The Tribunal has jurisdiction to consider whether supports which were not previously raised by the applicant should be included as reasonable and necessary supports in any statement of participant supports approved by the Tribunal.

NATIONAL DISABILITY INSURANCE SCHEME - jurisdiction - statement of participant supports - whether Tribunal has jurisdiction to review supports not included in original request for review - Tribunal has jurisdiction

Administrative Appeals Tribunal Act 1975 s 42D

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Safety, Rehabilitation and Compensation Act 1988

QDKH and NDIA [2021] AATA 922

VXVL and NDIA [2021] AATA 1709

1. The applicant is a participant in the National Disability Insurance Scheme (NDIS). Her impairments include ankylosing spondylosis, an acquired brain injury, unspecified psychological disorders, anxiety and other physical impairments.

2. Under the NDIS, participants have plans which set out their goals and objectives and which include statements of participant supports. A statement of participant supports performs a number of important functions in the context of a plan:

(a) A plan commences when a statement of participant supports is approved;

(b) The statement specifies the reasonable and necessary supports that will be funded under the scheme;

(c) The statement must specify the date by which, or the circumstances in which, the agency must review the plan.

3. Since becoming a participant the applicant has had five plans.

4. Her fifth plan commenced on 24 June 2020 with a review date of 23 December 2020.

5. The T-Documents are sparse as to the process followed by the Agency in preparing the plan but it appears that on 16 June 2020 the applicant contacted staff by email asking when they would make a decision. On 22 June 2020 the applicant's planner contacted her advising her that the plan would be for six months to give her 'the opportunity and time to engage the services of an Advocate, and the services of a Support Coordinator'. The new 6 month plan would be plan managed.

6. On the same day the applicant responded that she was not happy with the proposal and wanted a review of the decision. Her planner advised her that she would be able to request a review after she received her new plan if she was not happy with it.

7. It appears that there was a further discussion between the planner and the applicant on 24 June 2020 (T3). The applicant added a long list of supports which she wanted included in her plan including:

(d) Startup support for setting up her own Rockabilly dance café and group;

8. Later in the day the statement of participant supports was approved as foreshadowed with a review period of 6 months and provision for plan management rather than self-management.

9. The statement provided for $65,890.10 worth of funded supports in her statement of participant supports including:

(a) Core supports to assist with daily activities and community participation;

(c) Plan management and Financial Capacity Building supports;

10. The matter was referred for internal review. In discussions with the internal review officer the applicant indicated that she wanted the plan to include 'short term accommodation', a plan duration for 12 months and for her plan to be self-managed.

11. On 18 August 2020 an internal review decision was made confirming the original decision.

12. The applicant sought review in the Tribunal on 18 August 2020.

13. In the context of Tribunal review the applicant has requested that further additional supports be included in her Plan, namely:

(a) Specialist Disability Accommodation (SDA), being 'ownership of a property designed by [the Applicant]';

(b) Increase in core funding and capacity building to all her to start her own business;

14. This expansion in the applicant's requests for what should be included in the plan has led to the raising of a jurisdictional issue. The essential question is whether the additional matters which the applicant raised for the first time in the context of the Tribunal's review can be considered for inclusion in the statement of participant supports. That is the question which this decision resolves.

15. I should however note by way of context that, to ensure that the Tribunal review has ongoing practical utility, the Tribunal, on 23 December 2020, remitted the decision which is the subject of review to the respondent pursuant to section 42D of the Administrative Appeals Tribunal Act 1975. Pursuant to that remittal the review date for the plan was changed to 7 July 2021.

16. On 5 July 2021 the Tribunal again remitted the matter to the respondent requiring reconsideration by 12 July 2021. On remittal, the review date for the plan was amended to 4 January 2022. The statement of participant supports which was approved was, in substance, otherwise unchanged.

17. It is this decision which is the subject of this review.

18. The question to be resolved is the scope of the Tribunal's jurisdiction to consider matters which have been raised for inclusion in the statement of participant supports for the first time in the context of Tribunal review. There has been a divergence of views within the Tribunal on this question.

19. Some members have taken the view that the Tribunal is jurisdictionally limited to considering whether the reasonable and necessary supports which the applicant 'placed before the original decision-maker and which he or she rejected' should be included in the statement of participant supports approved by the Tribunal.

20. The alternative view is to treat the decision making which the Tribunal is called upon to make in this context as a more open one, giving the Tribunal greater flexibility in determining what should be included in a statement of participant supports and allowing the Tribunal to consider supports for inclusion which have not been previously raised.

21. In this matter the respondent urged me to adopt the more constrained approach to my jurisdiction taken in QDKH and National Disability Insurance Agency [2021] AATA 922. Since submissions closed in this matter, the Full Federal Court has dealt with an appeal from that decision and made orders by consent setting aside the decision. The matter has been remitted to the Administrative Appeals Tribunal for determination according to law having regard to the contents of the certain notations. Those notations include the following:

The parties agree that [the conclusion that it did not have jurisdiction to consider supports that were not 'put before' the internal review] involved an error of law for the following reasons:

(a) The Tribunal's jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO's or delegate's decision to approve a SOPS [statement of participant supports] under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4).

(b) The Tribunal's role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal's jurisdiction is, therefore, determined by reference to the scope of the internal reviewer's powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.

(c) On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports "put before" the internal reviewer. A participant in the National Disability Insurance Scheme need only "request" a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review.

(d) Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to "facilitate" the preparation of a participant's plan (s 32(1)) and to prepare the SOPS "with" the participant (s 33(2)).

(e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that "[p]eople with disability should be supported to receive reasonable and necessary supports" (s 4(5)) and that "[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs" (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26].

22. In my assessment this resolves the question of the Tribunal's jurisdiction and confirms that I am not limited to considering the question of whether supports raised by the applicant for inclusion in her original statement of participant supports are reasonable and necessary supports.

23. The Tribunal will list the matter for a telephone directions hearing as soon as possible to determine what next steps should be taken to progress the conduct of the review.

I certify that the preceding 23 twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan.