Federal Court of Australia QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 Appeal from: QDKH and National Disability Insurance Agency [2021] AATA 922 File number(s): NSD 450 of 2021 Judgment of: RANGIAH, PERRY and ABRAHAM JJ Date of judgment: 18 October 2021 Date of publication of reasons: 29 October 2021 Catchwords: ADMINISTRATIVE LAW – where applicant sought review in the Administrative Appeals Tribunal of decision by an internal reviewer under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) – whether Tribunal erred in finding that it lacked jurisdiction to consider additional supports requested by the applicant but not put before the internal reviewer – appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44 National Disability Insurance Scheme Act 2013 (Cth) ss 4, 32(1), 33(2), 99(1), 103 Cases cited: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 QDKH and National Disability Insurance Agency [2021] AATA 922 Steley and National Disability Insurance Agency [2021] AATA 2539 VXVL and National Disability Insurance Agency [2021] AATA 1709 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of hearing: Determined on the papers Solicitor for the Applicant: Legal Aid NSW Solicitor for the Respondent: Ashurst ORDERS NSD 450 of 2021 BETWEEN: QDKH, BY HIS LITIGATION REPRESENTATIVE BGJF Applicant AND: NATIONAL DISABILITY INSURANCE AGENCY Respondent order made by: RANgiah, PERRY and Abraham JJ DATE OF ORDER: 18 October 2021 THE COURT ORDERS THAT: 1. The applicant's mother be known by the pseudonym BGJF for the purposes of this proceeding. 2. BGJF is appointed as the applicant's litigation representative for this proceeding with effect on and from the filing of the applicant's notice of appeal on 17 May 2021. 3. The name of the applicant in the proceeding be amended to "QDKH, by his litigation representative BGJF". 4. The appeal be allowed. 5. The decision of the Administrative Appeals Tribunal dated 16 April 2021 (2019/4503) be set aside. 6. The matter be remitted to the Administrative Appeals Tribunal for determination according to law, having regard to the contents of the notation below. 7. The respondent pay the applicant's costs of the appeal as agreed or assessed. THE COURT NOTES THAT: 8. In the Tribunal below, the applicant sought review under s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) of a decision made by an internal reviewer under s 100 of the NDIS Act. The internal reviewer was in turn reviewing a decision to approve a statement of participant supports (SOPS) made under s 33(2) of the NDIS Act. 9. In the Tribunal below, the Applicant sought the approval of certain supports that had not been expressly requested before the internal reviewer. The Tribunal concluded that it did not have jurisdiction to consider supports that were not "put before" the internal reviewer: QDKH and National Disability Insurance Agency [2021] AATA 922 at [24]- [25], [33]-[34]. 10. The parties agree that that conclusion involved an error of law for the following reasons: (a) The Tribunal's jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO's or delegate's decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4). (b) The Tribunal's role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal's jurisdiction is, therefore, determined by reference to the scope of the internal reviewer's powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act. (c) On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports "put before" the internal reviewer. A participant in the National Disability Insurance Scheme need only "request" a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review. (d) Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to "facilitate" the preparation of a participant's plan (s 32(1)) and to prepare the SOPS "with" the participant (s 33(2)). (e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that "[p]eople with disability should be supported to receive reasonable and necessary supports" (s 4(5)) and that "[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs" (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26]. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 16 April 2021. 2 While orders conceding the appeal and the accompanying notation were made by consent and there is, strictly speaking, no requirement therefore for the Court to give reasons, the Court considers that it is desirable to publish reasons given the public importance of the issues raised on the appeal. 3 In the Tribunal below, the applicant sought review under s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) of a decision made by an internal reviewer under s 100(6) of the NDIS Act. The internal reviewer in turn was reviewing a decision to approve a statement of participant supports (SOPS) made under s 33(2) of the NDIS Act. The internal reviewer decided that: 1. [o]ne on one support 5 days per week during school to assist with [the applicant's] transitioning between classes [at school], access to programs in the classroom and eating is not reasonable and necessary; and 2. [a]ccess to intensive feeding therapy program is not reasonable and necessary. (Tribunal reasons dated 16 April 2021 (TR) at [15].) 4 The parties reached agreement as to the provision of the intensive feeding therapy support and additional support at school: TR at [18]. However, the applicant sought approval in the Tribunal of certain additional supports which had not been expressly requested before the internal reviewer, namely: • three hours['] support per week at home by way of positive behaviour therapy; • additional support on Saturday between 9am and 5pm; • additional speech therapy supports, including the provision of funding for travel and payment of administration fees; and • additional occupational therapy supports, including the provision of funding for travel and payment of administration fees. (TR at [18] (the additional supports).) 5 However, the Tribunal concluded that it did not have jurisdiction to consider supports that were not "put before" the internal reviewer: TR at [24]–[25], [33]–[34]. As such, the Tribunal found that it did not have jurisdiction to determine the applicant's request for the additional supports. 6 On 19 May 2021, the applicant appealed to this Court from the whole of the Tribunal's decision on a question of law under s 44 of the AAT Act. The question of law identified in the notice of appeal is: Did the Tribunal err in law in finding that it lacked jurisdiction to determine the Applicant's entitlement to the additional supports? 7 On 18 October 2021, the Full Court ordered by consent that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal for determination according to law, having regard to the notation to the orders to which the parties had agreed. That notation reads: The parties agree that [the Tribunal's] conclusion involved an error of law for the following reasons: (a) The Tribunal's jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO's or delegate's decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4). (b) The Tribunal's role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal's jurisdiction is, therefore, determined by reference to the scope of the internal reviewer's powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act. (c) On the proper construction of s 100 of the NDIS Act, read in the context of the NDIS Act, there is no indication that the internal reviewer is limited to considering supports "put before" the internal reviewer. A participant in the National Disability Insurance Scheme need only "request" a review under s 100(2) and there is no requirement for them to identify the particular supports sought on the review. (d) Likewise, a participant is not required to identify the particular supports sought before the CEO or delegate for the purposes of the primary decision under s 33(2). Rather, the preparation of the SOPS is a collaborative process: the CEO is required to "facilitate" the preparation of a participant's plan (s 32(1)) and to prepare the SOPS "with" the participant (s 33(2)). (e) This construction better serves the beneficial purpose of the NDIS Act, and the principles set out in s 4 which include that "[p]eople with disability should be supported to receive reasonable and necessary supports" (s 4(5)) and that "[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs" (s 4(9)). This construction recognises that participants may lack the capacity to identify the particular supports they wish to have approved: see Steley and NDIA [2021] AATA 2539 at [33]; VXVL and NDIA [2021] AATA 1709 at [26]. 8 The Court considers that the appeal was correctly conceded for the reasons set out in the above notation. Accordingly, the Tribunal had jurisdiction to consider the additional supports. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Perry and Abraham. Associate: Dated: 29 October 2021