am satisfied it does not apply a CRA, notwithstanding the Applicant was notified of the likely CRA in the letter of 3 October 2023. I note there is no reference whatsoever in the plan or the covering letter to a CRA reduction. I also note the material before me indicates this plan was the result of a plan variation pursuant to s 47A of the NDIS Act, with the intention of extending Mr Waites’ plan and ensuring he did not run out of funding. As Mr Bewsher for the Respondent has pointed out, it would not have been legally permissible for the Agency to apply a CRA in this context.

21. Mr Ligeti has also contended that the Respondent’s communications, in particular, the letters of October 2023 and January 2024, could be construed as a variation of Mr Waites’ plan under s 47A. However, other than the plan provided under cover of correspondence dated 12 January 2024, I am not persuaded on the material that the Respondent has otherwise made any variations to Mr Waites’ plan. It is clear, in my view, that Mr Waites’ current plan is what was provided on 12 January following a s 47A review. That plan does not apply a CRA and to date no CRA has yet been applied to Mr Waites, although the Respondent has foreshadowed an intention to do so on the next occasion Mr Waites’ plan is reviewed or reassessed. While it would have been open to Mr Waites to seek an internal review of his current plan as varied, the scope of that internal review would not have included the CRA or the issue of special circumstances, as no CRA was applied to that plan.

22. I have also considered whether the current Tribunal application could be regarded as relating to that plan, however I am not persuaded that it does, and indeed Mr Ligeti indicated at the second hearing he was not aware of the varied plan when he lodged the application.  In any event, even if that plan was before the Tribunal, it would not assist Mr Waites as the Tribunal’s jurisdiction would not extend to the CRA issues.

23. It follows from my analysis that, in my view, neither the letter of 3 October 2023 nor that of 23 January 2024 reflected decisions which were reviewable under s 99. Therefore, neither of these ‘decisions’ were able to be the subject of internal review, or review by this Tribunal, as they simply were not decisions of the kind which are reviewable under the NDIS Act. It also follows that Mr Ligeti’s requests for internal review were misconceived and did not give rise to any obligation on the part of the Respondent to review these ‘decisions’.

24. At the second hearing in this matter on 12 August 2024, Mr Bewsher explained the Respondent had adopted a practice of advising participants who had received compensation payments of the likely CRA amount to be applied to their plan, before any reduction was made.  This was intended to give participants some advance warning and allow them to seek advice and/or prepare to contest the CRA if they were so minded, albeit in Mr Bewsher’s submission the CRA could only be contested by a participant at the point at which it was applied to reduce the actual funds available in a participant’s plan. 

25. Similarly, Mr Bewsher submitted the Respondent had a practice, at least in some cases, of addressing the special circumstances issue prior to formally determining it in the context of a participant’s plan, as had occurred in this matter. However, insofar as the letter of 23 January 2024 suggested, this issue had already been determined in Mr Waites’ case; it was incorrectly worded.  Mr Bewsher submitted that, legally, when it came to putting in place a new plan for Mr Waites, the delegate would be required to address the CRA issue afresh and formally determine whether there were special circumstances such that the CRA should be reduced.

26. Mr Bewsher also submitted that the letter of 3 October 2023, and that of 23 January 2024, were communications of this kind, and I accept his explanation as to the reasons for and nature of these communications. 

27. I note the legal framework which applies to the treatment of compensation received by a participant is largely contained in the relevant Rules, the National Disability Insurance Scheme (Supports for Participants – Accounting for Compensation) Rules 2013 (the Compensation Rules) which have legislative force.  In the case of participants who receive a compensation settlement or judgement, the Compensation Rules set out how a proportion of the participant’s compensation is to be recovered by the Respondent, and/or how it affects their future NDIS entitlements, including calculation of a CRA and the potential application of special circumstances to reduce a CRA.  In my view, the 2 letters referred to above both reflect the outcome of an indicative and non-binding application of the Compensation Rules to Mr Waites’ circumstances and sought to advise him of how his compensation settlement was likely to affect his future NDIS entitlements.   However, they did not actually affect his NDIS entitlements, and are therefore not reviewable decisions.

28. In my view, it is clear, on an analysis of the NDIS Act and Compensation Rules, that the legislature has elected to make the application of a CRA, including consideration of special circumstances, reviewable only at the point at which a decision is made to actually apply a CRA to a participant’s plan, resulting in a reduction in the funding in their plan. This is not altogether surprising given it is generally decisions which directly affect a citizen’s rights or entitlements which attract review rights, both internally and by this Tribunal.

29. The mechanism which has been adopted to achieve this is that the calculation of a CRA and potential application of special circumstances are made relevant to a decision to approve a participant’s statement of supports.  Specifically, in deciding whether to approve a statement of participant supports, a delegate must apply the Rules made for the purposes of s 35 of the Act, which include the Compensation Rules (s35(4)). 

30. It follows that the next time a delegate comes to consider a statement of participant supports for Mr Waites, it is likely they will consider applying a CRA, and whether there are special circumstances justifying reduction of the CRA.  As I have already alluded to, that decision will be subject to internal review, and review by this Tribunal.

31. For completeness, I note Mr Ligeti has also referred in his submissions to s 116 of the NDIS Act, which relates to special circumstances. However, it is clear from that provision and the NDIS Act that s 116 only applies to Chapter 5, which relates to recovering past NDIS amounts from settlements and judgments. In my view, this provision has no relevance to the application of a CRA to a plan under the Compensation Rules.

    CONCLUSION

32. For the reasons I have given, although a reviewable decision was made to issue the recovery notice in 2021, no request for review was made within the required timeframe.  Accordingly, no internal review decision was made and there can be no deemed decision in the absence of a valid request for review.  It follows the Tribunal has no jurisdiction with respect to the issue of the recovery notice.

33. With respect to the CRA, although the Respondent has foreshadowed its intention to apply a CRA, no reviewable decision has yet been made to apply a CRA, therefore the Tribunal also has no jurisdiction in relation to this issue.  When Mr Waites’ plan is next reviewed or reassessed, it seems likely that a CRA will be applied, and this will be the appropriate time for those representing Mr Waites to put their contentions to the Respondent as to why the CRA amount is not correctly calculated and/or should be reduced by reason of special circumstances.  If Mr Waites is unhappy with the relevant internal review decision, he can then seek review of that decision by the Tribunal.

34. I note Mr Waites’ mother, Ms Waites, spoke eloquently at the hearing and explained the reasons she considers there are special circumstances, and the need for this issue to be addressed soon. She explained that she is elderly and experiencing significant health issues and is very concerned about the impact on her son if she is unable to continue advocating for him. In these circumstances, as discussed at the hearing, there may be merit in Ms Waites and Mr Ligeti seeking a plan reassessment under s 48 of the NDIS Act sooner rather than later. As I understand it, if such a reassessment was undertaken, it would bring the CRA issue “to a head” so to speak, as the fresh plan put in place under s 48 would probably apply a CRA, which could then be challenged by Mr Waites, first internally and then, if necessary, in this Tribunal.

35. However, for the reasons I have given, I have concluded the Tribunal currently has no jurisdiction in this matter and the application must be dismissed. 

36. For completeness, I note that if I had found jurisdiction in this matter, it may also have been necessary to consider whether to grant an extension of time under s 29(7) of the AAT Act, at least with respect to that part of the application relating to the recovery notice issued in 2001. However, in the absence of jurisdiction, this issue does not arise.

    DECISION

37. The application is dismissed for want of jurisdiction pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Member K Bean

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

Associate

Dated: 9 September 2024

Date(s) of hearing:	8 July, 12 & 19 August
Advocate for the Applicant:	Mr T Ligetti, Litigation Guardian
Solicitors for the Respondent:	Mr J Bewsher, NDIA