National Disability Insurance Scheme - application for review of plan

Practice and Procedure - application to stay decision under review pending hearing and final decision

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

National Disability Insurance Scheme Act 2013 (Cth) ss 37(3), 99(2), 100(3), 100(6), 103

1. The Applicant in this matter, Mr Alan Dunn, has applied to the Tribunal seeking a review of a decision made by the Respondent National Disability Insurance Agency (NDIA) on 13 July 2022. He has also, by way of the application made pursuant to subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and argued before me on 28 September 2022, requested that the Tribunal order a stay of that decision pending the outcome of his application for review.

1. On 15 July 2020 Mr Dunn suffered a stroke which affected the right side of his body. Following that stroke he was admitted to be a participant in the National Disability Insurance Scheme and a plan with a statement of participant supports was issued on 25 January 2021. The due date for the review of that plan was set for 25 January 2022. For the purposes of these proceedings, I shall consider that to be Plan 1.

1. On 19 April 2021 Mr Dunn suffered a second stroke, which affected the left side of his body and seriously diminished his bodily functions. Following that stroke, a second plan was issued by the Agency on 15 June 2022, the date set for review being 25 June 2023 (Plan 2).

1. Mr Dunn was dissatisfied with the supports provided for in Plan 2. He sought a review of the decision by the Agency, pursuant to subsection 100(3) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In support of his request for a review, he sent the Agency a submission identifying supports he regarded to be reasonable and necessary and which he asked to be included in his plan.

1. On 13 July 2022 the Agency's internal reviewer made her decision. She varied the original decision, changing some of the supports and confirming the others. A new plan was generated, which was issued on that date (Plan 3). The plan specified its due date for review to be 13 July 2023, 12 months later.

1. Mr Dunn is dissatisfied with Plan 3. He lodged an Application for Review with the Tribunal on 8 August 2022. His application contains a detailed - two page, closely typed - submission explaining his situation, what he wants, and questioning some of what is in Plan 3's statement of participant supports. In his submission he also questions the change of the review date of the plan from 25 January 2022 to 13 July 2023.

1. On 9 August, the day after lodging his application for review, Mr Dunn filed with the Tribunal his request for a stay of the decision of 13 July 2022.

1. Specifically, his request seeks to have 'the following decisions to be put on hold and not implemented' until his substantive application is heard and determined. Those decisions are identified as [sic]
   1. CB [Capacity Building] funding not approved, for both (a) weekly OT, and (b) weekly physio. Refused due to A) NDIS Act Section 34(1)(c): value for money, and B) NDIS Act Section 34(1)(d): effective and beneficial. Only $8219.05 funding permitted for year.
   2. AT [Assistive Technology] funding not approved due to NDIS Rule 5.1(a): risk of harm to the participant or other.
   3. Also, in the latest review, the NDIS chose to change the date of my annual review from 25 January to 13 July, and to place further restrictions on the way that $15,000 funding that had been previously approved for Assistive Technology, Capital Supports, can be spent, e.g. originally I was given a $5000 budget to use for a wheelchair purchase, now I only have $3000.
2. In his grounds for the request, Mr Dunn explains his objection to the funding and other supports provided in or absent from Plan 3. He concludes with the plea that he 'would be grateful if each of these NDIS decisions could be put on hold until the final verdict'.

1. Lodging an application with the Tribunal to review a decision does not affect or stay the decision under review or its operation.

1. Subsection 41(2) of the AAT Act confers on the Tribunal power 'to make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.'

1. This power is exercisable on the request of a party, but only 'if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review.'

1. The case for a stay or for other orders under subsection 41(2) must be made out. It is for Mr Dunn, requesting a stay, to make that case. Broadly, he must persuade the Tribunal that

(a) the orders he seeks are ones the Tribunal has the power to make,

(b) the orders he seeks will secure the effectiveness of the hearing and determination of his application for review, and

(c) in the circumstances, and taking into account the interests of those who may be affected by the review (such as the Agency), it is desirable that the orders be made.

1. The Agency has opposed the application for a stay and has filed submissions in that regard.

1. In both in his oral and written submissions Mr Dunn expresses the hope that, by a stay of the decision, some of the supports he previously enjoyed and which he considers have been curtailed by the decision of 13 July 2022 and Plan 3 will be restored until his application for review is finalised. He also believes that the date for the review of his plan will be restored to January 2023.

1. First, the Tribunal can only review a decision made by a reviewer under subsection 100(6) of the NDIS Act. A decision by a reviewer under subsection 100(6) can only confirm, vary, or set aside and substitute, a 'reviewable decision'. A reviewable decision under subsection 99(2) is, materially, limited to 'a decision to approve the statement of participant supports in a participant's plan'. The Tribunal can only review the Agency's decision so far as it relates to the statement of participant supports, not the issue or existence of the plan (see section 103).

1. If a stay were to be granted over part or all of the statement of participant supports, and the Agency was to be prohibited from undertaking 'the operation or implementation of the decision' under review, Mr Dunn may find he has no, or no satisfactory, support from the Scheme.
2. Mr Dunn seemed to think that if Plan 3 or elements of the statement of participant supports in Plan 3 were put 'on hold', he could enjoy at least some of the benefits in Plan 2.

1. I do not think that is so. It is common practice following an internal review by the Agency varying a statement of participant supports to issue a fresh plan to replace the earlier and containing the revised statement, a power available to the decision-maker under Division 4 of the NDIS Act. By operation of subsection 37(3) of the NDIS Act, Plan 2 ceased to be in effect when Plan 3 was issued following the decision of the internal review under subsection 100(6). If Plan 2 has been replaced by the issue of Plan 3, it is no longer extant and I do not have the power to revive it.

1. Nor do I think it would be desirable to do so. The Tribunal has limited information available to it about why the Agency replaced it with the supports in Plan 3, and of Mr Dunn's circumstances - all matters to be explored in the substantive application.

1. Mr Dunn seems to be under the impression that any stay, even if the consequences are not to his advantage, would only be of short duration, as the hearing of his application for review is scheduled for October.

1. That is not so. What is scheduled for October is not a hearing of his application for review, but the first appearance before a conference registrar of the Tribunal. A hearing is likely to be considerably later.

1. As noted, one of Mr Dunn's complaints is that the Agency, for what he apprehends are venal motives, has delayed the due date for a review of his plan. He was of the view that a stay may bring forward the due date for a review of his plan from 13 July 2023 to 25 January 2023.

1. This seems to be based on a misunderstanding. It was only Plan 1 that specified 25 January as a review date, and that was for 25 January 2022. That date and Plan have passed. Plan 2 specified 15 June 2023 as the review date; but that plan has been superseded by Plan 3. Even if a stay were to suspend the operation of Plan 3, it would not restore any earlier review date, and certainly not one in January.

1. Second, Mr Dunn invites the Tribunal to take a selective approach to which elements of a decision are to be make inoperable pending a proper review of its entirety. I cannot see that such an approach would be practicable for the Agency to implement in this case or, given that the Applicant has the carriage of the progress of his application for review, desirable.

1. Third, an order under subsection 41(2) must be 'for the purpose of securing the effectiveness of the hearing and determination of the application for review'. In substance, its purpose should be to 'freeze' ('put on hold') the operation of the decision, prevent action on the decision, and so preserve the status quo that existed when it was made, so that any success that an Applicant may enjoy on a successful application for review is not nugatory.

1. Mr Dunn, however, seeks a 'hold' on the Agency's

(a) 'refusal' or failure in its decision to provide certain funding, and

(b) decision to place what he considers to be restrictions on how his Capital Support funding for Assistive Technology can be spent.

1. In the case of (a), he seeks not a preservation of the status quo, but in some way to oblige the Agency to provide supports it does not consider to be reasonable and necessary. This is not a preservation of the status quo but an attempt to impel an outcome.

1. In the case of (b), he seeks to be able to spend the allocated moneys, contrary to what the Agency considers appropriate, until such time as the appeal is determined. This potentially renders a decision by the Tribunal in the Agency's favour nugatory.

1. As an aside, in the course of the hearing Mr Dunn expanded on his concern about being limited in how he may utilise his funding for Assistive Technology. The Respondent's counsel suggested that there may be some misapprehension on Mr Dunn's part in this respect, and invited contact between Mr Dunn and the Agency's Case Manager to clarify how some of his Assistive Technology funding can be utilised. Hopefully, such discussions will clarify matters, and may allay some of Mr Dunn's concerns.

1. In the circumstances, I am unpersuaded that a case has been made out to make orders under subsection 41(2) and do not consider it desirable to make the orders sought. Accordingly, I decline to grant the request to make an order staying or otherwise affecting the operation or implementation of the decision of 13 July 2022, and dismiss the application.

I certify that the preceding 32 paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

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