Ground 3(b)
100 Turning to ground 3(b), it is necessary to recall the context of the Tribunal's findings. On internal review, XZJY (taking her as the example for these purposes) had sought support of six hours per day by a registered nurse: at [6]. However, after the adverse internal review decision and before the Tribunal, XZJY sought support from a registered nurse for four hours, seven days a week: at [9]. Thus, it was this figure - around four hours per day - that was before the Tribunal in terms of assessing whether that level of care by a registered nurse was a reasonable and necessary support for XZJY.
101 The reason for the change was explained in opening submissions before the Tribunal by the review applicants' lawyer (Tribunal transcript at p 13, l 43 - p 14, l 2):
One thing that becomes evident through this survey of their circumstances and their requested supports and the basis for the requested support needs is that it is materially less than what they sought on the internal review. In each case, Professor Wilson's recommendation is in the four hour range whereas on internal review the amount of hours of registered nursing support per day was more, a couple of hours to three hours more for some of the - for one of the participants.
102 This summary broadly reflects the differing review requests by each of the three review applicants. KKTB, XZJY and YHPS requested 7.03 hours, 6 hours and 4.08 hours per day (respectively) in the internal review, and then 4.86 hours, 4 hours, and 4.8 hours per day (respectively) before the Tribunal: KKTB reasons at [6], [9]; XZJY reasons at [6], [9]; YHPS reasons at [6], [9]. Nevertheless, the point is that each review applicant reduced the registered nurse hours requested and did so at least in part in reliance on Associate Professor Wilson's opinions.
103 The review applicants' lawyer also emphasised the following point in opening. In our opinion, it is clear from the Tribunal's reasons that it accepted this submission:
There is a debate between the respondent and the applicants about how the requested supports should be framed. In my submission, this is a case where the requested supports should be framed with pragmatism and with reality in mind. What I mean by that is this, it is unknowable what precise registered nursing support, exact registered nursing supports each of the participants will need every single day over the life of a 12-month plan. Professor Wilson doesn't purport to give that sort of statement in [his] reports. What he does is to fact[or] in all of the relevant data points that he observed and he assessed, and he comes to a professional clinical judgment, which is an estimate of what is required. Having framed it that way, from the applicants' point of view, the requested support is for an identifiable number of hours based on Professor Wilson's professional estimation.
104 For the reasons we set out below, we do not consider there was anything legally erroneous in the Tribunal not expressly addressing in its reasons the Agency's criticism of Associate Professor Wilson's estimates, and the task by task basis for them. What the Tribunal said at [107] of its reasons (extracted at [96] above) was, in the circumstances of these three reviews, sufficient. There was no legal error in terms of the Tribunal's assessment of what was the correct or preferable decision on each review about the "necessary and reasonable supports" that should be set out in each review applicant's participant plan, in terms of how much of their daily or weekly care was to be funded to be delivered by a registered nurse.
105 Rather, the assessment of what were the "reasonable and necessary supports" for each review applicant were factual matters for the Tribunal to determine. The approach to take at a factual level was also for the Tribunal to determine, as we explain below. It was for the Tribunal to consider the different approaches set out in the parties' cases in each review before it.
106 Turning first to the context. As we have noted, before the Tribunal the Agency sought to impugn almost every aspect of Associate Professor Wilson's opinions, and spent a great deal of time in questioning and challenging the estimates in his tables, and the individual tasks he had identified as supports that should be provided by a registered nurse. The Agency's "Skeleton of Closing Submissions" ran to 19 pages and 83 paragraphs.
107 A considerable portion of this 'skeleton' was devoted to criticisms of Associate Professor Wilson's evidence. There were criticisms based on contended inconsistencies with applicable guidelines for care of people in the circumstances of the review applicants. There were criticisms that Associate Professor Wilson's approach was too medicalised. There were criticisms that Associate Professor Wilson's four hour estimates allowed for more time for care tasks for the review applicants than might be allowed for some hospital inpatients, in situations the Agency contended were comparable. This does not purport to be an exhaustive list, but rather is intended to give a sense of the considerable level of attack by the Agency on Associate Professor Wilson. In our opinion, on a reading of the material, there was no aspect of the Agency's merits review case which loomed larger than its attack on Associate Professor Wilson.
108 Further, rather than this being any prominent part of the review applicants' case against Ms Merran, it was the Agency who attacked the "credit" of Associate Professor Wilson, in rather unrestrained language:
Overall, it is not to [Associate Professor] Wilson's credit that he refused to accept the obvious when confronted with objective evidence that his model of care is more medicalised, and higher intensity, than what is needed for acute patients after admission to hospital: he has grossly overstated the need for monitoring of the applicants during the times they are well in order to detect possible signs of illness: T111.28-30; T145.41-42.
109 The Agency's 'skeleton' descended to very specific levels of criticism about Associate Professor Wilson's calculation of the tasks in the tables in his report. For example, the Agency submitted (at [36]):
In Table 1 [Associate Professor] Wilson identifies the risk of [KKTB] pulling out her PEG as justification for "[E]nteral care, including patency and positioning check of PEG every hour". In cross-examination, he conceded that:
(a) there was no record of KKTB having pulled out her PEG since she started wearing special clothing to prevent her tampering with her PEG (being the clothing that Ms Merran was concerned was a restrictive practice): T143.15;
(b) curdling (ie fluid being stuck in the tube) was only a concern during feeding times: T142.35;
(c) a support worker would be able to notice problems such as leaking or kinking, as well as to handle "venting" of gases: T142.18; T319.28-42.
(Original emphasis.)
110 It is worth extracting the cross-examination referred to in (a) by the Agency. We do so only for the purpose of demonstrating two propositions. First, how much this aspect of the Agency's submissions invited this Court to descend into the merits of the Tribunal's reasoning and its choice to prefer Associate Professor Wilson's opinions over those of Ms Merran. Second, to indicate that the Agency's submissions to the Tribunal were selective in their references. This is but one example, and on our review of the Agency's references, other examples could also have been given. At Tribunal transcript at p 142, l 22 - p 143, l 29:
And in your reply report after Ms Merran drew attention to the PEG tube, you recall that you said in your clinical experience - if you want to go to it I think it's your overall reply report and in [KKTB] bundle it's at 512?---Sorry, what page are we on?
So it's page 4 of your report. Sorry, I will just [look] at the page. And it's about halfway down the page, and you're criticising Ms Merran above that for there being very little differentiation between her reports. And then you say:
[KKTB]'s report does differentiate slightly from [YHPS] and [XZJY]'s at paragraph 6, 8, 11 to 17 where Ms Merran states that [KKTB] requires an additional one hour of support every three months for a routine gastroscopy tube change. In your clinical experience gastroscopy tubes fail and fall out at random times, requiring reinsertion by a registered nurse within 20 to 30 minutes to avoid a hospital admission for a surgical procedure.
And you've included these times in the estimate of her support, registered nurse support?---Yes, the times to, you know, do those routine changes and so on is incorporated in all of that, yes.
Yes. And there's nothing in [KKTB]'s medical records annexed to your report that shows that she has had any PEG tube displacements, is there?---Yes, because I don't know that typically there would be. I think that if, you know, what you would do as a registered nurse is you would have daily notes, and you would just jot down, you know, that you changed the PEG tube today and you would put the date of it, you would put what brand it was, what size it was, just in the progress notes there. There are some disability services that I have had involvement with where they have large numbers of people with a gastrostomy and so like they will have a cupboard with multiple brands, multiple sizes and so on, and they will have a chart which is, I guess, their quality control mechanism because they've got multiple people. But I think that in this instance it would just be in the progress notes, you know, that the registered nurse would just write that.
But there's nothing in there to show she has had any dislodgements in the notes because you haven't annexed anything to your reports saying it?---No, I haven't. That's correct, yes.
And the reason is, isn't it, that as Ms Merran notes, that [KKTB] has special clothing to prevent her tampering with her tube?---Yes.
And Ms Merran was concerned it was a restrictive practice?---Right.
And you didn't think it was a restrictive practice, you thought it should be checked?---No, I didn't say that I even think it was a restrictive practice, I said that I think that it's something that needs to be clarified with the Quality and Safeguards Commission, and I put a quote from the Commission that there are certain instances where something is not considered restrictive practice, but obviously you would need to seek guidance for that. And just because someone has restrictive clothing doesn't mean that the gastrostomy won't fail. It's held in by a balloon, and oftentimes it will be the balloon that will burst and so there's multiple - multiple scenarios here, multiple things can happen.
(Original emphasis, additional emphasis in bold.)
111 We have highlighted in bold aspects of Associate Professor Wilson's answer which may put a different complexion on his evidence to that the Agency sought to advance to the Tribunal in its 'skeleton'. We say "may", because these are not matters for this Court. It was the Tribunal Member who listened to all of this evidence, and who observed and assessed the witnesses, including Associate Professor Wilson and Ms Merran, but not only them, as we have pointed out. It was up the Tribunal Member to form an impression about the evidence which was relevant, reliable and persuasive, including which opinions should be accepted. It might be inferred that the Tribunal, in considering the Agency's references in its submissions, may have appreciated the Agency sought to put forward a selective view of the evidence, and this contributed to the Tribunal's preference for a more holistic approach. Otherwise, the Tribunal could have been drawn into dealing in its reasons with every footnote in the Agency's written submissions. That was neither a necessary nor appropriate task for it on these reviews.
112 On matters of fact and opinion, the Tribunal does not have to set out in its reasons a minute line by line refutation of the case put by one party in the Tribunal which it does not accept. It must of course carefully consider the submissions made by each party on a review before it. Having done so, it is entitled to form its impressions of witnesses before it, and the evidence they give, and so long as in its reasons it sets out those impressions in a rational and reasonable way, explains why it has preferred one witness over another (if indeed it has), and refers to the material on which its conclusions are based, its reasons comply with its obligation in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal did refer to a number of passages from Associate Professor Wilsons's reports which, by the Tribunal's use of bold highlighting, clearly indicates how it preferred the applicant's approach: see the extracts in the XZJY reasons at [73], [76] , [78], as well as [80].
113 The Tribunal's reasons are compliant with its obligation in s 43(2B), and indeed on this appeal are not alleged by the Agency to be otherwise. It is important that, on an appeal under s 44 of the AAT Act, this Court does not impose unduly arduous or insuperable burdens on a busy merits Tribunal about the level of detail required in its reasons. The Tribunal's reasons here are coherent, logical and contain sufficient detail in terms of its references to the evidence on which its findings are based. It need not have done more.
114 What we see in these three reviews were opposing parties inviting the Tribunal to adopt quite different levels of scrutiny. The review applicants sought to ask the Tribunal to rely on Associate Professor Wilson's overall conclusions of around four hours for each review applicant, noting that was always an approximation and their needs would vary but this was the level at which the funding should be pitched, to satisfy what was a "reasonable and necessary support" from a registered nurse.
115 The way the review applicants put their case on review was evident from the start, in their Tribunal review applications. XZJY's application was before the Court on the appeal. The text is not clearly reproduced, perhaps because the document is a print-out of an online document. However XZJY's reasons for the review are clear:
The decision direct[l]y affects my hea[l]th and we[ll] being and cou[l]d [l]ead to my death. I need this issue addressed as a matter of urgency[.] I require Registered Nursing support, assessment and monitoring. I cannot make my own decisions and re[l]y on professiona[l] c[l]inica[l] assessment and assistance. A [disability support worker] is not trained, or qua[l]ified to de[l]iver this assistance and it is not the ro[l]e of an RN to train a [disability support worker] in … [n]ursing care, protoco[l]s and procedures. I have a[l]ways required this high [l]eve[l] of assistance and have been supported by Registered Nursing oversight and care we[ll] before the NDIS was initiated.
My needs are not determined by [the care provider]. This organisation meets my needs as they are. My carers are deep[l]y disturbed by this decision as they have seen the damage done when care is de[l]ivered by unski[ll]ed workers.
[The care provider] has a nurse on duty 24/7 and there are documented instances where this staffing has been abso[l]ute[l]y vital for me.
My needs have not been adequate[l]y assessed and addressed; my hea[l]th profi[l]e has been ignored. This is a funding decision and the argument about Registered Nursing care was a State / Federa[l] footba[ll] for the first years of NDIS; now that this aspect of care has been p[l]aced in the NDIS fie[l]d of funding my needs have been reassessed so that I no [l]onger required this [l]eve[l] of care. Certain[l]y nothing miracu[l]ous has occurred that wou[l]d enab[l]e me to take part in my high [l]eve[l] care. There are residents of [the care provider] present[l]y receiving Registered Nursing supports in the p[l]ans. Like myse[l] they need these hours of specia[l]ised care.
116 The first paragraphs of the review applicants' statement of facts, issues and contentions also made it clear their case was that care by a registered nurse was the necessary and reasonable support in issue (rather than the individual tasks to be performed):
The internal review decisions concerned the approval of a statement of participant supports for each of the applicants under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In those decisions, the Agency declined each applicants' requested level of registered nursing supports on the basis that the supports did not satisfy the criteria in s 34(1)(c) of the NDIS Act. On the present review, the applicants contend that the correct or preferable decision in each case is to approve their requested level of registered nursing supports as detailed further below and in the evidence before the Tribunal.
…
For the reasons set out below, the Tribunal should set aside the Agency's internal review decisions and find that the requested registered nursing supports for each applicant satisfy the criteria in s 34(1) of the NDIS Act and the applicable National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules).
(Original emphasis omitted, emphasis added in bold.)
117 Associate Professor Wilson's opinion was put before the Tribunal as part of the review applicants' case as set out above. The case was not for funding for each personal care task each review applicant might need, but for a reasonable approximation of the amount of time, on a daily basis, for which it could be expected each of the review applicants would need the support of a registered nurse. As the extract above indicates, the review applicants themselves explained why this was so, and their explanations did not centre on the minutiae of how a registered nurse might care for them each day, that of course being a matter that could vary and change over time, depending on their health, their needs and the course of their daily lives.
118 Associate Professor Wilson prepared a separate report for each review applicant. If XZJY is used as an example, in his report on her, Associate Professor Wilson set out the following summary at the start of his report (at p 4):
Overall Support Needs Summary: [XZJY] has profound and multiple disabilities with disability-related multiple chronic and complex health problems. [XZJY] requires full support for all of her daily care and support needs. A Disability Support Worker (DSW) is required 24-hours a day to ensure that [XZJY] remains comfortable, is able to achieve the greatest quality of life possible, has opportunities to participate in activities that she enjoys, and has all of her daily personal care needs met. The complexity of [XZJY]'s disability-related health support needs, the rapid manner that her health status can deteriorate, and her inability to directly communicate symptoms to others, means that she requires access to a Registered Nurse-led model of relationship-centred care for her overall health needs and management.
…
Note: A[ registered nurse] is the only staff member with the scope of professional practice to undertake a nursing assessment of any acute exacerbation of [XZJY]'s respiratory, urological, sensory and gastrointestinal status, to implement a nursing intervention/s, and monitor and review for deterioration or improvement in [XZJY]'s condition. [XZJY]'s history of unpredictable and rapidly deteriorating health status, needs urgent and skilled nursing assessment, intervention and clinical decision-making.
(Original emphasis.)
119 This opinion as expressed is consistent with the "reasonable and necessary support" being a specific number of hours' funding for care by a registered nurse as part of XZJY's daily care, as well as a disability support worker, it being common ground each review applicant needed 24 hour care, most of which would be provided, on a 24 hour basis, by a disability support worker.
120 The Agency sought to parse and divide, line by line, and minute by minute, task by task, how Associate Professor Wilson reached his conclusions. As the transcript extract at [110] above demonstrates, read with the passages from his report we have extracted earlier in these reasons, Associate Professor Wilson was not intending to be prescriptive through his tables. He was attempting to provide a basis for how he reached the calculation of four hours. But time and again in his reports and in his oral evidence he emphasised the complexity of the impairments experienced by the review applicants, the way those impairments could suddenly change or worsen (or how new complications and life threatening issues could arise), and the interaction of the management of those impairments with the review applicants' overall well-being and enjoyment of life. In that context, doing the best he could to predict what might be needed over a 12-month period in the future, allowing for a wide range of possibilities, he landed on four hours of funding as reasonable and necessary. The Agency was entitled to test that opinion, and its basis, as it saw fit. Which it did. However, ultimately, it had to persuade the Tribunal Member who listened to all the evidence that its criticisms should be accepted. A descent into minutiae might or might not have been the best forensic choice, but that is what occurred.
121 As the Tribunal's reasons demonstrated, it preferred a more holistic approach and expressly rejected that level of scrutiny as necessary: see at [107]. That was a choice for it as the merits decision-maker. As we explain below, the NDIS Act does not require any particular level of scrutiny, and certainly does not require a Tribunal in its reasons to refute, line by line, the minutiae of an attack made by the Agency.
122 Other examples can be found of the differences in the parties' approach, ultimately reflected in the Tribunal's choices in its reasons. In oral closing before the Tribunal, the review applicants' lawyer made submissions such as the following (Tribunal transcript at p 402, ll 23-45):
Now, the next topic is these New South Wales Health Guidelines. Mr Kremer referred to the guidelines to suggest that - I've got it here, this is the recognition and management of patients who are deteriorating - a New South Wales Health Guideline. Mr Kremer referred to these guidelines to suggest that what Professor Wilson is recommending is in excess of these guidelines and that should never be accepted because these guidelines provide for what people in acute care of [sic] sub-acute care should have. Now, can I just refer the tribunal in passing to part 4.4 of these guidelines which is on page 15 of 33. I won't ask the tribunal to read that section now, but it's headed, Individualised Monitoring and Assessment Plans. And the first sentence states, 'It is recommended that patients with clinical needs which differ from approved clinical management guidelines have an individualised monitoring and assessment plan in place. And then it goes on to say more about the need ultimately for an individualised assessment plan.
All this is a way of saying that we circle back to the essential point in this case which is that the tribunal or any decision-maker should make a decision guided by appropriate expert evidence relevant to a person's specific circumstances and is not - and should not be - should not be dictated to by what's in a policy guideline. And in fact, the policy guidelines say all the relevant policy guidelines that the tribunal's been taken to have a way of saying, the individual's individualised assessments and needs should be considered ultimately.
(Emphasis added.)
123 The review applicants' written statement of facts, issues and contentions in reply made a similar point at [39]:
Therefore, the purported clash of models is not the correct lens through which to view the case or the evidence. The [review] applicants' main contention in relation to 'models' is simply that the delegated care model imposed by the internal review decision should not be accepted by the Tribunal. The alternative posited by the [review] applicants is simply that the registered nurse supports identified by Associate Professor Wilson are reasonable and necessary for each of them in their circumstances.
(Emphasis added.)
124 A further example of the different emphasis in the parties' cases before the Tribunal concerns the review applicants' emphasis on their "lived experience" and the experience of those who have cared for them. The Tribunal identified this "lived experience" as "evidence of the success of care of Registered Nurses (working in conjunction with supervised Disability Support Workers)" (at [153]). Regard to lived experience was a feature of the closing submissions before the Tribunal by the review applicants, with the review applicants' legal representative stating (Tribunal transcript at p 405, ll 29-37):
The next topic concerns the relevance of the experience of the parents. Again, I go back to the fundamental point in relation to section 34(1)(d) which is the rules make the lived experience - this is in paragraph 3.2(b) - the rules make the lived experience of the participant or their carers relevant material, relevant matters for the tribunal to consider in making a determination about section 34(1)(d). The lived experience of the participants and in particular the plan nominees, being the parents in this case, supports the view that the supports, the requested supports, have been and will be effective and beneficial.
125 The Tribunal's reasons demonstrate it accepted the review applicants' overall approach: see at [2], [109]. That was part of the performance of its proper function as merits decision-maker.
126 The premise of ground 3(b) is that the Tribunal was required to dissect Associate Professor Wilson's evidence in the way the Agency did, in order to reach a conclusion about what were the necessary and reasonable supports for each review applicant.
127 That premise is simply incorrect in terms of the factual circumstances before the Tribunal, and the different cases presented to it, as we have explained. It is also incorrect at a legal level.
128 The phrase "reasonable and necessary supports" is not defined in the NDIS Act. Section 34 does not exhaust the universe of matters which a decision-maker may consider to decide whether a support is a reasonable and necessary one for a particular participant, given their impairments: see McGarrigle at [91]. See also WRMF at [150]. Section 34 prescribes matters about which the decision-maker must be satisfied before a support can be included in a statement of supports under s 33. Satisfaction as to those matters (where relevant and applicable) may be conditions on the power to approve a support or supports, and enter a support in a statement of supports under s 33. However, the phrase "reasonable and necessary supports" has a qualitative aspect and leaves an area of decisional freedom in the conclusion reached by a decision-maker about whether a support is properly characterised as a "reasonable and necessary support": WRMF at [143], [152]. It is a composite phrase, which should not be definitively constrained, with each limb of the phrase using language well understood by courts: WRMF at [149]-[150], [252].
129 In WRMF, the Full Court said (at [141]):
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act …
130 In National Disability Insurance Agency v Davis [2022] FCA 1002 at [69], the Court noted the relationship between the concept of permanent impairment (part of the access criteria for the NDIS scheme) and the supports to be provided to a participant through a plan:
What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the "functional capacity" of a person.
(Original emphasis.)
131 Also important are the terms of s 17A of the NDIS Act. As at the time of review, s 17A stated:
Principles relating to the participation of people with disability
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
(Original emphasis.)
132 In Davis at [83], the Court also said:
The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.
133 There is nothing in the text, context or purpose of the legislative scheme, nor in its use of the phrase "reasonable and necessary supports", which requires a prescriptive approach to be taken by decision-makers to the description of what are the supports which should be funded for a participant. Given that these are individualised decisions, concerning people with a wide range of impairments in nature, severity and complexity, how a "support" is to be specified in a participant's plan will also be individualised.
134 In the present reviews, it was as clear as it could be from the terms of the internal review decision, which framed the issues before the Tribunal, that what the Tribunal needed to resolve was how much care by a registered nurse should be funded as a support for each participant. Accordingly, the Tribunal approached the question of whether around four hours of daily care by a registered nurse was a reasonable and necessary support for each review applicant with the objectives and s 17A firmly in mind. Its reasons emphasise the evidence before it about the quality of life each of the review applicants enjoyed with the present levels of care by registered nurses. That was a matter it was entitled to emphasise.
135 The respondents are correct when they submit that the Agency's contentions in ground 3(b) involve a characterisation at a factual level of the "supports" for each review applicant being "the various tasks" to be provided by a registered nurse. That is not how the Tribunal approached the matter at a fact-finding level. As the respondents submitted, the Tribunal looked at what daily level of care by a registered nurse was a reasonable and necessary support for each review applicant. It was a daily level of care by a registered nurse which was the support sought; namely around 4 hours. That is what was in issue on the review. The Tribunal undertook this assessment on the basis that this "support" would be in addition to the care which the parties agreed would also be provided by disability support workers (and was not in issue on the review), and it was correct to do so. Taking the XZJY reasons as an example, the Tribunal's conclusions at the end of its reasons (at [172]-[173]), as well as its reasons as a whole, demonstrate this was the approach it took.
136 It was not the Tribunal's task to prescribe in minute detail the kind of daily care each of the review applicants should receive, whether over the 12-month life of the plan or beyond that. Its task was to decide what should be entered in their respective participant plans in their "statement of participant supports" (to use the language of s 33(2)) and - relevantly to the only issue on the review - what amount of care by a registered nurse would be funded under the NDIS as a reasonable and necessary support. It performed this task.
137 Question of law 3 must be answered adversely to the Agency, and grounds 3(a) and 3(b) must be rejected.