Whitby-Smith and National Disability Insurance Agency
[2021] AATA 3446
•28 September 2021
Whitby-Smith and National Disability Insurance Agency [2021] AATA 3446 (28 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8264
Re:Sabine Whitby-Smith
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:28 September 2021
Place:Brisbane
The Tribunal decides that it has jurisdiction to hear and determine this application.
Pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal DIRECTS that the issues to be considered by the Tribunal in this application are limited to the types of supports listed in paragraph [11] of these Reasons for Decision, and whether all or any of them should be included in Ms Whitby-Smith’s statement of participant supports and funded under the National Disability Insurance Scheme.
.......[SGD].......................
Member K. Parker
CATCHWORDS
PRACTICE AND PROCEDURE – powers of the Tribunal upon review – whether Tribunal has jurisdiction in respect of all supports requested by Applicant – determination of the matters before or put before National Disability Insurance Agency internal reviewer – whether direction should be made under s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) to limit issues
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Ewin and National Disability Insurance Agency [2018] AATA 4726
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Owen v Repatriation Commission (1995) 59 FCR 93
Re QDKH and NDIA [2021] AATA 922Member K. Parker
28 September 2021
The Respondent, the National Disability Insurance Agency (NDIA), has requested that the Tribunal decide whether it has jurisdiction to hear this application in respect of all the supports requested by the Applicant. The NDIA contends that the Tribunal only has jurisdiction to hear this application in relation to those supports “put before” the NDIA internal reviewer, and in support, relies upon the decision in QDKH and NDIA [2021] AATA 922 (QDKH). This decision is presently on appeal to the Federal Court of Australia.
In QDKH, Deputy President Constance stated as follows:
[24]In Fuad and Telstra Corporation Limited, the Tribunal President, Justice Downes, said:
... all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.[6]
[25]It is important to note that the President referred to “matters put before the decision-maker”. [Emphasis added]. These are the matters in respect of which the Tribunal has jurisdiction.
Further, Finn J of the Federal Court of Australia in Owen v RepatriationCommission (1995) 59 FCR 93, applying Banovich v Repatriation Commission (1986) 69 ALR 395, made the following observation (emphasis added):
The provisions of the Act s 175(1)(a) and of the Administrative Appeals Tribunal Act 1975 (Cth) ss 25(4) and 43(1) all contemplate the tribunal's power of review being limited to a review of the decision in respect of which application is able to be made to it: see also Secretary, Department of Social Security v Riley (1987) 17 FCR 99 ; 13 ALD 608 Stafford v Repatriation Commission (1995) 36 ALD 78 ; 21 AAR 97. For the purposes of this appeal I am prepared to hold that the power of review is so limited without expressing a view as to whether this is so for all purposes and in all circumstances. Central to the present appeal is thus the issue: what is the “decision” in respect of which application for review to the tribunal was made?
The answer to this in my view can be simply put. That decision is the response which, in conformity with the Act, needs to be given to the question raised for the commission by the applicant in his claim for a pension. It doubtless is the case that claims can be made in terms which, because of their vagueness, generality or ambiguity, leave it to the commission to ascertain as best it can the nature of the claim being made. Such is not the case here. While the Act does not in terms require an applicant to provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases (see, eg the Act s 14(5)) and the claim form itself is constructed so as to lead towards particularisation.
In the context of an application for review before this Tribunal of which the subject matter is a NDIA internal review decision in respect of a decision to approve a statement of participant supports under the NDIS, the Tribunal agrees with the general approach that was taken in QDKH and considers that its jurisdiction extends to all matters put before the internal reviewer. The Tribunal considers this to be the case irrespective of whether the internal reviewer actively engaged with or addressed the matters before or put before the internal reviewer. In other words, it is enough that those matters were raised with the decision-maker, or the NDIA, by the NDIS participant or someone else on their behalf, prior to the internal review decision being made.
It has been suggested that when considering the principle espoused in Fuad, that a distinction should be made between matters “before” the internal reviewer, and matters “put before” the internal reviewer.[1] This distinction was raised and applied in QDKH.[2] In the context of dealing with applications involving beneficial legislation intended to support persons with disabilities, the Tribunal as presently constituted is not prepared to make that distinction. The Tribunal considers that an NDIS participant, who later seeks review by the Administrative Appeals Tribunal, should not in any way be disadvantaged as a result of an internal reviewer failing to access, engage with or to address any matter(s) prior to making their decision, when such matters were properly before the decision-maker and they ought to have done so.
[1] Refer QDKH and the NDIA’s Submissions at [25] and [26].
[2] Refer QDKH at [32].
The Tribunal considers that where a NDIS participant can establish, on the evidence, that a particular type of support has been raised with the NDIA by the participant or any of their representatives, or mentioned by the participant’s treating medical practitioner or allied health practitioner when making recommendations to the NDIA that such support be made available to the participant (as was the case in this application), then this is sufficient to amount to those matters being before or having been put before the decision-maker. However, if a NDIS participant expressly and clearly informs the NDIA that they do not want any particular support considered, as part of the internal review process, the Tribunal would accept in those circumstances that the support is no longer a matter before or had been put before the decision-maker.
Turning to the facts in this application, the Applicant, Ms Sabine Whitby-Smith, is an adult participant of the National Disability Insurance Scheme (NDIS). Ms Whitby-Smith’s appointed NDIS plan nominee is her mother, Ms Tanya Whitby. Ms Whitby-Smith and Ms Whitby are not legally represented in this application. They both appeared at the jurisdictional hearing before the Tribunal on 17 September 2021 and made submissions. The NDIA was represented by one of its in-house lawyers, Ms Zoe Harwood.
On 9 September 2021, the NDIA lodged a written submission addressing the jurisdictional issues in this case. On 14 September 2021, this submission was revised by the NDIA and sent to the Tribunal and Ms Whitby-Smith (NDIA’s Submission).
On 13 September 2021, Ms Whitby-Smith lodged a written submission before the hearing in the form of an email to the Tribunal and the NDIA (Ms Whitby-Smith’s Submission).
Further evidence was lodged before the jurisdictional hearing by the NDIA (in the form of a set of Supplementary T-Documents, comprising a set of interaction notes) and Ms Whitby-Smith lodged a set of documents comprising 398 pages and including (among other things), the plan review documentation related to the review of Ms Whitby-Smith’s statement of participant supports (SOPS) and NDIS plan.
At the jurisdictional hearing, Ms Whitby and Ms Whitby-Smith confirmed to the Tribunal that Ms Whitby requested funding for the following supports be considered as part of the present application for review before this Tribunal:
(a)increased hours of support workers for daily activities and community access;
(b)higher level of transport support;
(c)physiotherapy sessions;
(d)housekeeping services;
(e)gardening services;
(f)art therapy;
(g)a shower stool;
(h)a painting stool; and
(i)a study stool.
The parties are in dispute about which supports were requested by Ms Whitby-Smith under the NDIS leading up to the Decision Under Review. Ms Whitby-Smith asserted that when she was engaged in conversations with the NDIA internal reviewer, that she had asked him about all the supports. She said she remembered the discussion well. The NDIA records are at odds with this contention. The internal reviewer made an interaction note the day before the internal review decision (Decision Under Review), which states that only three supports were being requested, namely, 25 hours per week of support workers for daily assistance and community access, 24 hours of support coordination, and transport level 1 funding. The internal reviewer was not called at the jurisdictional hearing to give evidence about his discussions with Ms Whitby-Smith or Ms Whitby during the internal review process. The interaction notes were provided to the Tribunal, but Ms Whitby-Smith and Ms Whitby dispute the contents of those notes.
In these circumstances, the Tribunal regards it as appropriate to consider the key documents that were provided to the NDIA, and to which the internal reviewer had access (irrespective of whether the internal reviewer accessed them), that were prepared for the purpose of informing the review of Ms Whitby-Smith’s NDIS supports.
The Decision Under Review was made on 5 November 2020.
On 10 August 2020, about three months before the Decision Under Review was made, Ms Whitby-Smith’s treating clinical psychologist, Ms Rachel Hinton, issued a report entitled “Review Letter for NDIS Support and Funding” (Ms Hinton’s Report). In this report, Ms Hinton recommended that Ms Whitby-Smith be provided with 20 hours of community support, monthly psychology sessions, twice-weekly physiotherapy sessions, house clearing, gardening support, OT assessment and support and funding to participate in an online social support group.
On 8 September 2020, about two months before the Decision Under Review was made, Ms Whitby’s treating occupational therapist, Ms Julie Parry, issued a report entitled “NDIS – Functional Needs Assessment Report” (Ms Parry’s Report). A section of Ms Parry’s Reports is extracted below (emphasis added):
SERVICE/SUPPORT RECOMMENDATIONS / COMMENTS
Based on my assessment with Sabine, the following is recommended in order to increase social and economic participation. Please note recommendations put forward represent best value for money and are considered effective and beneficial:
1. Provision of a Microsoft surface pro to assist with self-regulation, telehealth sessions and for art therapy.
2. Noise cancelling headphones to assist with sensory overwhelm
3. Psychology sessions on a fortnightly basis for management of her autism-related anxiety
4. Ongoing Art Therapy to assist with self-regulation
5. Sensory and relaxation aids such as a yoga mat and sensory items
6. Assistance to connect in with some appropriate group activities (when this is safe).
7. Sabine would like to be supported to attend a safe online social group such as Dungeons and Dragons. There is a particular group she likes to play with on. Sunday – it costs $120 for a 4 hour session (each Sunday). This is run by a support worker who has set it up for his own client. This may develop in to face to face social interaction once the COVID pandemic has passed and will assist with her relationship building.
8. Support with regular Exercise Physiology sessions to help with muscle tone and overall strength and conditioning.
9. Continued attendance with the physiotherapist for generalised muscle conditioning
10. Assistance to complete her Learner’s Driver’s licence theory test e.g. online practice tests and also driving lessons.
11. Sabine would like to learn how to cook meals in her own home. She would like the opportunity to create a grocery list, go shopping and then cook the meal in her own kitchen. To improve the learning, twice per week is recommended. She will also need additional support worker hours to attend medical appointments.
12. Increase support worker hours to 35 hours per week to assist with development of Instrumental Activities of Daily Living (ADLs).
13. Lawn maintenance as Sabine is unable to contribute to garden maintenance at all in the family’s rental property.
14. Continued use of a domestic cleaner (3 hours per fortnight) as she is unable to undertake this activity herself.
15. Sabine would benefit from purchase of a shower stool so she can safely shower and wash herself without fatiguing. Shower stools can be purchased for approximately $150 and an example of a suitable option includes the following: 150kg/
16. Sabine likes to paint, however fatigues easily when painting. Purchase of a painting stool (plastic) would benefit her so she could perch when painting. The same stool could be used in the kitchen for when she is undertaking meal preparation. Sabine should attend some chair showrooms to sit on some stools to determine her best fit for a stool. One with a back rest would be ideal. These can be purchased for less than $400.
17. An Android smart watch to assist Sabine with personal and medication reminders, calendar events, external memory aid functions, and to act as a GPS. Sabine really struggles with maths and a smart watch has an inbuilt calculator she can use when needed.
18. Due to Sabine’s scoliosis, she will require a task chair for her studies which will provide her with good seated support. Without an appropriate and adjustable chair, she will struggle to maintain attention due to increased pain when seated. An example of a suitable chair includes the following: $255 Vocational assistance to secure some casual work around her studies.
Based on the recommended supports listed in Ms Hinton’s and/or Ms Parry’s report, the Tribunal is satisfied that each of the supports referred to in paragraph [11] of these Reasons for Decision are supports that were before or had been put before the internal reviewer for consideration prior to him making the Decision Under Review. Whether or not the internal reviewer actively engaged in a consideration of those supports is irrelevant. The NDIA and the internal reviewer had access to Ms Hinton’s Report and Ms Parry’s Report and they were both key documents that did, or should have, informed the internal reviewer’s decision when reviewing which supports should be included in Ms Whitby-Smiths SOPS and funded under the NDIS.
The NDIA seems to suggest that the supports recommended by the treating allied health professionals should not be considered as having been put before the internal reviewer unless each of them have been expressly requested by Ms Whitby-Smith or her plan nominee to be included in her SOPS. Even if this was the correct approach when determining such matters, there is insufficient evidence in this case for the Tribunal to make definitive findings about what supports were expressly requested by Ms Whitby-Smith or Ms Whitby leading up to the Decision Under Review. There exists a set of interaction records created by one of the parties to the relevant interactions, i.e. the internal reviewer, to support NDIA’s contention that certain supports had not been requested. However, as mentioned above, the contents of these interaction notes are contested by Ms Whitby and Ms Whitby-Smith. As mentioned above, the internal reviewer was not at the jurisdictional hearing to be questioned about those discussions and the record he had made of them, as contained in the interaction notes.
Coming back to the key documents that were before or put before the internal reviewer as set out in paragraphs [15] and [16] of these Reasons for Decision, the Tribunal has concluded that the supports listed in paragraph [11] above, were before or put before the internal reviewer leading up to him making the Decision Under Review, by those documents being provided to the NDIA and the internal reviewer having access to them. On this basis, the Tribunal is satisfied that it has jurisdiction to consider and make a decision in this application, which will encompass whether the supports requested by Ms Whitby-Smith and Ms Whitby as listed in paragraph [11], are “reasonable and necessary” supports under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Further, the Tribunal explained to the parties that to provide certainty as to which supports will be considered as part of this proceeding, the Tribunal will make a direction to this effect. At the interlocutory hearing, Ms Whitby-Smith and Ms Whitby informed the Tribunal that they were certain that the only supports being requested by Ms Whitby-Smith as part of this application were the supports listed in paragraph [11]. On that basis, and pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which confers discretion on the Tribunal to determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers, the Tribunal makes the following direction.
The Tribunal DIRECTS that the issues to be considered by the Tribunal in this application will be strictly limited to the supports listed in paragraph [11] of these Reasons for Decision and whether any or all of them should be included in Ms Whitby-Smith’s SOPS and funded under the NDIS.
The Tribunal was also informed at the jurisdictional hearing by Ms Whitby that the funding in Ms Whitby-Smith’s plan had been depleted. In response, the NDIA informed the Tribunal that about two months ago, the NDIA had offered a new plan to Ms Whitby-Smith to roll over the approved supports under a proposed remittal pursuant to s 42D of the AAT Act. Ms Whitby indicated that one of the reasons that she had not responded to the NDIA’s offer in this regard, on behalf of Ms Whitby-Smith, was that Ms Whitby’s mother had suffered a stroke and that she had been distracted by those personal circumstances.
The Tribunal informed the parties at the jurisdictional hearing on 17 September 2021, that, for the reasons previously set out by the Tribunal in its decision in Re Ewin and National Disability Insurance Agency [2018] AATA 4726, it did not consider that it was necessary or appropriate to remit this proceeding for reconsideration in order for the NDIA to implement a new SOPS and plan for Ms Whitby-Smith to roll over existing supports on a pro rata basis pending the hearing and determination of this application. The Tribunal considers that the NDIA was at liberty to take that step without intervention by the Tribunal. If a new SOPS and plan was to be put in place for Ms Whitby-Smith, simply to roll over existing supports, the Tribunal considers that its jurisdiction to hear and determine this application would not have been limited or removed, and the Tribunal, as presently constituted, could have proceeded to hear and determine this application in the usual manner.
However, since the jurisdictional hearing, the Tribunal has been informed that the NDIA has offered a new SOPS and plan to Ms Whitby-Smith which includes additional supports being three of the supports in dispute between the parties, specifically:
(a)funding for transport of amount equivalent to the NDIA’s “Level 2 Transport”;
(b)physiotherapy sessions; and
(c)gardening services.
This offer by the NDIA has not been accepted by Ms Whitby-Smith. Ms Whitby has indicated she was reluctant to sign anything because she did not understand the legal implications of doing so. The preparedness of the NDIA to approve and implement a new SOPS which includes those three additional supports in paragraph [24(a) to (c)], in addition to Ms Whitby-Smith’s previously approved supports, now forms a basis upon which the Tribunal will remit this application under s 42D for reconsideration for a period of 14 days. The s 42D remittal will be sent to the parties by separate order.
Ms Whitby has indicated that Ms Whitby-Smith would like to continue to pursue this application for review, in respect of the remaining supports in dispute. The Tribunal can confirm to Ms Whitby that Ms Whitby-Smith will have the right to do so, even if the NDIA approves a new SOPS and plan for Ms Whitby-Smith during the s 42D remittal period to roll over her existing supports and to add the three supports referred to in paragraph [24(a) to (c)]. The Tribunal encourages Ms Whitby-Smith and Ms Whitby to access the documents the Tribunal has provided to them to seek legal representation and legal advice regarding this application going forward. The Tribunal is unable to provide legal advice to any party to a review proceeding given its statutory duty to remain impartial.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.
...........[SGD]...........
Associate
Dated: 28 September 2021
Date of hearing:
17 September 2021
Representative for the Applicant:
Self-represented Solicitor for the Respondent: Ms. Zoe Harwood, NDIA
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