ZWXT and National Disability Insurance Agency

ZWXT and National Disability Insurance Agency [2023] AATA 2724 (15 August 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/1833
Re:ZWXT
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:15 August 2023
Place:Melbourne

Pursuant to s 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal exercises its discretion to refuse requests by ZWXT’s father, to summon each of the four NDIA staff members referred to in paragraph [7] of the attached Reasons for Decision, to give evidence at the substantive hearing of this proceeding.
...............................[sgd].........................................
Senior Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – Applicant is child participant in the NDIS – Applicant’s father made requests for summonses to give evidence, addressed to four staff members of the National Disability Insurance Agency (NDIA) – whether evidence likely to be adduced from each of the NDIA staff members can reasonably be expected to shed light on the issues in this proceeding – consideration of the issues arising in this proceeding – consideration of the task of the Tribunal when undertaking merits review in the context of this application – Tribunal exercises its discretion under s 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to refuse each of the requests to summon the four named NDIA staff members to give evidence at the hearing
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 2A, s 33, s 40, s 40A, s 42D
National Disability Insurance Scheme Act 2013 (Cth), s 74, s 100, s 103
REASONS FOR DECISION
Senior Member K. Parker
15 August 2023
BACKGROUND

The Applicant, ZWXT, is a child participant in the National Disability Insurance Scheme (NDIS). He is 13 years old and has the condition of Down syndrome. ZWXT’s father, F, has parental responsibility for ZWXT under s 74 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and may do certain things on his behalf.
On 8 March 2022, pursuant to s 103 of the NDIS Act, ZWXT, by F, lodged with the Tribunal an application for review of a decision made on 2 February 2022 by a “reviewer” (being a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA)), under s 100(6) of the NDIS Act.
On 26 May 2023, the Tribunal remitted this matter for reconsideration by the NDIA, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The NDIA made a decision pursuant to the remittal, on 21 July 2023, resulting in the approval of a new statement of participant supports (SOPS) for ZWXT. The new SOPS approved total funding for supports for ZWXT of $18,113.67 over a notional period of six months. By operation of s 42D(4) of the AAT Act, this application for review before the Tribunal is taken to be an application for review of the decision made by the NDIA on 21 July 2023, pursuant to the remittal (Decision Under Review).
On 16 May 2023, this application was listed for a substantive hearing on 17 and 18 August 2023. At this time, ZWXT was legally represented by AED Legal Centre. AED Legal Centre has lodged ZWXT’s submissions and evidence in this proceeding in preparation for the upcoming substantive hearing.
On 14 July 2023, the Tribunal received an email from AED Legal Centre stating that it no longer acted for ZWXT in this matter. In light of the change in representation of ZWXT, the Tribunal requested that an Associate conduct an outreach telephone call to F, to check if he was ready for the upcoming substantive hearing. During this telephone call, F advised the Associate that he would like certain NDIA staff members to be present at the hearing so that he could cross-examine them. ZWXT was subsequently advised, in writing, about the process for making a request(s) that the Tribunal issue a summons(es) compelling a person(s) to give evidence at a hearing.
Specifically, correspondence from the Registry of the Tribunal sent to F, provided him with the link to the Tribunal’s webpage containing information and pro forma documents for a summons request to made and a draft summons to be lodged with the Tribunal. F was advised as follows:
The Applicant’s father may wish to bear in mind before deciding whether to make such a request, that the role of the Tribunal in this proceeding is to stand in the shoes of the original decision maker and to make a decision afresh about what should be included in the Applicant’s statement of participant supports. For this reason, the history as to how and why the NDIA made the internal review decision or indeed the original decision to approve the statement of participant supports for the Applicant, is not relevant to the decision to be made in this proceeding, because the Tribunal’s central task, in essence, to remake the decision.
On 4 August 2023, F lodged draft summonses addressed to four different NDIA staff members, specifically:
(a)Mr AT, the NDIA case manager responsible for giving instructions to Mills Oakley Lawyers in this proceeding;
(b)Mr CP, the NDIA case planner involved in the plan review of ZWXT’s NDIS plan;
(c)Ms MR, the delegate of the CEO of the NDIA who made the original decision to approve a SOPS for ZWXT; and
(d)Ms JR, the delegate of the CEO of the NDIA who made the subsequent internal review decision under s 100(6) of the NDIS Act.
On 7 August 2023, ZWXT lodged four “request for summons” forms, setting out reasons for ZWXT’s summons requests. On each form, F provided the following identical reasons for the request for summons, as set out below:
The Applicant requests a summons to give evidence for [name of NDIA employee], NDIS employee, to enable [the named NDIA employee] to take time off from [the named NDIA employee’s] employment for the upcoming hearing.
The Applicant has proposed that [the named NDIA employee], be called as a witness given a previous indication from the Conference Registrar that the Tribunal may be assisted by [the named NDIA employee] being made available to give evidence at the hearing.
On 9 August 2023, the Tribunal requested that F provide information in respect of each request, specifically:
(a)why the Tribunal should issue the summonses;
(b)the type of evidence that F considered each staff member will be questioned about and give at the hearing if summonsed to do so; and
(c)how this evidence would shed light on the issues arising in the proceeding.
F refused to provide the requested information. He contended that the wording used in his request forms was the exact same wording used by the NDIA in its summons requests, which had been approved and issued to ZWXT’s treating psychologist and behavioural therapist. F questioned why there were different requirements for the NDIA’s summons requests, compared to ZWXT’s summons requests. The Tribunal instructed the Associate to write to F to provide the following explanation as to why the requirements were different and why the information referred to in paragraph [9] was being sought by the Tribunal:
a. The summonses requested by the NDIA are addressed to the Applicant's therapists. Self-evidently, evidence to be adduced by those witnesses is likely to shed light on and inform the Tribunal about the Applicant's disability and his disability-related needs. In fact, they will be primary key expert witnesses in this matter, in addition to the key evidence to be adduced from the Applicant's father about the Applicant's lived experience. The reason this evidence is central to this application is because the task of the Tribunal is to form an assessment about the type and level of supports that should be approved and included in the Applicant's statement of participant supports.
b. The summonses requested by the Applicant's father are addressed to NDIS staff members. It is not self-evident nor clear to the Tribunal, as set out in previous correspondence, as to what evidence would be adduced from those witnesses and how it is likely to shed light on the issues in this matter. This matter is being decided afresh as already set out in previous emails.
In response, F wrote to the Tribunal on 9 August 2023, stating as follows:
I am requesting that the four summons be served on the NDIS employees so that [ZWXT] receives a completely fair and unbiased hearing at the Tribunal. This so far appears to be so far a hearing which discriminates against the Applicant. The Tribunal and NDIS appear to be reluctant to issue these summons to NDIS employees as they need to be held accountable for their decisions that they made and they arrived at them. Without their evidence it would appear that the Tribunal and NDIS are running a Kangaroo Court and have already arrived at a decision in this matter
For [ZWXT] to get a fair and honest hearing these Summons need to be issued to NDIS Employees.
In light of the scheduled substantive hearing dates, the Tribunal listed this matter for an urgent interlocutory hearing by telephone (Interlocutory Hearing) to take place on 10 August 2023, in order to hear from the parties and to decide how to exercise its discretion under s 40A(2) of the AAT Act. The Registry gave written notice to the parties of the date and time of the Interlocutory Hearing. ZWXT sent an email to the Tribunal insisting that the four summonses he had requested be issued and that if the Tribunal failed to do so, he would not attend the Interlocutory Hearing.
The Interlocutory Hearing took place as scheduled on 10 August 2023. The NDIA was represented by Mr Daly of Mills Oakley Lawyers and Mr AT, the NDIA case manager for this matter. ZWXT was represented by F for the first part of the Interlocutory Hearing. The Tribunal began the hearing by seeking confirmation about the supports remaining in dispute between the parties and whether they comprised the swimming lessons and Applied Behaviour Analysis (ABA) therapy, as suggested in the NDIA’s Statement of Facts, Issues and Contentions (SFIC) lodged on 30 June 2023, as amended on 2 August 2023.[1] F said this was incorrect and that he wanted the full amount of all of the supports he had originally requested, without specifying what they were.
[1] This amendment was limited to the removal of a mention of it being compiled for ADR purposes.
No substantive amendment was made.
ZWXT’s SFIC, lodged with the Tribunal by AED Legal Centre on 16 June 2023, states that ZWXT “no longer pressed” a number of matters or previous requests for supports in this proceeding, specifically:[2]
(a)the request for a face-to-face meeting with a senior delegate;
(b)the correction to the “about me” information in ZWXT’s SOPS;
(c)cleaning and gardening support; and
(d)core funding for the community access program “Reactions”.
[2] ZWXT’s SFIC, paragraph [2].
F’s answer to the Tribunal’s question at the Interlocutory Hearing about what supports were being requested by ZWXT, was at odds with the position as set out in ZWXT’s SFIC. The Tribunal asked F to confirm the supports he was seeking for his son, so that this would be clear to the parties and the Tribunal at the upcoming substantive hearing. F stated this information was on the file and enquired as to whether the Tribunal had read the file. Given the discrepancy, the Tribunal asked F to be specific and to run through the type and level of supports he was seeking for his son. F said he wanted them all, including the swimming lessons, occupational therapy, ABA therapy, speech therapy, gardening services, housekeeping and core supports.
F proceeded to interrupt the Tribunal as it was attempting to conduct the Interlocutory Hearing and his emotional state was heightened to an unacceptable degree. The Tribunal arranged for F to be placed on mute temporarily so that the Tribunal could proceed with conducting the Interlocutory Hearing and to explain some matters to the parties about the following:
(a)what the upcoming substantive hearing would entail;
(b)to make clear the task of the Tribunal in this proceeding; and
(c)to explain why the Tribunal required an explanation from F about why he has requested the summonses to give evidence directed to the four NDIA staff members.
Upon being placed on mute, F elected to terminate the telephone call. Section 40(1) of the AAT Act provides that the Tribunal may proceed in the absence of a party who has had reasonable notice of the proceeding.
Given that F elected to leave the Interlocutory Hearing prematurely, the Tribunal considered it appropriate to make directions permitting both parties to make written submissions to the Tribunal about the requested summonses. The Tribunal informed the parties that it would proceed to make its decision about ZWXT’s summons requests “on the papers”, after the receipt of the parties’ further submissions.
Both parties took up the opportunity to make written submissions which have now been lodged with the Tribunal.
Specifically, on 11 August 2023, F lodged with the Tribunal additional “Request to Issue Summons” forms. Save for the names of the NDIA staff members, the wording used on each of the forms in the section entitled “Reasons for the Request”, was identical and stated:
The Applicant requests a summons to give evidence and supply documents for [NDIA employee’s name], NDIS Employee to enable her to take time off from her employment for the upcoming hearing.
The Applicant has proposed that [NDIA employee’s name] be called as a witness given a previous indication from the Conference Registrar that the Tribunal may be assisted by her being made available to give evidence at the hearing.
We require [NDIA employee’s name] to provide evidence and documents as proof of experience and qualifications that enable her to competently fill her employment as the Delegate of the CEO.
We would also like proof of the mathematical formula or sliding scale that NDIS use re [sic] adjust all of [ZWXT]’s Therapists costs and hourly rates. This would help with understanding the huge discrepancy between NDIS and [ZWXT]’s Therapists monetary figures.
We believe that NDIS has a set of client Plan guidelines that are used in conjunction with individual information, this also would be good for you to produce at the hearing.
On the same day, F, in his email to the Tribunal at 12:30pm, further explained the reasons for ZWXT’s summons requests in the following terms:
What we are asking of NDIS is for clarity and a written explanation of how they arrived at these decisions. So far we have only been stonewalled and stalled by NDIS and their Legal Representatives. We have issued summons to four NDIS Employees through AAT so we can have some insight of why [ZWXT]'s much needed funding was cut and how it can be rectified. We implore AAT to issue these summons to these four NDIS Employees so that all relevant information from NDIS can be assessed and taken into account when a decision is fairly and honestly reached.
On 14 August 2023, the NDIA lodged a written submission opposing the summonses requested by F. Specifically, the NDIA contended that:
(a)the Tribunal has the power to decline to issue the requested summonses on its own motion;
(b)it is appropriate for the Tribunal to exercise its discretion to do so;
(c)the summonses have not been requested by F “for the purposes of the review” (as required under s 40A(1) of the AAT Act); and
(d)the requested summonses have “no genuine forensic purpose” because there is no reasonable basis to suppose that the material that has been called for would add to the relevant evidence in the case.
ISSUES
The issue to be decided in this interlocutory application is whether the Tribunal should exercise its discretion under s 40A(2) of the AAT Act to refuse to issue any or all of the four summonses to give evidence addressed to the persons referred to in paragraph [7], as requested by F, on behalf of ZWXT.
CONSIDERATION
The AAT Act contains a number of provisions that relate to the manner in which the Tribunal should conduct review applications before it, including the following:
(a)section 2A, which provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(i)is accessible;
(ii)is fair, just, economical, informal, and quick;
(iii)is proportionate to the importance and complexity of the matter; and
(iv)promotes public trust and confidence in the decision-making of the Tribunal; and
(b)section 33(1); which provides that:
(v)the procedure of the Tribunal is within the discretion of the Tribunal, subject to the AAT Act, Regulations, and any other enactment;
(vi)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(vii)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The Tribunal’s power to summon a person to give evidence or to produce documents arises under s 40A of the AAT Act and is qualified by the words, “[f]or the purposes of a proceeding before the Tribunal”. Subsection 40A(2) allows for the Tribunal to refuse a request for a summons to be issued. Subsection 40A(2) provides as follows:
(2)The President or an authorised member may refuse a request to summon a person.
In exercising the Tribunal’s discretion to refuse to issue a summons requested by either party, the Tribunal must consider whether the evidence expected to arise from the documents sought or as relevant in this case, the person sought to be called as a result of issuing the summons, would assist in the review of the decision and determination of the principal application. Put another way, the Tribunal must consider whether that evidence could reasonably be expected to throw or shed light on some of the issues in the substantive proceeding.
Regard must also be had to the impost on the people sought to be summonsed. This is to be weighed against the public interest in the administration of justice by ensuring that the evidence before the Tribunal is relevant to the application for review, bearing in mind the Tribunal’s objectives calling for the need to conduct proceedings in a way that is fair, just, economical, informal, quick, and proportionate to the importance and complexity of the matter.
The Tribunal has considered F’s stated reasons for why he is seeking that the Tribunal issue the four requested summonses. The Tribunal considers that F has not established, to its satisfaction, that the relevant NDIA case manager, planner and the two delegates of the CEO of the NDIA who made the original decision and the subsequent internal review decision (referred to in paragraph [7]) would provide evidence that can reasonably be expected to shed light on the issues in this proceeding. The issues is confined to what type and level of supports should be included in ZWXT’s SOPS in his NDIS plan.
F appears to be seeking an explanation as to why the NDIA made its original decision to approve the former SOPS for his son (or the subsequent internal review decision and the current Decision Under Review, which was made pursuant to the remittal). The Tribunal notes that the NDIA has now lodged a comprehensive SFIC, setting out detailed reasons why it contends ZWXT’s SOPS should not include funding for certain supports which have been requested on behalf of ZWXT.
Importantly, and as explained to the parties in writing previously, how, and why the NDIA made those earlier decisions is a historic matter and will not influence the decision to be made by the Tribunal upon review in this proceeding. The Tribunal will undertake “merits review” in deciding this application and will, in essence, either affirm, vary, or remake the decision about the SOPS which should be approved for ZWXT. The Tribunal’s task is to decide for itself the correct or preferable decision and will make up its own mind about the type and level of supports to be included in ZWXT’s SOPS in his NDIS plan, irrespective of the NDIA’s past or present views.
CONCLUSION

For the reasons set out in paragraph [28] to [30] above, the Tribunal considers that the evidence likely to be given by the four named NDIS staff member as referred to in paragraph [7] if they were summonsed to give evidence at the hearing, cannot reasonably be expected to shed light on the issues arising in this proceeding.
Accordingly, the Tribunal has decided to exercise its discretion under s 40A(2) of the AAT Act to refuse the request by F, on behalf of ZWXT, to summon each of the NDIS staff members referred to in paragraph [7] to give evidence at the substantive hearing.
In some of the more recent explanations given by F as to why he was seeking that the summonses be issued; F appears to be seeking certain documentary information. F is at liberty to make a request directly to the NDIA for those documents he is seeking, to the extent that they are not publicly available documents. If those requests are not dealt with through correspondence between the parties, and absent any request by F for a summons to produce documents seeking those documents, the Tribunal is open to addressing any outstanding requests by F for such documents with the parties at the commencement of the substantive hearing on 17 and 18 August 2023.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

.................................[sgd].......................................
Associate
Dated: 15 August 2023

Date of hearing:

Date of final submission:

10 August 2023

14 August 2023

Applicant:

Self-represented by ZWXT’s father, F

Respondent’s Solicitor: Mr Matthew Daly
Mills Oakley Lawyers

[2023] AATA 2724

15 August 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal