National Disability Insurance Agency v IHY25

1. Each party shall bear its own costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The National Disability Insurance Agency (NDIA) appeals from a decision of a general member of the Administrative Review Tribunal made 5 December 2024.
2. The respondent is a child participant in the scheme created by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), having met the early intervention access criteria for developmental delay (references to the respondent acting in these reasons are references to him acting through his next friend).
3. A delegate of the NDIA approved a statement of participant supports (SOPS) for the respondent under s 33(2) of the NDIS Act for a 24-month period from February 2023 to February 2025, with specified funding supports.
4. The respondent requested an internal review of the decision, and sought additional supports.
5. A delegate made an internal review decision under s 100(6) of the NDIS Act affirming the previous decision, rejecting the additional requests on the basis they did not meet the criteria for reasonable and necessary supports (reviewable decision).
6. The respondent sought review of the reviewable decision from the Tribunal on 4 July 2023.
7. To maintain continuity of support while the matter played out before the Tribunal, a revised SOPS was issued with certain additional supports. The application for review proceeded before the Tribunal on the basis of the revised SOPS.
8. The Tribunal set aside the reviewable decision and remitted it for reconsideration in accordance with specified directions as to the reasonable and necessary supports to be included in the SOPS.
9. The NDIA brought an appeal from the Tribunal's decision pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Such an appeal is to this Court exercising original jurisdiction and on a question of law.
10. In summary, by the notice of appeal the NDIA contends that the Tribunal erred by making two particular directions. First, it directed that the SOPS contain specific reasonable and necessary supports including 'one-on-one swimming gap fee of $715' (direction (a)(v)). Second, it contended that the Tribunal erred by requiring that the SOPS include funding for a comprehensive assessment to be undertaken by a health practitioner to provide a plan that would include details as to the number of hours per week of support, with that number of hours suggested in the plan to then be incorporated into the SOPS (direction (a)(vii)).
11. The first direction was said to be an error of law in that the Tribunal misapplied and misconstrued s 34(1) of the NDIS Act. The second direction was said to involve error in that the Tribunal denied the NDIS natural justice or procedural fairness and (to summarise) made a decision in respect of which it did not have jurisdiction or power, and constructively failed to exercise jurisdiction.
12. In summary, the NDIA sought orders by its notice of appeal that the relevant directions be set aside and the matter be remitted to the Tribunal to be decided according to law.
13. Various programming orders were made for the purpose of the hearing of the appeal. However, the parties have indicated by their legal representatives that they agree that the appeal should be allowed. They have filed a joint Minute of consent orders to that effect, seeking an order that the appeal be allowed, that the impugned directions be set aside and that the matter be remitted to the Tribunal with a direction that the Tribunal determine:

(1) the number of hours of weekday support worker assistance to be provided to the respondent each week; and

(2) any other changes to the Tribunal's directions that the parties jointly propose and that the Tribunal determines appropriate.

1. In order to make such orders, even when proposed by consent, the Court must be satisfied that the Tribunal made the alleged error and that it is otherwise appropriate to exercise its jurisdiction to grant the relief sought. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. Further, as explained by Colvin J in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [4]:

in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

1. In accordance with the Court's Practice Note, Consent Orders Involving a Federal Tribunal (GPN-TRIB), the Minute provided by the parties contained, within a 'notes' section at the foot of the document, a statement of the matters said to justify the making of the proposed orders, giving references to the authorities and the statutory provisions relied upon.
2. The note was carefully prepared and I acknowledge the contribution of the respective solicitors in this regard. I extract it below (with some minor editing for consistency of defined terms):

Note pursuant to GPN-TRIB

1. In making its decision, the Tribunal included a series of specific directions binding on the NDIA when the NDIA reconsidered the SOPS. Two of those directions form the basis of the appeal in this proceeding.
2. Direction (a)(v) was that the SOPS include 'one-on-one swimming gap fee of $715.00'.
3. In making that direction, the Tribunal exceeded the powers available to the NDIA and, by operation of s 54 of the ART Act, the powers available to the Tribunal.
4. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) commenced on 3 October 2024.

4.1 The Amending Act added paragraph (f) to s 34(1) of the NDIS Act. That paragraph specifies, as essential for any support to be included in a SOPS, that the CEO of the NDIA is satisfied that 'the support is an NDIS support for the participant'.

4.2 Following the commencement of the Amending Act, s 10(1) of the NDIS Act provides that a support is an NDIS support for a person 'if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support'; and s 10(4) provides that the National Disability Insurance Scheme rules may declare that a support is not an NDIS support.

1. The relevant Rules are the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Rules).

5.1 Schedule 1 to the Rules lists supports that qualify as NDIS supports: see s 5(1) of the Rules; and Schedule 2 to the Rules lists supports that are not NDIS supports: see s 5(2) of the Rules.

5.2 None of the supports listed in Schedule 1 matches the support prescribed in direction (a)(v).

5.3 Schedule 2 to the Rules lists supports that are not NDIS supports for a participant and includes the following:

(a) costs associated with recreational sports and activities: paragraph (h);

(b) general health, fitness, social or recreational activity costs or services: paragraph (q).

5.1 Because the CEO lacked the power to include, in the Respondent's SOPS, a support of the kind specified in direction (a)(v), that power was similarly not available to the Tribunal - because s 54 of the ART Act gives the Tribunal 'the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act'; and, as recognised by Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]:

The AAT exercises the same power or powers as the primary decision. maker, subject to the same constraints ...

1. Direction (a)(vii) was that the SOPS include [sic] 'Fund a comprehensive assessment by a suitably qualified allied health practitioner to provide a proposed plan for the developmentally appropriate graduated transition of the [Respondent] being able to separate from his mother and access an age-appropriate early childhood care or education facility. The plan is to include a proposal on the number of hours of weekday support worker assistance most likely to be required over a 12-month period that considers the graduated nature of the transition, environmental changeovers and the subsequent withdrawal of support worker hours. The number of weekday support worker hours should be provided accordingly in the statement of participant supports, having had regard to this assessment and the findings of the Tribunal in this decision at paragraphs 167 to 227. Once the support worker hours have been established, they would replace the current funding for Core Supports specialised home-based assistance for a child in the current plan."
2. That is, direction (a)(vii) has delegated to 'a suitably qualified allied health practitioner' the decision as to a part of the Respondent's SOPS.
3. The Tribunal gave neither the Applicant nor the Respondent notice that the Tribunal was contemplating giving direction (a)(vii) and accordingly denied the Applicant procedural fairness in making that direction: if the Applicant had been given notice, it would have sought to explain why the direction was beyond the Tribunal's powers.
4. In giving direction (a)(vii), the Tribunal failed to make a decision of the kind permitted by s 105 of the ART Act but, instead, impermissibly delegated to a 'suitably qualified allied health practitioner' the function of determining the number of weekday support worker hours that should be included in the Respondent's SOPS. That delegation amounted to a failure to exercise the Tribunal's jurisdiction.
5. The Tribunal should have:

10.1 itself decided the number of weekday support worker hours to be included in the Respondent's SOPS: a decision of the kind contemplated by s 105(c)(i) of the ART Act; or

10.2 remitted that question for reconsideration by the Applicant with appropriate directions that allowed that decision to be made by the Applicant: a decision of the kind contemplated by s 105(c)(ii) of the ART Act.

1. Order 3 now proposed by the parties will ensure that the Tribunal makes a decision of the kind contemplated [by] s 105(c)(i) of the ART Act - having regard to the available evidence and the parties' submissions. Order 3 will also allow the parties to raise with the Tribunal any proposed changes to the directions made in the Tribunal's original decision and agree on the form of the decision to be made by the Tribunal, as contemplated by s 103(2) of the ART Act. (That is more than a hypothetical possibility - the parties are negotiating on the terms of an amendment to direction (a)(i) and a direction in place of direction (a)(vii)).

1. I am satisfied, for the reasons expressed by the parties in the note to the Minute, that the Tribunal erred by directing provision of a support which was not prescribed and so not available to the respondent. The Tribunal exceeded the powers available to the NDIA and so exceeded its own powers.
2. I am also satisfied that the failure to provide to the NDIA the opportunity to make submissions on a matter the Tribunal identified and then included in the orders relating to the SOPS, in circumstances where the NDIA could have otherwise sought to challenge its inclusion, constituted a failure to provide procedural fairness. The Tribunal impermissibly delegated to a 'suitably qualified allied health practitioner' the function of determining the number of weekday support worker hours that should be included in the respondent's SOPS. I accept the joint submission by way of the note to the Minute that such delegation amounted to a failure to exercise jurisdiction. The Tribunal accordingly erred in law.
3. In the circumstances, the appeal is allowed. Effect should be given to the parties' agreed position and orders should be made generally reflecting the Minute.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.