Glasshouse Community Supports Pty Ltd and National Disability Insurance Scheme [2024] AATA 816 (19 April 2024)

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NATIONAL DISABILITY INSURANCE SCHEME - jurisdiction - application for review lodged by a service provider who has delivered supports to a participant under the National Disability Insurance Scheme (NDIS) - payments officer refused to pay an amount of $90,475.24 to the Applicant for nine outstanding invoices in respect of services provided to the participant - Tribunal is satisfied this type of decision not a "reviewable decision" under s 99(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), or under any other rules made under s 99(2) of the NDIS Act - application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360

1. Glasshouse Community Supports Pty Ltd ('Glasshouse') is a registered National Disability Insurance Scheme ('NDIS') service provider under the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act').
2. In email correspondence dated 25 March 2024, a Payments Officer of the National Disability Insurance Agency ('NDIA') advised Glasshouse that the NDIA is unable to pay nine outstanding invoices issued by it to a NDIS participant, Ms Participant,[1] in the sum of $90,475.24 in respect of the provision of support worker assistance ('Payments Officer's Decision'). The Payments Officer states, in effect, that the NDIA is not able to fund in excess of previously determined reasonable and necessary supports for a NDIS participant, and that service providers are "not in a position to decide upon [reasonable and necessary supports] funding" and to "utilise it", without there being a decision in place permitting them to do so. In this correspondence, the payment officer referred Glasshouse to s 46 of the NDIS Act which provides that the participant who receives a NDIS amount, or a person who receives such an amount on behalf of a participant, must spend the money in accordance with the participant's plan.
3. Glasshouse lodged an application with the Administrative Appeals Tribunal (Tribunal) seeking review of the Payments Officer's Decision.
4. The Tribunal has considered the documents on the Tribunal's file relating to this matter and the oral submissions of a representative from each party at the Interlocutory Hearing which took place before this Tribunal by telephone on 19 April 2024 (Interlocutory Hearing).
5. For the reasons set out below, the Tribunal is satisfied that the Payment Officer's Decision is not reviewable by this Tribunal. On this basis, the Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

1. The Tribunal does not have inherent jurisdiction. Its jurisdiction or power to review a particular decision is derived from the express provisions of the relevant enactment operating in conjunction with s 25(1) of the AAT Act.
2. The relevant enactment in this case is section 103 of the NDIS Act. Subsection (1) states that (emphasis added):

Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6). > > Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.

3. A decision made by a reviewer under section 100(6) of the NDIS Act, will be made when a review of a "reviewable decision" under s 100(2) of the NDIS Act takes place at the request of a person directly affected by that reviewable decision. A person who is directly affected by a reviewable decision may, within three months of receiving a notice from the person who made the "reviewable decision", request a review of that decision.[2]
4. Section 9 of the NDIS Act defines "reviewable decision", as having the meaning given by ss 99(1) and 99(2) of the NDIS Act. Section 99(1) contains an itemised table setting out the different types of reviewable decisions under the NDIS Act and the decision-maker in respect of those decisions. In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency,[3] then Deputy President Forgie, in general terms, summarised those items as follows:

...the first six items specify decisions that are made in respect of a person's entitlement to be a participant in the NDIS and decisions that affect the content of a participant's plan. The next ten...are concerned with registered provider[s] of supports...Items 17 to 19 are concerned with decisions relating to determinations made by the Chief Executive Officer of the Agency (CEO) regarding a person who may do acts or things required or permitted to be done by the NDIS Act in relation to a child. Items 20 to 22 specify...decisions made in relation to the appointment, suspension or cancellation of a plan nominee or a correspondence nominee...items 23 to 28...relate to decisions made under Chapter 5 of the NDIS Act. Chapter 5 is concerned with decisions relating to compensation...Items 29 to 33...[are] concerned with decisions to write off or waive a debt where the debt is owed to the Agency.[4]

5. The Tribunal notes that none of the items specified under section 99(1) of the NDIS Act relate to a decision by the NDIA (or its CEO or authorised delegate) to refuse payment of outstanding invoices to a service provider in respect of services rendered to a NDIS participant. Section 99(2) provides that the NDIS rules may provide that a decision made under a specified provision of the rules is a "reviewable decision".
6. Both parties were given an opportunity to identify an item under s 99, or under any rules made under s 99(2), that describes a reviewable decision within which the Payments Officer's Decision might fall. The parties informed the Tribunal they had been unable to do so. The Tribunal, itself, could not identify any reference under s 99, or any rules, that would support such a conclusion. For this reason, no power arises under s 103 of the NDIS Act, operating in conjunction with s 25 of the AAT Act and ss 99 and 100 of the NDIS Act, for the Tribunal to undertake a review under this application. The Tribunal also notes for completeness, that Glasshouse has not at any stage requested a review of the Payments Officer's Decision by a NDIA "reviewer" under s 100 of the NDIS Act.

1. The Tribunal considers that the Payments Officer's Decision is not a type of decision listed as a "reviewable decision" within s 99(1) of the NDIS Act. Nor is it a "reviewable decision" by reason of s 99(2). Even if it was, no decision has been made by a NDIA "reviewer" under s 100(6) of the NDIS Act, as no request was made by Glasshouse for this type of review.
2. For these reasons, the Tribunal is satisfied that the Payments Officer's Decision is not reviewable by the Tribunal.
3. Accordingly, the Tribunal dismisses this application under s 42A(4) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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[1] The name of the NDIS participant is omitted to maintain their privacy.

[3] [2020] AATA 360.