Nohmen and National Disability Insurance Agency [2023] AATA 20 (16 January 2023)

NATIONAL DISABILITY INSURANCE SCHEME - decision not to grant access to the National Disability Insurance Scheme (NDIS) - Applicant previously a participant in the NDIS - ceased to be a participant when she entered a residential care service on a permanent basis after she had turned 65 years of age - Applicant to cease living in residential care facility - request made to have Applicant's previous status as an NDIS participant "reinstated", or to be granted access to the NDIS pursuant to a new access request - Applicant aged over 65 at the time the new access request was made - NDIA did not grant access because "age requirements" under s 22 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) were not met - consideration of s 29(1)(b) of the NDIS Act and whether there is any discretion to exclude the Applicant from the operation of that provision - Tribunal found there was no such discretion - no provision under NDIS Act allowing Applicant's previous status as an NDIS participant, or NDIS plan, to be reinstated - Tribunal found "age requirements" were not met - Tribunal satisfied application has no reasonable prospect of success - application dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Re McVeigh and National Disability Insurance Agency (2021) AATA 69

1. The Applicant, Mrs Mervat Nohmen, is a 66-year-old woman who has been diagnosed with several medical conditions resulting in numerous impairments. She is a widow and in receipt of the disability support pension. Mrs Nohmen was previously granted access by the National Disability Insurance Agency (NDIA), as a participant in the National Disability Insurance Scheme (NDIS). A delegate of the Chief Executive Officer of the NDIA (CEO) approved a statement of participant supports for Mrs Nohmen, resulting in the commencement of an NDIS plan for the Applicant on 12 December 2019.
2. Mrs Nohmen relocated from Tasmania to Victoria to be closer to her family in late-2020.[1]
3. On 28 October 2021, Mrs Nohmen's son, Mr Shady Nohmen, (who is Mrs Nohmen's appointed plan nominee) wrote to Mrs Nohmen's support coordinator to advise that Mrs Nohmen needed to be placed into residential aged care because he was "struggling and can no longer handle caring for her".[2] In this correspondence, Mr Nohmen explained the difficulties he was experiencing and that he was at "breaking point".[3] He explained that his sister (who was in attendance at the hearing before the Tribunal) had been in contact with an aged care facility near their home and the aged care facility required an aged care assessment and "a few forms to be filled out and they would be able to place"[4] Mrs Nohmen in their facility. Mr Nohmen requested that Mrs Nohmen's support coordinator follow up with the NDIS (but this is assumed to have intended to be a reference to the NDIA) and to advise Mr Nohmen if he required any other information or documents to "support the process".[5] The support coordinator referred this request to the NDIA.[6]
4. On 29 October 2021, Mrs Nohmen signed an Australian Government, Department of Health and Ageing form entitled "Application for Respite Care or Permanent Entry to an Aged Care Home".[7] The completed form indicates the application was being made for "Permanent entry".[8] The nominated representative was listed as Ms Monica Morkos (Mrs Nohmen's daughter).[9]
5. In November 2021, Mrs Nohmen entered a residential care facility for the first time as a permanent resident. On this day, Mrs Nohmen was 65, having turned 65 only nine days earlier.[10]
6. On 21 January 2022, the NDIA wrote to Mr Nohmen, on behalf of Mrs Nohmen, and stated that the NDIA had recently been advised that Mrs Nohmen had moved into a residential care facility in November 2021 and that under s 29(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) "a person can no longer be a participant in the [NDIS] when they enter a residential care facility on a permanent basis after the age of 65 years".[11]
7. On 18 August 2022, Mrs Nohmen's daughter, on behalf of Mrs Nohmen, submitted a new request for Mrs Nohmen to access the NDIS (Second Access Request). This request was supported by Mrs Nohmen's treating general practitioner, Dr Chong, who also attended the hearing before the Tribunal.
8. On 8 September 2022, a delegate of the CEO decided not to grant this request on the basis that Mrs Nohmen did not meet the access requirements under s 21 of the NDIS Act.[12]
9. Mr Nohmen, on behalf of Mrs Nohmen, sought review of this decision by a "reviewer" under s 100(6) of the NDIS Act. The "reviewer" confirmed the decision not to grant Mrs Nohmen access to the NDIS (Decision Under Review).
10. On 5 October 2022, Mrs Nohmen sought review of the Decision Under Review by the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal (Tribunal). Mrs Nohmen also requested that her previous status as a participant in the NDIS, or that her previous NDIS plan, be "reinstated".

1. The NDIA contends that this matter should be dismissed on the basis that Mrs Nohmen did not meet the "age requirements" when she made the Second Access Request because she was not aged under 65 when that request was made. Further, the NDIA contends that the Tribunal has no jurisdiction to undertake a review in relation to the NDIA's refusal to meet Mr Nohmen's request to "reinstate" Mrs Nohmen's status as an NDIS participant, or her previous NDIS plan.
2. The Tribunal has considered the detailed submissions set out in an email from Mr Nohmen to the Tribunal dated 23 December 2022, and the detailed submissions set out in a Statement of Position prepared by Mr Charles Bavin, Hunt & Hunt Lawyers, on behalf of the NDIA.

1. The Tribunal will deal first with the question of whether the NDIA (or the Tribunal upon review) has any power to "reinstate" Mrs Nohmen's previous status as an NDIS participant, or as put by Mr Nohmen, to "reinstate" her previous NDIS plan.
2. The Tribunal finds, on the evidence referred to above, that Mrs Nohmen entered a permanent residential care service, and she did so for the first time only after she turned 65 years of age. It matters not that this took place only nine days after her 65th birthday, or that the reason she did not enter earlier was because the relevant care facility did not have a bed available to allow her to commence in that facility on or before her 65th birthday. This gave rise to circumstances as described in s 29(1)(b) of the NDIS Act which meant that by operation of that provision, Mrs Nohmen ceased to be a participant in the NDIS. This provision does not rely upon a decision being made by the NDIA or any other person before the operation of s 29(1)(b) takes effect. It will take effect automatically by operation of that provision. Nor are there any exclusions or exemptions to this provision under the NDIS Act, or a discretion conferred upon the NDIA (or the Tribunal upon review) not to apply it to a person due to extenuating circumstances. The Tribunal acknowledges that Mrs Nohmen and her family will consider this to be harsh outcome given that she had entered the facility only nine days after her 65th birthday.
3. There are no other provisions in the NDIS which provide for a process of the cessation of a participant by operation of s 29(1)(b) of the NDIS Act, to be "reinstated", or for an NDIS plan previously approved for them, to be "reinstated". If a person's status ceases by the operation of that provision and, at a later stage, they wish to resume as a participant in the NDIS, they are required to make a new request for access under s 18 of the NDIS Act.
4. These conclusions are consistent with the decision of the former Deputy President Forgie in Re McVeigh and National Disability Insurance Agency (2021) AATA 69, as highlighted by the NDIA in its submissions.
5. This leads the Tribunal to a consideration of the Second Access Request. It is undisputed that Mrs Nohmen was not aged under 65 at the time she made her Second Access Request.

1. Accordingly, the Tribunal is satisfied that Mrs Nohmen does not meet the "age requirements" under s 22 of the NDIS Act, being one of the mandatory requirements to gain access to the NDIS. The Tribunal is satisfied there is no provision in the NDIS Act empowering the Tribunal to reinstate Mrs Nohmen's participant status (or previous NDIS plan). The Tribunal is satisfied that Mrs Nohmen ceased to be an NDIS participant when she entered the aged care facility in November 2021, by operation of s 29(1)(b) of the NDIS Act, and that the Tribunal has no discretion to exclude the operation of that provision in respect of Mrs Nohmen.
2. For these reasons, the Tribunal finds that there are no reasonable prospects that this application will succeed if it were to proceed to a substantive hearing.
3. The Tribunal dismisses this application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it has no reasonable prospects of success.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

...........................[sgd].............................................

Mr Shady Nohmen, as plan nominee for Mrs Mervat Nohmen

[10] The Tribunal has omitted the precise date to avoid disclosing the date of birth of Mrs Nohmen given these Reasons for Decision will be published.