PRACTICE AND PROCEDURE - JURISDICTION - application for review of decision to not include requested supports in Applicant's statement of participant supports - type of request made by the Applicant - whether Applicant requested a plan review or an internal review - where the Agency made a decision in relation to reasonable and necessary supports by making the decision to issue a new plan without the supports requested by the Applicant - Tribunal has jurisdiction to review the decision as to the reasonable and necessary supports to be included in the Applicant's statement of participant supports

National Disability Insurance Scheme Act 2013 (Cth) ss 32, 33, 48

ZKTN and National Disability Insurance Agency [2017] AATA 744

National Disability Insurance Agency, Planning Operational Guideline - Reviewing and changing a participant's plan

1. The Applicant has been a participant in the National Disability Insurance Scheme for some time. I do not have evidence as to when she first became a participant but it is clear that it was prior to 13 November 2017 when a plan (possibly not the first) for the Applicant came into operation (T34).
2. In December 2018 a scheduled plan review meeting was held to facilitate the preparation of a new plan for the Applicant. The meeting was attended by the Applicant's Support Coordinator, her parents and brother on her behalf, and two planners on behalf of the Agency. At this meeting it was made clear to the planners that the Applicant was requesting that her new plan continue the fortnightly Saturday support services she was receiving and for additional funding to be included to allow her to access respite care.
3. On 10 December 2018 a delegate of the Chief Executive Officer (the CEO) approved a new plan for the Applicant (T36). The plan did not include the requested funding for Saturday support and respite care.
4. On 11 January 2019 the Applicant submitted to the National Disability Insurance Agency a completed Plan Review Request Form (T29). The form used was one of several forms issued by the Agency. It was accompanied by a number of supporting documents outlining the Applicant's support needs.
5. The form contained the following:

Please explain any changes to your life which you feel affect your plan

[The Applicant's] goals in her new plan are to increase her independence by attending respite, this and the Saturday support she was previously receiving is not possible now as no funding has been provided in her latest plan. There isn't enough funding to pay for her day program let alone any respite, the need for respite was clearly made to the two planners at the plan review meeting.

Please advise us of any new information you feel is relevant to your plan (attach copies of any relevant documents).

It was made clear at the plan review meeting in December 2018 there was an urgent need for respite funding and the importance of the fortnightly Saturday support to continue as it provides a much-needed break for [the Applicant] and her parents. This support has now been suspended due to insufficient funding in the new plan.

1. The interaction notes kept by the Agency, dated 14 January 2019, record an email received from the Applicant's Support Coordinator (T33 at p.211). It requested the Agency representatives view a video previously supplied so they could "have a better understanding of the need for the additional funding for respite that was clearly spoken about at the plan review meeting..."
2. On 15 January 2019 a delegate of the CEO wrote to the Applicant (T2). The letter read in part:

I am writing to advise the outcome of the internal review of your request for a plan review.

The National Disability Insurance Agency (NDIA) must decide whether or not to review a plan when requested by a participant under section 48(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act).

In accordance with section 100 of the NDIS Act and after receiving your request dated 9/01/2019, an internal review has now been conducted. Unfortunately based on the information provided, your request for a plan review has not been successful at this time. This letter provides reasons for the decision.

• You have been unable to demonstrate your circumstances have changed to the extent required to warrant a change to your statement of participant supports
• There is no new information available which is likely to affect the NDIA's assessment of your needs
• Your support needs can be met within the current plan budget in Capacity building for Therapy related costs, Respite provisions for Saturdays, Day Program Funding. There is ample funding in your current plan to assist you achieve you [sic] goals.
• The request for review simply reflects your desire to have increased supports, or supports of a nature similar to other participants.

If you disagree with the decision you can apply for an external review by the Administrative Appeals Tribunal (AAT).

1. On 7 February 2019 the Applicant applied to the Tribunal to review the decision of 15 January 2019 (T1).
2. During the Tribunal's alternative dispute resolution process in this application, an issue arose as to whether the Tribunal has jurisdiction to review the decision not to include the requested supports in the Applicant's plan.
3. On 19 July 2019 I decided that the Tribunal does have jurisdiction to review the decision as to the reasonable and necessary supports the Applicant seeks. The application has proceeded on this basis. At the time I gave the reasons for my decision orally; I now provide my reasons in writing.

RELEVANT PROVISIONS OF THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013

1. Chapter 3 Part 2 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) sets out the principles applicable to participants' plans and how they are to be prepared, managed and reviewed.
2. Section 32 requires the CEO to facilitate the preparation of a participant's plan.

Matters that must be included in a participant's plan

1. The plan must include a "statement of participant supports" which in turn must include "the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme" (paragraph 33(2)(b)).
2. The statement of participant supports must be prepared with the participant and approved by the CEO (subsection 33(2)).

1. Section 48 provides for a review of a participant's plan in three circumstances:
   • at the participant's request at any time (subsection 48(1));
   • on the initiative of the CEO at any time (subsection 48(4));
   • before the review date specified in an existing plan (subsection 48(5)).

1. Section 99 provides that certain specified decisions of the CEO are reviewable decisions. These include:
   • a decision under subsection 33(2) to approve a statement of participant supports in a participant's plan (subsection 99(1) item 4);
   • a decision under subsection 48(2) not to review a participant's plan (subsection 99(1) item 6).

1. At the request of a person who is directly affected by a reviewable decision, the decisions specified in subsection 99(1), and only those so specified, are reviewable in a two-step process:
   • at first by a reviewer within the Agency (subsection 100(5)); and then
   • a decision made by the reviewer may be reviewed by this Tribunal (section 103).

1. It was argued on behalf of the Agency that the only decision that the Tribunal had jurisdiction to review was a decision of a reviewer not to review the Applicant's plan made on 10 December 2018. It followed that the Tribunal could not review the Applicant's supports approved by the CEO in that plan.
2. On behalf of the Applicant it was contended that the Tribunal had jurisdiction to review the decision as to the supports and should do so in this application.

1. The Agency argued that the decision under review was a decision not to review the Applicant's plan. As this decision was made under subsection 48(2) and reviewed by the reviewer under subsection 100(6), the Tribunal's power was limited to affirming, varying or setting aside this decision. The Tribunal could not review any decision or decisions made in respect of the supports to be provided to the Applicant under her existing plan.
2. I do not accept the argument put on behalf of the Agency
3. As the Agency correctly pointed out, the request for review form lodged on behalf of the Applicant on 9 January 2019 (T29) was headed Plan Review Request Form and the Applicant marked a box which signified "I am seeking an Unscheduled Plan Review". The following statements were also affirmed by a tick in each of the designated boxes:
   • I understand the NDIA does not have to agree to review my plan. If this happens, I will be advised of the decision reason/s and my rights to seeking an internal review.
   • I understand if the NDIA agrees to review my plan it does not guarantee my funded supports will increase.
4. It is to be noted that the opening paragraph of the form reads:

A Plan Review is a process in which the NDIA performs a re-assessment of a participants support needs and prepares a new plan on behalf of the participant (section 48). [Emphasis added].

1. In deciding whether a decision is reviewable, it is the nature of the decision itself and not the form used or a statement by the Agency as to the section of the Act under which it considers it has acted, which determines the jurisdiction of the Tribunal. The Act is beneficial legislation which should be interpreted accordingly.
2. If the Agency's interpretation is correct, in this application the best outcome the Applicant could have achieved was for the Tribunal to have decided that the Agency must review her plan and her present application would have been at an end. If, on review, she was not satisfied with the supports provided in her new plan she would have been required to again seek an internal review. If she was not satisfied with the reviewer's decision she would then be required to make a fresh application to this Tribunal. This is not a result which commends itself as a matter of sound public administration but one which suggests that it would not have been a result intended by Parliament when the Act became law.
3. It is clear that, from the outset, the Applicant was seeking a review of the supports available to her. Her representatives made this very clear at the meeting held in December 2018 prior to the preparation of the new plan. Particular supports were requested - that fortnightly Saturday support services be continued and that there be additional funding to allow her to access respite clear. This was confirmed in the email from the Applicant's Support Coordinator.
4. Although the Applicant did not complete the correct form, it is clear from the information provided in that form, and reproduced at paragraph 5 of these reasons, that she was seeking a review of the supports available to her.
5. Importantly, it is also clear from the decision of the delegate of the CEO, notified to the Applicant by letter of 15 January 2019 (see paragraph 7 of these reasons), that the delegate had considered the support needs of the Applicant in reaching that decision. It acknowledges that her request for review reflected her desire to have increased supports and that her support needs would be met within the current plan budget. Specific reference is made to respite provisions for Saturdays.
6. On the basis of the facts of this matter, I am satisfied that by making the decision to issue a new plan without the supports requested by the Applicant, the Agency made a decision under subsection 33(2) in relation to "the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme".[1] This decision was reviewable under subsection 99(1) item 4 and, an internal review having been carried out, is reviewable by the Tribunal.
7. I note that my decision is consistent with the reasons of the Tribunal in ZKTN and National Disability Insurance Agency [2017] AATA 744.
8. I note also that my decision is consistent with the Agency's own approach as set out in its Operational Guidelines. Guideline 15.2.1 states, in part:

Determining the type of request being made

It is important to note, that in some circumstances, it is unlikely that a participant will understand the difference between making a request to have their plan reviewed and the separate type of request they can make when they disagree with a decision and would like to have that decision reviewed (see what is the difference between a plan review and an internal review).

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Also, sometimes the timing of a request from a participant may provide an indication of the type of request being made, with a type of review being sought. For example, an unspecified request for a review made by a participant immediately after the participant receives a copy of the plan will, as a general rule, indicate that a participant is requesting an internal review of a decision.

1. In this case, it was abundantly clear what the Applicant was seeking, namely, an internal review of the decision in relation to the reasonable and necessary supports set out in her plan. If there was any doubt, it was incumbent on those involved in dealing with her request to ascertain exactly what she was seeking.
2. Although in this case I am satisfied that the representative of the Applicant was very clear in what was being sought, it would be in the interests of good administration for the Agency to consider amendments to its forms to clarify for participants in the Scheme the difference between a request to review a plan and a request to review the reasonable and necessary supports contained in a plan.

1. In this application the Tribunal has jurisdiction to review the reasonable and necessary supports contained in the Applicant's NDIS Plan dated 10 December 2018.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of

..........................[SGD]..............................................

M Mulqueen, Intellectual Disability Rights Service Inc.

N Cuthbert, National Disability Insurance Agency