YLLJ and National Disability Insurance Agency - [2021] AATA 2780

YLLJ and National Disability Insurance Agency [2021] AATA 2780 (11 August 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/6485
Re:YLLJ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:11 August 2021
Place:Melbourne

The Tribunal decides that it has jurisdiction in respect of supports that were identifiable at the time of the decision under review.
...[sgd]..................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction of Tribunal under National Disability Insurance Scheme – application for review of decision to approve statement of supports – where additional supports advanced at the merits review stage – Tribunal has jurisdiction in respect of supports that were identifiable at the time of the decision under review
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
Cases
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Fuad and Telstra Corporation Limited [2004] AATA 1182
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
National Disability Insurance Agency and Napper [2021] AATA 2363
QDKH and National Disability Support Agency [2021] AATA 922
Shi v Migration Agents Registration Authority [2008] HCA 31
Williamson and National Disability Insurance Agency [2019] AATA 2944
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
11 August 2021
BACKGROUND

On 9 October 2019 the Applicant sought review by the Tribunal of an internal review decision by a delegate of the Respondent dated 12 September 2019. The matter came before me for a jurisdiction hearing on 8 June 2021.
Since the lodging of YLLJ’s application the matter has been subject to two pre-hearing conferences and a conciliation, and the matter was remitted twice to the National Disability Insurance Agency (NDIA) for re-consideration under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). These remittal decisions permitted the extending of YLLJ’s approved plan, and ensured the ongoing availability of existing supports.
YLLJ’s circumstances are that she has fibromyalgia, incontinence, post-traumatic stress disorder and major depressive illness. She experiences pain, fatigue and mobility issues. Three of YLLJ’s children live with her and two adult children live nearby with their father.
YLLJ’s application for review acknowledges that, as a result of the internal review decision, funds were added to her plan, but states that the new funding is vastly inadequate for her growing disability support needs. The decision was also said to have failed to take into account information that accompanied the request for internal review regarding the level and type of supports and therapies required.
Each party lodged submissions on jurisdiction and submissions in reply. Due to the provision of a submission by the Respondent shortly prior to the interlocutory hearing, the Applicant was invited to lodge a further submission in reply following that hearing. The Respondent also lodged documents under s 37 of the AAT Act (T documents). Various statements of issues and position have been lodged during the life of this matter. The Applicant’s initial statement of issues contains a list of supports sought, and two further lists of supports have also been lodged.
An initial plan was approved following YLLJ’s admission to the National Disability Insurance Scheme (NDIS) in 2018. There are no references made to this early plan in the submissions.
What is described in T documents as the ‘original plan’ was approved on 18 February 2019 (T17) and the total budget was just over $45,000 allocated across a number of support areas. An interaction record of the same date (T15) states that several supports were declined: ‘Low Cost/Risk AT’; ‘4 hours per day assistance with self-care (4 hours per week has been included)’; and ‘Additional hours for therapist assessment for the purpose of assessing and applying for assistive technology related to pain / mobility issues’.
From the T documents it appears that a relatively wide range of material was with the NDIA prior to the approval of the original plan. It includes specialist reports outlining diagnoses and describing, for example, mental health treatment. One of these reports makes a passing reference to the benefit of interpersonal therapy, without specifying further (T4). Another report makes a brief reference to the benefit of fitness training (T9A). One is a quote for a list of assistive technologies, largely common kitchen items, and a shower chair (T10).
Internal review was sought by a support coordinator on YLLJ’s behalf on 17 May 2019 (T11). The request, via email, attached medical evidence (reports of a physiotherapist and occupational therapist (T11A and 11B)), and a completed NDIS form ‘Application for a review of a reviewable decision’ (T11C).
The report from the physiotherapist recommends fortnightly physiotherapy, and weekly Pilates and aquatic physiotherapy (T11A). The report of the occupational therapist makes quite specific recommendations for 77 hours of various forms of support under a range of headings, and dealing with matters such as personal care, household help, and community access (T11B). This report also makes general recommendations for consumables and assistive technologies.
Specific outcomes sought in the request for internal review were as follows:
(a)ongoing support in the form of occupational therapy, water aerobics and psychology;
(b)fortnightly physiotherapy, weekly Pilates and weekly aquatic physiotherapy; and
(c)additional funding for:
(i)exercise physiologist for assessment and ongoing support, 10 hours – $1,486.90;
(ii)personal training weekly for hydrotherapy and gym support, 104 hours – $5.794.88; and
(iii)weekly group training (Pilates), 52 hours – $2,577.12.
The outcome of the internal review decision dated 12 September 2019 was conveyed in a letter (T2) which states that the internal reviewer set aside the original decision, and included additional reasonable and necessary supports in the form of ‘additional funding’ for daily activities, social community and civic participation, and improved health and wellbeing. The decision states that evidence provided confirms a diagnosis of a permanent neurological condition justifying the additional supports, and adds descriptions of two specific supports being the assistance of an exercise physiologist, and funding for a support worker to attend the gym and other exercise activities (with no hours specified).
A revised plan of the same date (T18) accordingly states a total budget of $95,257.91. The Respondent’s statement of issues (at [6]) describes a breakdown of supports in the revised plan. Some of the figures and supports identified in this document readily correlate to the revised plan, such as transport ($1,784), and support coordination ($4,231.25), however, consumables ($1,383.24) is not an item that is visible in the revised plan. Some funding is broken down into specific activities with hours per week specified (such as 14 hours per week assistance with personal care, 15 hours per week for exercise physiology, or approximately 45 hours per year for therapies in the improved daily living category) but these details are not apparent from the revised plan itself.
As noted, lists of supports have been provided following lodgement of YLLJ’s application for review. These are, in summary:
(a)list of supports, May 2020;
(i)nine specified core supports, plus assistive technology/consumables to be confirmed;
(ii)eight specific capacity-building supports being consultations or therapy types; and
(iii)six specified home and home-modification supports, including funding for electricity and gas;
(b)statement of issues, October 2020:
(i)increased funding for community support;
(ii)funding for respite;
(iii)increased funding for a range of specified consumables (eight products identified) and low-cost equipment and assistive technology (seven items identified);
(iv)increased hours for various specified therapies (eight forms of consultation or training identified); and
(v)funding for electricity consumption; and
(c)updated statement of issues, February 2021:
(i)increased funding for support worker for in-home care and assistance;
(ii)funding for a support worker in the evenings;
(iii)funding for home maintenance;
(iv)funding for short term accommodation;
(v)increased funding for consumables (eight products identified) and funding for a continence nurse;
(vi)funding for low-cost and assistive technology (thirteen items identified);
(vii)increased hours for various therapies (six consultations or training identified) and funding for practitioner travel expenses;
(viii)funding for electricity consumption; and
(ix)funding to cover cost of smartphone and data.
A range of reports and assessment material post-dating the application for review has also been lodged with the Tribunal. I also note that the Applicant’s representative has lodged participant plans for three of the Applicant’s children dating from April 2020.
SUBMISSIONS
Respondent’s submissions
It was initially submitted that the Tribunal only has jurisdiction in relation to supports for which there is a reviewable decision, being those that were put before the CEO when exercising power under s 100(6) of the National Disability Insurance Scheme Act 2013 (NDIS Act) (that is, the internal review decision). The decision of QDKH and National Disability Support Agency [2021] AATA 922 (QDKH) (at [25] and [32]) was cited in support. On this basis, it was contended only the three items: exercise physiology, personal training, and weekly group training, were put before the decision maker on review.
It was also submitted that a range of other material was before the internal review decision maker, some of which relate to supports which the Applicant now contends are reasonable and necessary supports (T10 and T11). However, the request for review (T11C) should be considered as an election to put the particular matters raised before the decision maker on review.
It was also submitted that while two remittal decisions have been made, no reference was made to any other supports, and relatively short timeframes were specified for the reconsideration decision, preventing consideration of additional supports.
The Respondent’s position was amended in a subsequent submission. It was contended, specifically, that the only supports that are within the Tribunal’s jurisdiction are those put before the CEO on internal review, and also considered earlier in the original decision. On this basis it was contended that the supports available for consideration are, specifically:
(a)exercise physiologist for assessment and ongoing support, 10 hours – $1,486.90, to the extent this comprises ‘additional hours for therapist assessment …’ as sought at first instance; and
(b)‘additional Core Daily activities funding for assistance in the home’ as sought in internal review, to the extent it comprises ‘4 hours per day assistance with self-care’ as sought at first instance.
The qualifying language adopted in submissions describing what was sought at first instance reflects NDIS interaction notes (T15) from the time of the original decision.
It was also contended that consideration needs to be given to the overall structure of the scheme in the NDIS Act. It was submitted that the appropriate avenue to address changed circumstances is s 48 which facilitates preparation of a new plan (s 48 review), and this should not be confused with merits review. An unscheduled review may include new information under s 50, and may include new supports not previously sought.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16) (at [61]) was cited for the proposition that where a reviewable decision has been confined to any particular issue, and reasons are given on that particular issue, the Tribunal may only consider that ground. The approach in CPJ16 was supported by reference to Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi).
The Respondent’s representative stressed, contrary to the earlier submission, that its position was not based on onus or election on a participant’s behalf, but rather that it cannot be ignored that review was sought on a different ground to that now being pursued. It was submitted the form used to lodge the internal review operates as a written request for review as provided for in s 100(3) of the NDIS Act. While it is not required, the form can operate to identify the scope of review.
It was further submitted that reviewing an expanded list of supports as proposed by the Applicant would have consequences including for the Tribunal’s capacity to conduct reviews in an economical and quick manner (s 2A(b) of the AAT Act). Finally, it was submitted that a procedure is provided for the Tribunal to remit a matter under s 42D(1) of the AAT Act for further consideration were a request to be made for altered supports, following which review would resume under s 42D(4).
Applicant’s submissions
The Applicant’s representative contended that YLLJ has greater disability support needs than those provided for in the internal review decision. As the decision under review is the approval of a statement of participant supports, the correct and preferable outcome is determined on the material before the Tribunal at the time of its decision. Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (Frugtniet) (at [51]) was cited in support of the view that the Tribunal is not limited by the grounds of internal review, and should properly have regard to recommendations or different supports raised in later expert reports.
It was submitted that the NDIS Act does not provide for a participant to put forward particular supports, whether before the original decision maker, or the decision maker on internal review. This position is reinforced by Rule 2.4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 which requires consideration be given to a requested support, and because there is provision made in the NDIS Act for participants to be supported to receive reasonable and necessary supports (s 4(5)). This reflects the assumption that some people with a disability may have difficulty in communication, interaction and self-management.
It was submitted that the form used at internal review is not a required document, material may be put forward orally, and the form in any event does not invite the particularisation of claims. Further, the terms of the internal review decision indicate that the decision maker was not constrained by the material in the form submitted.
It was also submitted that the decision in QDKH should be distinguished for its apparent reliance upon the case of Fuad and Telstra Corporation Limited [2004] AATA 1182 (Fuad), which arose in a different statutory context.
With respect to the Respondent’s argument about the scheme more widely, the Applicant’s representative submitted that s 48 review retains its core function regardless of a matter proceeding to merits review. Indeed, there is no obligation to conduct such a review, in contrast to merits review which is as of right.
It was also contended that CPJ16 should be distinguished in the NDIS context, and does not assist in the way contended by the Respondent. Assuming the review were limited to what was previously considered by an earlier decision maker, it is not clear why it would be confined to the limited material identified by the Respondent. Regard should be had to the decision (being the statement of participant supports), and various other documents before the decision maker (including the Typical Support Package Assessment Tool, referred to in the Operational Guidelines).
It was further submitted that this approach would not lead to an unconstrained and ongoing consideration process, as applicants would need an evidential basis for requested supports. Moreover, the Tribunal has procedural power (s 25(4A) of AAT Act) to limit the scope of review.
Oral submissions
At the interlocutory hearing it was submitted on the Respondent’s behalf that:
(a)a decision on review by the Tribunal is not ‘at large’;
(b)only supports that are congruent with, or that overlap with, those put before the internal reviewer can be within jurisdiction;
(c)the NDIS Act provides for unscheduled plan review in addition to merits review; and
(d)later information or evidence may be relevant and give rise to other outcomes, but these would ordinarily be increases in the cost or level of an existing support, or the provision of a comparable support to one requested.
On the Applicant’s behalf it was submitted that:
(a)the key lies in identifying the decision under review, being the approval of a statement of participant supports, including reaching a state of satisfaction as to what is reasonable and necessary under s 34 of the NDIS Act;
(b)as the Tribunal ‘stands in the shoes’ of the original decision maker, the whole subject matter of the decision is open for consideration with regard to any new material arising;
(c)it would be a strange outcome were the CEO to fail to take something into account in making a decision, and for this to not to be available to a later decision maker; and
(d)conventionally merits review is unconstrained, albeit evidence must be relied upon to substantiate the findings made.
Applicant’s further submission
This submission restated contentions with respect to the nature of s 48 unscheduled plan review. It also elaborated on the submissions made with respect to the relevance of CPJ16. The submission noted once more that the best record of the decision under review was the statement of participant supports, and that a participant may legitimately seek review of supports that were not ‘requested’ in some form.
CONSIDERATION
With respect to the nature of the scope of the review as defined in the NDIS Act, it has been decided previously by the Tribunal that in making a decision under s 33(2) of the NDIS Act, there are several elements that may become subject to review (Williamson and National Disability Insurance Agency [2019] AATA 2944 at [30]). This includes, as here, a review of reasonable and necessary supports, which are integral to a decision to approve a statement of participant supports.
The process that unfolds was earlier clarified in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (at [93]). Once a support is identified and described, the question is whether a decision maker is satisfied that the support, as identified, is reasonable and necessary, for the particular participant. It may be that a differently identified support is considered reasonable and necessary, which is to be determined on probative evidence. Supports are to be construed broadly, and should be understood as a ‘practical description of the means by which a person with a disability is assisted’ (at [88]).
The authorities with respect to the task at the merits review stage have been identified by the parties. As stated by Kiefel J in Shi (at [133]):
Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal’s purpose, of reviewing the decision in question. As Sheppard J said in Secretary to the Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.
(Citations omitted.)

This passage was cited in CPJ16 (at [64]) where Rares J observed that none of the justices in Shi considered that the Tribunal was ‘at large’ in conducting its review. His Honour went on to add (at [66]) that the task in determining what is the correct or preferable decision: ‘… must be connected to the grounds of the decision to exercise the statutory power the subject of review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration ...’.
Shi was also cited in Frugtniet, for example at [51], where some emphasis is placed on the position of the Tribunal described as standing in the shoes of the decision maker: ‘so as to determine for itself on the material before it the decision which can, and which it considers should, be made … the AAT must answer the same question the primary-decision maker was required to address …’.
I also note the Tribunal in National Disability Insurance Agency and Napper [2021] AATA 2363 (at [19]) cited a passage in Frugtniet, at [15], where it was said that the AAT ‘cannot take into account matters that were not before the original decision-maker where to do so would change the nature of the decision … or the question put before the original decision-maker’.
I will not attempt to fully parse the authorities cited, including other Tribunal decisions on NDIS jurisdiction including QDKH, of which there are now several, although I have given them a deal of thought. Equally, rather than responding to each of the subsidiary arguments raised by the parties, it is more helpful to deal with the main issue. Here the submissions place different emphasis on the significance of the decision as made, and the statutory question being addressed, in setting the boundary of the review.
In this case, the internal reviewer, acting under s 100(6) of the NDIS Act, decided to set aside the original decision and substitute a new decision. While I accept the fact that, in doing so, certain specific changes were highlighted (T2), the substitution in this case effectively took the form of a new, expanded plan. I set out above some information about the scope of the revised plan, and observed that not all supports said to be part of the plan are necessarily obvious from its face.
There was discussion in submissions and at the interlocutory hearing as to the significance of various written records, and it was contended for the Applicant that the best record of the decision is the revised plan. As noted, some interpretation is required to fully appreciate the content of the plan. It appears, however, that a number of supports advanced following the lodging of YLLJ’s application do not ‘overlap’, in the language of the Respondent, with those under consideration earlier. Nonetheless, as was submitted at the interlocutory hearing for the Applicant, the enlarged scope of the revised plan indicates that a fundamental reassessment of YLLJ’s situation had been made. This is reinforced by the correspondence which noted that evidence of a permanent diagnosis had been provided.
Leaving aside the question of any distinction there may be under the legislation between the internal review decision and the revised plan (which was not specifically the subject of submissions), I think the better view is that the considerations of the internal review decision were broader than those contended by the Respondent. The particular facts of this matter therefore perhaps explain the apparent divergence in the respective positions advanced by the parties.
I consider that the authorities make it clear that it is the decision made that is under review, and this therefore involves determining the supports that were identifiable at the time of the decision under review. The correct and preferable decision may involve specifying a support that was not highlighted in any record of decision-making, but otherwise arises from the material or information before the NDIA. It might also be that material provided during merits review may lead to a change in the characterisation of an existing, identified, support.
It would be preferable to make a clear finding about what supports I consider are within the Tribunal’s jurisdiction in this matter. However, this objective is difficult for the reasons I have mentioned, and because the matter was presented as a legal question on jurisdiction.
Due to the nature of the decision in this matter further submissions will be needed from the parties with respect to the identifiable supports, and a directions hearing will be scheduled to address the future conduct of the application.
DECISION
The Tribunal decides that it has jurisdiction in respect of the reasonable and necessary supports that were identifiable at the time of the decision under review.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...[sgd]....................................................................
Associate
Dated: 11 August 2021

Date of interlocutory hearing: 8 June 2021

Date final submissions received: 16 June 2021

Counsel for the Applicant: Frances Gordon

Solicitors for the Applicant: Victoria Legal Aid

Advocate for the Respondent: Alexander Gent

Solicitors for the Respondent: HWL Ebsworth Lawyers

Date of interlocutory hearing:	8 June 2021
Date final submissions received:	16 June 2021
Counsel for the Applicant:	Frances Gordon
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Alexander Gent
Solicitors for the Respondent:	HWL Ebsworth Lawyers