Witson and National Disability Insurance Agency

[2022] AATA 2205

Witson and National Disability Insurance Agency [2022] AATA 2205 (7 July 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3042

Re:Monique Witson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Smith

Date:7 July 2022

Place:Sydney

The request made to the Tribunal by the Applicant on 25 May 2022 for an order to require the Respondent to lodge with the Tribunal an additional statement of reasons under section 38(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

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

Member P Smith

CATCHWORDS

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – request for order under s 38 of the AAT Act for additional statement of – obligations of administrative decision-maker under section 28(1) and subsection 37(1)(a) of the AAT Act - whether the Tribunal should exercise its discretion under section 38(1)– whether there is any utility in the Tribunal exercising its discretion – whether an additional statement would advance the fairness and justice of the case – where reviewer did not consider evidence or information as part of internal review – limited evidence or information considered by the reviewer as part of the internal review – function of the Tribunal on a review de novo considered - function of the Tribunal not to scrutinize reviewable decisions for error – public confidence in the exercise of power – statement of issues lodged not a substitute for a statement of reasons or an additional statement of reasons - discretion to make the order refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 28, 31, 37, 37, 38, 43

National Disability Insurance Scheme Act 2013 (Cth), s 33, 34 100

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) s 2, 100

CASES

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500

Comcare Australia v Lees (1997) 151 ALR 647

Eschenko and Australian Federal Police [2006] AATA 1034

Hungerford v Repatriation Commission (1990) 21 ALD 568

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

Re Frolich and Minister for Capital Territory (1979) 2 ALD 434

Re Mann v Capital Territory Health Commission (No 2) (unreported, 14 December 1983)

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212

Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183

Re VCA and Australian Prudential Regulation Authority (2006) 92 ALR 724

Seymour v Migration Agents Registration Authority (2012) 56 AAR 368

Taxpayer v Federal Commissioner of Taxation (2006) 91 ALD 242

Tuimaseve v Minister for Immigration and Border Protection (2018) 74 AAR 192; [2018] FCA 396

Whittaker and National Disability Insurance Agency [2022] AATA 729

SECONDARY MATERIALS

Administrative Appeals Tribunal General Practice Direction, cl 4.24

Creyke et al, Control of Government Action, LexisNexis

REASONS FOR DECISION

Member P Smith

7 July 2022

INTRODUCTION

1. Monique Witsen (the Applicant) is a participant of the National Disability Insurance Scheme (the NDIS).   She has spinal muscular atrophy (‘SMA’) type 2 with thoracolumbar scoliosis and has associated comorbidities, including being immunocompromised. The Applicant presently lives with her elderly parents in approved High Physical Support Specialist Disability Accommodation (SDA) design category.

2. The Applicant made an application to the Tribunal on 14 April 2022 seeking a review of an internal review decision (decision) made by a reviewer of the National Disability Insurance Agency (the Respondent) on 21 March 2022. 

3. The reviewer confirmed a decision made by a delegate of the Chief Executive Officer of the Respondent on 8 December 2021 to approve a statement of participant supports under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). On 10 March 2022, the Applicant requested a review of the decision of 8 December 2021 not to approve her for sole occupancy SDA. The plan approved on 8 December 2021was confirmed on review on 21 March 2022, and found that the Applicant’s request for Sole Occupancy SDA was not a ‘reasonable and necessary support’ under s 34 of the NDIS Act .

4. The parties agree that the Applicant’s request for Sole Occupancy SDA; whether it is a reasonable and necessary support within the meaning of section 34 of the NDIS Act, and the applicability of any NDIS Rules are the substantive issues for the Tribunal to determine. Those issues are yet to be determined by the Tribunal.

   BACKGROUND

5. On 21 September 2021, the Applicant made an unscheduled plan review request to the Respondent, relating to her previous plan, requesting that she be approved for Sole Occupancy SDA on the basis that the Applicant’s circumstances had changed. The Applicant’s request was not approved, but a new plan was approved on 8 December 2021 which included High Physical Support SDA that the Respondent had approved in the Applicant’s previous plan, dated 4 September 2020.

6. On 10 March 2022, the Applicant made an internal review request to the Respondent in which she sought that the Respondent reconsider her request for Sole Occupancy SDA. On 21 March 2022, the reviewer decided that the Applicant’s request was not reasonable and necessary the meaning of subsections 34(1)(c) and (d) of the NDIS Act.

7. After receiving the reviewer’s statement of reasons, the Applicant, on 28 March 2022, wrote to the Respondent pursuant to section 28(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requesting, within 28 days from the date of her letter, a written statement setting out the reviewer’s reasons for his decision.  In her letter, the Applicant stated further that she did not understand the basis of why she did not meet the criteria for Sole Occupancy SDA or know what evidence was considered by the reviewer, or what findings, based on the evidence, were made by the reviewer to support his decision.

8. On 22 April 2022, the Respondent sent an email in response to the Applicant’s request in which they stated that the Respondent was of the opinion that the decision dated 21 March 2022 was sufficient for the purpose of satisfying the requirements of both section 28 and subsection 37(1)(a) of the AAT Act.

9. On 21 April 2022, the Respondent filed with the Tribunal a copy of the decision that is the subject of this review and copies of 19 other documents identified as “T” documents[1].

   [1] The internal review decision dated 21 March 2022 is identified in the index to the “T” documents as T2.

10. A further request for an additional statement of reasons was made to the Respondent on 4 May 2022 by the Applicant’s solicitor, Mr Mitchell Skipsey. In his letter, Mr Skipsey referred to the “T” documents filed by the Respondent on 21 April 2022 and to their inadequacy and stated that in his opinion none of those “T” documents satisfied the requirements of subsection 37(1)(a) of the AAT Act. Further, Mr Skipsey requested that the Respondent lodge with the Tribunal and provide to the Applicant certain supplementary “T” documents which he listed in his letter.

11. On 24 May 2022, the Applicant was advised by the Respondent that their position communicated on 22 April 2022 had not changed. 

12. On 25 May 2022, the Applicant requested that the Tribunal make an order pursuant to section 38(1) of the AAT Act to require the Respondent to lodge with the Tribunal, and provide to the Applicant, a statement of reasons that satisfies the requirements of subsection 37(1)(a) of the AAT Act.

13. On 1 June 2022, at an Interlocutory Telephone Hearing (ITH), the parties made oral submissions to the Tribunal on the question of whether the Tribunal should exercise its discretion, and make orders under section 38(1) of the AAT Act for the Respondent to lodge an additional statement of reasons with the Tribunal.

14. On 2 June 2022, for the purposes of Alternative Dispute Resolution under Part IV, Division 3 of the AAT Act, the Respondent lodged with the Tribunal, and provided to the Applicant, a Statement of Issues (SOI).

15. As foreshadowed at the ITH on 3 June 2022, the Respondent lodged with the Tribunal, and provided to the Applicant, copies of the documents requested by Mr Skipsey in his letter of 4 May 2022, identified as Supplementary “T” documents. 

16. For completeness, the Applicant accepts that the documents the Respondent lodged with the Tribunal on 21 April 2022 and 3 June 2022 now meet the requirements of subsection 37(1)(b) of the AAT Act.

    THE ISSUE

17. The sole issue for this Tribunal to determine is whether it should exercise its discretion under section 38(1) of the AAT Act, and make an order to require the Respondent, who has lodged a statement with the Tribunal in accordance with subsection 37(1)(a) of the AAT Act, to lodge an additional statement with the Tribunal, within a time specified by the Tribunal, containing further and better particulars in relation to particulars of findings on material questions of fact, references to the evidence or other material on which those findings were based, and particulars of the reasons for the decision.

    THE APPLICANT’S CASE

18. The Applicant’s case is that the decision lodged with the Tribunal on 21 April 2022 is inadequate and does not satisfy the requirements contained in subsection 37(1)(a) of the AAT Act.

19. While acknowledging that the reviewer stated in his decision that he reconsidered the Applicant’s request for Sole Occupancy SDA against the reasonable and necessary requirements in section 34 of the NDIS Act, it was submitted by the Applicant that the material findings of questions of fact, insofar as they relate to the Applicant not meeting the requirements in subsections 34(1)(c) and (d) of the NDIS Act, were inadequate.

20. The reviewer stated in his decision when considering whether the requested support represented value for money under subsection 34(1)(c), ‘I have made a reasonable and necessary determination not to increase [the] requested support with consideration of additional submitted information’.  The Applicant submitted f that this finding is inadequate and does not explain to the Applicant why she received an adverse decision – namely, that it was not clear how the reviewer formed a view, for example, as to what constituted value for money, whether the reviewer used some type of calculation, or relied upon an expert opinion, or relied on an inclusive synthesis as to what constitutes value.

21. In relation to consideration of the requirements under subsection 34(1)(d), the reviewer stated in his decision ‘[t]here is limited supporting evidence to support a need for sole occupancy.  Therefore, I have confirmed the original decision’. It was submitted for the Applicant that this finding is also made without any reference to the evidence or information the Applicant provided to the Respondent, or why the reviewer considered it to be inadequate.

22. In his decision, the reviewer lists 10 items of evidence or other information[2] on which those findings were based. It was submitted for the Applicant that the requirements of subsection 37(1)(a) of the AAT Act is not satisfied in circumstances where the reviewer made no attempt to explain how those materials bore upon the decision-making process.

    [2] See page 5 of the internal review decision.

23. It was therefore submitted for the Applicant that the Tribunal should exercise its discretion under section 38(1) of the AAT Act, and make an order that the Respondent lodge an additional statement with the Tribunal; containing further and better particulars in relation to particulars of findings on material questions of fact; references to the evidence or other material on which those findings were based; and particulars of the reasons for the decision.

24. The Applicant also submitted that the submission of the Respondent that the decision was provided by the reviewer under a constrained timeline under subsection 100(6A) of the NDIS Act is incorrect, because subsection 100(6A) of the NDIS Act was not introduced by Parliament until after the reviewer had made his internal review decision[3].

    [3] See the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022, item 43 which provides in section 2 that subsection 100(6A) came into operation on 8 April 2022 which was after the date of the internal review decision.

25. It was submitted for the Applicant that there are three reasons why the Tribunal should exercise the discretion under section 38(1) of the AAT Act. Those reasons are set out below.

    Intention of Parliament

26. The first reason submitted as to why the Tribunal should exercise its discretion is the clear intention of Parliament which requires decision-makers to provide reasons for decisions that meet the requirements in subsection 37(1)(a) of the AAT Act for the purposes of the Tribunal and the Applicant, notwithstanding the function of the Tribunal is to conduct a review de novo. It was submitted that it would be inappropriate for the Tribunal to accept the argument advanced by the Respondent, that there would be no utility in making an order under section 38(1) of the AAT Act, because it would be contrary to Parliament’s intention.

27. It was submitted for the Applicant that the language in subsection 37(1)(a) of the AAT Act is expressed in mandatory terms. It was argued that that alone is sufficient to show a statutory intention that decision-makers must comply with subsection 37(1)(a), notwithstanding the role of the Tribunal on a review de novo is to stand in the shoes of the original decision-maker, rather than to scrutinize decisions for error.

28. It was submitted that the statutory context in which section 37 exists supports the Applicant’s proposition as set out above at paragraphs [26]-[27]. It was also submitted that the requirement in section 37 also exists in section 28 of the AAT Act. It was argued that section 28 of the AAT Act imposes an obligation on a decision-maker to provide to a person who is entitled to apply to the Tribunal for a review of a decision with reasons for their decision in the same way section 37 does. It was submitted that, taken together, sections 28 and 37 emphasise that reasons for decisions serve an important role, notwithstanding that the function of the Tribunal is not to scrutinise decisions for error. It was submitted for the Applicant that the fact that section 37 imposes an obligation on all decision-makers to lodge their reasons for decisions with the Tribunal, irrespective of whether the Applicant had previously requested those reasons under section 28, highlights that Parliament clearly intended that the Tribunal be provided access to reasons for decisions as part of the review de novo process.

29. Mr Skipsey referred the Tribunal to a number of cases where the Tribunal had considered the provisions of section 28 and subsection 37(1)(a) of the AAT Act. Those decisions are referred to and summarised below.

30. In Re Palmer and Minister for the Capital Territory[4] the Tribunal held that the obligation imposed on a decision-maker under sections 28 and subsection 37(1)(a) of the AAT Act is a crucial feature of the current right of the citizen to obtain from an impartial Tribunal a review of an administrative decision of what was submitted for the Applicant[5].  The Tribunal held that the purpose of the requirement to provide reasons was to enable those affected by a decision to be ‘fully informed’ of the reasons for a decision adverse to their interests[6].  The Tribunal noted this had two important benefits.  The first is that it allows a person who is aggrieved or affected by a decision to help them determine whether they wish to take the matter further by seeking review in the Tribunal and, second, it allows a person to make and effective case before the Tribunal[7].

    [4] (1978) 1 ALD 183.

    [5] Re Palmer at 193.

    [6] Re Palmer at 194-5.

    [7] Re Palmer at 194-5.

31. In Re VCA and Australian Prudential Regulation Authority (‘APRA’)[8], the Tribunal recognized in similar terms to that in Re Palmer, the importance of a decision-maker satisfying the requirements in subsection 37(1)(a) of the AAT Act[9].  The Tribunal held that the decision-maker’s statement of reasons ‘represents the foundation upon which all else is built’, and that its purpose is to provide persons affected by a decision with sufficient information to decide whether to accept it or to pursue the matter further[10]. A similar approach was taken by the Tribunal in Re Frolich and Minister for Capital Territory[11] where the Tribunal held that there was a ‘logical consistency and harmony’ between the section 28 and subsection 37(1)(a) of the AAT Act which according to the Tribunal were designed to ensure that, when an Applicant seeks review in the Tribunal, the decision-making process will be fully exposed[12].

    [8] (2006) 92 ALR 724.

    [9] Re VCA and APRA at [94]-[100].

    [10] Re VCA and APRA at [99], [100].

    [11] (1979) 2 ALD 434 at 442.

    [12] Re Frolich at 442.

32. Further, the Tribunal in Eschenko and Australian Federal Police[13] recognized the important purpose written reasons for a decision serve to the Tribunal on review. The Tribunal held that subsection 37(1)(a) of the AAT Act was intended to assist the Tribunal to understand what was decided, and why[14].

    [13] [2006] AATA 1034 at [9].

    [14] Ibid.

33. It was submitted for the Applicant that both the Tribunal and the Applicant should have the benefit of having an adequate statement of reasons to understand the basis of the decision under review, especially where the Respondent has an obligation to use its best endeavours to assist the Tribunal to make its decision in relation to the proceedings[15].

    [15] See subsection 31(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) and the decisions in Re Mann v Capital Territory Health Commission (No 2) (unreported, 14 December 1983), applied in re Hungerford v Repatriation Commission (1990) 21 ALD 568, 578; Seymour v Migration Agents Registration Authority (2012) 56 AAR 368.

    Fairness and justice to advance the case

34. The second reason submitted for the Applicant as to why the Tribunal should exercise its discretion is based on the notion of there being some benefit of fairness or justice to both parties, and the Tribunal, if the Respondent were ordered to lodge an additional statement of reasons because it would advance the fairness and justice of the case. 

35. In making this argument, the Applicant accepts that the discretion of the Tribunal under section 38(1) will not be exercised to direct the Respondent to rectify a defective statement of reasons if it does not ‘advance the justice or fairness of the case’[16].  However, it was submitted for the Applicant that exercising that discretion would advance fairness and justice in the present case to both parties.

    [16] Taxpayer v Federal Commissioner of Taxation (2006) 91 ALD 242 at [25]-[26].

36. It was submitted that the Applicant has, at present, no information that helps her to understand how and why her request for Sole Occupancy SDA was not approved. It was submitted for the Applicant that in the absence of an adequate statement of reasons, there is limited information that allows the Applicant to make an informed decision as to whether she should proceed with her application for review. It was submitted for the Applicant that receiving an additional statement of reasons that complies with the requirements of subsection 37(1)(a) would assist the Applicant to make an informed decision about proceeding with the current application. It was argued that this would have a flow-on benefit to the Tribunal more generally as it would ensure that only applicants who had made an informed decision where adequate reasons were given in the primary decision would seek a review de novo before the Tribunal.  It was submitted for the Applicant that it would also benefit the Respondent in that it would ensure that cases to which it was required to respond in the Tribunal were brought on an informed basis.

1. Further, it was submitted for the Applicant that ordering the Respondent to lodge an additional statement of reasons would promote fairness and justice in the broader sense in that it would promote confidence in the exercise of public power[17].  Conversely , where inadequate reasons for a Respondent’s initial decision are provided, applicants are liable to feel concerned that their matter was not evaluated and decided in a lawful, considered fashion by the government body responsible. It was noted that such a concern is only likely to be heightened where that government body seeks to strenuously resist further attempts by an applicant to seek more detailed reasons, such as in the present case.

   Whether there is any utility in making an order for an additional statement of reasons and whether it is inconsistent with the statutory objectives of the Tribunal

   [17] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212, 242 at [105]; Comcare Australia v Lees (1997) 151 ALR 647 at 656.

2. The third reason submitted for the Applicant as to why the Tribunal should exercise its discretion was in response to the two arguments made for the Respondent as set out below at paragraphs [50]-[52]. The first of those arguments is that the Tribunal should not exercise its discretion under section 38(1) because there would be no utility. The second argument made for the Respondent is that it would be inappropriate for the Tribunal to exercise its discretion under section 38(1) because it would be inconsistent with the statutory objectives of the Tribunal as set out in section 2A of the AAT Act. It was submitted for the Applicant that those two arguments should be rejected.

3. The Applicant submitted that although the Respondent has lodged with the Tribunal a SOI, it does not negate the statutory requirement that the Respondent lodge an adequate statement of reasons in the present case.  The requirement of the Respondent in proceedings before the Tribunal is set out in the Administrative Appeals Tribunal, ‘General Practice Direction’[18]. It was submitted for the Applicant that the lodgement of an SOI does not purport to, and nor is it capable of, dislodging the statutory scheme under the AAT Act that envisages that applicants and the Tribunal should have an adequate statement of reasons ahead of a review de novo. It was submitted for the Applicant that in these circumstances, if a respondent could rely on lodging a SOI in lieu of a statement of reasons then section 28 and subsection 37(1)(a) of the AAT Act would not operate as intended despite being recognised as a crucial feature of the Tribunal’s review mechanism[19]. Therefore, it was submitted that the implication of the Respondent’s argument that the lodgement of a SOI displaces the need for and value of compliance with subsection 37(1)(a) of the AAT Act would fundamentally alter the operation of the Tribunal across the full scope of its caseload, in a manner contrary to the intention of the legislation.

   [18] See clause 4.24.

   [19] Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183 at 192.

4. It was submitted for the Applicant that the statutory context and relevant legal principles, the question of prospective utility is not the only consideration for the Tribunal in deciding whether to exercise its discretion under section 38(1) of the AAT Act. In particular, it was submitted that there are several good reasons including Parliament’s intention to promote transparency and public confidence in decision-making, even if there is limited utility in doing so.

5. In reference to the Respondent’s written submissions dated 1 June 2022 at paragraph [9] where they refer to the decision of Whittaker and National Disability Insurance Agency[20] where the Respondent had relied upon a specific formula to calculate a relevant value, and describe this as an appropriate case for a section 38 order to be issued, it was submitted for the Applicant that in the present case, the decision under review required the Respondent to calculate and assess the value of supports, as weighed against the costs of that support, in the context of subsection 34(1)(c) of the NDIS Act. It was submitted for the Applicant that without an additional statement of reasons, the Applicant has no way of knowing whether the Respondent relied upon an analogous formula and if so, what the formula was, or if not, what alternative process was followed. Therefore, an additional statement of reasons would provide clarity on this issue.

   [20] [2022] AATA 729.

6. It was submitted that the Applicant’s pursuit of an additional statement of reasons has already yielded value in the present case especially given the concession made by the Respondent that the reviewer did not, when reconsidering the Applicant’s request for Sole Occupancy SDA, have regard to evidence or other information that the Applicant had submitted in support of her request.  It was submitted for the Applicant that this has provided greater clarity for the Applicant in preparing her evidence and serves as an example of the sorts of further assistance that an additional statement of reasons may provide to the parties and to the Tribunal.

7. It was submitted for the Applicant that an adequate statement of reasons, provided at the time it was requested, may have also led to the Applicant deciding not to apply to the Tribunal to challenge the decision under review in the first place.  It was submitted for the Applicant if an adequate statement of reasons were now lodged by the Respondent, this may lead the Applicant to deciding to withdraw her application or taking a different approach to negotiations regarding the resolution of the dispute with the Respondent.

   44.It was submitted for the Applicant that the lodgement of the Respondent’s SOI does not obviate the Applicant’s submissions as set out above at paragraph [39]. ). It was submitted for the Applicant that the nature of a SOI does not fulfil the function of a statement of reasons under section 28(1) and subsection 37(1)(a) of the AAT Act. It was submitted for the Applicant that a SOI is to be a brief statement setting out the specific issues in dispute[21], and that the SOI does not require the Respondent to explain the reasons for a decision in a manner that satisfies the requirements of section 28(1) and subsection 37(1)(a), but rather provides a forward-looking function to assist the parties, and the Tribunal, to understand the issues presently in dispute. It was submitted for the Applicant an SOI simply requires a Respondent to consider, in a broad and abstract manner, the issues that could be debated in the proceedings; and, perhaps, to set out a generalised “wish list” of further evidence that an Applicant might provide and by contrast, the mental exercise required of a Respondent preparing a statement of reasons is different and involves grappling with evidence and making evaluative and deliberative findings of fact. The Applicant submitted that the product of the latter is far more likely to assist both the Tribunal and the Applicant to understand the real points of contention and the concrete position taken by the Respondent on the matter at the point in time of the initial decision.

   45.It was submitted for the Applicant the difference in those functions is particularly apparent in this case. The SOI refers to additional documents in the Respondent’s possession that were not considered by the delegate who made the s 100 decision[22] and sets out the Respondent’s present thinking about the evidence that was referred to in that decision. It therefore helps the Tribunal to understand the Respondent’s present position on the evidence that will be in dispute before it. However, it says nothing of how that evidence led to the decision-maker’s material findings of fact below, as is required by section 28(1) and subsection 37(1)(a) of the AAT Act.

   46.It was submitted for the Applicant that another key difference between a statement of reasons and a SOI is that a statement of reasons is required to be lodged earlier in the proceeding[23]. This highlights the different function that a statement of reasons plays in informing the request. A statement under subsection 37(1)(a) must be lodged within 28 days of the respondent receiving the application for review. A SOI need only be filed one working day before the first case conference[24].  It was submitted for the Applicant that this highlights the different function that a statement of reasons plays in informing an Applicant of the reasons for the decision adverse to them, which might in turn inform their decision about whether to proceed with the review.

   47.The Applicant conceded in submissions that the exercise of the Tribunal’s discretion under s 38(1) of the AAT Act must be informed by the Tribunal’s objective of providing a mechanism of review that is “fair, just, economical, informal and quick”[25]. To the extent that the Tribunal is concerned with ensuring that the Applicant’s review is “economical” and “quick”, it was submitted for the Applicant that she has made every endeavour to obtain an adequate statement of reasons since 28 March 2022. It was submitted for the Applicant that the Respondent has not acceded to her request and should not now be permitted to rely upon its own delay as a reason why the Tribunal should not require the Respondent to comply fully with its obligation under s 37(1)(a). It was submitted for the Applicant that the Tribunal must also pursue the objective of ensuring the review is “fair” and “just”. Further, it was submitted for the Applicant that the Tribunal must pursue the objective of providing a mechanism of review that is “accessible” and “promotes public trust and confidence in the decision-making of the Tribunal”[26]. Therefore, it was submitted that an order that the Respondent comply properly with its statutory obligation under subsection 37(1)(a) of AAT Act would best allow the Tribunal to pursue those objectives.

   [21] See Administrative Appeals Tribunal, ‘General Practice Direction’, at [4.24].

   [22] See for example the reference to the letter of Professor Alistair Corbett at page 5 of the Statement of Issues dated 2 June 2022.

   [23] A statement of reasons under s 28(1) of the AAT Act must be lodged within 28 days after the decision-maker receives notice of an application for review.

   [24] General Practice Direction at [4.24].

   [25] See section 2A of the AAT Act.

   [26] See subsections 2A(a) and (d) of the AAT Act.

   THE RESPONDENT’S CASE

8. The Respondent’s case is that they have complied with the requirements of subsection 37(1)(a) of the AAT Act and that the reasons provided by the reviewer on 21 March 2022 and lodged with the Tribunal on 22 April 2022 are adequate. The Respondent gives three reasons why the Tribunal should not exercise its discretion under section 38(1) of the AAT Act.

9. The first reason given by the Respondent as to why the Tribunal should not exercise its discretion is because the power of the Tribunal under section 38(1) of the AAT Act is limited to directing the Respondent to provide an additional statement of reasons based on the material that was available to it at the time of making the internal review decision. The Respondent concedes that the other documents lodged with the Tribunal on 3 June 2022 identified as Supplementary “T” documents were not considered by the reviewer. The Respondent acknowledges that the supplementary documents relate to the Applicant and are relevant to the review.

10. It was submitted for the Respondent that there would no utility in the Tribunal making an order under section 38(1) because the order would be temporarily limited to the material the reviewer considered when he made his decision. It was submitted for the Respondent that the reviewer would not be able to consider any of the supplementary material the Respondent has since lodged with the Tribunal. It was submitted for the Respondent that the Tribunal cannot direct the reviewer to consider the other material that was not considered by the reviewer following the making of a section 38 order because this would be tantamount to the Tribunal making a remittal order following the completion of a review[27]. It was submitted that in the circumstances it would be futile for the Tribunal to make an order under section 38, especially given the other evidence and information that the reviewer did not consider are now before the Tribunal and which did not inform the reviewer’s decision to confirm the delegate’s decision.

    [27] See subsection 43(1)(c)(ii) of the AAT Act.

11. The second reason given by the Respondent as to why the Tribunal should not exercise its discretion is because of the objectives the Tribunal must pursue, under subsection 2A(b) of the AAT Act, when carrying out its function on a review de novo.

12. The third reason given by the Respondent as to why the Tribunal should not exercise its discretion is based on the notion of there being no benefit or utility to either party, or the Tribunal, because the decision under review was accompanied by a written statement of reasons which is now the subject of review before the Tribunal.

13. It was submitted for the Respondent that the reasons given by the reviewer explain why the reviewer did not accept that the funding of the Applicant’s requested support for Sole Occupancy SDA was reasonable and necessary based on additional evidence or information the Respondent considered. Therefore, it was submitted, the reviewer’s reasons can be understood from the reasons he gives. It was submitted that neither the Applicant, nor the Tribunal, is at a disadvantage in understanding the basis for the reviewer’s decision to confirm the delegate’s decision. It was submitted for the Respondent that the reasons given facilitate the obtaining of merits review by the Applicant, consistent with purpose of subsection 37(1)(a) of the AAT Act[28]. It was submitted that this is not a case where an aspect of the reviewer’s decision is not able to be understood without the making of an order under section 38 of the AAT Act[29].

    [28] As discussed in Palmer & Minister for the ACT, Re (1978) 1 ALD 183; (1978) 23 ALR 196 at 193-194; Tuimaseve v Minister for Immigration and Border Protection (2018) 74 AAR 192; [2018] FCA 396 at [75](b).

    [29] Cf Whittaker and National Disability Insurance Agency [2022] AATA 729 at [21]-[22]. In this case, the Tribunal made an order under section 38 of the AAT Act requiring the Respondent to provide a formula that it used in calculating a support for the Applicant.

14. It was submitted for the Respondent that the reasons given by the reviewer were provided in the context of a legislative scheme which involves high-volume decision-making and were provided under a constrained timeframe under subsection 100(6A) of the NDIS Act, which is relevant to determining the adequacy of the reasons[30].

    [30] The length of the reasons to be given for a decision in a given statutory context may depend on the ‘nature and importance of the decision, its complexity and the time available to formulate the statement.  Often those factors may suggest a brief statement of one or two pages only’. (Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 and Creyke et al, Control of Government Action, LexisNexis at [21.2.7]).

15. It was submitted for the Respondent that the SOI they lodged with the Tribunal on 2 June 2022 for the purposes of these proceedings, and the Case Conference the parties attended on 3 June 2022, sets set out the Respondent’s position on the application and references the Supplementary “T” documents that the Respondent concedes were not considered by the reviewer.

16. It was submitted for the Respondent that that the Applicant now has a further opportunity to present her case for Sole Occupancy SDA to the Tribunal and provide any further evidence on which she seeks to rely on that will assist the Tribunal to make the correct or preferable decision. It was submitted for the Respondent that the Applicant would be afforded procedural fairness by the Tribunal while it conducts the review.

    LEGISLATION

17. Section 37 of the AAT Act sets out the requirements relating to the lodgement of material documents that the Respondent must lodge with the Tribunal within a specified time after receiving notification from the Tribunal that an application for review has been made to the Tribunal. Relevantly, subsection 37(1)(a) of the AAT Act provides that, subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.

18. Section 38 of the AAT Act gives the Tribunal the discretion to order a person to provide an additional statement. Relevantly, section 38(1) of the AAT Act provides the Tribunal may order a person who has lodged a statement with the Tribunal, in accordance with paragraph 37(1)(a), to lodge an additional statement with the Tribunal, within the time specified in the order, containing further and better particulars in relation to any one or more of the following:

    (a)particulars of findings on material questions of fact;

    (b)reference to the evidence or other material on which those findings were based; and

    (c)particulars of the reasons for the decision.

    DISCUSSION

19. The Applicant received a statement of reasons from the Respondent on 21 March 2022 following her request for approval for Sole Occupancy SDA to be reconsidered by a reviewer of the Respondent. The Applicant is of the view that the statement is inadequate and fails to meet the requirements of subsection 37(1)(a) of the AAT Act. The statement is said to be inadequate because it does not contain particulars of findings on material questions of fact, references to the evidence or other material on which those findings were based, and particulars of the reasons for the decision. This prompted the Applicant and her solicitor initially to request from the Respondent a statement of reasons under section 28(1) of the AAT Act, before the Applicant applied to the Tribunal, and an additional statement of reasons under subsection 37(1)(a) of the AAT Act after the Applicant made her application to the Tribunal for review.

20. The Tribunal accepts the comprehensive submissions made for the Applicant on the statutory context in which section 28 and subsection 37(1)(a) exist, individually and collectively. It is apparent that those two provisions, read together and apart, reflect a clear intention of the Parliament to require administrative decision-makers to provide to an applicant, who seeks review of a decision in the Tribunal, a statement of reasons that make particular reference to the evidence the decision-maker considered and relied on as the basis for his or her material findings of questions of fact, and reasons for the decision. It is also apparent, read alone, that subsection 37(1)(a) of the AAT Act also reflects a clear intention of the Parliament to require a decision-maker whose decision is being challenged in the Tribunal to lodge with the Tribunal relevant documents material to the review, including a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.

21. The Tribunal recognizes the principles as summarized in each of the cases referred to above at paragraphs [30]-[32]. The Tribunal recognizes that in each of those cases, a statement of reasons was found to serve an important purpose both to an Applicant who seeks to challenge a decision in the Tribunal and to the Tribunal when reviewing a decision. The Tribunal recognizes that the cases show, when considering the statutory context of section 28 and subsection 37(1)(a) of the AAT Act, that the purpose of a statement of reasons is to enable those affected or aggrieved by the decision to be fully informed of the reasons for those decisions. The Tribunal recognizes that the cases show that a statement of reasons should also contain sufficient information on which an applicant, affected or aggrieved by the decision, to determine whether or not to accept a decision made against them or whether to pursue the matter on review before the Tribunal and to aid them in making an effective case to the Tribunal. The Tribunal recognizes that the cases show, when a case is being reviewed before the Tribunal, that the decision-making process will be fully exposed. The Tribunal also recognizes that the cases show that a statement of reasons helps the Tribunal reviewing the decision to understand what was decided, and why.

1. The Tribunal has reviewed the statement for the purpose of considering whether the requirements of subsection 37(1)(a) are satisfied. The Tribunal is satisfied that the statement does contain particulars of findings on material questions of fact, references to the evidence or other material on which those findings were based, and particulars of the reasons for the decision. The reviewer makes material findings of questions of fact in respect of the criteria in subsection 34(1)(c) and (d) of the NDIS Act. The reviewer refers to the evidence as listed and described in his decision, on which he based his material findings of questions of fact, and then gives the reasons for the decision to confirm the decision that had been made by the delegate on 8 December 2021. The Tribunal notes that the findings made by the reviewer were based on the reviewer considering very limited evidence or information that he lists in his decision, despite there being a substantial amount of other material that had been provided by the Applicant. The reviewer did not, as was conceded by the Respondent, consider this other material. However, the other material has since been lodged with the Tribunal on the basis that it relates to the Applicant and is relevant to the review before the Tribunal.

2. The Tribunal appreciates that the Applicant perceives the statement to be inadequate for the reasons submitted. The function of the Tribunal in conducting the review is to ‘stand in the shoes of the original decision-maker’[31] and consider afresh whether the Applicant’s request for Sole Occupancy SDA is a reasonable and necessary support within the meaning of section 34 of the NDIS Act and any applicable NDIS Rules, based on the evidence or information available to the Tribunal, and to arrive at the correct or preferable decision. As was correctly submitted for the Applicant, the function of the Tribunal on a review de novo is to not scrutinize a decision for error. 

   [31] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671.

3. The Tribunal appreciates the substantive issue is important to the Applicant and the many concerns she has with the adequacy of the statement. The Tribunal appreciates that the Applicant considers an additional statement would help her to understand why the decision was made adverse to her interests, and what evidence or information was considered by the reviewer that formed the basis of his material findings of questions of fact and reasons for decision. The Tribunal is of the view that there would be little to no utility in making the order sought, and that the justice or fairness of the case would not be advanced by exercising the discretion under section 38(1) of the AAT Act, for the following reasons.

4. The Applicant has made an application to the Tribunal for review of the decision not to approve the Applicant’s request for Sole Occupancy SDA.  The Applicant’s decision to make her application has, in the Tribunal’s view, been informed from the statement of reasons.  The Applicant has challenged the decision, by exercising her statutory right to seek external review with the Tribunal.

5. As an application for review has been made, the Tribunal must carry out its review de novo functions and pursue the objectives of providing a mechanism of review that is accessible, fair, just, economical, informal and quick and is proportionate to the importance and complexity of the matter and promotes public trust and confidence in the decision-making of the Tribunal[32].  To make the order sought would, in the Tribunal’s view, lead to delays in determining the substantive, but narrow, issue in dispute.  In the Tribunal’s view, that is not an approach that is consistent with the Tribunal’s statutory objectives and obligations when carrying out its review de novo functions. 

   [32] See section 2A of the AAT Act.

6. The Tribunal is authorised to exercise all the powers and discretions that are conferred on the person who made the decision[33].  Although the Tribunal can exercise the same powers as the Respondent, the manner in which the review is conducted is different.  Of significance, the Applicant will be given the opportunity to be heard on any procedural matter relating to her case and will have the benefit of a hearing on the substantive issue where she will have the opportunity to be heard and make any submissions, and test any evidence the Respondent seeks to rely on in the proceedings including the cross-examination of any witnesses.  Moreover, the Applicant will be given the opportunity to submit any further evidence or information that was not considered by the Respondent that the Applicant wishes to rely on in support of her application. 

   [33] See section 43(1) of the AAT Act.

7. Even if the Tribunal were to exercise its discretion and make the order sought, the order would be limited to the evidence or information the reviewer considered when he made his decision. The reviewer would not be able to consider the other material that has since been lodged with the Tribunal that the reviewer failed to consider as part of the internal review process as that would, in essence, be tantamount to the Tribunal making an order under subsection 43(1)(c)(ii) of the AAT Act before completing the review. Therefore, it would be futile to make the order sought, as any additional statement made by the reviewer would be based on the limited material previously considered, and without consideration of additional material the Applicant has provided to the Tribunal since the reviewer’s decision was made. While an additional statement of reasons may provide the Applicant with greater clarity as to the basis of the reviewer’s decision, it would not advance fairness or justice, and nor would it resolve the substantive issue, which is a matter for the Tribunal on review.

8. On the question of promoting public confidence in the exercise of power, this would be best achieved by the Tribunal carrying out its primary function of conducting a review de novo, with the benefit of having all material before it that the Applicant has now provided and that she wishes the Tribunal to consider in support of the application, and any other material either party wishes to provide to the Tribunal.

9. As stated above, the Respondent has, in these proceedings, lodged with the Tribunal and provided to the Applicant their SOI.  It was lodged by the Respondent on 2 June 2022, one working day before the scheduled Case Conference the parties attended before a Conference Registrar on 3 June 2022, in accordance with the Administrative Appeals Tribunal General Practice Direction[34]. The Tribunal does not consider a SOI to be a substitute for a statement of reasons or an additional statement of reasons. The Tribunal also does not consider that the lodged SOI negates or dislodges the obligations the Respondent has under section 28(1) and subsection 37(1) of the AAT Act. Rather, the SOI has been prepared by the Respondent and lodged with the Tribunal in accordance with the Administrative Appeals Tribunal General Practice to assist the parties identify the issues in dispute in the application, and what further evidence might be relevant to resolving the dispute, or that may assist the Tribunal in making the correct or preferable decision. Moreover, the SOI was prepared by the Respondent and lodged with the Tribunal to assist the Conference Registrar and the parties to discuss how best to progress the matter to resolution.

   [34] See clause 4.24

10. Finally, the Tribunal makes one very important point. The decision of the Tribunal not to exercise its discretion under section 38(1) of the AAT Act is not determinative of the substantive issue, which is yet to be heard and that the Tribunal has yet to determine.

    DECISION

11. The request made to the Tribunal by the Applicant on 25 May 2022 for an order to require the Respondent to lodge with the Tribunal an additional statement of reasons under section 38(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith

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

Associate

Dated: 7 July 2022

Date(s) of hearing:	1 June 2022
Date final submissions received:	2 June 2022
Solicitors for the Applicant:	Public Interest Advocacy Centre
Solicitors for the Respondent:	Australian Government Solicitor