Federal Court: A win for participants!

I <3 The Administrative Appeals Tribunal (AAT). Many of us recall the times before the NDIS existed: 10 years ago, if a state or territory government didn’t provide enough support, a disabled person did not have many avenues for review. The AAT, when functioning well, provides a review that is new and independent from the original decision maker. The AAT protects individuals against questionable government decisions. But for many NDIS participants over the past 6 months, the process has been terribly broken. Last week, a case before the federal court has offered relief to participants caught in a sticky bureaucratic mess.

What was wrong?

In the last six months, the NDIS division at the AAT experienced a significant divide. It started with a hearing on the matter given the letters QDKH at the AAT. Deputy President Constance (DP Constance) in QDKH vs the NDIA decided that the Tribunal has no jurisdiction to consider additional supports where these additional supports were not first raised at internal review to the NDIA. Shortly after this decision was published, considering a participant (VXVL) who was in similar circumstances to QDKH, Senior Member Buxton (SM Buxton) concluded the opposite of DP Constance. “The Tribunal has jurisdiction to consider supports not identified by the primary decision-maker or the reviewer”, SM Buxton asserts in VXVL, “so long as those supports could have formed part of the primary decision”. TEN more decisions followed, with members backing either DP Constance’s view or SM Buxton’s view.

What these conflicting decisions meant

Decisions about who can decide reasonable and necessary supports clogged up the AAT, costing taxpayers millions of dollars. Legal Aid and community legal organisations were increasingly required to direct valuable resources to these jurisdictional matters, rather than collecting evidence which would likely work toward an early resolution.

The rise in these jurisdictional matters also meant that affected participants were not getting the supports they needed when they needed them. Many of us have been in planning meetings where participants have been asked to leave “shopping lists” of supports at home. When participants found themselves at the AAT, however, they were being disadvantaged for leaving supports off their non-existent shopping lists.

How the AAT usually works

Before we explore why DP Constance and SM Buxton (and others) disagree on this question, it’s important to understand how a request for a given support can land a participant at an AAT hearing. Take Jonny, for instance.

1. Jonny asks a Planner to include funds for an assistance animal (“Doggo”) at a scheduled plan review.
2. Planner builds plan; no Doggo in the plan.
3. Jonny calls the NDIA and asks for an Internal Review.
4. Internal Reviewer looks at Jonny’s reports again and gives a formal decision that says, “no Doggo”.
5. Jonny instantly submits a request for external review. Jonny attends two or three case conferences, a conciliation and, because he’s in the unlucky 5% of all external reviews, is invited to a hearing to argue that Doggo is a reasonable and necessary support.

What if Jonny also wanted funding for an OT in his plan, but it was not listed on his internal review paperwork? There are many reasons why someone might not name a support at internal review, including:

• Applicants with cognitive or communicative disabilities are sometimes not supported to make their needs known
• The NDIA worker, for whatever reason, does not record the request for an OT
• The need for a support comes up while another support is being contested at the AAT

In these cases, the NDIA reviewer wouldn’t have a record that Jonny needed OT in his plan. And if the Member hearing Jonny’s matter at the AAT accepted the reasoning in QDKH, Jonny could only ask the AAT to consider Doggo and not the OT. The NDIA had not publicly communicated what it expected the people in Jonny’s circumstances to do.

The sticking point

The decision in QDKH to consider only supports at the AAT that have first been put before the NDIA relies on a particular understanding of the NDIS Act. DP Constance pointed to section 103 of the NDIS Act (2013), stating, “The Tribunal’s [AAT’s] jurisdiction [power] is limited to reviewing a decision made by a reviewer”. DP Constance concludes, “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” (35).

In comes SM Buxton. She reads QDKH and concludes that the reviewable decision is the CEO’s decision to approve the statement of participant supports, not each individual support. For people in Jonny’s situation, SM Buxton’s interpretation in VXVL means that the AAT would have the power to determine whether both Doggo and an OT are reasonable and necessary, if both supports could have been requested of the original decision maker.

AAT decision publications are not like reading Fifty Shades of Grey; this legal genre is usually very dry. In interpreting the NDIS Act, however, there are literally fifty shades of grey. To match, SM Buxton uses surprisingly juicy language:

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 (26).

Federal Court case

Bright brains have spent the best part of the last 6 months trying to fix this. The participant given the label “QDKH”, with representation from NSW Legal Aid, appealed the AAT’s QDKH decision to the Federal Court. Late last week, Multicultural Disability Advocacy Association (MDAA) – the organisation that represented QDKH at the AAT - announced on social media that the Federal Court “set aside” the decision in QDKH. In other words, the reasoning in the QDKH vs NDIA decision at the AAT was incorrect and the Tribunal does in fact have the jurisdiction to decide on supports not specifically requested at internal review.

MDAA explains the reach of the Federal Court decision,

“The Federal Court’s orders are binding on the [Administrative Appeals] Tribunal, which means there should hopefully be no further Tribunal decisions that follow the approach taken in QDKH. The Tribunal should also be able to reverse earlier decisions which limited its jurisdiction to particular supports, if those matters remain before the Tribunal” (MDAA Facebook 20.10.21).

Applied to Jonny, the Federal Court decision means that Jonny can ask the AAT to consider both doggo and OT, even if OT was left off the paperwork at his internal review.

In closing, it’s not in the interests of good public administration for disabled people to jump through extra legal and bureaucratic hoops to access the supports they need. Good public administration, in contrast, involves building review processes that are easy to follow, flexible, fast and provide the benefit of the doubt to participants.

Note: I’m not a lawyer and this is not legal advice. If you, someone you provide services to, or someone you love is implicated in an NDIS external review at the AAT, contact Legal Aid in your area or an advocacy organisation via the DSS advocacy finder tool.