Administrative Appeals Tribunal Act 1975 (Cth)

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

1. The Applicant, LinkAssist Pty Ltd, is a service provider. It was providing disability supports to an NDIS participant. It continued to provide services after funding in the participant's NDIS plan had been exhausted. It submitted invoices to the respondent, the National Disability Insurance Agency (the Agency) in the period 7 June 2021 to 19 October 2021. It claimed that the total amount which remained outstanding and unpaid from those invoices was $298,667.65.
2. In its application to the Tribunal, the Applicant sought review of a decision which it received on 7 January 2022. That was a decision of the Agency which was confirmed in an email dated 7 January 2022 from the participant's plan manager to the Applicant. The decision was in these terms:

The National Disability Insurance Agency (NDIA) has reviewed your enquiry and can advise that we are unable to make the requested payment as the Participant's Support Category budget has been consumed.

1. In fact, the Agency made that decision earlier. It lodged "outcome details", apparently on 30 November 2021, on a platform known as PRODA. Those "outcome details" came to the attention of the plan manager and he conveyed them to the Applicant by email dated 20 December 2021.
2. The Agency submitted that the Tribunal lacks jurisdiction in this matter as there is not a reviewable decision before the Tribunal. In particular, the Agency submitted that a decision by the payments branch of the Agency (the payment decision) is not a reviewable decision under section 99 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and there was no internal review decision under section100(6) of the NDIS Act
3. The Applicant requested the Tribunal to review the decision and to direct the Agency to pay the outstanding amount.
4. It is not disputed that the Agency decided to approve a statement of participant supports for the participant on 24 November 2020. That appears to have been her first NDIS plan. It is not disputed that the Agency decided subsequently to approve a statement of participant supports on 21 October 2021 for the participant's next NDIS plan. Each of those decisions was a reviewable decision under section 99 of the NDIS Act.
5. The Agency did not receive a request from or on behalf of the participant for an internal review of either one of the decisions approving the statement of participant supports in her NDIS plans. In the proceedings before the Tribunal, the Agency suggested it was not clear (i) whether the Applicant was seeking the outstanding funding on behalf of the participant, and (ii) whether the participant was aware of the proceedings.
6. The matter was listed initially for an interlocutory hearing before the Tribunal on 22 March 2022. The interlocutory proceedings were adjourned on several occasions over many months at the Applicant's request. While the Tribunal explained the issues about jurisdiction to the Applicant's representative and manager, Ms Agyeiwaah, she was waiting for the results of an investigation by the Commonwealth Ombudsman and was concerned that they might be relevant and helpful to her application. With the consent of the Agency, the Tribunal proceedings were adjourned progressively. However, the results of the Ombudsman's investigation ultimately were not forthcoming. While the results of that investigation may have had practical relevance for the Applicant, it was inappropriate for the Tribunal proceedings to be delayed further. Accordingly, directions were made for provision of further written submissions and material prior to an interlocutory hearing by telephone, at which the parties provided oral submissions.

1. Under an order made by the Victorian Civil and Administrative Tribunal on 20 November 2020, the Office of the Public Advocate was appointed guardian with authority to make decisions about where the participant lives, her medical treatment, service provision and accommodation. As the terms of the order stated, the participant does not have capacity to make decisions about those matters due to her disability.
2. The participant's plan manager summed up the payment problem in an enquiry to the Agency on 29 October 2021, namely that the Applicant:

... used a lot of funding in her last plan and funds were depleted well before its end date. A number of outstanding invoices from LinkAssist were paid for from an NDIA managed booking. However there are still a number of outstanding invoices. [The Applicant] has since received a new plan, but the planner has advised that we cannot pay these invoices with the new plans funds. LinkAssist have been advised that we the plan managers need to lodge a payment request for these monies. Simultaneously [ the plan manager] have been advised that LinkAssist are responsible for this payment request. Please see the attached invoices and make contact with [the plan manager] and/or LinkAssist to help us in making the payments. This is quite a substantial figure, and [the participant] will continue to engage with LinkAssist and it is very important that this provider receives what they are owed.

1. At that stage, the amount outstanding was $272,503.49. As the plan manager wrote, this is "quite a substantial figure". Needless to say, the final outstanding amount of $298,667.65 is, equally, "quite a substantial figure".
2. The Applicant provided 24/7 accommodation and support services for the participant throughout 2021. The participant has significant support needs and exhibits challenging behaviours. Numerous agencies and individuals were involved in discussions about the support which she required and funding for that support. In addition to the Agency and the Applicant, they included the Office of the Public Advocate (Victoria), a behaviour support practitioner, a specialist support coordinator and a registered plan management agency. Complexities included the high level of supports required for the participant, the cost of those supports, and the status of the Applicant as a support provider awaiting registration. The difficulties regarding the Applicant's pending registration raised issues about compliance with implementation and reporting on restrictive interventions by an unregistered service provider, the apparent absence of any other available, suitable service provider, together with issues around the Applicant's tenancy agreement with State Trustees and service agreement with the Office of the Public Advocate.
3. While the Applicant continued to provide services to support the participant during the currency of her NDIS plan, the unpaid invoices were mounting up in June and July 2021. On 24 August 2021, the support coordinator wrote to the Applicant stating:

I have discussed your issue with claiming funding with the NDIS planner again today, and unfortunately I cannot move the current NDIA managed funds over to Plan Managed for you to be able to access due to being not Registered Providers. As due to not being Registered Providers, you cannot claim NDIA managed funds.

I understand that you have undertaken registration and are awaiting finalisation by the NDIS.

This is something that neither myself or the Planner can assist with.

I suggest as the Provider with pending registration, you follow up with the NDIA directly ASAP and if you are not satisfied with response or timelines you could lodge a formal complaint to have the matter addressed urgently.

As I wouldn't want for you to claim your outstanding amounts from the provider portal and risk of non-payment.

We need to look at current support ASAP and see how this is going to be sustainable into the future. I will liaise with [the Applicant] on current support in place, funding and how we can address these things.

But NDIA will not see this as a sustainable option as it is currently. You will need to commence the stepdown process ASAP and introduce a sleepover rather than 2 active nights.

Please let me know how you go following up your registration as this is the simplest way I can see you claiming the NDIA managed funds at present and compliance with reporting on restrictive interventions.

It is really paramount that [ the participant's] support provider be registered to be able to report on the BSP. I know this is something you would like in place so I suggest you escalate it as much is possible with the NDIA.

1. Three days later, the Office of the Public Advocate emailed the Applicant to advise that there is nothing that its office or the support coordinator or the NDIA planner could do to assist the Applicant with regard to payment of the outstanding funds. Service registration was still pending. With written advice from a behaviour support practitioner, steps were underway to try to reduce the level and cost of supports while ensuring the safety of the participant, together with the safety of her support workers and the protection of the community. But the risk by the end of August was, as the Advocate Guardian wrote - "it is my greatest concern that [the participant] may now be in a position where we need to locate alternative accommodation or she has significantly reduced service due to the funding now not being available."
2. The Applicant continued to provide services. There is no material to suggest that the participant wanted to reside anywhere else. There is no suggestion of any other short term accommodation options. The new NDIS plan came into effect on 21 October 2021. That plan included supported independent living (SIL) funding to support the participant who, by all accounts, was settled and content in her accommodation at that time, and still is some 20 months later.
3. The Applicant provided supports through the duration of the participant's two NDIS plans. At one stage, a manager of a support coordination agency expressed appreciation to the Applicant for providing supports "longer than past providers under difficult circumstances". Another support coordinator wrote to the Agency on 8 June 2021 with advice that, despite the depletion of funds, the participant required continuing support from the Applicant.
4. The funding problem which the Applicant faced, particularly in mid-2021, was whether it should withdraw services altogether or continue with them in the hope that some or all of them would be funded retrospectively. The client dilemma which the Applicant faced was the prospect of instability and disruption to the participant if she was forced into emergency accommodation, if it existed, elsewhere.

1. The issue which arises in this matter about the Tribunal's jurisdiction was similar to the issue which the Tribunal, comprising Deputy President Forgie, considered in Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360. In that matter, the Tribunal determined that it did not have jurisdiction to review the Agency's decision not to pay the invoices for two participants for services provided under service agreements. One of the invoices amounted to $2639.28 and the other was for $4363.44. The services were provided "in response to cries for help", but they were beyond the participants' NDIS plan budgets. The Tribunal explained that the NDIS Act sets boundaries within which the scheme operates, and those boundaries include limitations on the types of decisions which the Tribunal is empowered to review. The Tribunal explained at [8]:

It is in this context that the NDIS Act provides for review of decisions made under it. Provision for review is made of some decisions and not of others. Determining whether the Tribunal has jurisdiction or power to review a particular decision is a matter of statutory interpretation. The starting point must always be the provision that gives the Tribunal power interpreted in the context of the relevant enactment having regard to the particular words used by Parliament and having regard to the object and underlying policy of the enactment. Parliament has chosen those decisions which should be reviewed and those which should not. It is not for the Tribunal to attempt to stretch the boundaries of the scheme of review established by the Parliament in an endeavour to make the Agency accountable for its expenditure and administration. Parliament will have had that in mind when it selected the decisions that the Tribunal might be asked to review just as it will have had in mind other means to ensure that the Agency is accountable for its administration of the NDIS. Those other means will include the Commonwealth Ombudsman and the Auditor General as well as, through the responsible Minister, Parliament.

1. The table in s 99 of the NDIS Act sets out the reviewable decisions under the NDIS Act. Section 100(2) provides that a person directly affected by a reviewable decision may request the decision-maker to review that decision. On internal review, pursuant to s 100(6) of the NDIS Act, the reviewer must make a decision confirming the reviewable decision, or varying it, or setting it aside and substituting a new decision. The Tribunal's jurisdiction is established by s 103(1) of the NDIS Act, which states:

(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

1. The table of reviewable decisions in s99 of the NDIS Act specifies 33 items, each of which specifies one or more reviewable decisions and the provisions of the Act under which the reviewable decision is made. As the Tribunal pointed out in Complete Nursing and Home Care Pty Ltd, none of those reviewable decisions are decisions that relate to payment to a service provider. The conclusion in that matter inevitably leads to the same conclusion in this matter, namely that the Agency's decision to reject a payment request is not a decision which is specified in ss 99(1) or (2). Hence, the Applicant is not entitled to seek review of the decision under s100(2). The request which the Applicant made to the Agency for its refusal to pay does not fall within the provisions of s100(6). Accordingly, any decision made by the Agency on that question is not a decision under s100(6). In the absence of any such decision, the Tribunal does not have a power of review under s103.
2. In its application to the Tribunal the Applicant contended that the decision to withhold payments was incorrect, unfair and burdensome. The Applicant pointed out that the alternative of withholding accommodation support was unsatisfactory, because it would result in the participant's eviction, with the uncertain consequences that might follow. It was left to the Applicant "in real time" to take the burden of responsibility at the extraordinary financial cost of $298,667.65. While the delay and uncertainty about the Applicant's registration status, for which the Applicant may bear some accountability, contributed to the impasse, the final result, nonetheless, is that only the Applicant took responsibility for supporting a person with significant impairments when there was no clear and safe alternative proposed by statutory agencies. The events do not fit comfortably with the objects in s3 of the NDIS Act, nor with general principles guiding actions set out in s4 of the NDIS Act.

1. The Tribunal decides that it does not have jurisdiction to review the Respondent's decision to refuse to pay the Applicant's invoices seeking payments for services provided to a participant under the National Disability Insurance Scheme. Pursuant to s 42A(4) of the Administrative Appeals Act 1975, the application for review is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Member Thompson