Relevant facts
55 On the basis of the evidence adduced at this hearing, I make the following factual findings.
56 Mr Sayed joined the National Disability Insurance Scheme (NDIS) on about 30 March 2022.
57 On 9 June 2022, Cynthia Walker of the NDIA sent an email to Mr Sayed attaching a copy of his first participant's plan which had a commencement date of 8 June 2022. The email stated that Ms Walker was the CEO's delegate who had approved the plan. As required by s 33(2), the plan included a statement of participant supports that had been approved by the CEO (by Ms Walker as delegate). The end of the email contained the following statement:
Review of Decision:
If you are unhappy with the decision made, you can ask for a review to that decision, called an internal review of decision.
In an internal review of decision, we will check if we made the right decision under the law by looking at your situation and disability support needs at the time of the original decision. An internal review will not consider any changes to your situation and supports that have happened since we made our decision.
For further information, refer to NDIS Website, Internal review of decision.
58 The plan also stated that Mr Sayed "may request a review of this plan management decision" and that "[d]etails about how to do this are included at the end of this letter". Later in the document the following statements appeared:
How to request a review of this decision
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.
When asking for an internal review you should explain why you think the decision made is incorrect. The staff member who works on the internal review won't have been involved in the earlier decision. They may want to talk to you as part of this process.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).
The NDIS website (ndis.gov.au) provides more information about requesting a review. …
59 I interpolate that the decision by the CEO to approve the statement of participant supports in Mr Sayed's plan was a reviewable decision for the purposes of s 100 (as per item 4 of s 99) of the NDIS Act, and that Mr Sayed was entitled to request an internal review of the decision to approve the statement of participant supports under s 100(2). I also note that Mr Sayed was also entitled to request that the CEO conduct a review of his plan under s 48(1), and the CEO was entitled, on his or her own initiative, to conduct a review of his plan under s 48(4) (as the NDIS Act stood prior to the commencement of amendments made by the 2022 Amendment Act on 1 July 2022).
60 On 15 June 2022, Mr Sayed sent an email to the Acting CEO of the NDIA, Lisa Studdert, lodging a complaint against the NDIA staff who had prepared his first participant's plan. The email made numerous allegations that staff had failed to comply with their statutory duties. The email did not contain a request for an internal review under s 100(2) of the NDIS Act. Mr Sayed attached to the email a document dated 14 June 2022 and titled "Breach of statutory duty and misfeasance in public office by the delegated planners at NDIA". The document set out Mr Sayed's allegations of misconduct, which are unnecessary to refer to. The document also contained the following statement concerning an internal review of his participant's plan (uppercase type converted to lower case):
In view of the serious nature of these allegations, I have decided not to exercise my right to a review under sec. 100(2) at this time. Instead I will be focusing on having these allegations fully investigated or otherwise seek appropriate relief from the court.
61 In his witness statement, Mr Sayed stated that he later spoke by telephone with Ms Studdert. There is no written or audio record of that conversation. Mr Sayed's statement contained an outline of the matters that he says were discussed during that phone call. At the hearing, Mr Sayed confirmed that he prepared the outline from memory because, at the time he made his witness statement, he did not have a written or audio recording of the phone call. I place limited weight on Mr Sayed's evidence concerning the content of his phone call with Ms Studdert because it is not supported by any contemporaneous note or other record of the call. Nevertheless, I accept that, during the call, Ms Studdert acknowledged his complaint and advised that she had passed the complaint onto the internal review branch. At the hearing, Mr Sayed was adamant that he wanted the NDIA to investigate his complaint and not undertake a review of his plan until the complaint had been properly addressed.
62 On 16 June 2022, Mr Sayed sent an email to Ms Studdert attaching his correspondence with NDIA staff. Again, the email did not contain a request for an internal review under s 100(2) of the NDIS Act.
63 As a result of Mr Sayed's complaint, the NDIA assigned him a new NDIS planner. On 27 June 2022, the NDIA sent an email to Mr Sayed notifying him that his new NDIS planner would be Lee Withers. The email also referred to Mr Sayed's complaint against his former NDIS planners and advised him that his complaint was being investigated internally but that, due to privacy reasons, no outcome of the internal investigation would be shared with Mr Sayed. The email also stated that the NDIA would be closing the complaint.
64 On 28 June 2022, the NDIA scheduled a phone meeting for the following day between Mr Sayed, his support advocate Bron Emmerson, and Ms Withers. The phone meeting occurred on 29 June 2022. An audio recording of the phone meeting was made by Mr Sayed, and the recording was tendered in evidence. At Mr Sayed's request, the recording was played in Court. Ms Emmerson prepared minutes of the meeting. The minutes relevantly stated as follows (Mr Sayed is referred to by his name "Ali"):
Lee advised that she wants to start from beginning to get a clear understanding of what has happened so far.
Ali explained that he documented and provided his needs and goals to the planner prior to the planning meeting.
Ali explained his disappointment that the planner did not provide him with a draft plan (as promised) prior to the current plan approval.
Ali explained that he has only asked for supports/items in his plan that NDIA have provided to other participants, but understands that these supports/items need to be relevant to the participant's disability.
Lee advised that she wants to go through everything in Ali's current plan and will probably be building a new plan.
Lee suggested a meeting again next week Monday 4th July @1pm.
Ali requested that the meeting start with statement of goals and then discuss supports needed to achieve the goals.
Bron left meeting at 2.35pm. Ali and Lee continued meeting.
65 In my view, the minutes are a fair summary of the phone meeting. In particular, at the commencement of the phone meeting, Ms Withers stated that she wished to "take a step back and have a look at everything right back, as if we've started again … and talk about your plan and what NDIS can do to help you". A little later, Ms Withers said that "we need a complete look at the plan all over again" and that "we're going to look at everything again from the beginning and we're going to see what we can do to help you". A little later again, Mr Sayed stated that he was "happy to start afresh" and asked: "Are we doing a new plan?". Ms Withers replied: "I think that we will be, yes". In his witness statement, Mr Sayed deposed to a later portion of the phone meeting by way of transcription. Mr Sayed placed most emphasis on that portion of the phone meeting. Mr Sayed's transcription was not entirely accurate (although the errors did not affect the overall meaning of that portion). A corrected version is as follows:
SAYED: So, the only thing is, if I can clarify. So, my issue is with the plan that was done by NDIA. What we're going to do is we're going to start fresh with the statement of goals that I provided which included. We will go item by item with my statement so we can work on coming up with what funding to include in a new statement of supports.
LEE: That is what we are going to do exactly.
SAYED: Beautiful.
LEE: And if it's not something that NDIA funds, then we'll talk about how you can get those.
SAYED: I'm perfectly happy with that.
66 At the hearing, Mr Sayed informed the Court that his recording of the phone meeting omitted some statements that were made at the conclusion of the meeting. Mr Sayed submitted that, at the conclusion of the meeting, he requested that Ms Withers confirm in writing what was discussed during the phone meeting. At 3.07 pm on 29 June 2022, Ms Withers sent an email to Mr Sayed stating (emphasis added):
Just to confirm from our discussion today. I have set up a new Planning Meeting for next Monday at 2pm. I have looked at your plan and listened to what you have told me and I have decided to conduct an Agency Initiated Plan Review to revisit your NDIS support needs.
On Monday we will go through your Participant Statement and Goals and we will then go through each requested support item to determine what NDIS will be able to help you with and what we can't provide funding for. For those items I will discuss with you ways that you may be able to get supports - which may simply be your Specialist Support Coordinator doing the research and liaison with other mainstream organisations to find a solution for you.
67 A short time later on 29 June 2022, Mr Sayed replied by email and thanked Ms Withers for the clarification. In his email, Mr Sayed stated that he "looked forward to working together to prepare a new statement of supports replacing the one provided by the NDIA on 9 June 2022".
68 Mr Sayed contends that, at the meeting on 29 June 2022, he requested an internal review of the participant supports in his plan pursuant to s 100(2) of the NDIS Act. I do not accept that contention. It is not supported by the statements made during the phone meeting on 29 June 2022 and it is inconsistent with Ms Withers' subsequent email of that date. At the meeting, Ms Withers proposed that the NDIA conduct a review of Mr Sayed's plan, stating that "we need a complete look at the plan all over again". Mr Sayed expressed his agreement with Ms Withers' proposal to "start afresh". In her email following the meeting, Ms Withers stated that she had decided to conduct an "Agency Initiated Plan Review". Ms Withers' email indicated that Ms Withers was not proposing to conduct a review under s 100, but was proposing a review under s 48. A review under s 100 is not initiated by the NDIA and therefore could not be described as an "Agency Initiated Plan Review"; rather, a review under s 100 is initiated by the participant. In contrast, a review under s 48 can be initiated by the NDIA. Further, a review under s 100 is directed to specific decisions as enumerated in s 99, such as the decision to approve the statement of supports in a participant's plan (s 99, item 4). In contrast, a review under s 48 is of the whole plan. As stipulated by s 49, if the CEO conducts a review of a participant's plan under s 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Div 2. The discussions at the meeting and the subsequent email indicate that Ms Withers had proposed a review under s 48. In due course, the NDIA provided Mr Sayed with a new participant's plan, replacing his first plan, and confirmed that the plan had been prepared following a review under s 48. Later correspondence from Mr Sayed (referred to below) also indicates that, in the phone meeting, Mr Sayed acquiesced with Ms Withers' suggestion that she conduct a review of Mr Sayed's plan under s 48.
69 I make two further findings of fact with respect to the communications between Mr Sayed and the NDIA on 29 June 2022. First, the review of Mr Sayed's plan was initiated by the NDIA pursuant to s 48(4). This is made plain by Ms Withers' email that stated she was conducting an "Agency Initiated Plan Review", as well as the contents of the phone meeting held on that day. Second, the review of Mr Sayed's plan pursuant to s 48(4) commenced on that day. The latter fact is relevant to the application of the transitional provisions associated with the 2022 Amendment Act. The significance is that ss 48(4) and 49 as in force immediately before the commencement of the 2022 Amendment Act continued to apply to that review. I note, however, that my decision in this proceeding is not affected by the amendments made by the 2022 Amendment Act.
70 A further phone meeting occurred on Monday 4 July 2022 at 1.30 pm which was attended by Mr Sayed, Ms Emmerson and Ms Withers. Minutes of the meeting were prepared by Ms Emmerson. The minutes indicate that the attendees discussed Mr Sayed's needs and the supports that might be provided by the NDIS. In his witness statement, Mr Sayed deposes to a large portion of the phone meeting, which Mr Sayed had recorded. Mr Sayed's evidence confirms that, during the 4 July phone meeting, the participants were engaged in a process of reviewing his participant's plan.
71 Later on 4 July 2022, Ms Withers sent an email to Mr Sayed, referring to a further meeting planned for Wednesday, 6 July 2022. The email also followed up on certain matters discussed at the phone meeting.
72 On 5 July 2022, Mr Sayed sent an email to Ms Withers, copied to Ms Emmerson, with the subject line "Updated statement of goals". The email was combative in tone and contained many strong criticisms of the NDIA to which it is unnecessary to refer. Attached to the email was a document prepared by Mr Sayed titled "Participant's statement of goals and requested support & funding". The provision of that document by Mr Sayed is consistent with the review of his plan being conducted under s 48 rather than under s 100. As noted above, a review under s 48 is of the whole of a participant's plan, and requires the preparation of a new plan with the participant in accordance with Div 2. Under s 33 (within Div 2), a participant's plan must include the participant's statement of goals and aspirations that has been prepared by the participant. It is apparent that, on 5 July 2022, Mr Sayed understood that his plan was being reviewed under s 48 and he provided an updated statement of goals and aspirations for that purpose.
73 On 6 July 2022, Ms Withers sent an email to Mr Sayed in response. The email was conciliatory in tone. The email referred to certain supports that the NDIA was willing to provide in the short term and referred to further consultation about additional supports. The email also included the following statement:
It is not imperative at this time to review the plan because there is already funding to start doing the above.
74 The foregoing statement is significant because it became the foundation for Mr Sayed's application for review to the Tribunal. In short, Mr Sayed interpreted the statement as a decision by Ms Withers refusing to complete the review that had been commenced on 29 June 2022.
75 In my view, Mr Sayed's interpretation of the above statement is incorrect. It is clear from the context in which the statement was made, and from subsequent correspondence, that Ms Withers had not made a decision to refuse to complete the review she was currently undertaking. A fair reading of the email is that Ms Withers sought to convey to Mr Sayed that the review was not urgent because Ms Withers could take immediate steps to provide some supports requested by Mr Sayed as his existing plan contained funding that would enable those steps to be taken. This is confirmed by the opening paragraph of the email that stated:
I take on board what you have written below but as I said in the meeting at present I think we should focus on small quick wins that we can achieve in quick time frames and you already have funding in your plan to start these.
76 In the email, Ms Withers referred to specific supports that can be provided immediately.
77 Later on 6 July 2022, Mr Sayed sent an email to Ms Withers in reply stating that he understood Ms Withers' email to mean that she was no longer willing to proceed with the review. Mr Sayed requested to speak to a branch manager "or otherwise take your email as sufficient notice of a decision under section 100(1) of the Act". Mr Sayed's reference to a decision under s 100(1) is significant. Section 100(1) provides that the decision-maker of a reviewable decision must give written notice of the reviewable decision, and of the reasons for the reviewable decision, to each person directly affected by the reviewable decision. Reviewable decisions are defined in s 99 and include, relevantly, a decision made by the CEO not to reassess a participant's plan under s 48 (see item 6 in respect of the legislation prior to 1 July 2022 and item 6C in respect of the legislation on and after 1 July 2022). It is apparent from Mr Sayed's reference to s 100(1) that, at that time, Mr Sayed understood that Ms Withers was not conducting a review under s 100. If Mr Sayed believed at that time that Ms Withers was conducting a review under s 100, his email would have referred to s 100(6) (which empowers the reviewer to make a decision on a review conducted under s 100). Later, as set out below, Mr Sayed changed his position.
78 On 7 July 2022, Mr Sayed filed his application for review in the Tribunal. The application identified the decision to be reviewed as the (alleged) decision of Ms Withers made on 6 July 2022. In a section titled "Reasons for the application", Mr Sayed wrote (uppercase type converted to lower case and minor typographical errors corrected):
Reviewer failed to undertake proper review of the original decision by the CEO's delegate to approve statement of support under 33(2) as promised in the course of phone appointment on 29 June 2022. Reviewer later confirmed her decision to review the original support statement by email dated 29 June 2022.
During the above phone appointment and at the planning meeting on 4 July 2022, the reviewer made various false and misleading statements to the participant, including letting participant in to thinking that by agreeing to an agency-initiated review, the process will be much quicker and importantly allow participant the opportunity to be included in the process.
However, by her email dated 6 July 2022, the reviewer advised that the funding provided in the original support statement was adequate to meet reasonable and necessary support needs of the participant.
79 Two matters can be noted. First, the middle paragraph contains a further acknowledgment by Mr Sayed that, at the phone meeting on 4 July 2022, Mr Sayed agreed to Ms Withers conducting an "agency-initiated review" which, as discussed above, is not a review under s 100(6) and can only be a review under s 48. Second, the decision that was the subject of Mr Sayed's application to the Tribunal was the alleged refusal by Ms Withers to proceed with the proposed review, as purportedly indicated by her email of 6 July 2022.
80 On 11 July 2022, Ms Withers sent an email to Mr Sayed which stated (relevantly) as follows:
It has come to my attention that on Thursday you sent an email to the AAT requesting a review of your original NDIS plan that was approved on 8 Jun 22 [sic].
The first step to review an NDIS plan is to ask the NDIS to conduct an internal review under s100 which is completed by the National Access and Reassessment Branch. If the outcome of the s100 review is not to your liking it is then that you can ask for a review by the AAT. Therefore your request to the AAT may be rejected. I can certainly assist by submitting a s100 review request on your behalf, however I think that you may have misunderstood our discussions.
I have agreed that your plan does require a review of the funded supports and through our discussions I have been gleaning the information that I need to make a new decision around your supports. …
I can continue with reviewing the plan and may be able to have it ready for you on Wednesday when we next chat if it is within my delegation to approve (if not it may take up to a month for approval of the new plan) OR I can submit a s100 review request for you in which case a member of the National Access and Reassessment Branch will review the original plan OR you can wait to hear from the AAT. Once a review request has been accepted by either the National Access and Reassessment Branch or by the AAT I will no longer be able to make any changes to your NDIS plan.
Please let me know how you would like to proceed.
81 The email conveyed clear information to Mr Sayed that first, Ms Withers had not been undertaking a review of his plan under s 100 and, second, Ms Withers had not refused to complete the review she had been undertaking (pursuant to s 48). Ms Withers' statements in that regard are consistent with and support my earlier findings about those matters. Ms Withers also advised Mr Sayed that, as a s 100 review had not been undertaken by the NDIA, his application to the Tribunal may be rejected. Ms Withers also informed Mr Sayed that, while she was willing to continue with the review (which was a review initiated under s 48), Mr Sayed could submit a s 100 review request in respect of his participant's plan.
82 Thus, within a few days of Mr Sayed filing his application with the Tribunal, the NDIA advised him that the Tribunal may reject his application because a review under s 100 had not been conducted, but the NDIA was willing to conduct a s 100 review if he requested that. It is unfortunate that Mr Sayed did not accept the guidance given to him by Ms Withers in her email. The email was sent on 11 July 2022, which was about 6 weeks after Mr Sayed received his first NDIA plan. If Mr Sayed had accepted that guidance, he could have requested a s 100 review of the decision to approve the statement of participant supports in his plan, and a review decision would have been made under s 100(6). If that occurred and Mr Sayed remained dissatisfied with the review decision, he could have proceeded to the Tribunal. That course would have enabled him to obtain a Tribunal decision with respect to his plan far more expeditiously. Instead, Mr Sayed refused to accept the guidance provided by the NDIA. As set out below, in a recurring pattern, Mr Sayed has refused to accept guidance provided by the NDIA, the Tribunal or the Court which would have obviated this lengthy and wasteful proceeding.
83 On 12 July 2022, Mr Sayed replied to Ms Withers' email. In the email, Mr Sayed stated that he had applied to the Tribunal to review Ms Withers' failure to proceed with an internal review of the participant supports in Mr Sayed's plan. The email again contained strong criticisms of the NDIA. Reading the email as a whole, Mr Sayed communicated that:
(a) he considered that Ms Withers' refusal to proceed with a review of the participant supports in his plan entitled Mr Sayed to seek a review in the Tribunal of the participant supports, and Mr Sayed intended to continue with his application; and
(b) if Ms Withers proceeded with a review and the outcome was satisfactory to Mr Sayed, he would discontinue his application in the Tribunal.
84 On 13 July 2022, a phone meeting occurred between Mr Sayed and his support advocate, Ms Emmerson, and Ms Withers and Kate Fox of the NDIA. In his witness statement, Mr Sayed deposed to a large portion of the phone meeting. During the phone call, Mr Sayed was argumentative and spoke for the majority of the time. The NDIA summarised the outcome of the phone meeting in a note which I consider to be a fair summary (having regard to Mr Sayed's evidence). The notes of that meeting record the following (errors in original):
Kate opened the phone call by explained to Mr Sayed that the purpose of this call was to progress his plan approval.
Mr Sayed spoke about his interactions with the NDIA thus far and his concerns about his plan. Mr Sayed expressed that he felt he needed to apply to be heard at the AAT to get the plan he needs.
Kate discussed with Mr Sayed that at this point in time a plan can be approved for him and he did not need to go through the AAT.
Mr Sayed and Kate discussed what "statement of supports" meant. Kate explained the planning meeting process and how a plan is approved. Mr Sayed requested this be provided in writing following the meeting. Kate agreed.
Kate confirmed at the end of the phone call that his plan would be progressed for approval based on the meeting he undertook with Lee as well as information and evidence he has already provided. Kate confirmed that Mr Sayed would be contacted again by both Lee and Kate once the plan was approved.
85 Ms Emmerson's notes of the meeting are to similar effect. Relevantly, at the meeting Mr Sayed was asked whether he wanted Ms Withers and Ms Fox to continue with the review of his plan, and Mr Sayed answered in the affirmative.
86 Later that day, Ms Fox sent an email to Mr Sayed which contained the following statements:
Thank you again for your time this morning to discuss your concerns.
Following our phone call, I can confirm that Lee will progress with the approval of your NDIS plan. Lee will build the plan taking into consideration all of the information and evidence you have submitted to date. This is a priority and we aim to have the plan approved within the next 2 weeks. You also requested that I provide the process of participant involvement in including statement of supports.
Through a planning meeting with a NDIS planner, the participant is encouraged to provide information on their disability related needs including supporting evidence, also known as statement of supports. The participant is also asked to develop a participant statement and goals to include in the plan.
Following this meeting, the NDIS planner develops a plan by using the following information:
• Information and evidence provided by the participant;
• Evidence submitted by the participant's formal supports;
The NDIS planner assesses this information against our legislation to provide funding for disability supports, which is also known as a NDIS plan. Following the plan approval, the NDIS planner contacts the participant to explain what supports have been funded within the NDIS plan.
If the participant disagrees with the funding provided within the plan, they can ask for an internal review, also known as a Section 100 review. This review is undertaken by an internal team. If after this process the participant still disagrees with the NDIS plan, the participant can appeal the plan through the AAT.
87 Again, by this email, the NDIA explained to Mr Sayed that Ms Withers was reviewing the whole of his plan and the aim was to have a new plan approved within 2 weeks. If Mr Sayed disagreed with the funding and supports provided within the new plan, he could request an internal review under s 100.
88 At this point, Mr Sayed could have been in no doubt about two matters. First, the review being undertaken by the NDIA was under s 48. That is clear from the advice given by Ms Fox in her email that, if Mr Sayed was dissatisfied with the new plan prepared by the NDIA, he could seek a review of the plan under s 100. Second, the NDIA had not refused to complete the review of his plan. The review was ongoing and would be completed in a short space of time. Notwithstanding that those points were clearly communicated to Mr Sayed, he persisted with his application in the Tribunal seeking to review an alleged decision by the NDIA to refuse to undertake a review of his plan.
89 On 14 July 2022, the Tribunal Registry sent a letter to Mr Sayed which relevantly stated as follows:
We have received your application for review of a decision made [sic] National Disability Insurance Agency (the respondent).
Can we review this decision?
A NDIA decision needs to be internally reviewed under section 100 by the National Disability Insurance Agency before the Tribunal can look at it. It is not clear to us that this has happened.
If National Disability Insurance Agency has not internally reviewed your decision under section 100, you should ask them to review it. If they have reviewed it, please send us a copy of the s100 internal review decision.
What happens next?
Please email a copy of the s100 internal review decision within 14 days.
If you cannot show that we can review the decision, we can dismiss your application. This means we will not review it.
We might hold a hearing to decide if we can review your decision. If we hold a hearing, we will let you know the date and time and where it will be. You can represent yourself at the hearing or arrange for someone else to represent you.
90 On the same day, the Tribunal Registry sent an email to the NDIA asking it to check its records and advise the Tribunal if a s 100 internal review decision had been finalised for Mr Sayed.
91 Later that day, Mr Sayed replied to the Tribunal Registry stating, relevantly, that he took the view that Ms Withers' email of 6 July 2022 "amounted to an agency decision in response to my request, on 29 June, for an internal review of my existing NDIS plan". Although not stated expressly, I understand Mr Sayed's email to contain a contention that Ms Withers' email of 6 July 2022 recorded an internal review decision by the NDIA made under s 100(6) which, in effect, was to confirm Mr Sayed's existing plan (being the reviewable decision).
92 For the reasons given above, I find that Mr Sayed's contention is a mischaracterisation of Ms Withers' email and involves a change in position by Mr Sayed. By his email of 6 July 2022, Mr Sayed had stated that he would take Ms Withers' email as "notice of a decision under section 100(1) of the Act". In other words, Mr Sayed recognised at that time that, to the extent that Ms Withers' email involved a decision, it could only have been a decision not to reassess his plan under s 48 (as per item 6 of s 99, or item 6C following the amendment of s 99). Further, as acknowledged in his application for review to the Tribunal, Mr Sayed had acquiesced in the NDIA conducting an "agency initiated review".
93 On 15 July 2022, the NDIA sent an email to the Tribunal Registry advising that a formal request for an internal review under s 100 had not been submitted by Mr Sayed in response to the original decision (the approval of his plan dated 8 June 2022).
94 On 18 July 2022, the Tribunal Registry sent an email to Mr Sayed informing him of the response received from the NDIA (that Mr Sayed had not requested an internal review under s 100) and asking whether he wished to withdraw his application to the Tribunal. Later that day, Mr Sayed replied to the Tribunal Registry and conveyed that he would not withdraw his application to the Tribunal.
95 On 19 July 2022, the Tribunal Registry sent a further email to Mr Sayed, noting that the NDIA had advised the Tribunal on 15 July 2022 that Mr Sayed had not requested an internal review under s 100, and asking whether Mr Sayed had a made a request for an internal review under s 100 since that date. Later that day, Mr Sayed replied by email. The reply is combative in tone and contains strong criticisms of the Tribunal Registry employee that had been communicating with Mr Sayed. The criticisms made by Mr Sayed were wholly unjustified. Relevantly, Mr Sayed communicated that he would not withdraw his application to the Tribunal.
96 On 27 July 2022, Ms Withers sent an email to Mr Sayed advising that a new participant plan was currently with the CEO's delegate for approval and a decision was expected in a few days. Ms Withers proposed a further meeting once Mr Sayed had received the new plan. The following day, on 28 July 2024, Mr Sayed replied by email, asking whether the delegate was aware that Mr Sayed had "elected to fully self-manage" his plan. On 29 July 2022, Ms Withers replied by email confirming that Mr Sayed's request had been put to the delegate.
97 On 29 July 2022, the NDIA sent a letter to Mr Sayed enclosing a second participant's plan which commenced on that date. The letter confirmed that the second plan had been prepared following the conduct of a review of Mr Sayed's first plan under s 48 of the NDIS Act. The letter advised Mr Sayed that the NDIA had decided not to approve Mr Sayed's request to self-manage the plan funding. The conclusion of the letter contained the following information concerning internal review:
How to request a review of this decision
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.
When asking for an internal review you should explain why you think the decision made is incorrect. The staff member who works on the internal review won't have been involved in the earlier decision. They may want to talk to you as part of this process.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).
The NDIS website (ndis.gov.au) provides more information about requesting a review. Search for "Operational Guidelines" and click on the link to "Review of Decisions" to read more.
98 On 1 August 2022, Ms Withers sent an email to Mr Sayed explaining the contents of the second participant plan and asking Mr Sayed to contact her if he wanted to discuss the new plan.
99 On 2 August 2022, Mr Sayed replied to Ms Withers indicating that he was unhappy with the new plan and stating that he was submitting a "formal complaint in response to the decision". It is unclear what Mr Sayed meant by submitting a formal complaint. The complaint does not appear to be a request for an internal review under s 100.
100 On 5 August 2022, Ms Withers replied to Mr Sayed offering to meet with him to answer any questions he may have. The email continued:
If, after we have had that chat, you are still dissatisfied with your NDIS Plan then we can submit a request for a Section 100 Internal Review for you, where a new Delegate will review your plan.
101 On 8 August 2022, Mr Sayed replied to Ms Withers asking whether his complaint had been given to the NDIA branch manager. The email otherwise expressed his dissatisfaction with the NDIA, which is unnecessary to reproduce. Mr Sayed did not make a request for a review of the second participant's plan under s 100 of the NDIS Act.