Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency

Federal Court of Australia|2024-11-19|Before: Mr J, Neskovcin J

THE COURT ORDERS THAT:

The application is dismissed.
The applicant pay the respondent's costs to be agreed or, failing agreement, to be taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NESKOVCIN J:
The applicant is an unregistered provider of supports and services under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The applicant has submitted invoices to plan managers and self-managed participants for amounts payable under the National Disability Insurance Scheme (NDIS) in respect of participants' plans. Such payment claims are forwarded to the Agency and ordinarily processed on an automated basis within two to three days. However, on 9 August 2024, the Deputy Chief Executive Officer (CEO) of the respondent (the National Disability Insurance Agency) determined that it was appropriate to manually review and validate all claims submitted in relation the applicant. A 'payment lock' was activated for all claims relating to the applicant, ceasing automated payments of all claims relating to the applicant. As part of its Payments Integrity Review Program, the Agency issued Requests for Information (described internally as 'RTPs') requesting that the applicant produce documents to substantiate its payment claims. As at the date of the hearing, the Agency had not paid any of the applicant's claims since 8 August 2024.
On 16 October 2024, the applicant filed an originating application pursuant to ss 5(1) and 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), alternatively s 39B(1) and (1A) of the Judiciary Act 1903 (Cth), seeking declarations that the Agency pay the applicant the sum of $216,571.99 in respect of payment claims for which the Agency had not issued any RTP, that the Agency's decision to "freeze" or "withhold" funds from the applicant was of no legal effect and that an RTP sent to the applicant on 16 September 2024 (RTP0811) in respect of 724 transactions across 129 invoices was of no legal effect.

background

In support of its originating application, in addition to Mr del Rosario's affidavits, the applicant also filed two affidavits of Mrs Maria del Rosario dated 16 October 2024 and 1 November 2024 regarding the work involved and length of time required to respond to RTP0811. Mrs del Rosario was not required for cross-examination.
The respondent relied on an affidavit dated 25 October 2024 of Ms Jennifer Sewell, a director in the Agency's Integrity Management Team, and an affidavit dated 25 October 2024 of Mr Nicholas Winton, the Branch Manager of the Scalable Integrity Responses Branch at the Agency.
Mr and Mrs del Rosario's affidavits and Ms Sewell's affidavit were read into evidence on the basis that the respondent's objections, or applicant's objections respectively, to discrete parts of the affidavits were to be treated as objections that went to the weight to be given to such evidence. There were no objections to Mr Winton's affidavit.
The background that was not in dispute is set out below before turning to the particular aspects of the evidence relied on by each party.
The applicant has been an unregistered provider of supports and services under the NDIS since 1 July 2022. It provides supports to two main categories of participants under the NDIS:
participants whose plans and funding are managed by registered NDIS providers referred to as "Plan Managers". The vast majority of the applicant's supports or services are provided to these plan managed participants; and
participants who manage their own plans and funding, referred to as "self-managed participants". The applicant currently provides supports or services to two self-managed participants.
The applicant also acts as a support co-ordinator for approximately 60% of its participants.
The category of participant to whom the applicant provides supports affects how invoices for supports and services are issued and paid. In the case of plan managed participants, the applicant forwards an invoice to the Plan Manager, who claims payment by forwarding the invoice to the Agency. The Agency processes the claim, usually within 2 - 3 business days, and provides the funds to the Plan Manager who then pays the applicant's invoice. For self-managed participants, the applicant sends the invoice to the participant who claims payment by forwarding the invoice to the Agency. Similarly, the Agency processes the claim, usually within 2 - 3 business days, and provides the funds to the participant, who pays the funds to the applicant. The applicant does not receive payment from the Agency directly.
Since 8 August 2024, the Agency has not paid any claims submitted in respect of the applicant.

Request for Information (RTP0811)

On 16 September 2024, the Agency sent RTP0811 to the applicant, requesting documentation to support a series of payment claims made by the applicant between 5 August 2024 and 6 September 2024. RTP0811 sought provision of the supporting documentation by 30 September 2024. It is convenient to set out RTP0811 in full: Request for Information Provider Number: 86890323020 Our Reference: RTP0811 Dear The Trustee for Balmerino Australia Trust, This letter is to advise that the National Disability Insurance Agency (NDIA) periodically reviews payments as part of the Payments Integrity Review Program. The role of the Payments Integrity team is to ensure that funds are spent in accordance with the participant's plan and to ensure the ongoing sustainability of the scheme. We do this by conducting reviews prior to payments being processed. To receive payments, please provide documentation for the payment requests in the attached email. These payment requests include any claims received directly from The Trustee for Balmerino Australia Trust or from Plan Managers. What documents do I need to provide?

Copies of Daily Support Log sheets in relation to the services/supports provided to the Participant/s;
Copies of timesheets/Rosters;
Copies of Travel logs detailing vehicle details, driver details, travel start and end times, odometer start and end kms, address start and end, and nature of travel in relation to travel claims;
Copies of all invoices regarding services/supports provided to the Participant/s;
Copies of case notes in relation to support co-ordination services provided to the Participant/s;
[C]ontact details of support workers, including NDIS worker screening number, names, date of birth, address, and phone number; and
Copies of all service agreements between you and the Participant/s for the provision of services/supports funded under the NDIS. Please submit your supporting documentation by 30/09/2024 to paymentintegrityreview@ndis.gov.au. When all the information is provided and if we are satisfied that the documentation supports the pending payment requests, claims will be released and paid once the review has completed. Alternatively, claims will be rejected automatically. If you have identified an error, you can self-correct the claim via the provider portal or by contacting the Plan Manager. For further information relating to accurate claiming please refer to: https://www.ndis.gov.au/providers/working-provider/provider-compliance-monitoring Yours sincerely,

On 17 September 2024, the Agency received a letter from the applicant's solicitors referring to previous demands for payment of the applicant's overdue claims and requesting that the Agency narrow the scope of the documents sought by RTP0811, which was described as "extremely burdensome and oppressive".
On 23 September 2024, the Agency sent a further Request for Information, RTP1160, in substantially the same form as RTP0811, but requesting documentation to support a series of payment requests lodged by the applicant on 17 September 2024, which documentation was to be provided by 7 October 2024.
On 24 September 2024 the Agency received a letter from the applicant's solicitors containing a Dropbox link purporting to provide access to the documents sought by RTP1160. The Review Team was unable to open the link. The email providing the documentation stated that the Dropbox link was password protected and that the Agency should contact the applicant if it wished to obtain the password. There was no evidence that the Agency requested the password.
On 16 October 2024, the applicant filed the originating process and commenced this proceeding.

Applicant's evidence

Mr del Rosario deposes that the applicant has 40 employees and engages 30 - 35 subcontractors to provide supports and other services to participants under the NDIS. The receipt of funds from the Agency is the applicant's sole source of income. The Agency has not paid the applicant for any of the claims it has submitted since 8 August 2024 and the total outstanding amount owed to the applicant is $390,153.18. Mr del Rosario states that as a result of the non-payment of the applicant's claims, the applicant has had to reduce the number of staff and services provided and has had to use its own savings, and the personal savings of Mr and Mrs del Rosario, to meet expenses.
According to Mr del Rosario, the applicant is unable to obtain finance and it is likely to be insolvent by the end of November 2024. While Mr del Rosario was challenged about this aspect of his evidence in cross-examination, I accept that Mr del Rosario's position is that it is not feasible for the applicant to seek finance from a third party lender and, in all the circumstances, the non-payment of the applicant's claims will mean that the applicant is likely to become insolvent by the end of November 2024.
Mr del Rosario said that he and his wife operate the applicant's business. Mrs del Rosario is the Office Manager, although Mr and Mrs del Rosario are the only people who work in the office. Mrs del Rosario's duties include rostering, office administration, human resources and managing accounts payable and receivable. Mrs del Rosario currently works seven days a week, in addition to caring for her family.
Mrs del Rosario deposes that it would take her approximately 12 weeks to compile the documentation requested in RTP0811. According to Mrs del Rosario, it will take that length of time due to her existing duties and because she is unable to hire staff to assist her due to the time and effort involved in training new staff.
Since 8 August 2024, the applicant has continued to provide supports and services to NDIS participants through "Requests for Services" which the Agency posts on its Provider Portal, on behalf of participants who wish to obtain supports, despite the alleged concerns that led to the Agency's decision to manually review the applicant's claims.

The Agency's evidence

Ms Sewell is the Director of the Agency's Integrity Management team, which sits within the Fraud Fusion Taskforce and Integrity Capability Division. According to Ms Sewell, the Fraud Fusion Taskforce and Integrity Capability Division drives the Agency's integrity response and capability uplift and coordinates the whole-of-government multi-agency Fraud Fusion Taskforce to improve payment integrity in government payment programs by preventing or reducing fraud and criminal activity within and against these programs. Among other things, the Integrity Management team's responsibilities include reviewing and responding to integrity enquiries referred to it to determine if the subject matter raises integrity concerns.
Ms Sewell states that between June 2023 and July 2024, the Agency had referred to it a complaint and nine separate 'tip-offs' in relation to the applicant and/or its director, Mr del Rosario. By way of example, the 'tip-offs' raised concerns or allegations relating to over-utilisation of participants' plans, meaning plan funds were being depleted prematurely, or that the applicant had claimed for services that were not provided. This is mentioned only by way of explanation for the Agency's subsequent conduct and no finding is made in relation to the substance of the concerns or allegations.
On 2 August 2024, the Agency began manually reviewing some payment requests submitted by the applicant. Through this process the Agency sought to validate and substantiate claims before making payment, rather than automatically processing the payments.
On 9 August 2024, the Deputy CEO of the Agency determined that it was appropriate to manually review and validate all payment claims submitted in relation to the applicant.
On the same day, on Ms Sewell's authorisation, the Integrity Management team submitted an internal webform requesting a change to manual review and validation process for all claims relating to the applicant. Ms Sewell was shown an extract from the webform request which recorded the following: Notify the provider of the payment lock. **A once-off payment suspension letter will be sent, along with the request for information letter for any claims processed after the payment lock.
It was suggested to Ms Sewell that, on 9 August 2024, she had approved a 'payment lock' in respect of the applicant. While Ms Sewell confirmed that she approved the webform request, she explained that she approved a request to move to manual payment review of the applicants' claims and cease automatic payments.
The applicant did not receive a letter advising it of a 'payment lock'. Rather, the Agency issued RTP0811 requesting documentation to support the applicant's claims and which stated, among other things, that "[w]hen all the information is provided and if we are satisfied that the documentation supports the pending payment requests, claims will be released and paid once the review has completed".
Mr Winton is the Branch Manager of the Agency's Scalable Integrity Responses Branch, which is part of the Fraud Fusion Taskforce. Mr Winton oversees the Payment Integrity function at the Agency, which consists of multiple teams including the Manual Payment Review Team.
Mr Winton explained that every claim the Agency receives is risk-assessed, but not all claims undergo manual intervention, also known as a manual payment review. The Agency undertakes a manual review of payment claims where there are concerns about the integrity of the claims or the claimant. Payment claims requiring manual review are allocated to a case worker to review, who issues a request for information outlining the information requested by the Review Team and a date by which the information is required. When the information is received, it is reviewed to determine if it substantiates that the claim is for a payment that is in accordance with a participant's plan and that the supports were in fact provided.
If the information provided does not adequately substantiate the claim, the case worker may request further information and staff may also speak with third parties, such as participants about the services and supports the subject of the claims. If the requested information is not provided, the review may be completed in the absence of substantiating information and can result in the claim being cancelled. If the requested information is received, the case worker reviews the material and determines if the claim can be substantiated such that the Agency can pay it as an amount payable under s 45 of the NDIS Act.
Manual payment reviews result in a decision by the Agency to either pay out the funds as requested, or not pay out the funds (through a cancellation of the claim, which means it has been rejected).
Mr Winton stated that the time taken for a particular review depends on the number of claims subject to review, the nature and complexity of the concerns identified, the volume of documents provided and so on. Since Mr Winton commenced his role in February 2024, the median time for a review to progress from being opened to closed was approximately 60 days. In relation to the Review Team's current "open" cases, the median time the cases have been open is 26 days. From about April 2024, the work of the Taskforce and size of the Review Team has been "scaled up".

NDIS Act

The NDIS Act establishes the NDIS and the Agency. The functions of the Agency include delivering the NDIS and managing, advising and reporting on the financial sustainability of the NDIS: s 118(1)(a) and (b). In performing its functions, the Agency must use its best endeavours to act in a proper, efficient and effective manner and ensure the financial sustainability of the NDIS: s 118(2)(b) and (c). The Agency may do anything incidental or conducive to the performance of its functions under the NDIS Act (s 118(1)(h)) and all things necessary or convenient to be done for or in connection with the performance of its functions (s 119(1)).
The objects of the NDIS Act include supporting the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports for participants in the NDIS, and enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(c), (d) and (e). The objects are to be achieved by, among other things, establishing a national regulatory framework for persons and entities who provide supports and services to people with disability: s 3(2)(c). The general principles guiding actions under the NDIS Act include that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports: s 4(5).
Chapter 2 of the NDIS Act deals with assistance for people with disability. Section 14(2) of the NDIS Act relevantly provides that the Agency may provide assistance in the form of funding for persons or entities to assist one or more participants to receive supports.
Chapter 3 of the NDIS Act deals with participants and their plans. A person becomes a participant in the NDIS when the CEO of the Agency decides that the person meets the access criteria: s 28. If a person becomes a participant, the CEO must facilitate the preparation of the participant's plan: s 32(1). The matters that must be included in a participant's plan include the participant's statement of goals and aspirations and a statement of participant supports: s 33(1) and (2). The statement of participant supports, which is to be prepared with the participant and approved by the CEO, must include a statement that specifies (among other things) the general supports (if any) that will be provided to, or in relation to, the participant, the reasonable and necessary supports (if any) that will be funded under the NDIS, and the management of the funding for supports under the plan: s 33(2)(a), (b) and (d).
Division 3 of Part 2 of Chapter 3 of the NDIS Act is entitled "Managing the funding for supports under participants' plans". For the purposes of the NDIS Act, the phrase "managing the funding for supports" under a participant's plan means doing one or more of purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports), or receiving, managing or acquitting any funding provided by the Agency: s 42(1). In specifying the management of the funding for supports under a participant's plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency or the plan nominee: s 42(2). A participant may request that the funding for supports under his or her plan either be self-managed, or be managed by a nominated registered plan management provider or by the Agency: s 43(1).
Section 45 is a critical provision for the purposes of this proceeding. That provision governs the payment of "amounts payable" under the NDIS and provides: 45 Payment of amounts payable under the National Disability Insurance Scheme (1) An amount payable under the National Disability Insurance Scheme in respect of a participant's plan is to be paid: (a) to the person determined by the CEO; and (b) either: (i) in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subparagraph; or (ii) if there are no such rules - in the manner determined by the CEO. (2) Paragraph (1)(b) extends to dealing with: (a) whether amounts are to be paid in instalments or as lump sums; and (b) if amounts are to be paid in instalments - the amounts of those instalments; and (c) the timing of payments of amounts. (3) The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.
Part 4 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) (NDIS Plan Management Rules) deals with the timing and manner of payment of "NDIS amounts". An "NDIS amount" is defined in s 9 of the NDIS Act to mean "an amount paid under the [NDIS] in respect of supports (other than general supports) funded under a participant's plan". Part 4 of the NDIS Plan Management Rules provides: Part 4 Payment of NDIS amounts 4.1 A participant's plan specifies, among other things, the reasonable and necessary supports (if any) that will be funded under the NDIS. Amounts paid under the NDIS in respect of such supports are known as NDIS amounts. 4.2 NDIS amounts are to be paid to the participant, or to a person who is managing the funding for supports under a participant's plan, in accordance with this Part. Paragraphs 4.1 and 4.2 summarise paragraph 33(2)(b) and section 45 of the Act.
Section 45A, which came into effect on 3 October 2024, provides that an amount is not payable under the NDIS in respect of the acquisition or provision of a support under a participant's plan unless the CEO is satisfied, amongst other things, that the claim is in the approved form and includes any information and is accompanied by any documents required by the CEO: s 45A(3).
Section 46(1) provides that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant's plan. The NDIS rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, or the retention of records by NDIS providers that receive NDIS amounts on behalf of participants, including requiring that prescribed records be retained for a prescribed period: s 46(2), (3).
Section 46A(1) further provides that an NDIS amount is "absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise", subject to the provisions relating to debt recovery contained in Part 1 of Chapter 7 of the NDIS Act. Section 182 of the NDIS Act, in Part 1 of Chapter 7, provides for the recovery of debts due to the Agency, including where payments are made to a person that is, or purports to be, a payment of an NDIS amount to or in respect of a participant and the payee "is not entitled for any reason to the payment of the NDIS amount".

ADJR Act

Section 8(1) of the ADJR Act confers jurisdiction on this Court to hear and determine applications made under the ADJR Act.
Section 5 of the ADJR Act provides: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: … (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; … (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power.
Section 6 of the ADJR Act provides: 6 Applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds: … (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; … (j) that the making of the proposed decision would be otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power.
A "decision to which this Act applies" is relevantly defined in s 3 to mean "a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) … under an enactment referred to in paragraph (a) … of the definition of enactment", which means an Act passed by the Commonwealth Parliament (subject to exceptions that are not presently relevant).
The powers of the Court in an application for an order of review in respect of a decision are set out in s 16(1) of the ADJR Act. In addition, the Court has power under s 16(3)(b) and (c) of the ADJR to make an order declaring the rights of the parties in relation to the making of the decision or to direct any of the parties to do, or to refrain from doing, any act or thing which the Court considers necessary to do justice between the parties.

Quantum Meruit

An action in quantum meruit, brought as a restitutionary claim, may allow a person to recover fair and reasonable compensation for services provided and retained by another without payment, where the law imposes an obligation to make restitution for unjust enrichment: Pavey & Matthews Proprietary Limited v Paul (1986) 162 CLR 221; [1987] HCA 5 at 256 (Deane J), cited with approval in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at [64] (French CJ, Crennan and Kiefel JJ).
In Redland City Council v Kozik [2024] HCA 7; (2024) 98 ALJR 544, Gordon, Edelman and Steward JJ stated at [179]-[180]: In Australian common law, unjust enrichment has a "taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another". During the historical period in which cases were pleaded by forms of action, these categories of case were forced, by the use of fictions, into forms (rather than causes) of action, including counts of money had and received, quantum meruit and quantum valebat. Today, as causes of action, the categories include unjustified payments of money or performance of services that benefit another in circumstances where the benefit was the result of mistake, undue influence, duress, or an absence or failure of consideration. Since unjust enrichment expresses only the conclusion that follows the exposed process of reasoning within these categories of case, it has repeatedly been said in this Court that "unjust enrichment" is not a premise that is capable of direct application. At a high level of generality it can sometimes assist when considering the boundaries of a particular category of case to structure a common law enquiry into whether a defendant has been unjustly enriched by asking what benefit a defendant has received, whether the benefit is at the plaintiff's expense, whether the circumstances render the provision of that benefit unjust, and whether any defences apply. But these well-known concepts such as "benefit" or "unjust" are not to be applied in the abstract, divorced from the rules that have been developed in particular categories of case. [Footnotes omitted]
In a claim for restitutionary relief on a quantum meruit basis for services performed, the applicant is required to establish that the applicant performed services for or at the request of the respondent and that the respondent received the benefit of the services at the expense of the applicant, which it would be unconscionable for the respondent to retain without making payment: Pavey & Matthews at 256 (Deane J); Lumbers v W Cook Builders Pty Ltd (in liquidation) (2008) 232 CLR 635; [2008] HCA 27 at [79] at [80] (Gummow, Hayne, Crennan and Kiefel JJ).

Quantum meruit

In its concise statement, the applicant contends that the Agency issued requests for services on behalf of participants, the applicant performed those services and the Agency has been unjustly enriched by retaining funds without paying the applicant for those services.
The applicant submits that it is entitled to restitutionary relief on a quantum meruit basis "for the services it has provided to NDIS participants at the [Agency's] request". The applicant submits that the Agency is unjustly enriched at its expense because the Agency has retained "funds" to which the applicant is entitled, relying on s 45 of the NDIS Act which the applicant submits confers a "right of payment".
The applicant's claim for restitution on a quantum meruit basis is misconceived. First, participants under the NDIS request supports or services from the applicant and the Agency facilitates that request by posting a 'Request for Services' on its Provider Portal, which the applicant accepts. The Agency does not retain the "benefit" of the applicant's services because the supports and services are provided to participants. Furthermore, the Agency is not "unjustly enriched" at the expense of the applicant because it has not retained for its own use "funds" to which applicant is entitled.
Contrary to the applicant's submissions, s 45 of the NDIS Act does not confer a "right to payment" of the applicant's claims. Section 45 of the NDIS Act provides for the making of a determination by the CEO as to the payment of amounts payable under the NDIS in respect of a participant's plan, including but not limited to the determination of whether, when and how such amounts are to be paid: Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [105] (Horan J). The Agency is in the process of making that determination, albeit the applicant is not satisfied with the process.
Moreover, the applicant has failed to establish the nature and extent of the services performed and the value of the services which are the subject of its quantum meruit claim: Riverside Motors Pty. Ltd. v Abrahams [1945] VLR 45 at 53 (O'Bryan J). The mere assertion on behalf of the applicant that services were provided and reference to the invoices for services provided to the participants is not sufficient.

Judicial review of the "Freezing Decision"

The applicant contends that the Agency's decision to "freeze" the funds of the applicant was a decision that the Agency was not authorised to make, was an improper exercise of the power conferred upon the Agency and was otherwise contrary to law: ss 5(1)(c), (d) and (j), 5(2), 6(1)(c), (d), (e) and (j) and 6(2) of the ADJR Act. The Freezing Decision was described by the applicant as a decision to "freeze" or "withhold" the "funds" of the applicant or to put on "hold" the applicant's payments, relying on the "right to payment" conferred by s 45 of the NDIS Act.
The applicant's characterisation of the Freezing Decision is understandable given the explanation provided to it, albeit by third parties such as participants or plan managers, as to why the applicant's claims had not been paid. However, after receiving the respondent's affidavits, which sought to explain that the Deputy CEO had determined that it was appropriate to manually review and validate all claims submitted in relation the applicant's claims, the applicant persisted with the submission that the Deputy CEO's decision was, in truth, a decision to put a "hold" or to "freeze" the applicant's funds.
The applicant's claim for review of the Freezing Decision is misconceived. First, the applicant has failed to establish that the Agency made a decision to "freeze" or "withhold" the applicant's "funds", or to place a "hold" on the applicant's payments. I accept the evidence of Ms Sewell and Mr Winton that the relevant conduct was the determination to manually review the applicant's claims, which had the effect of ceasing automatic payments in respect of the applicant's claims pending the manual review. While the purported decision may have been misdescribed to the applicant, the applicant failed to properly characterise the decision it sought to impugn according to the legislative framework of the NDIS. Secondly, and relatedly, there were no "funds" or payments belonging to the applicant which the Agency could have decided to "freeze", "withhold" or put on "hold".
Under the NDIS, an entitlement to funding arises from the approval of a participant's plan, and in particular from the statement of participant supports set out in that plan. That funding gives rise to the "amounts payable under the NDIS in respect of a participant's plan" within the meaning of s 45 of the NDIS Act and, once paid, are "NDIS amounts": Northern Disability Services at [82] (Horan J). There are no "funds" or payments belonging to the applicant in respect of a participant to whom it provides supports or services under the NDIS. The applicant's entitlement is to submit payment claims for "amounts payable under the NDIS in respect of a participant's plan" and the CEO's obligation is to make a determination in respect of the applicant's claims pursuant to s 45 of the NDIS Act.
For completeness, it is noted that the applicant also submitted that the Freezing Decision was a breach of natural justice because the Agency did not give the applicant notice that it proposed to make the decision. The respondent objected to the claim on the basis that it had not been raised prior to the applicant filing its submissions, which were filed a number of days before the hearing. I accept that the applicant should not be allowed to raise this additional claim at this late stage and I observe that any decision to reject the applicant's payment claims may invoke the right to procedural fairness which the applicant seeks.

Judicial review of the decision to issue RTP0811

The applicant contends that the Agency's decision to issue RTP0811 was a decision that the Agency was not empowered to make, an improper exercise of power conferred on the Agency by the NDIS Act and otherwise contrary to law: ss 5(1)(c), (d) and (j), 5(2), 6(1)(c), (d) and (j) and 6(2) of the ADJR Act
The applicant submits that the Agency did not have power to issue RTP0811 because the request for information did not conform with the requirements of ss 55 and 56 of the NDIS Act. Alternatively, RTP0811 was an improper exercise of power because it was issued with intent to disrupt the applicant's business. Further or alternatively, the decision to issue RTP0811 was contrary to law because it imposed a burden upon the applicant, which the applicant could not possibly with.
The applicant appears to contend that the Agency's power to obtain information to substantiate claims is confined to the power to obtain information from participants under s 53, or from other persons under s 55, of the NDIS Act. This contention finds no support in the Act or its statutory context. The Agency's functions and powers include doing anything incidental or necessary for the performance of its functions under the NDIS Act: see s 118(1)(h) and 119(1). The CEO's obligation to make a determination under s 45 of the NDIS Act requires the CEO to determine whether an amount is payable under the NDIS in respect of a participant's plan: Northern Disability Services at [105] (Horan J). In determining whether an amount is payable in respect of a participant's plan, there is no reason why the CEO (or a delegate) cannot require documentation to substantiate a payment claim that relates to an amount payable under the NDIS in respect of a participant's plan. I also observe that the obligation to produce documentation required by the CEO to support a payment claim is specifically contemplated by s 45A(3) of the NDIS Act, which came into effect on 3 October 2024 after RTP0811 was issued.
The decision to engage in manual review of the applicant's claims, and the related decision to issue RTP0811 to request information to substantiate the applicant's claims, were steps taken to assist in the making of a determination pursuant to s 45 of the NDIS Act. I therefore reject the applicant's claim that the decision to issue RTP0811 was a decision that the Agency was not empowered to make.
The applicant has failed to establish that RTP0811 was "issued with intent to disrupt the applicant's business" and was therefore an improper exercise of power. This proposition was not put to the respondents' witnesses. The respondents' witnesses explained, and I accept, that RTP0811 was issued for the purpose of assisting the Agency in the manual review of the applicant's claims and that there were justifications for doing so, including to maintain the integrity and financial sustainability of the NDIS.
The applicant submitted that RTP0811 was an improper exercise of power and contrary to law because it imposed a burden upon the applicant which it could not possibly comply with, relying on Payne v Deer [2000] 1 Qd R 535; [1999] QSC 124 (de Jersey J) and Edelsten v Wilcox (1988) 83 ALR 99; [1988] FCA 204 (Burchett J).
The applicant submitted that it was impossible to comply with RTP0811, which sought production of information relating to 724 transactions across 129 invoices by 30 September 2024. Mrs del Rosario's evidence was that it would take the applicant approximately 12 weeks to comply with RTP0811. However, in cross-examination, Mr del Rosario conceded that a vast amount of the documentation sought by RTP0811 was held in one location, being a case management software tool used by the applicant to manage its accounts payable and receivable and for payroll purposes. In the result, the applicant's difficulty in responding to RTP0811 is a function of the structure of its business, which is no criticism of the applicant. The administration of the applicant's business is handled entirely by Mr and Mrs del Rosario who are already fully occupied in the business and do not have additional time or resources to respond to RTP0811 while maintaining the applicant's business at its current levels. The respondent's evidence to the effect that the Agency has issued similar requests for information on other providers who were able to respond within the timeframe stipulated by the Agency goes no further than explaining the justification for, but not the reasonableness of, RTP0811. However, the applicant's difficulty in complying with RTP0811 was raised on behalf of the applicant after RTP0811 was issued. I was not taken to any authorities to the effect that the Agency was required to enquire into and take into account the applicant's circumstances before issuing RTP0811. I am not satisfied that the applicant has established that the decision to issue RTP0811 was a decision which could not reasonably have been made and was therefore an improper exercise of power.
For completeness, it is noted that the applicant also submitted that the decision to issue RTP0811 was a breach of natural justice because the Agency did not give the applicant notice that it proposed to issue RTP0811. The respondent objected to the claim on the basis that it had not been raised prior to the applicant filing its submissions, which were filed a number of days before the hearing, and the respondent had not had an opportunity to consider what, if any, evidence it might wish to rely upon in response. I accept that the late raising of the claim would cause prejudice to the respondent and should not be allowed.

Interim relief

In its originating motion, the applicant sought urgent interim relief in the form of payment of outstanding claims for which the Agency had not issued a request for documentation to substantiate the claims. At the hearing, I declined to grant the interim relief sought. My reason for doing so was that I did not accept that the applicant's "right to payment" under s 45 of the NDIS Act or on a quantum meruit basis had sufficient merit, for the foregoing reasons.

Conclusion

For the reasons set out above, the originating application should be dismissed and the applicant should pay the respondent's costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.

National Disability Insurance Scheme (Plan Management) Rules 2013(Cth)

Judiciary Act 1903(Cth)ss 39B(1)-(1A)

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Judgment (13 paragraphs)

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Legislation Cited (4)

Cases Cited (13)