Willis and National Disability Insurance Agency
[2020] AATA 4021
•1 October 2020
Willis and National Disability Insurance Agency [2020] AATA 4021 (1 October 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/2100
Re:Julieann Willis
APPLICANT
And:National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 1 October 2020
Place:Melbourne
The Tribunal decides that:
1.it does not have jurisdiction to hear the applicant’s application for review lodged on 7 April 2020; and
2.the application is dismissed.
……………[sgd]………………….
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – initial decision made by the Agency but not reviewed by it - no decision that is reviewable by the Tribunal.
Legislation
National Disability Insurance Act 2013; s 34; s 36; s100; s 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013; r 3.1; 3.2; 3.3; 3.4
National Disability Insurance Scheme (Plan Management) Rules 2013
Administrative Appeals Tribunal Act 1975; s 25
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
REASONS FOR DECISION
Deputy President S A Forgie
Mr Willis is Ms Willis’s carer and is himself a participant in the National Disability and Insurance Scheme (NDIS). On 7 April 2020 Mr Willis lodged an application seeking review of a decision made on 3 April 2020 in respect of his wife’s participant’s plan under the National Disability Insurance Act 2013 (NDIA Act). He described himself as the applicant but, having regard to the whole of the matter, I am satisfied that he was making it on behalf of his wife and that she is the applicant. Ms Willis’s application sought review of a decision dated 3 April 2020 to refuse to accept a quotation from JB Hi-Fi that included a laptop. Mr Willis had submitted that on the previous day with supporting medical evidence. The decision was made on the basis that they “are not most appropriately funded by the NDIS.” In particular, equipment such as laptops and tablets are considered an everyday living cost for Australians. Therefore, it is not reasonable and necessary for their cost to be met by the NDIS. That conclusion was based on statistics published by the Australian Bureau of Statistics in 2014/2015 that 86% of Australian households have access to internet at home.
Since the application was lodged, the National Disability Insurance Agency has made a further decision dated 24 April 2020 approving the JB Hi-Fi quotation for the purchase of a laptop. Although aware that expenditure on the laptop had been approved by National Disability Insurance Agency (Agency), Mr and Ms Willis wished to pursue her application in the Tribunal. The Agency submitted that the Tribunal does not have jurisdiction to consider the matter at all. I have decided that the Tribunal does not have jurisdiction to review the Agency’s decision.
BACKGROUND
On 15 March 2019, Mr Willis’s participant’s plan was approved by a delegate of the Chief Executive Officer of the Agency. The review of that plan was scheduled for 16 March 2020 and it was reviewed in March 2020. The review led to a delegate’s approving a further participant’s plan on 12 March 2020. In the most recent plan, Mr Willis’s goals were to have more support in the home and to maintain the tenancy, to get out into the community with his family and to increase his social and community participation.
In the meantime, Ms Willis’s participant’s plan was approved on 7 January 2020. It showed her goals as being to increase her community access and improve her social participation, to build her confidence and creativity and to maintain and increase her independent living skills including paying bills, shopping, cooking and learning how to use technology to achieve some of her goals. In addition to her Core Support funding to enable her to have maximum independence and participation in the community. Capacity Building Supports are separately funded in Ms Willis’s participant’s plan under four headings: Improved Life Choices (CB Choice & Control); Improved Daily Living (CB Daily Activity); Increased Social and Community Participation (CB Social Community Civic); and Support Coordination. Improved Daily Living provided:
“Funding for an allied health professional or therapist to assess and provide support in assisting you to meet your goals of skill development & improving your daily routines, behaviour support, communication, understanding our sensory needs and assistive technology. Supports to work together with the home and community settings, utilising relevant disciplines to meet the plan goals and objectives. Funding includes any personalised training necessary for using implementing strategies to provide for you safety in the home and community. These assessment hours are also to include the various assessment tasks required to determine suitability for an assistance animal.”
All of the funding was plan-managed. That means that a Plan Manager is funded in the participant’s plan. The Plan Manager must be an NDIS registered provider who will pay providers for the supports purchased by the participant, help the participant keep track of funds, take care of financial reporting and, depending on the participant’s circumstances, help the participant to choose his or her providers. The Plan Manager is not named in Ms Willis’s participant’s plan. Ms Willis’s NDIS contact was named. She was a Local Area Coordinator with the Brotherhood of St Laurence.
A Plan Manager was appointed and Mr Willis directed his quotation for the laptop and for a camera, speaker and microphone allowing Ms Willis to see who is at the door and, if she feels able, to communicate with them without having to open the door. Mr Willis contacted his Plan Manager and provided the JB Hi-Fi quotation for the items and referred to the medical reasons why the items were necessary for his wife. On 2 February 2020, he received an email from his Plan Manager advising that:
“In regards to the invoice from JB Hi-Fi, I’m not sure if I can process the security camera, as it’s not generally disability related.
I can process the Google Home, as it can he argued that it’s home assistance for Julieann.
However, the remaining of the items are not funded by the NDIS.
If you have any question, feel free to contact me.”
Mr Willis then contacted his wife’s NDIS contact and received the response I have set out in the previous paragraph. On 7 April 2020, Ms Willis’s application for review was lodged in the Tribunal. On 24 April 2020, the Agency approved the quotation for Ms Willis to obtain a laptop. Mr Willis set out what the supervisor of Ms Willis’s NDIS Contact had written. I do not have the original:
“I am pleased to let you know that I have been advised the NDIS will approve the funding for the laptop for Juliann due to the COVID 19 pandemic and recent flexibility at the agency has deemed reasonable because of this. This has been granted based on the fact that she needs a device to access NDIA supports via telehealth, it is related to her goals and she doesn’t have another device to be able to access her supports and face to face support is not available at the moment.
Johnee and Andrian, can you please support Graeme and Juliann to purchase this item through Juliann’s plan?
Please note that this is just for the laptop and not for an ipad or Kindle as these would be seen as duplicate supports. It is only for the laptop itself and not for covers, laptop bags or other accessories.
If Juliann is unsatisfied with this outcome Johnee can support you and Juliann to request a review via the NDIS.”
Subsequent correspondence with Andrian, one of Ms Willis’s support workers, clarified that the laptop for which Mr Willis had obtained a quotation from JB Hi-Fi was approved.
MS WILLIS’s SUBMISSIONS
On behalf of Ms Willis, Mr Willis submitted that the basis of the rejection of her initial request for a laptop was:
“… based upon data and the misconception that disadvantaged and disabled people an all have the same abilities to fund these items.
As proved by the example providing the Australian Bureau of Statistics (2014-2015) as evidence to support their false reasoning.
The incorrect analysis and comparison between able bodied person and those with a disability is a broad assumption they are equal then applied to everyone to deny items they don’t want participants needing them to have and site they are everyday living costs.
A person with a disability does not have the same capacity for so called everyday living costs if they did they would not need the NDIS.
The same reasoning could be used for items such as compression stockings indeed everything available the NDIA allow to discriminate on any item that participant can not fund due to financial hardship or unreasonable comparisons to justify rejecting them and placing participant lives in danger if they are need for Allied health professionals appointments vis video chat etc.
It is a violation of the NDIS Act 2013 as each participant is to be treated individually as they have individual needs but the total rejection for everyone is contrary to an individuals needs and the NDIS Act itself.
An able bodied member of the community has access to possible ability to save, get a personal loan, or get a credit card much easier than disadvantaged, or disabled persons or their full time carers.
…
I spent two hours on the phone on Saturday 4th April 2020 in an attempt to get a loan or Credit card for my wife to get a laptop so she could use telehealth for her appointment with her clinical psychologist. …
She missed an appointment already as the fee had to be paid up front can take 5 days to come back given food at the time was mostly non existent we had further expense trying to find food. She needs a laptop to do it …
Denying such devices alienates and isolates disabled persons ore, causes more trauma. Especially in the current lock-down conditions disabled persons with psycho/social disabilities are placed at extreme high risk when denied access to support networks and treating professionals.
…”
THE AGENCY’S SUBMISSIONS REGARDING THE TRIBUNAL’S JURISDICTION
On behalf of the Agency, Mr Crawford, submitted that the Tribunal does not have jurisdiction to review the decision because the decision dated 2 April 2020 is neither a reviewable decision under s 99 of the NDIS Act nor a decision made on review of that decision under s 100(6). Under s 103, the Tribunal may only review a decision that has been made by a reviewer under s 100(6).
CONSIDERATION
Both Mr Willis and Mr Crawford make valid points. Beginning with Mr Crawford’s, I agree that the Tribunal does not have jurisdiction to consider Ms Willis’s application. I will set out my reasons for reaching that conclusion below.
Reasonable and necessary supports determined by individual circumstances assessed against a broader context specified in the NDIS Act
Mr Willis is also correct in that a decision made about a participant’s plan must also take account of the individual participant’s circumstances. They are not, however, the only matters to which regard must be had. The decision that is made, whether initially or on review, must focus on two matters. The first are the particular circumstances of the participant. The second are the criteria against which the particular participant’s circumstances are considered and against which a decision is made as to what general supports will be provided and which reasonable and necessary supports will be funded. That necessarily draws in wider issues regarding issues such as value for money and whether the support is most appropriately funded through the NDIS. This is not a straightforward process and I will illustrate this by setting out some of the relevant provisions in the following paragraphs.
I will begin with s 34(1)(a) when it provides that the CEO must be satisfied of all of the following in relation to the funding or provision for each support:
“(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”[1]
[1] NDIS Act; s 34(1)
Section 35 provides that the National Disability Insurance Scheme rules:
“… may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.”[2]
The rules made under s 35(1) may relate to the manner in which supports are to be funded or provided and by whom they are to be provided.[3]
[2] NDIS Act; s 35(1)
[3] NDIS Act; s 35(2)
As provided for by s 34(2) of the NDIS Act, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS-SP Rules) prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether he or she is satisfied of the matters specified in ss 34(1)(a) to (f) as well as under s 33.[4] The NDIS-SP Rules address ss 34(1)(c), (d), (e) and (f) but the parties agree that ss 34(1)(e) and (f) are not relevant in this case. To put them in their context, I will set out all of the Rules 3.1 to 3.4:
[4] NDIS Act; s 34(2)
“Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of funding of supports for the participant in the long term (for example, some early intervention supports may be of value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effectiveness and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b)for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.”
Part 4 of the NDIS-SP Rules is directed to the CEO’s decision whether or not to approve a statement of supports under s 33 of the Act. The CEO is to:
“(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)assess risks and safeguards in relation to the participant; and
(d)relate support needs to the participant’s statement of goals and aspirations.”[5]
[5] NDIS-SP Rules; cl 4.1
Part 5 of the NDIS-SP Rules sets out general criteria for supports and identifies supports that will not be funded or provided. I will refer only to cl 5.1(a) and (b):
“A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; …”
The National Disability Insurance Scheme (Plan Management) Rules 2013 (NDIS-PM Rules) are made for the purposes of, among others, s 35. Their objects are to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. Among the five principles set out in cl 1.2 are the following relevant to this case:
“(b) people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports;
(c)…
(d)people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise informed choice and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity;
(e)people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs;
(f)people with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves.”
Under s 36(2), the CEO may request further information for the purposes of preparing a statement of participant supports or for deciding whether to approve a statement of participant supports.[6] The request may be made of the participant or of another person.[7] The CEO may ask the participant to do either or both of the following:
“(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii)undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.”[8]
[6] NDIS Act; s 36(1)
[7] NDIS Act; s 36(2)(a)
[8] NDIS Act; s 36(2)(b)
The Tribunal’s jurisdiction to review decisions made under the NDIS Act
A.That path leading from the Agency’s original decision to review in the Tribunal
When working out whether the Tribunal has jurisdiction, the starting point is always the Administrative Appeals Tribunal Act 1975 (AAT Act). The reason for that lies in the fact that the AAT Act authorises other enactments to provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. That is the effect of ss 25(1) and (2) as elaborated upon by s 25(3). The framework within which the review takes place is set out in other provisions of the AAT Act. Aspects of that framework may be excluded or modified by the enactment that provides that applications may be made.[9] When an enactment provides that applications may be made to the Tribunal, s 25(6) provides that it may add to, exclude or modify the operation of provisions of the AAT Act.
[9] AAT Act; s 25(6)
The NDIS Act is an enactment that provides that applications may be made to the Tribunal. It does so in s 103 when it provides:
“Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note:Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.”
What is a “decision made by a reviewer under subsection 100(6)”? A decision of that description is a decision made by a reviewer after reviewing a reviewable decision at the request of a person affected by that reviewable decision. A “reviewer” is a person who was not involved in making the reviewable decision and to whom the decision-maker (in a case such as this, the CEO) has delegated his or her powers and functions. The “reviewable decision” is a decision that is specified in s 99(1) of the NDIS Act.[10] The table set out in s 99(1) lists 33 different decisions that are made under the NDIS Act and that are “reviewable decisions”.
[10] NDIS Act; s 9
Looking at the Tribunal’s jurisdiction from the point of view of a person who wants to have a decision reviewed by the Tribunal other end as it were, the following steps have to be followed in order for the Tribunal to have jurisdiction to review a decision under the NDIS:
(1)Identify the decision which has been made and of which review is sought as one of the decisions described in the table in s 99 i.e. the reviewable decision.
(2)If the person is directly affected by the reviewable decision and would like it to be reviewed, request that review within three months of receiving notice of the decision.[11]
[11] NDIS Act; s 100(2)
(a)The request for review may be made in writing or orally in person or over the telephone to the decision-maker[12] and must be recorded in writing by the person receiving it.[13]
[12] NDIS Act; s 100(3)
[13] NDIS Act; s 100(4) This provision makes it clear that the oral request does not have to be made to the decision-maker personally but would be made to the Agency.
(i)The decision-maker is either the CEO or the Commissioner of the NDIS Quality and Safeguards Commission referred to in s 181C of the NDIS Act.[14] The relevant decision-maker is named in the table in s 99(1).
[14] NDIS Act; s 9
(b)Section 100(2) does not allow the Agency to extend that three month time limit.
(3)When the decision-maker receives a request for review, he or she must arrange for the reviewable decision to be reviewed by a person, to whom the decision-maker’s powers and functions are delegated and who was not involved in making the reviewable decision.[15]
(a)The reviewer must, as soon as reasonably practicable, make a decision confirming the reviewable decision, varying the reviewable decision or setting aside the reviewable decision and substituting a new decision.[16]
(4)A person whose interests are affected by the reviewer’s decision may apply to the Tribunal for review of that decision.
[15] NDIS Act; s 100(5)
[16] NDIS Act; s 100(6)
B. Negotiating the path
The path to review of decisions made by the Agency is clearly specified but, at times, there are potholes on that path. Potholes may take various forms. The reviewer, for example, may not hold appropriate delegations from the decision-maker. A reviewing body, such as the Tribunal, must always remember that it must make its own assessment of whether it has jurisdiction. The parties may agree that the Tribunal has, or does not have, jurisdiction but it is for the Tribunal to come to its own decision.[17] A party may submit that the Tribunal does, or does not, have jurisdiction. It is imperative that the Tribunal turn its mind to the issue and not accept a submission of that sort without scrutiny. Scrutiny will include an examination of the course of decision-making and review requests to work out the chain of decision-making and the operative decision. It will be scrutiny that bears in mind the principles in Collector of Customs (NSW) v Brian LawlorAutomotive Pty Ltd[18] (Brian Lawlor).
[17] R v Moodie; Ex parte Mithen (1977) 17 ALR 219at 225; Stephen, Murphy and Aickin JJ
[18] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1; Bowen CJ and Smithers J; Deane J dissenting
As Bowen CJ said in Brian Lawlor:
“… an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.”[19]
[19] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 317; 346; 7
In his judgment, Smithers J agreed saying:
“… it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.
But to be a reviewable such a decision must satisfy the criterion that it may properly be described as a decision made in the exercise of powers conferred by the relevant enactment … “[20]
[20] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 337; 370; 25
The rationale for this approach was explained by Bowen CJ in Brian Lawlor. It is a practical one, as Bowen CJ explained:
“… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [AAT] Act is designed to give a simple remedy in all such cases. …”[21]
[21] [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 314; 343; 5. Many other cases have adopted and applied the same approach e.g. Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578; 248 ALR 51 at [21]; 583; 56 per Tamberlin and Besanko JJ
Does the Tribunal have jurisdiction to review the decision?
I am aware that I may not have all of the documents that are relevant. What I do have is a chronology summarised by the Agency and emails submitted by Mr Willis. The chronology reads:
“- On 6 January 2020, the Agency approved a plan for the Applicant.
-On 2 April 2020, the Applicant provided a quote in relation to a number of items including a laptop.
-On 3 April 2020, the Agency decided not to approve the quote.
-On 7 April 2020, the Applicant applied to the Tribunal for review.
-On 24 April 2020, the Agency approved the quote in relation to the laptop.”
There is nothing in the emails that Mr Willis has submitted that contradicts the chronology. If a decision to approve particular expenditure under a Plan were a reviewable decision, it is apparent that Mr Willis lodged the application for review in the Tribunal before Ms Willis had requested review by a reviewer. Requesting review by a reviewer of a reviewable decision is an essential prerequisite. It will lead to a decision that is made under s 100(6). Under s 103, an application may be made to the Tribunal for review of decision made under s 100(6). As there has been no request for review of a reviewable decision and no decision made under s 100(6), Ms Willis was not entitled to make an application to the Tribunal under s 103.
That means that the Tribunal does not have jurisdiction to review any decision made by the Agency at this stage. There is, however, another reason why the Tribunal may not review the decision to refuse to pay for the laptop. That reason is that such a decision is not specified in the table set out in s 99(1) of the NDIS Act. It is not a reviewable decision.
Opportunity to provide clarity
What appears from Mr Willis’s emails is that, from his point of view, the picture of how his wife’s request for approval of the laptop was progressing was much less clear cut than a reading of the Agency’s chronology would suggest. When seeing the picture from his position, it must be remembered that he is communicating with care providers, Andrian and Johnee, who are trying to assist him and the NDIS contact, who is the Local Area Coordinator or Senior Local Area Coordinator from the Brotherhood of St Laurence. The care providers would seem, to some extent, to be acting as intermediaries between Mr Willis and the NDIS contacts. When I read the emails, it would seem to me that, while both the Senior Local Area Coordinator and the Local Area Coordinator have Agency email addresses, neither is a delegate of the CEO. What they would seem to be doing is relaying decisions made by the Agency to Mr Willis. That would seem to be implicit in the statement of the Senior Local Area Coordinator in her email of 24 April 2020 that “If Juliann is unsatisfied with this outcome Johnee can support you and Juliann to request a review via the NDIS.”
I have no reason to doubt that the Agency has protocols in place whereby decisions affecting participants are identified with clarity and, as required by s 100(1), they are given written notice of the reviewable decision and of their review rights under both ss 100 and 103. What this case raises is the need for care to be taken when advising of review rights. In this case, the Senior Local Area Coordinator advised Mr Willis that he and his wife could “request a review via the NDIS” but did not state whether this was review of the sort provided for in ss 100 and 103 (which it could not be as the decision was not a reviewable decision) or some other form of review be it an enquiry or complaint. In view of my conclusion, an enquiry or complaint would seem to be the only routes available. Although not required by the NDIS Act, it would seem to me that advice should have been given as to how Mr and Ms Willis were to go about any further action. It is understandable that they came to the Tribunal.
DECISION
For the reasons I have given, I find that the Tribunal does not have jurisdiction to review the Agency’s decision.
| I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
......................[sgd].............................................
Associate
Date of decision:
Heard:
1 October 2020
1 May 2020
Applicant’s Advocate:
Respondent’s Solicitor:
Johnee Auvale, Liberty Disability Services
Zoe Harwood
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Standing
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Procedural Fairness
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