YKDD and National Disability Insurance Agency
[2022] AATA 2541
•18 July 2022
YKDD and National Disability Insurance Agency [2022] AATA 2541 (18 July 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/3905
Re:YKDD
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President R I Hanger AM QC
Senior Member D ConnollyDate:18 July 2022
Place:Sydney
The Application dated 20 January 2022 relating to the request for a more adequate statement of reasons is dismissed.
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Deputy President R I Hanger AM QC
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – statement of reasons – what is the reviewable decision – decision remittal – new plan – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 (10 February 2006)
Paul Williams and Australian Electoral Commission and the Greens [1995] AATA 160
Reddish and Civil Aviation Safety Authority [1999] AATA 721
REASONS FOR DECISION
Deputy President R I Hanger AM QC
Senior Member D Connolly18 July 2022
YKDD (‘applicant’) is a minor who has been diagnosed with a genetic disorder called DiGeorge Syndrome. He requires a high level of support to enable his functioning every day. He is non-verbal and is required to use a wheelchair. He is a participant of the National Disability Insurance Scheme (‘NDIS’).
The scheme is regulated by the National Disability Insurance Scheme 2013 (Cth). On 4 February 2021, the applicant received a new NDIS plan. An internal review was sought by the applicant and on 10 June 2021 the respondent notified the applicant that the original decision was correct.
On 15 June 2021 an application was made to the Administrative Appeals Tribunal (‘Tribunal’) for review.
On 8 October 2021 the Tribunal ordered that in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) the decision under review made under subsection 100(6) of the NDIS Act on 10 June 2021 be remitted to the Chief Executive Officer of the respondent for reconsideration. This is a mechanism to allow plans to be varied or extended during the review process.
On 28 October 2021 a new plan document was provided to the applicant. Upon receipt of this plan, the Tribunal can take that decision to be the decision under review. On 15 November 2021, under subsection 28(1) of the AAT Act, the applicant made a request to the respondent to be given “a statement in writing 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 new plan decision.
The respondent advised the applicant pursuant to subsection 28(1AA) that it was of the opinion that the applicant is not entitled to be given the statement requested.
By application dated 20 January 2022 the applicant applied to this Tribunal:
(a)to determine whether the applicant is entitled to be given a statement of reasons pursuant to subsection 28(1) of the AAT Act; and
(b)alternatively, to declare pursuant to subsection 28(5) of the AAT Act that the statement does not contain one or more adequate particulars or a reference as outlined in section 28(5)(k)-(c) of the AAT Act.
Although the applicant originally foreshadowed that an application would be made under section 28(5) of the AAT Act the applicant submits that it can make the application under subsection 28(1AC).
Further, the applicant applies under subsection 38(1) for the Tribunal to order the Respondent to lodge additional statements.
Relevant legislative provisions
Section 28 of the AAT act provides relevantly:
(1) Subject to subsection (1AAA) if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing 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, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant such a statement.
…
(4) The applicant is not entitled to make a request under subsection (1) if:
(a) the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; for
(b) a statement in writing 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 has already been given to him or her.
(5) An applicant who has been given a statement under subsection (1) may apply to the tribunal for a declaration that the statement does not contain one or more of the following: –
(a) adequate particulars of findings on material questions of fact;
(b) an adequate reference to the evidence or other material on which those findings were based;
(c) adequate particulars of the reasons for the decision.
Section 42D of the AAT act provides:
(1) at any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or they had reached an agreement in respect of the NDIS plan and so far as is relevant in order was made in the following terms: – please insert
(b) vary the decision; or
(c) set aside the decision and making you decision in )substitution for the decision set aside
…
(3) if the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4) If the person sits the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
(5) The person must reconsider the decision and do one of the things mentioned in paragraphs (2) (a), (b) and (c), within whichever of the following periods is applicable:
(a) if the tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision – that period;
(b) in any other case – the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) if the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2) (a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
The applicant submits that the decision made under section 42D takes the place of the internal review decision and should for the purposes of the AAT Act including section 28, be taken to be a decision in respect of which a request for reasons can be made. In the alternative the applicant submits that this Tribunal should exercise its powers under section 38 of the AAT Act to order the provision of additional information from the respondent. The respondent argued that on the correct interpretation of the relevant provisions, the respondent does not have to provide a statement of reasons.
Counsel for both applicant and respondent argued the matter very fully. However late in the day after a short adjournment counsel advised that they had resolved their differences in respect of the applicant’s NDIS plan. So far as is relevant the tribunal made an order under section 42C of the AAT Act in the following terms:
… Subject to paragraph (ii) below, the decision under review, relating to the statement of participant supports dated 28 October 2021 (Decision), made following an order dated 8 October 2021 under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act), be affirmed.
(ii) For the earlier period of 4 February 2021 to 27 October 2021, the supports identified in the invoices provided by the Applicant to the Respondent were reasonable and necessary and will be funded by way of reimbursement under the National Disability Insurance Scheme to the amount of $368,446.33.
5. The Tribunal notes that Mr Hanks QC, appearing for the Respondent, gave an undertaking that the NDIA will reimburse the Applicant the amount of $368,446.33, as set out at paragraph 3.(ii) above.
6. The Tribunal notes that the parties agree to the following:
(i) If the Tribunal makes an order in the terms above, the proceeding for review of the Decision will conclude.
Counsel for the applicant submitted that we should still determine the arguments advanced in respect of section 28 and section 42D of the AAT Act. We have decided not to do so.
If we found in favour of the respondent’s contentions that would be the end of the matter subject to a possible appeal. If we found in favour of the applicant’s contentions, the obligation would lie on the respondent to provide a further set of reasons setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision made under section 42D of the AAT Act. That might entail a little or a great deal of work for someone employed in respect of the NDIS. We have formed the view that such an exercise would be of no utility.
Section 42B empowers the Tribunal to dismiss an application if the Tribunal is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance, or has no reasonable prospect of success, or is otherwise an abuse of the process of the Tribunal. That power can be used at any stage of the proceedings.
In Christopher Paul Williams and Australian Electoral Commission and the Greens Party (Joined) [1995] AATA 160 (Williams), the Tribunal said:
“In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect.…… Accordingly in our opinion, whilst the proceedings were not instituted vexatiously, they have become vexatious. They have been asked ever since 22 December 1992, when the only interest of the applicant which could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further. Accordingly, we consider that the application should be dismissed as requested.”
Williams was approved in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 (10 February 2006) by the Full Federal Court. Emmett J held at [97] ‘Where an interest that gives an applicant standing to commence a proceeding in the Tribunal ceases to exist, that applicant has no interest in pursuing the proceeding further.’
The Tribunal’s decision in Reddish and Civil Aviation Safety Authority [1999] AATA 721[1] sets out the same principle; namely that an application for review made to the Tribunal may be dismissed as being frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
[1] See paragraph [33]: … The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. …
Similar reasoning applies in this matter. The substantive issue in these proceedings has been resolved by the decision of the Tribunal dated 14 March 2022. To proceed further would achieve nothing. As a result, while these proceedings were not frivolous or vexatious at the outset, they have now become so.
The application is dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC, and Senior Member D Connolly.
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Dated: 18 July 2022
Date of hearing:
28 February 2022
Applicant Counsel:
Mr Thomas Wood
Applicant:
Northern Territory Legal Aid Commission
Respondent Counsel:
Mr Peter Hanks QC
Respondent Junior Counsel
Mr Paul D’Assumpcao
Respondent Solicitor
Sparke Helmore
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