McKiterick and National Disability Insurance Agency [2021] AATA 3059 (30 August 2021)

Division:	NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):	2021/1219
Re:	Jillian McKiterick
	APPLICANT
And	National Disability Insurance Agency
	RESPONDENT
interlocutory Decision

Tribunal:	Deputy President F Meagher
Date:	30 August 2021
Place:	Brisbane

The Tribunal is satisfied that is has jurisdiction, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth), to review the Respondent’s decision dated 4 November 2020.

...................[SGD]……...........
Deputy President F Meagher

Catchwords
PRACTICE AND PROCEDURE – jurisdiction – whether jurisdiction to review a decision – what decision constitutes decision capable of review by the Tribunal – internal review decision made in two parts – Tribunal has jurisdiction to review the decision under review

Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 25
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 99, 100, 103

Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Director-General of Social Services v Chaney (1980) 47 FLR 80
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422

REASONS FOR interlocutory DECISION

Deputy President F Meagher
Background

1.	This matter involves the definition of ‘decision’ in the context of the jurisdiction of the Administrative Appeals Tribunal (the Tribunal) as conferred by the National Disability Insurance Scheme Act 2013 (the NDIS Act). It arose as a result of the Respondent making an application to the Tribunal that it did not have jurisdiction to consider a decision of the Respondent dated 4 November 2020. There was an interlocutory hearing by telephone in relation to the question of jurisdiction on 1 June 2021 and the parties provided written submissions. 
2.	The Applicant is a participant in the National Disability Insurance Scheme (NDIS). 
3.	As a result of a scheduled plan review meeting the Applicant received a new statement of participant supports in her plan for the period 24 April 2020 to 24 April 2021. 
4.	On 28 May 2020, the Applicant requested a review, pursuant to section 100 of the NDIS Act, with respect to certain supports not funded in the plan, in particular with respect to the request for a storage and charging shed for mobility equipment (the shed). The shed remains the only support in dispute. 
5.	On 4 August 2020 the Respondent made a decision pursuant to section 100 of the NDIS Act, which referenced the statement of supports in a plan approved on 24 April 2020, and, with respect to the shed, stated as follows: 
Storage shed for storage of mobility equipment has been declined at this stage. We are seeking further internal clarification, and when we have this advice we will contact you with a final outcome decision.
(Emphasis added)
6.	A new plan was also issued on 4 August 2020 which dealt with the balance of the supports requested by the Applicant in her application for internal review of the decision of 24 April 2020.
7.	On 4 November 2020 the Respondent made what purported to be a further decision pursuant to section 100 of the NDIS Act, with respect to the shed.  That decision referred to ‘our earlier decision to approve the statement of supports under your plan. This plan was approved on 24 April 2020’. It went on to state:
The outcome you sought from the internal review was:
1. Storage shed for storage of mobility equipment
During our conversation on 30 July 2020, we confirmed that your internal review request was for the above stated supports.
I have decided that the original decision is correct. This means I have found the requested supports do not meet the reasonable and necessary criteria under section 34 of the NDIS Act or Part 5 of the NDIS (Supports for Participants) Rules 2013.
8.	Each of the decisions referred to in paragraphs 5 and 7 above respectively were made by the same delegate of the Chief Executive Officer of the National Disability Insurance Agency (the internal reviewer). They both indicated that the review powers were being exercised under section 100 of the NDIS Act and confirmed the Applicant’s right to seek external review of the decision with the Tribunal.
9.	On 2 March 2021, the Tribunal received an application dated 25 February 2021 for review of the decision of the Respondent dated 4 November 2020. An application for an extension of time to lodge the application for review with the Tribunal was made by the Applicant, not opposed by the Respondent and was granted by the Tribunal. While the question of jurisdiction is one in respect of which the Tribunal needs to be satisfied, it notes that no concerns were raised by the Respondent regarding jurisdiction when the application to extend the time for making the application to the Tribunal was made. 
10.	During the interlocutory hearing on 1 June 2021, it was discussed that at a conference held by the Tribunal on 30 April 2021, the issue of whether the Tribunal had jurisdiction to review the decision of the Respondent dated 4 November 2020 was raised by the Respondent, notwithstanding that it had raised no objection to the Tribunal’s order extending the time for the Applicant to file her application for review of the decision dated 4 November 2020.
11.	The Respondent stated during the interlocutory hearing that, at the conference it had proposed that the Applicant withdraw her application and make a new application with respect to the decision dated 4 August 2020. The Respondent indicated that they would not oppose an extension of time being granted for the making of that application. However, the Applicant did not consider that an appropriate course – she was concerned that to do so would have left her with nothing to review because there was no ‘decision in the August decision’ regarding the shed. The Applicant was also concerned to minimise delay.
12.	The Tribunal notes that the Applicant had legal representation at the interlocutory hearing. 
The Legislation
13.	Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) deals with application for reviews of decisions and relevantly includes:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal: 
(a) for review of decisions made in the exercise of powers conferred by that enactment; or 
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
14.	Section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) provides that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
15.	Section 100 of the NDIS Act deals with ‘review of reviewable decisions’ and in particular subsection 100(2) provides:
A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice. 
16.	Subsection 100(6) of the NDIS Act states:
The reviewer must, as soon as reasonably practicable, make a decision: 
(a) confirming the reviewable decision; or 
(b) varying the reviewable decision; or 
(c) setting aside the reviewable decision and substituting a new decision.
17.	Section 99 of the NDIS Act sets out in table form the reviewable decisions under the NDIS Act, the provisions under which the decision is made and the respective decision maker in relation to each of those decisions. Relevantly item 4 of the table refers to ‘a decision to approve the statement of participant supports in a participant’s plan’ and states that such a decision is made under subsection 33(2) of the NDIS Act by the Chief Executive Officer of the National Disability Insurance Agency (the CEO).
Submissions
18.	The Applicant submitted:
•	‘the [d]ecision is the approval of a statement of participant supports which includes the reasonable and necessary supports that the NDIS will (or will not) fund’;
•	‘the [d]ecision is not, as the Respondent suggests, the plan itself, but the approval of the supports which will be funded. By definition that decision includes items which will be funded, and items which will not be funded; only those that will be funded appear in the statement of participant supports’; 
•	that the Respondent’s section 100 ‘decision dated 4 August 2020 did not contain a decision regarding the storage and charging shed and is therefore not relevant to the question before the Tribunal’; 
•	that ‘the decision of 4 November 2020 is the relevant decision for the issue in dispute’; and 
•	the ‘review of the initial decision was conducted in two steps by the Respondent, for reasons that are unclear’ – ‘all but one of the supports sought by the Applicant were dealt with in the section 100 decision of 4 August 2020, and the initial decision was varied under paragraph 100(6)(b)’.
19.	The Applicant also submitted, in the alternative, that the decision is the combined decisions of 4 August 2020 and 4 November 2020. 
20.	The Respondent’s submissions were as follows: 
•	‘the Reviewable Decision, being the 4 August 2020 plan (Plan 2) (made pursuant to subsection 100(6) of the Act), varied the Original Decision, being the 24 April 2020 plan (Plan 1) (made pursuant to subsection 33(3) of the [NDIS] Act)’; 
•	‘[f]urther to this point, the Respondent contends that notwithstanding that the Agency, in its Reviewable Decision, indicated that it was seeking further internal clarification in relation to the refusal of the request for the storage shed and would provide an update to the Applicant (T7, p43), it is nevertheless clear that the delegate, on 4 August 2020, decided to refuse the request (T7, p43)’; 
•	‘as Plan 2 was made pursuant to [subsection] 100(6), it cannot be the subject of a further internal review by the Agency, having regard to [section] 99 of the [NDIS] Act’; 
•	‘therefore, the 4 November 2020 decision is not a decision pursuant to [section] 100, as it purports to be’; and
•	‘because the 4 November 2020 is not a decision under [subsection] 100(6), it cannot be brought to the Tribunal for review, having regard to [section] 103 of the [NDIS Act]. 
21.	During the hearing there was discussion regarding a letter dated 10 September 2020 sent by the Applicant which referred the Respondent to $4000 remaining in her plan and asking whether it could be spent on the shed. The letter was referred to in a table described as ‘Background’ set out in the Respondent’s submissions filed 17 May 2021.
22.	In the table, immediately after the reference to the 10 September 2020 letter, the following was stated:
The Respondent then purported to make another internal review decision in relation to the Applicant’s request for the shed(T2).
23.	The Applicant considered that the Respondent had mischaracterised the letter dated 10 September 2020 as a request for internal review, triggering its internal review decision of 4 November 2020, when it was, in her submission nothing other than an ‘attempt to solve a problem...’.
24.	The Respondent’s representative stated that he did not consider that ‘that was the right characterisation of what our position is’.
25.	The Tribunal notes the matters acknowledged by the Respondent in paragraph 24 above and that neither party considers that the Applicant’s letter of 10 September 2020 should be characterised as a request for an internal review decision. The Tribunal, having reviewed the letter of 10 September 2020 does not consider that it may be characterised as a request for an internal review decision. In oral submissions the Respondent acknowledged that the portion of its letter of 4 August 2020 was ‘not very well written’, and that ‘the process has been unclear and that’s very unfortunate.’
Consideration
26.	The issue before the Tribunal is whether there is jurisdiction to review a decision, and if so, what is the reviewable decision before the Tribunal. It is not an issue of whether the Respondent correctly followed the internal review procedure. If the Respondent has made an error in that process, then, providing the Tribunal has jurisdiction to conduct the review, any such procedural defect may be cured through the merits review process. 
27.	In Director-General of Social Services v Chaney (1980) 47 FLR 80 what constitutes a decision was considered. Deane J, one of the majority in the judgment, said: 
The word "decision" is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, it can refer to any such determination whether final or intermedia.
28.	In another context, the meaning of ‘reviewable decision’ was considered by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 in which it was stated, per Mason CJ: 
That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
29.	This approach has been adopted in Semunigus v Minister for Immigration and Multicultural Affairs, approved on appeal, where it was stated per Finn J:
For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
30.	Turning to the words of the letters central to the issue in this matter, the Tribunal notes that in the letter dated 4 August 2020, with respect to the storage shed, the Applicant was advised that funding for it had been declined ‘at this stage’, but that the Respondent ‘will contact you with a final outcome decision’. This letter refers to a review of a statement of supports in a plan which was approved on 24 April 2020. 
31.	The Tribunal does not therefore accept the Respondent’s submission that the letter of 4 August 2020 made it clear that the delegate had decided to refuse the Applicant’s request for the storage shed. The Tribunal does not consider that the letter of 4 August 2020 ‘gives finality to the conclusion’ in relation to the issue of the shed such that it ‘precludes the conclusion being revisited by the decision-maker’. Rather, the letter of 4 November 2020 refers to a request to review the supports under the plan approved on 24 April 2020 and deals specifically with the storage shed.
32.	The Tribunal accepts that when a decision-maker (here the internal reviewer) has made a decision they are functus officio and cannot remake the decision. However, the Tribunal does not consider that to be the case here. Rather, in this matter, the internal reviewer has provided two sets of reasons at different times for the making of her decision. There is nothing in the legislation governing internal review decisions which precludes a two staged decision-making process, although there is a requirement that the decision be made ‘as soon as reasonably practicable’. Accordingly, the Tribunal is of the view that the internal reviewer did not conclude the statutory function pursuant to section 100 of the NDIS Act in the decision of 4 August 2020. 
33.	As to the Respondent’s submission that Plan 2 (dated 4 August 2020) was made pursuant to subsection 100(6), and therefore cannot be the subject of a further internal review by the Agency, having regard to section 99 of the NDIS Act, the Tribunal does not understand that to be the Applicant’s submission, nor to be the situation canvassed in the letter of 4 November 2020, which clearly refers to “our earlier decision to approve the statement of supports under your plan. This plan was approved on 24 April 2020.” Accordingly, given the guidance referred to above – that a decision provides finality as regards a conclusion – the Tribunal considers that in this instance the Respondent’s decision regarding the statement of participant’s supports in the participant’s plan (in this case the plan of 24 April 2020) is a decision made in two parts. The operative and final part of the decision in respect of the storage shed was contained in that part of the decision which was dated 4 November 2020. As such, it is a reviewable decision being a decision made under paragraph 100(6)(a) of the NDIS Act.
34.	For completeness the Tribunal notes that it considers that it would have been open to the Applicant to bring an application for review with respect to the decision dated 4 August 2020 had she disagreed with the internal review decision made at that time. However, she did not – she waited until the internal review exercise being undertaken with respect to the shed was complete. If the Applicant had made an application with respect to the decision dated 4 August 2020, and the outcome  of the internal review decision was one with which she was not dissatisfied, the application then before the Tribunal would have been unnecessary, such that it would have been open to the Respondent to bring an application to the Tribunal to dismiss the Applicant’s application on the basis that it had no reasonable prospects of success. However, this is not the case here. 
Decision
35.	Therefore, the Tribunal is satisfied that is has jurisdiction, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth), to review the Respondent’s decision dated 4 November 2020.

I certify that the preceding 35 
(thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher 	

...................[SGD]……...........
Associate
Dated: 30 August 2021

Dates of Hearing:	1 June 2021
	
Final Submissions Received:

Legal representative for the Applicant:	21 May 2021

Ms N Anderson, Villamanta Disability Rights Legal Service Inc.
	
Counsel for the Respondent:	Mr K Kim, Clayton Utz