1. The Respondent submits that, consistent with the Tribunal's approach in QDKH, the Tribunal has jurisdiction to consider some, but not all, of the additional supports_.[9]_ The Respondent had previously expressed concerns about the Tribunal's jurisdiction to consider increased capacity building funding for the Applicant, and a particular bed, but has since submitted that the Tribunal did in fact have jurisdiction to review these supports, as they appear to have formed part of the outcome of the internal review.[10] The Respondent maintains that the Tribunal does not have jurisdiction to consider funding for the additional supports because 'the Applicant did not request these supports as part of the outcome from the internal review'.[11] Further, after reviewing interaction records it maintains arising from communication with respect to a participant, the Respondent submits that:[12]
   1. In respect of home modifications and stove top, the interaction records indicate that while the Agency might have made a reviewable decision in respect of home modifications, the Applicant did not request home modifications and stove top as part of the outcome from the internal review.
   2. Accordingly, the Respondent respectfully submits that the Tribunal does not have jurisdiction to consider:

1. The Respondent did not submit that the additional supports were outside the scope of the primary decision-maker's function. On the contrary, the Respondent accepts that both assistive technology and home modifications were considered in the process of arriving at the primary decision. However, the Respondent submits that, where supports are not specifically requested or raised by a participant during the process to internally review the primary decision (which is, in the Respondent's submission, the way in which things are to be "put before" a reviewer[13]), those supports cannot be considered by the Tribunal when reviewing that internal review decision. Further, the Respondent submits that where an internal reviewer is confined to determine only issues identified by an Applicant during internal review, the jurisdiction of the Tribunal is similarly confined.[14]

1. I have set out, above, the provisions relevant to the primary decision, which is to be made by the CEO (or their delegate) by reference to the principles, statutory framework and, where proper to do so, operational guidelines. A decision to approve a participant's statement of supports under subsection 33(2) of the NDIS Act is made by the primary decision maker following an assessment of relevant considerations. It is not made by the participant, nor is it made as a result of requests made by a participant. If a participant makes such requests, the decisions maker is required to consider them in addition to other matters expressly to be taken into account,[15] but it is the CEO, not the participant, who is to exercise the powers and discretions under subsection 33(2) of the NDIS Act. No obligation is placed upon any participant to "request" any particular support. That approach is consistent with the statutory scheme when considered more broadly. According to subsection 31(j) of the NDIS Act, the preparation and review of plans is to "facilitate tailored and flexible responses to the goals and needs of the participant". The objects of the Act include the provision of "reasonable and necessary supports for the participant" and that people with a disability should be supported in all their dealings with the agency to maximise their choice and control, as appropriate.[16] If the CEO (or delegate) does not identify sufficient supports in the approved plan then the decision to approve that plan can be reviewed internally by a reviewer[17] then externally by the Tribunal[18], whilst exercising the same powers and subject to the same limitations of the primary decision-maker.[19]
2. When an Applicant seeks internal review of a primary decision approving a plan of participant's supports there is no statutory obligation to identify which particular supports are sought and, even if particular supports are sought, there is no apparent basis to limit the extent to which other supports may be considered by the Tribunal in a reconsideration of the statutory question posed by subsection 33(2) of the NDIS Act. When asked by the Tribunal to identify any statutory support for such limit, the Respondent was unable to do so.
3. The Respondent submitted that the approach adopted by the Tribunal in the decision of QDKH should also be adopted in this case. In QDKH, Deputy President Constance considered the scope of the Tribunal's jurisdiction to determine certain questions of fact in a review of a reviewable decision to approve a statement of supports under subsection 33(2) of the NDIS Act. The learned Deputy President referred to the two-tiered review process and determined that the Tribunal's jurisdiction did not extend to a consideration of issues unless those issues were before the internal reviewer. To do otherwise, he determined, would be to undermine the two-tiered review process and may lead to... "a wide ranging review of all supports contained in a participant's plan, including potential supports, which had not been previously subject to internal review. It is not in the interests of good public administration to bypass the two-tiered review process provided for by the NDIS Act, thus denying the Agency the opportunity to resolve the issues without an appeal to the Tribunal".[20]
4. In reliance upon Fuad and Telstra Corporation Limited[21] ("Fuad"), it was concluded in QDKH that is was proper to describe the jurisdiction of the Tribunal in considering an application to review a decision made under subsection 33(2) of the NDIS Act as follows:[22]
   1. The Tribunal's jurisdiction is limited to reviewing a decision made by a reviewer. This is the only jurisdiction given to it by section 103 of the NDIS Act.
   2. In Fuad and Telstra Corporation Limited, the Tribunal President, Justice Downes, said:

... all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.

1. It is important to note that the President referred to "matters put before the decision-maker". [Emphasis added]. These are the matters in respect of which the Tribunal has jurisdiction.
2. A "matter" is "put before" the primary decision-maker by reference to the statutory question to be answered by that decision-maker, not by a request for internal review of the primary decision. Once the four corners of the question before that decision maker are identified they cannot later be limited by the conduct of an applicant when seeking merits review of the primary decision. It is, of course, open to an applicant to identify particular aspects of a reviewable decision with which they disagree, but that does not relieve the reviewer from re-making as a whole the decision under review.
3. In Fuad's case, Justice Downes was considering a different jurisdictional question to that now before me. Therefore, I am not persuaded that the extract from that case that was relied upon in QDKH, and the reasoning that follows from it, is determinative of the question before me. In Fuad, Justice Downes determined that threshold determinations as to the compensability of Mr Fuad's injuries, made under sections 14 or 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), formed part of the Tribunal's review of a request for compensation made under sections 19 or 21 of the same Act, even though the internal reviewer had declined to expressly reconsider those determinations on the basis that those matters were "put before" the decision maker (albeit not specifically addressed), Justice Downes found that the jurisdiction of the Tribunal was not limited only to a reconsideration of the compensation claims, but to the underlying findings that had led to the refusal of those claims in the decision under review. This amplification of the Tribunal's jurisdiction does no more that express the same position as that of the majority in Frugtneit that the Tribunal is to exercise "the same power or powers as the primary decision-maker, subject to the same constraints", and must address "the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker"[23].
4. Similarly, in CPJ16, Justice Rares determined that a refusal to grant a protection visa on one particular ground could not be expanded by the Tribunal to include consideration of whether that visa could have been refused on other grounds as to do so would alter the question raised for determination by the primary decision-maker:[24]

I am of opinion that the Tribunal's task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate's findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker's exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision.

1. In both Fuad and CPJ16 consideration was given to the scope of the primary-decision maker's task, not the way in which that task may have been approached by an internal reviewer. In Fuad, the Tribunal was required to re-consider all elements of the primary decision, including various threshold questions. In CPJ16, the Tribunal was not required to consider determinations of statutory questions that had not been made in the primary decision. In this case, the CEO, or delegate, is to decide whether to approve a statement of participant supports.
2. That scope is to be determined by the primary decision-maker who is to approve it: the CEO (or delegate) under subsection 33(2) of the NDIS Act. The nature of the question that the primary decision-maker is required to address under subsection 33(2) of the NDIS Act, when deciding whether to approve a plan of participant's supports, is set out in detail above, and includes the task of deciding the reasonable and necessary supports to be included. A reviewer, standing in the shoes of the original decision-maker, is required to conduct a merits review and determine, again, the various elements that are to comprise the statement of participant supports in order to either affirm the decision to approve that statement or set that decision aside and substitute it with a decision to approve a different statement of participant supports. The Tribunal, in conducting a review of the reviewable decision, is required to undertake the same task, whether or not the reviewer turned his or her mind to all of the matters properly before the primary decision-maker. As the High Court recently stated in Minister for Immigration and Border Protection and Makasa,[25] "the function of the AAT ... is "to do over again" that which was done by the primary decision-maker." [26]
3. There is no basis to conclude that the Tribunal's jurisdiction to review a decision made under subsection 33(2) of the NDIS Act would be limited by virtue of the fact that a participant failed to identify all aspects of the decision with which they disagreed, or particular supports that should have been included, when initiating an internal review under section 100 of the NDIS Act. To do so would be to incorrectly conflate the relevance to the Tribunal of, on the one hand, an internal review decision (that triggers the Tribunal's review jurisdiction through subsection 25(1) Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") and section 103 of the NDIS Act) and, on the other hand, the primary decision, which dictates the scope of the Tribunal's review jurisdiction. Beyond identifying that a review is sought of the decision to approve a statement of supports, a participant in the NDIS is not required to be the architect of the parameters of her review, either internally to a reviewer, or externally to the Tribunal. It would be surprising if a participant were obliged to identify supports needed, given the very wide range of participants contemplated to fall within the scope of the NDIS and the prospect that some participants may lack the capacity, whether cognitively, legally or otherwise, to identify the reasonable and necessary supports that should be included in their approved participant's plan and given the requirement in subsection 33(2) of the NDIS Act that the CEO (and not the participant) exercise the approval function.
4. A practical problem may arise in the Tribunal's consideration of a review application where the reviewer has not provided adequate consideration of potentially relevant issues (including certain supports) or has not provided adequate reasons for the decision under review. The "wide-ranging" review with which the Tribunal would be tasked was identified by Deputy President Constance in QDKH.[27] It is undesirable that the Tribunal consider factual matters without the benefit and assistance first being provided through thorough consideration of those matters by the decision-making agency. The practical solution, in my respectful view, comes in the form of the discretion given to the Tribunal in section 42D of the AAT Act to remit to the decision-maker all, or part, of the decision under review so as to enable previously overlooked questions to be considered firstly by the NDIA and then, if still necessary, by the Tribunal. The Tribunal's power to remit under section 42D of the AAT Act is appropriately limited in that it does not permit the Tribunal to compel a Respondent to make a different decision or decide the matter in a particular way.[28] This section preserves the right of the Applicant to revive their application if the decision under reconsideration is still not considered favourable and provides a mechanism for the reconsidered decision to become the decision under review.[29]
5. The Tribunal has jurisdiction to consider supports not identified by the primary decision-maker or the reviewer, so long as those supports could have formed part of the primary decision. In doing so, the Tribunal is not changing the nature of the decision or the question before the primary decision-maker. That is not to say that the Tribunal has unlimited jurisdiction to consider every support raised by an applicant. There are circumstances in which some supports sought by an Applicant could not have been included by the primary decision-maker when exercising the powers in subsection 33(2) of the NDIS Act. For example, where the participant's circumstances have changed so, too, may their need for supports. The NDIS Act provides expressly for such circumstances, allowing for an "unscheduled" plan review (that is, a plan review that takes place before the review date in the current approved plan has been reached) to take place under section 48 of the NDIS Act. It will be a question of fact in each case whether a support sought by an applicant to be included in the Tribunal's decision with respect to an approved plan of supports could have been considered by the primary decision maker. If so, it is within the Tribunal's jurisdiction to consider those supports. If, instead, the stated need for such a support has arisen from circumstances that did not exist at the time of the primary decision, then it is likely that the Tribunal will not have jurisdiction to deal with that support. The question can only be answered by a proper consideration of the scope of the question to be determined by the original decision-maker. The discipline to be exercised by the NDIA is to ensure that minds have been turned to the particular facts of the case before a submission is made that the Tribunal lacks jurisdiction.
6. The Tribunal has the same powers and discretions as the original decision-maker.[30] The Tribunal is required to re-make the decision to approve the statement of supports having regard to the obligations and limitations of subsection 33(2) of the NDIS Act. The Tribunal does not lack jurisdiction to consider additional supports simply by virtue of the fact that the reviewer did not consider those supports. As the Respondent has accepted that the additional supports could have been considered by the primary decision-maker (and, in fact, were broadly considered and rejected), I am not satisfied that those additional supports fall outside the Tribunal's jurisdiction in the current review Application.

1. For the reasons outlined above, the Tribunal determines that it has jurisdiction to consider whether funding for home modifications and stove top should be included within the Applicant's statement of participant supports.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

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

Representative for the Applicant: Julia Clancy, Spinal Cord Injuries Australia Representative for the Respondent: Hailey Musgrove, HWL Ebsworth Lawyers

[1] [2021] AATA 922 (16 April 2021).

[2] This decision has been citied with approval in BWLK and National Disability Insurance Agency [2021] AATA 1631 (8 June 2021) and Young and National Disability Insurance Agency [2021] AATA 1555 (2 June 2021).

[3] [2019] FCA 2033, esp. [61].

[4] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).

[9] Respondent's Submissions dated 28 May 2021 at [11].

[13] As defined by ss 100(5) of the NDIS Act.

[15] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), Rule 2.4.

[21] [2004] AATA 1182.

[25] (2021) 386 ALR 200; [2021] HCA 1.

[26] Ibid at [50] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ, citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [100] per Hayne and Heydon JJ.

[28] Bienstein v Family Court of Australia (2008) 170 FCR 382; 251 ALR 453; [2008] FCA 1138 at [39]; Commissioner of Taxation v Cancer and Bowel Research Association Inc. (2013) 305 ALR 543 at [15].