ZKTN and National Disability Insurance Agency
[2017] AATA 744
•6 March 2017
ZKTN and National Disability Insurance Agency [2017] AATA 744 (6 March 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/5487
Re:ZKTN
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:6 March 2017
Date of written reasons: 22 May 2017
Place:Brisbane
The decision of the respondent of 15 September 2016 is a decision to confirm the decision to approve the statement of participant supports under section 33(2) of the National Disability Insurance Scheme Act 2013 which has been reviewed under section 100(6) of the Act and the Tribunal has jurisdiction to review the decision of the respondent of 15 September 2016.
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Deputy President Dr P McDermott RFD
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – characterisation of decision made by delegate of Chief Executive Officer – whether decision not to review plan or decision approving statement of participant supports – decision not to review plan and decision approving statement of participant supports
PRACTICE AND PROCEDURE – JURISDICTION – Tribunal’s jurisdiction to review decisions under the National Disability Insurance Scheme Act 2013 limited to those made by a reviewer under s 100(6)
LEGISLATION
National Disability Insurance Scheme Act 2013 ss 9, 33, 48, 99, 100
Administrative Appeals Tribunal Act 1975
CASES
Collector of Customs (NSW) and Brian Lawlor Pty Ltd (1979) 24 ALR 307
Telstra Corporation Limited and Kotevski (2013) 299 ALR 346
Nairn and National Disability Insurance Agency [2017] AATA 242
REASONS FOR ORAL DECISION
Deputy President Dr P McDermott RFD
22 May 2017
BACKGROUND
The applicant is a participant in the National Disability Insurance Scheme (the “NDIS”) which is administered by the respondent.
The NDIS plan for the applicant includes the statement of participant supports in Part 3 of the plan. It appears that a delegate of the respondent approved the applicant’s NDIS plan on or after 31 May 2016, the date of the decision would appear to be a date before 16 June 2016[1].
[1] Which is the date of a letter which appears as document T9.
The decision by the delegate to approve the statement of participant supports in the NDIS plan for the applicant would have been made under section 33(2) of the National Disability Insurance Scheme Act 2013 (the “Act”). This decision is a reviewable decision under section 99(d) of the Act.
The applicant made a request for the review of the NDIS plan on 29 August 2016. The applicant stated in the application that “the supports in the plan do not meet L’s support needs or goals, the supports in the plan reduce K’s capacity as a carer, there is no provision for respite in the plan despite being offered respite in the planning meeting, there is no provision for PMA or financial intermediary”[2].
[2] T11 at p. 42
A delegate of the respondent made a decision on 15 September 2016 as follows:
The decision has been made to confirm the original decision. As a result the NDIA will not review of [sic] the plan under section 48 of the NDIS Act and the current approved statement of participant supports has been found reasonable and appropriate and no revision will be made.[3]
[3] T4 at p. 11
On 13 October 2016, the applicant then applied for a review of this decision to approve the statement of supports with the Tribunal.
LEGISLATION
Section 9 of the Act defines “supports” to include general supports, the definition of which refers to the meaning given in section 13(2):
(a) a service provided by the Agency to a person; or
(b) an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
Section 33(2) of the Act provides:
33 Matters that must be included in a participant’s plan
…
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
Section 48(2) of the Act provides:
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review
Section 99 of the Act relevantly provides:
99 Reviewable decisions
Each of the following decisions of the CEO is a reviewable decision:
…
(d) a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan;
…
(f) a decision under subsection 48(2) not to review a participant’s plan;
Section 100 of the Act provides:
100 Review of reviewable decisions
(5) If:
(a)the CEO receives a request for review of a reviewable decision; or
(b)the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(c)to whom the CEO’s powers and functions under this section are delegated; and
(d)who was not involved in making the reviewable decision.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
SUBMISSIONS
Submissions of respondent
The respondent informed the Tribunal that it took the applicant’s review request as a request under section 48(1) of the Act. According to section 48(2) of the Act, the respondent then has a statutory time frame of 14 days to decide whether or not to conduct the review.
The respondent did not make a decision in relation to that request by 13 September 2017.
Accordingly the CEO is “taken to have decided not to conduct the review” under section 48(2) of the Act.
Therefore, the respondent submits that the Tribunal only has jurisdiction to review the respondent’s decision not to conduct a plan review, according to sections 48(2) and 99(f) of the Act.
Submissions of applicant
The applicant submits that:
(a)the respondent made a reviewable decision to approve the statement of participant supports, which makes up a part of the overall NDIS plan, on 31 May 2016;
(b)the request made on 29 August 2016 was a request for a review of the statement of participant supports; and
(c)the delegate made a decision on 15 September 2016 to affirm the original decision to approve the statement of supports.
The applicant seeks an order that the decision under review by the Tribunal is a decision by the respondent to approve a statement of supports under section 33(2) of the Act which the Tribunal has jurisdiction to review.
CONSIDERATION
I am satisfied that the decision made on 15 September 2016 was made by a duly delegated decision maker according to section 100(5)(c) of the Act.
In the course of submissions, both parties have made reference to a number of cases. I have particularly found the decision of Chief Justice Bowen in Collector of Customs (NSW) and Brian Lawlor Pty Ltd (1979) 24 ALR 307 to be instructive, particularly at page 314 where his Honour stated:
The [Administrative Appeals Tribunal] Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and law.
The decision of Telstra Corporation Limited and Kotevski (2013) 299 ALR 346 was also cited. In this particular case, I find that the case of the applicant is somewhat stronger than that in Kotevski because, to my mind, the respondent’s delegate has considered the issue of the participants’ supports in their decision of 15 September 2016.
Nairn and National Disability Insurance Agency [2017] AATA 242 is a case where the parties in that application had agreed that the decision was made under section 48(2) of the Act; that is quite distinguishable from this case where there is no such agreement by the parties.
This is an early stage of the implementation of the NDIS in the region under consideration and it would be unfair to be unduly critical of the wording of the decision of 15 September 2016. A fair reading of the decision made by the delegate of the respondent reveals that the decision has a two-fold aspect. The respondent is correct that the decision-maker has decided under section 48 of the Act not to review the participant’s plan. This is apparent from the use of the words “will not review” in the decision. However, as contended by the applicant, the decision-maker has also in my view made a decision to approve the statement of participant supports in the participant’s plan and not to make any changes to it.
The language of the decision, in its plain and ordinary meaning, should be construed to be a decision to approve the statement of participant supports in a participant’s plan. In stating that “the current approved statement of participant supports has been found reasonable and appropriate and no revision will be made”, the decision-maker has made a decision to confirm the decision made under section 33(2) of the Act to approve the statement of participant supports in a participant’s plan.
It is true there is no reference in the decision on 15 September 2016 to section 33(2) of the Act. However, there is no requirement that the decision-maker expressly refer to this statutory provision in any decision.
The wording of the decision in stating that “the current approved statement of participant supports has been found reasonable” can on a fair reading be regarded as a decision to again approve the statement of participant supports in a participant’s plan. The use by the delegate of the words “found reasonable” in the decision can be regarded as synonymous with the word “confirming” as it is used in section 100(6)(a) of the Act. In using the words “found reasonable” the delegate has effectively approved or confirmed the original decision: the word “approve” has been defined to include “confirm”[4].
[4] Concise Oxford Dictionary (6th ed), p. 46
In terms of jurisdiction, this Tribunal can review the decision of the respondent under section 103 of the Act (see also section 25(1) of the Administrative Appeals Tribunal Act 1975). This is because the decision of 15 September 2016 is a decision by a reviewer under section 100(6)(a) of the Act confirming the reviewable decision which has been made under section 33(2) of the Act.
CONCLUSION
The Tribunal has jurisdiction to review the decision of 15 September 2016.
The Tribunal acknowledges the assistance provided by the legal representatives of the parties.
DECISION
The decision of the respondent of 15 September 2016 is a decision to confirm the decision to approve the statement of participant supports under section 33(2) of the National Disability Insurance Scheme Act 2013 which has been reviewed under section 100(6) of the Act and the Tribunal has jurisdiction to review the decision of the respondent of 15 September 2016.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 22 May 2017
Date(s) of hearing: 6 March 2017 Counsel for the Applicant: Matt Black Solicitors for the Applicant: Legal Aid Queensland Respondent: Adrian Pascale
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