Williams and National Disability Insurance Agency

[2023] AATA 1039

Williams and National Disability Insurance Agency [2023] AATA 1039 (4 May 2023)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/3319

Re:Tiffany Williams  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member 

Date:4 May 2023  

Place:Melbourne

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

...............................[sgd].........................................

R Cameron, Senior Member 

Catchwords

PRACTICE AND PROCEDURE – complaints about respondent agency – choice of occupational therapist – lack of contact from complex planner – dissatisfaction with support coordination – all requested supports provided to applicant – no reviewable decision falling within s 99 of the NDIS Act – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

REASONS FOR DECISION

R Cameron, Senior Member

4 May 2023

BACKGROUND AND HISTORY

1. This is an unfortunate case. The applicant has severe disabilities. She is 47 years old and suffers from several afflictions. These are bipolar affective disorder, with a differential diagnosis of complex trauma, together with a secondary disability of stroke.

2. The applicant became a participant in the National Disability Insurance Scheme (“NDIS”) on 6 July 2018. A plan was approved on 8 October 2021.

3. A further plan was approved on 4 March 2022 (“the 4 March 2022 plan”).[1] That plan provided for total funded supports of $117,406.69 for the year 4 March 2022 to 3 March 2024. It provided total core supports of $76,113.44 and total capacity building supports of $40,753.25. Included in this figure was an amount of $9,613.44 for support coordination. There was an amount of $540 for capital supports by way of assistive technology.

   [1] Document T9 of the T documents.

4. The applicant applied on 7 March 2022 for an internal review of the 4 March 2022 plan. In particular, the applicant requested the internal review to consider the following matters of concern to her:

   (a)the provision of funding for assistive technology for an electric bed;

   (b)an increase in funding for support coordination; and

   (c)to change streaming back to “supported” for local area coordinator management.

5. A delegate of the CEO of the respondent conducted the internal review. On 21 March 2022 the delegate made an internal review decision which was in evidence before the Tribunal (“the internal review decision”).[2] The outcome of the internal review decision was that the delegate decided that the supports provided in the 4 March 2022 plan were “correct”. The delegate provided reasons for reaching this decision. Such reasons need not be reproduced for the purposes of this decision. Suffice to say there were findings that the supports sought by the applicant did not satisfy the “Section 34(1)(c) criteria: Value for money” and “Section 34(1)(d) criteria: Effective and beneficial.”

   [2] Document T1A of the T documents.

6. On 22 April 2022 the Applicant applied to the NDIS Division of this Tribunal for a review of the internal review decision.

7. A conference was held before a Conference Registrar of this Tribunal on 15 July 2022. Following that conference, the Conference Registrar issued a direction that, amongst other things, required the applicant to provide confirmation in writing of the scope of the supports in dispute including, where relevant, details of the nature, frequency and duration of the supports sought and any further information she wished to rely upon.

8. Following a directions hearing held on 18 November 2022 before Senior Member Parker the matter was, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), remitted to the respondent agency for reconsideration before 2 December 2022.[3]

   [3] This Tribunal should record that in addition to the order remitting the matter to the respondent on 18 November 2022 Senior Member Parker issued a lengthy direction which recorded the key events that occurred at the directions hearing on that day. The contents of that direction have been read and considered by this Tribunal as constituted. It should be observed that in the direction, amongst other things, it was recorded that the applicant had raised a number of concerns about the internal administrative processes within the respondent agency. Senior Member Parker also recorded in that direction that the Tribunal did not have either the authority or any control over the internal administrative processes undertaken by the agency. It is suggested that such concerns on the part of the applicant should be taken up with either a legal representative or the agency itself.

9. Following the remittal by the Tribunal, and upon receipt of further information concerning the applicant’s disability-related support needs, the respondent completed an unscheduled review and prepared a new plan for her commencing on 2 December 2022 (“the

   
   

   2 December 2022 plan”). The contents of the new plan are referred to in their entirety for their full force and effect. There are total funded supports of $266,028.83 for the period

   
   

   2 December 2022 until 2 December 2023. Critically, the plan provided for increased funding for core supports to $187,737.86, capacity building supports of $59,756.97 and Capital Supports, including assistive technology including an electric bed and ancillary supports in the sum of $16,750. As is apparent from a comparison of the amounts of supports funded in each of the 4 March 2022 and 2 December 2022 plans, there was a significant increase in funding in favour of the applicant in the 2 December 2022 plan.

10. For the sake of completeness, it should be observed that because the applicant’s plan was reassessed by a delegate of the respondent’s Chief Executive Officer, which the Tribunal considers was undertaken as contemplated by Division 4, by operation of s 37(3)(a) of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”), the 4 March 2022 plan ceased to be in effect.

11. The applicant was still not satisfied with the approach of the respondent agency. By way of a document dated 18 November 2022, the applicant provided, under the heading “Outcomes Required”, a series of dot points identifying what her complaints were. The contents of this document need not be reproduced in any detail. An examination of it reveals that several of her complaints were directed towards the issue of which occupational therapist would work with her and the replacement of her current NDIS complex planner. Included in that document were also some complaints about the conduct of this Tribunal including a request that responses in writing to written complaints be made within a reasonable period of time. The document when carefully considered did not identify a reviewable decision within the meaning of s 99(1) of the NDIS Act.

12. A conciliation conference was held before a Conference Registrar of this Tribunal on 8 March 2023. Unfortunately, the matter could not be resolved, and it was referred to a Case Management Directions Hearing in person before this Tribunal as presently constituted.

13. On 19 April 2023 the applicant lodged with the Tribunal a handwritten letter, which was very difficult to read. The letter raised a number of procedural questions. Amongst other things, it sought copies of the Conference Registrar’s notes taken at the conciliation proceeding and raised several issues concerning the conduct of the respondent agency. It also asked questions about the “complex planning Department” of the respondent and the qualifications together with experience that its employees had. Once again, this letter did not identify a “reviewable decision” within the meaning of s 99(1) of the NDIS Act.

14. It should be noted that a Conference Registrar’s notes are not provided to parties to a proceeding.

    THE POSITION OF THE PARTIES AT THIS HEARING

15. The applicant attended at the hearing self-represented but was supported by her carer. Clearly, she does suffer significant disabilities from her ailments. On several occasions in accordance with the applicant’s wishes the matter was adjourned or stood down to enable her to consider her position. It is unfortunate indeed that the applicant does not have legal representation. The Tribunal was mindful of giving the applicant every possible opportunity to advance her case. The Tribunal also acknowledges that she is not legally trained or qualified.

16. After an initial exchange or opening between the Tribunal and the parties it was decided that the respondent’s lawyer would make his submissions and the applicant then respond.

17. The contention of the respondent agency is fairly straightforward. It contends that all of the supports that the applicant was seeking had been conceded to her and there were no other matters in dispute between the applicant and the respondent for which the Tribunal had jurisdiction to adjudicate upon. Put another way, there was no reviewable decision left before the Tribunal for it to consider.

18. In response to the respondent’s submissions, the applicant made several complaints to the Tribunal with respect to the conduct of the respondent agency. The principal complaint that she made was that the complex planner assigned to her since August 2022 has rarely been in contact with her. The last contact that the applicant says she had with her complex planner was in approximately December of last year. She stated that she has requested the respondent and its lawyers to ask the complex planner to contact her as soon as possible. Additionally, she expressed some dissatisfaction with her support coordination. She explained that without support coordination she was unable to document her goals. The applicant described her carers as “brilliant” but due to time constraints and having English as their second language, she considered that her carers were unable to assist her to document her goals.

    CONSIDERATION

19. In order to assist the applicant, the Tribunal arranged for her to be furnished with a copy of ch 4, pt 6 of the NDIS Act. It was explained to her that the matters that she complains of with respect to the conduct of the respondent agency did not fall within any of the “Reviewable decisions” identified in s 99 of the NDIS Act. She did refer to item 17 of s 99(1) which refers to “a decision to make, not to make, a determination in relation to a person.” Unfortunately, of course, this item relates to section 74(1)(b) which relates to acts concerning a child. It clearly cannot have application to the applicant and her complaints about the respondent’s conduct.

20. The Tribunal considers that the matters that were raised by the applicant at this hearing are not reviewable decisions within the meaning of s 99 of the NDIS Act. It also considers that the matters contained in the applicant’s letter in dot point form to the Tribunal of 18 November 2022 and her handwritten letter of 19 April 2023 also are not reviewable decisions within the meaning of that section of the NDIS Act.

21. One can fully understand the applicant’s frustration with the practices, procedures and processes of the respondent agency that have been identified by the applicant in the submissions she made to the Tribunal. Nonetheless, these matters are not reviewable by the Tribunal. It does not have supervisory jurisdiction. The Tribunal notes that in addition to the respondent’s lawyer present at the hearing there was present an NDIS Case Manager who apparently has some responsibility for matters concerning the applicant. The Tribunal requested that the respondent’s lawyer and the Case Manager take note of the applicant’s complaints and if at all possible, seek to have them addressed in an appropriate manner as quickly as possible. The Tribunal hopes that this objective will be achieved.

22. The Tribunal also considers that the 2 December 2022 plan which substantially increased the supports available to the applicant addressed her concerns with respect to the questions of support coordination and assistive technology. The applicant did not in her submissions before the Tribunal at the hearing contend that further amounts were reasonable and necessary by way of support coordination. The Tribunal also understood the applicant to accept that the provision of an electric bed and ancillary items to her in the 2 December 2022 plan had addressed her complaint with respect to that item of capital support. Therefore, these matters were no longer in dispute between the parties.

    DECISION

23. For these reasons, the Tribunal is satisfied that there is no longer a decision before it that is reviewable within the meaning of s 99 of the NDIS Act. Having reached this conclusion, it is open to the Tribunal to dismiss the application. The Tribunal can see no reason why this application should be permitted to continue and accordingly will dismiss the application under s 42A(4) of the AAT Act.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

....................[sgd].............................

Associate

Dated: 4 May 2023

Date of case management directions hearing:	26 April 2023
Applicant:	In person
Advocate for the Respondent:	Mr Andrew Tran
Solicitors for the Respondent:	Mills Oakley Lawyers