ZKTN and National Disability Insurance Agency

This matter concerned an application by ZKTN (the applicant) against the National Disability Insurance Agency (the respondent) before the Administrative Appeals Tribunal. The dispute centred on the characterisation of a decision made by a delegate of the respondent on 15 September 2016, and whether that decision was one that the Tribunal had jurisdiction to review. The applicant contended that the decision was an approval of a statement of participant supports under section 33(2) of the National Disability Insurance Scheme Act 2013 (the Act), while the respondent argued it was a decision not to review a participant's plan under section 48(2) of the Act, a decision over which the Tribunal's jurisdiction was limited.

The primary legal issue before the Tribunal was to determine the true nature of the delegate's decision of 15 September 2016. Specifically, the Tribunal had to ascertain whether this decision constituted an approval of a statement of participant supports, thereby falling within its reviewable jurisdiction, or if it was solely a decision not to conduct a review of the participant's plan, which would limit the Tribunal's power to review. This characterisation was critical for establishing the Tribunal's jurisdiction under the Act.

The Tribunal found that the delegate's decision on 15 September 2016 had a dual aspect. While acknowledging that the delegate had decided not to review the participant's plan, as indicated by the phrase "will not review," the Tribunal concluded that the delegate had also, in substance, decided to approve the statement of participant supports. The Tribunal reasoned that the delegate's statement that "the current approved statement of participant supports has been found reasonable and appropriate and no revision will be made" effectively confirmed the original decision to approve the statement of supports under section 33(2) of the Act. The Tribunal applied the principle that decisions should be construed according to their plain and ordinary meaning and that express reference to a statutory provision is not always required for a decision to be legally effective. The Tribunal was satisfied that the decision was made by a duly delegated decision-maker.