No need to specify a specific error or missing support in order to seek internal or Tribunal review - Steley and NDIA [2021] AATA 2539

Key points

• In Steley and NDIA [2021] AATA 2539 [opens in new window] the Tribunal has made clear that a person seeking an internal review of a decision by the NDIA only needs to request an internal review. The person does not need to identify a particular aspect of the decision that is wrong, or identify specific supports that were not included in the original plan, which the person considers should be. 
• However, providing detail, relevant information and submissions to the NDIA will allow it to better conduct an internal review, and make it more likely that the person will receive a better decision upon review.

Facts

Mr Steley has a prosthetic eye. The NDIA issued a statement of participant supports, and Mr Steley sought internal review of this. Mr Steley sought additional supports relating to his prosthetic eye and certain physiotherapy or exercise physiology sessions. The internal reviewer did not consider these additional supports. (There was a factual dispute between the parties as to whether Mr Staley did request this or not, but this did not matter for the Tribunal's decision.)

Mr Steley was dissatisfied with the internal review, and applied for review by the Tribunal. The NDIA argued that the Tribunal did not have jurisdiction to consider issues relating to the additional supports, because the question of the additional supports had not been 'put before' the internal reviewer by Mr Staley, and the internal reviewer had not considered those additional supports. 

Decision

The Tribunal decided that it did have jurisdiction. 

The Tribunal considered s 100 of the NDIS Act [opens in new window]. It observed at [16] of the decision that s 100(3) of the NDIS Act requires a person who is directly affected by a reviewable decision (e.g. a participant, a person who was refused access to the NDIS, or the carer of a person) to request an internal review. However, once a review request is made, s 100(5) of the NDIS requires the decision-maker (i.e. the employee of the NDIA) to cause the decision to be reviewed.

At [22] of the decision, the Tribunal observed that when an internal reviewer carries out an internal review, they are re-making the decision that was initially made by the decision-maker. As a result, the supports that a participant submits should be included in the plan are within the jurisdiction of the internal reviewer and the Tribunal. The power of the NDIA to approve a person's statement of participant supports pursuant to s 33 of the NDIS Act [opens in new window] is very broad.

Paragraph 34 of the decision contains the key point of interest for NDIS participants and applicants:

The Tribunal’s jurisdiction to review a decision made under subsection 33(2) of the NDIS Act is not narrowed by the conduct of a participant, when initiating an internal review under section 100 of the NDIS Act, failing to identify, particular aspects of the decision with which they disagreed or particular supports that should have been included. It is open to a participant to ask that the whole of the decision be re-considered by reference to the participant’s goals and needs, and without specifying the correct or preferable decision. [...]

Discussion

This case is important for NDIS participants or applicants who are dissatisfied with a decision, and who wish to seek internal review. All that is required is for an internal review to be requested. This request can be made orally or in writing. The participant or applicant does not need to identify the precise aspect of the decision that they consider is incorrect, or identify particular supports that were not included which the participant considers should have been included. 

With that said, the more detail that is provided in an internal review application, the more likely it is that the decision will receive proper reconsideration by the NDIA, and the more likely it is that the applicant will receive a better decision on review. A person should try to provide the NDIA with as much relevant information as possible, and ideally some submissions that explain why they think the decision the NDIA made was incorrect, and what supports they want. However, as this case makes clear, a failure to do this will not invalidate the review or cause the Tribunal to not be able to consider the internal review. 

Postscript

After posting this, I identified a different decision of the Tribunal - NDIA and Napper [2021] AATA 2363 [opens in new window]. That decision came down on 16 July 2021, 11 days before the decision in Steley, but the Tribunal in Steley was not referred to it. In Napper, the Tribunal took a much more restrictive view of its jurisdiction, and placed much greater emphasis on an applicant's failure to put matters before the internal reviewer. In particular, the Tribunal found:

• It did not have jurisdiction to review a request by the applicant to receive physiotherapy for lymphoedema management, because although the applicant provided an expert report that recommended physiotherapy for other aspects of the applicant's physical condition, it did not recommend physiotherapy for lymphoedema. 
• It did not have jurisdiction to review a request for orientation and mobility training, because although there was an expert report that recommended this support, there was no evidence that this report had been put before the internal reviewer. 
• It did not have jurisdiction to review a request for 20 hours of occupational therapy, because although the applicant had requested occupational therapy at the internal review stage, she did not specify the number of hours required. 
• It did not have jurisdiction to review a request for 20 hours of assistive technology training, because there was no evidence that this had been requested in the plan review or in subsequent correspondence with the NDIA. 

In my view, the decision in Napper is inconsistent with Steley. I consider that the reasoning in Steley is more persuasive, and has regard to the breadth of the decision-making jurisdiction under the NDIS Act.  Although differences in facts could explain some of the differences in the two cases, at some point the Tribunal will either have to reconsider this issue (for example, by sitting a bench of three members), or the Federal Court will have to sort it out on appeal. Watch this space!