Whitby-Smith and National Disability Insurance Agency

The Administrative Appeals Tribunal considered a dispute between Ms Whitby-Smith and the National Disability Insurance Agency (NDIA) concerning the scope of supports requested by Ms Whitby-Smith. Ms Whitby-Smith contended that she had raised all her requested supports during discussions with the NDIA internal reviewer. However, the NDIA's records, specifically an interaction note made by the internal reviewer the day before the decision under review, indicated that only three specific supports were being sought: 25 hours per week of support workers for daily assistance and community access, 24 hours of support coordination, and Level 1 transport funding. The internal reviewer did not provide evidence regarding these discussions.

The primary legal issue before the Tribunal was to determine which supports were properly before the NDIA for consideration during the internal review process. This involved assessing the conflicting accounts of the discussions between Ms Whitby-Smith and the internal reviewer, and considering the documentary evidence available to the NDIA at the time of its decision. The Tribunal also considered whether it had jurisdiction to review all supports requested by Ms Whitby-Smith, and whether a direction should be made under s 25(4) of the *Administrative Appeals Tribunal Act 1975* (Cth) to limit the issues for determination.

The Tribunal reasoned that in the absence of the internal reviewer's evidence, it was appropriate to examine key documents provided to the NDIA that were intended to inform the review of Ms Whitby-Smith's supports. These documents included a report from Ms Whitby-Smith's clinical psychologist, Ms Rachel Hinton, dated 10 August 2020, which recommended various supports including community support, psychological sessions, physiotherapy, house clearing, gardening, OT assessment, and funding for an online social support group. Additionally, a report from Ms Whitby-Smith's occupational therapist, Ms Julie Parry, dated 8 September 2020, detailed numerous recommendations aimed at increasing social and economic participation. These recommendations encompassed a wide range of supports, such as assistive technology (Microsoft Surface Pro, noise-cancelling headphones, Android smartwatch, task chair), therapeutic interventions (psychology, art therapy, exercise physiology, physiotherapy), social participation (online social group, driving lessons, cooking skills), increased support worker hours, home maintenance assistance (gardening, cleaning), and adaptive equipment (shower stool, painting stool). The Tribunal considered these reports as crucial evidence of the supports Ms Whitby-Smith sought to have reviewed.