Klewer v National Disability Insurance Agency [2023] FCA 630

Federal Court of Australia

Klewer v National Disability Insurance Agency [2023] FCA 630 Appeal from: Klewer and National Disability Insurance Agency [2022] AATA 566 (30 March 2022)

File number: NSD 298 of 2022

Judgment of: RAPER J

Date of judgment: 15 June 2023

Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm the respondent's decision to not provide overnight care (provided by the appellant's mother) to the appellant under the National Disability Insurance Scheme – whether the Tribunal erred by taking into account irrelevant considerations, denied the appellant procedural fairness in a number of respects, or applied the wrong legal test – whether the Tribunal erred in determining whether overnight care was a reasonable and necessary support at the time of its review as opposed to during the period of the applicable plan which was the subject of the initial reviewable decision – effect of variation and remittal – appeal allowed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 26(1)(b), 42D, 42D(1), 42D(2), 42D(3)(a), 42D(4)(a), 42D(5), 42D(6), 44, 44(1) National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4(3), 9, 31(a), 31(b), 31(c), 34(e), 31(f), 31(g), 31(i), 31(j), 32, 32(1), 33, 33(2), 33(2)(a), 33(2)(b), 33(2)(c), 33(3), 33(5)(b), 33(5)(f), 34, 34(1), 34(1)(a), 34(1)(b), 34(1)(c), 34(1)(d), 34(1)(f), 37, 37(1), 37(1)(b), 37(3)(a), 44, 47, 47(2), 48, 49, 99, 100, 100(6), 101, 103(2), 103(2)(d), 103(2)(e) National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)