Johnstone and National Disability Insurance Agency [2023] AATA 3632 (8 November 2023)

Last Updated: 10 November 2023

Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2021/4617

Re: Heath Johnstone

APPLICANT

And National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal: Senior Member K Buxton

Date: 8 November 2023

Place: Brisbane

The Tribunal has remitted the matter for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member K Buxton

Catchwords

Interlocutory Application — National Disability Insurance Scheme — Plan — Review of Supports in Plan — Statement of Participant Supports — Section 42D Remittal — New Plan ‑— Whether 42D remittal creates a new plan

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Cases
Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395
Hill and National Disability Insurance Agency [2023] AATA 3626
Klewer v National Disability Insurance Agency [2023] FCA 630
O'Hearn and National Disability Insurance Agency [2023] AATA 2993
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
WJCG and National Disability Insurance Agency [2023] AATA 3310

REASONS FOR DECISION

Senior Member K Buxton

8 November 2023

1. The Applicant, Mr Johnstone, is a participant in the National Disability Insurance Scheme. His application for review relates to a decision to approve a Statement of Participant Supports under section 33(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act). These reasons are published in relation to the Tribunal’s remittal of the matter for reconsideration, which was made on 2 November 2023.
2. On 14 January 2021 a delegate of the Respondent made a decision to approve a Statement of Participant Supports for the Applicant, under section 33(2) of the NDIS Act. The Applicant applied for an internal review of this decision through the Respondent.^[1] On 23 June 2021, the internal reviewer confirmed the original decision made by the Respondent in approving the Statement of Participant Supports on 14 January 2021.^[2] The Applicant applied to the Tribunal for review of this decision on 12 July 2021.^[3]
3. The matter has been remitted by the Tribunal under section 42D on a previous occasion (7 June 2022). Following this remittal, the Respondent made a decision that was labelled and styled as a “new plan” for Mr Johnstone, dated 14 July 2022, and Mr Johnstone decided to proceed with the review application. Assuming this decision was validly made following the remittal, this is the reviewable decision in the proceedings. By operation of section 42D(4), Mr Johnstone’s application is now taken to be a review of the 14 July 2022 decision.
4. On 7 July 2023, the parties submitted a joint request that the Tribunal remit the decision for reconsideration, and stated that this course of action was desirable, having regard to:

   (a) the need to ensure that Mr Johnstone has continued access to supports while this matter remains in the Tribunal;

   (b) the Respondent’s intention to recommend to a delegate that:

   (i) the review date should be varied to 12 months after the date the reconsidered decision is made;

   (ii) the following supports are reasonable and necessary for Mr Johnstone:

   • (A) 13 hours per year of dietician support, comprised of 12 hours per year of dietician support and 1 hour per year for report writing; and
   • (B) 12 hours of core support funding per month, to allow one day per month of 1:1 overnight support (an additional 144 hours per year).

   (iii) the reasonable and necessary supports in the existing statement of participant supports other than any one-off supports already obtained be replicated, on a pro rata basis, for the 12 month period from the date of the reconsideration decision until the varied review date.

5. On 2 November 2023, the Tribunal acceded to the request and remitted the decision under review to the Respondent for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act). If a further decision is made as a result of the remittal, Mr Johnstone’s application will be taken to be a review of that decision, should he wish to proceed.^[4] The Tribunal considers it necessary and appropriate to provide reasons for the remittal given previous divergence in judicial opinion, and more recently, a shift in the position of the Respondent in relation to the nature of the power to be exercised on remittal.
6. On 21 August 2023, Mr Johnstone filed a document with the Tribunal titled ‘What Heath Johnstone is Seeking before AAT’ identifying a number of supports for which he seeks funding to be specified.^[5] On 6 September 2023, Mr Johnstone stated in an email to the Tribunal that the list of supports included in the that document replaced his previously requested supports.^[6] In the same email, Mr Johnstone indicated that he is seeking ‘retrospective’ supports including assistive technology and consumables but did not provide a full list at this time.^[7]
7. As can be seen from this information, whilst some supports still remain in issue in the review, not all of the supports which the Respondent now accepts are reasonable and necessary, under section 34(1) of the NDIS Act, have yet been funded. That is because the Respondent has changed its position in relation to some supports and has expressed the view that the reassessment date should be extended and funding continued while the final determination of the matter remains pending. When the Respondent accepts that additional reasonable and necessary supports should be incorporated into a Statement of Participant Supports, and there is a review before the Tribunal relating to the Statement of Participant Supports in which these supports should be funded, the Respondent cannot simply change the decision. Section 26 of the AAT Act provides that, subject to section 42D of the AAT Act, a reviewable decision before the Tribunal may not be altered other than by the Tribunal on review unless the parties to the proceeding, and the Tribunal, consent to the making of the alteration. That prohibition in section 26 of the AAT Act limits the conduct of the decision maker, once the reviewable decision is before the Tribunal, to alter that decision only with the engagement of either section 42D (remittal for reconsideration) or section 26 (consent alteration) of the AAT Act.
8. In this matter, Mr Johnstone and the Respondent have jointly requested that the decision under review should be remitted to the Respondent for reconsideration under section 42D of the AAT Act. There is nothing unusual about the request and, until recently, a request of this nature would ordinarily have been granted so long as the Tribunal was satisfied that it was appropriate to do so. However, following recent divergence in judicial opinion (and in decisions of the Tribunal) regarding the nature of power exercised by the Respondent on remittal, and a lack of clarity as to the Respondent’s position on that issue, the Tribunal has become understandably cautious about remittal.
9. On 14 June 2023 the Federal Court decided Klewer v National Disability Insurance Agency^[8] (Klewer). In that case, Justice Raper considered whether the Tribunal had erred in the decision arrived at in Mr Klewer’s review application relating to, inter alia, whether funding for overnight support was reasonable and necessary under section 34(1) of the NDIS Act. In that case, the Respondent had made a new decision following a remittal under section 42D of the AAT Act. The Respondent submitted, and the Court apparently accepted, that a new plan was created as a result of the remittal. In considering the nature and scope of the reviewable decision, her Honour concluded that “the effect of the power under section 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan”.^[9] Her Honour went on to observe:^[10]

Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied.

10. If a new plan, rather than a reconsideration of the Statement of Participant Supports in an existing plan, can be created as a result of a section 42D remittal, this may impact the nature and scope of the review in a way that limits review rights that were available to an Applicant before such a new plan was made. Specifically, if the Tribunal decides on review that a funded support is reasonable and necessary and is to be funded for any period that pre-dates the start of the “new plan”, a real question arises as to whether the Tribunal would still have jurisdiction to consider such a support, even though there is no question that it was plainly within the Tribunal’s review jurisdiction to do so prior to the reconsideration. Such a question may arise in this case.
11. The decision in Klewer represents a departure from the previous understanding of the operation of reviewable decisions in NDIS reviews and, respectfully, for the reasons set out in the decision of in Pavlakis and the National Disability Insurance Agency,^[11] (Pavlakis) also represents a departure from previous Federal Court, Full Federal Court and High Court authorities that address merits review by the Tribunal more generally, and the scope of this type of NDIS review.^[12] Because of the potential significance of this interpretation of section 42D, the Tribunal directed the Respondent to provide written submissions in support of the request for a remittal under section 42D of the AAT Act addressing the recent decision in Klewer insofar as it relates to the Tribunal's jurisdiction and whether any supports in issue in this review may be affected by that decision.
12. The Respondent provided written submissions in support of the remittal request to the Tribunal on 13 October 2023. On 26 October 2023 Mr Johnstone confirmed in writing that he agreed with the substance of those submissions and confirmed that he still wished the decision to be remitted for reconsideration. The Respondent’s submissions are comprehensive and extensive and, for these reasons, the submissions are attached to these reasons as Annexure A. The submissions deal with some issues that are extraneous to the question of remittal and these reasons address only the directly relevant aspects of the Respondent’s submissions in this case. The Respondent opened its submissions with the following helpful summary of its position as to the Tribunal’s jurisdiction following remittal under section 42D of the AAT Act as follows:

    (a) a remittal under section 42D of the AAT Act does not create a new ‘participant’s plan’ (within the meaning of the NDIS Act);

    (b) the relevant power being exercised on remittal under section 42D of the AAT Act is the power to affirm, to vary, or to set aside the decision under review. In exercising that power, the decision-maker (reviewer) is tasked with reconsidering the decision under review (subject to any limitations placed on the decision-maker pursuant to the NDIS Act);

    (c) that reconsideration does not involve creating a new plan because the reviewer is not conducting a reassessment within the meaning of section 48 of the NDIS Act—which is (relevantly) the only way a new plan can come into effect for an existing participant;

    (d) to the extent that her Honour Justice Raper suggested otherwise in Klewer, her Honour was, respectfully, incorrect;

    (e) Senior Member Buxton was correct in Pavlakis at [24] that, although a different Statement of Participant Supports (SOPS) may be inserted into the plan already in existence under section 37 of the NDIS Act, it is not a ‘new plan’ that is generated by the remaking of the SOPS on review. Further, in respect of the specific consequences of a remittal under section 42D of the AAT Act, Senior Member Buxton was correct in Pavlakis at [25] and [30], and the consequences of a decision under paragraphs 42D(2)(b) or (c) is a varied—or substituted—SOPS that specifies the supports that are included in the plan;

    (f) further, changing the review date in a plan does not create a new plan, because that is not one of the events prescribed in subsection 37(3) of the NDIS Act as ceasing the effect of a plan—again, her Honour Justice Raper (in Klewer) was wrong to suggest otherwise, and Senior Member Buxton (in Pavlakis) was correct to that extent;

    (g) even if the Tribunal varies the decision under review, or sets aside the decision under review and substitutes a new decision, the plan continues until it ceases under subsection 37(3) of the NDIS Act;

    (h) following a decision on remittal, the Tribunal’s jurisdiction is reengaged by reason of subsections 42D(3) and (4) of the AAT Act—and not by section 103 of the NDIS Act—because the powers under sections 47A, 48 and 49 of the NDIS Act are not engaged (and no new plan comes into effect under section 37 of the NDIS Act); and

    (i) while the reviewer’s decision takes effect from the date the reviewable decision had effect (being the time the CEO approved the SOPS)—it is open to the reviewer to determine that any or all supports are changed following a review from any given date within the plan period. It follows that whilst a reviewer is able to make changes to the SOPS with effect from the start date of the plan, the reviewer may also do so from any other date within the plan period.

13. The Respondent provided more comprehensive submissions pertaining to the distinction between appropriately treating a Statement of Participant Supports as a central feature of a Participant’s plan and inappropriately conflating the Statement of Participant Supports with the plan itself. Relevantly, the Respondent noted that, under section 33 of the NDIS Act, in addition to a Statement of Participant Supports, a plan must include ‘the participant’s statement of goals and aspirations’, and may also include additional matters. The Respondent submitted:^[13]

“It follows that the SOPS is part of the participant’s plan, but it is not the participant’s plan itself, nor is it the only part, as the participant’s plan must also include (at least) the Participant’s Goals.”

14. The Respondent made the following submission in relation to the effect of subsection 37(3) of the NDIS Act in relation to the creation of a new plan:^[14]

“The Agency submits that the distinction in the NDIS Act between a ‘participant’s plan’ (plan) and a SOPS has the result that, while a decision by the CEO (or a delegate) to approve a SOPS under subsection 33(2) may have consequences for a plan coming into effect or ceasing, not all changes to the SOPS will result in a new plan. The SOPS can be changed, but the plan will remain in existence until an event occurs to engage subsection 37(3)—that is, either the plan is replaced by a new plan under Division 4 (of Part 2 of Chapter 3) of the NDIS Act, or the participant ceases to be a participant of the NDIS.”

15. The Respondent further submitted, as to the effect of a decision made upon remittal, that:^[15]

“... the reviewer on remittal is not creating a new plan. Even if the reviewer decides to set aside the decision and to substitute a new decision, that is a decision to insert a new SOPS into the plan already in existence under section 37, and it does not generate a new plan.”

16. The Tribunal notes that these submissions are at odds with the approach which the Respondent recently invited to Court to take in Klewer, and the Tribunal to take in the matter of WJCG and National Disability Insurance Agency.^[16] More recently, in O’Hearn and National Disability Insurance Agency,^[17] the Respondent declined to express a position with respect to the different approaches taken by the Federal Court in Klewer and the Tribunal in Pavlakis. In light of the approach now adopted by the Respondent in this case, it is the submission of the Respondent that the approach taken and conclusions reached by the Tribunal in Pavlakis,^[18] namely at [25] and [30], were correct in relation the jurisdiction of the Respondent on remittal under section 42D.^[19]
17. The Respondent’s written submissions correctly contend that the Tribunal is bound by neither Klewer nor Pavlakis.^[20] The Respondent submitted that the Tribunal was not bound by Klewer as Justice Raper’s comments on section 42D remittals were obiter dicta^[21] and, although the Respondent stated that the approach in Pavlakis ought to be preferred, the Respondent correctly noted that the Tribunal is not bound by that previous decisions of the Tribunal.^[22]
18. The Respondent submitted, in relation to supports that had already been accessed by a participant but for which funded had not yet been provided in the Statement of Participant Supports:^[23]

“In Pavlakis, Senior Member Buxton observed as follows—albeit in the context of a decision made by the Tribunal itself, rather than a reviewer (at [38]):

The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect ... That may date as far back as the CEO’s original decision if aspects of the SPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.

Consistent with Senior Member Buxton’s observations, the Agency submits that a reviewer (following remittal under section 42D of the AAT Act) or the Tribunal (making a decision under section 43) can decide that a support should be funded ‘as far back as the CEO’s [or the delegate’s] original decision’, or that it should be funded ‘from the date of the decision and not earlier’, or from another point in time.”

19. This submission squarely puts to rest any concern that jurisdiction in this review to consider reasonable and necessary supports that may already have been provided to the Applicant, but not yet funded in his SOPS, may be affected by a reconsideration following remittal under section 42D. The Tribunal notes the Respondent’s accurate submission that supports cannot be backdated to a start date prior to that of the current plan which is before the Tribunal.^[24]
20. The approach that has now been articulated and adopted by the Respondent in this case represents a return to the understanding of the process of remittal under section 42D in place prior to the decision of the Federal Court in Klewer. The Tribunal accepts the Respondent’s proposition that the decision of Klewer does not bind the Tribunal insofar as Justice Raper’s comments on section 42D remittals are concerned, both because of the binding authorities identified and the approach to those authorities taken in Pavlakis and on the basis that these comments were obiter dicta.^[25] The decision of the Court in Klewer was that the matter be remitted to the Tribunal for determination according to law. The reasoning supporting this decision, and essential to it, in relation to the grounds of appeal that were found to have been made out formed the ratio decidendi of the case. The observations of the Court as to further appeal grounds that the Court concluded were not made out, and which did not, therefore, form part of the decision, are properly to be regarded as obiter dicta.^[26] In any event, whether these particular judicial observations are binding but distinguishable, or are not binding because they are inconsistent with other binding decisions or have been misconstrued, the conclusion to be reached in this case is the same. The Tribunal accepts the approach contended for by both parties in this case, that any reconsidered decision can and will amount to no more than a decision to approve, vary or modify the supports in the existing plan and will not amount to a new plan.
21. The Tribunal notes that both parties contend that it is appropriate that the decision be remitted. The Tribunal is satisfied that if the matter is remitted for reconsideration under section 42D, any reconsidered decision that affects Mr Johnstone’s approved Statement of Participant Supports will not take effect as a new plan but, rather, as a reconsideration of the existing decision, and that this is the proper interpretation of the earlier decision made on 14 July 2022 following an earlier remittal. The Respondent has made this intent in this regard clear and the Tribunal accepts that position.

DECISION

22. The Tribunal has remitted the matter for reconsideration under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 22 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.


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

Dated: 8 November 2023

Applicant: Heath Johnstone

Respondent Solicitor: Oliver Young, Australian Government Solicitor

Annexure A

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^[1] T1E.

^[2] T1A.

^[3] T1.

^[4] Section 42D(5) of the AAT Act.

^[5] Statement of Issues of the Respondent, dated 15 September 2023.

^[6] Ibid.

^[7] Ibid.

^[8] [2023] FCA 630.

^[9] Klewer at [201].

^[10] Ibid at [202].

^[11] [2023] AATA 2485.

^[12] Pavlakis at [14] – [39], in particular decisions discussed at [33] – [37].

^[13] Respondent’s submissions on the Tribunal’s jurisdiction following remittal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), paragraph 8.

^[14] Ibid, paragraph 14.

^[15] Respondent’s submissions on the Tribunal’s jurisdiction following remittal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), paragraph 41.

^[16] [2023] AATA 3310 (17 October 2023) [14].

^[17] [2023] AATA 2993 (18 September 2023) [2023]; AATA 3310 (17 October 2023).

^[18] Pavlakis and National Disability Insurance Agency [2023] AATA 2485.

^[19] Respondent’s submissions on the Tribunal’s jurisdiction following remittal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), paragraphs 42-43.

^[20] Ibid, paragraph 48.

^[21] Ibid, paraph 49.

^[22] Ibid.

^[23] Respondent’s submissions on the Tribunal’s jurisdiction following remittal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), paragraphs 55-56.

^[24] Ibid, paragraphs 63-64.

^[25] Respondent’s submissions on the Tribunal’s jurisdiction following remittal under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), paragraph 49.

^[26] Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 per Kirby J at [56]; cf Hill and National Disability Insurance Agency [2023] AATA 3626 at [120] – [121].