Jurisdiction to review subsequent decisions - Rogers and NDIA [2022] AATA 2809

Note: This decision concerns a decision made prior to 1 July 2022. The NDIS Act has been amended, and those amendments took effect on 1 July 2022. If you are concerned about a decision made after 1 July 2022, then this decision of the Tribunal may not apply to you.

Key Points

• In Rogers and NDIA [2022] AATA 2809 [opens in new window], the Tribunal considered jurisdictional issues that arise when new NDIS plans come into effect while the original plan is being reviewed. 
• These jurisdictional issues have been resolved by changes to the NDIS Act that apply after 1 July 2022. However, if the relevant decision predates 1 July 2022, then the old version of the law will apply. This case might help understanding of the jurisdictional issues under the old version of the law.

Facts

The Applicant is a participant in the NDIS. His Statement of Participant Supports (SoPS) provided Specialist Disability Accommodation (SDA), but the Applicant wanted a different form of accommodation support to be provided to him.

A decision approving a SoPS was made on 3 August 2021, and the Applicant sought review of this decision on 11 August 2021. After that, two further decisions were made, on 11 August 2021 and 17 June 2022. 

The Applicant asked the Tribunal to decide a question about its jurisdiction. He wanted the Tribunal to confirm that the fact that the NDIA had made further decisions to approve SoPS under s 33 of the NDIS Act [opens in new window] does not prevent the Tribunal from having jurisdiction to review the initial decision dated 3 August 2021. The Applicant also wanted the Tribunal to confirm that the scope of its review is not limited by the NDIA decisions dated 11 August 2021 and 17 June 2022.

It appears from [12] of the Tribunal's decision [opens in new window] that the Applicant was concerned by the fact that there is a 3 month deadline for seeking internal review of a decision (see s 100(2) of the NDIS Act [opens in new window]). The Applicant was concerned that if he decided not to seek internal review of the subsequent decisions, then the NDIA might argue that his decision to not seek review prevents the Tribunal from reviewing the initial decision.

The Tribunal confirmed that its jurisdiction to review the initial decision dated 3 August 2021 was not removed as a result of the subsequent decisions being made: see [6(a)] of the decision [opens in new window]. The subsequent decisions are also reviewable, and it is for the Applicant to decide whether he wants to review the subsequent decisions in the Tribunal as well.

However, the question of what effect those subsequent decisions have on the review before the Tribunal is more nuanced. The Tribunal referred to the decision in QDKH v NDIA [2021] FCAFC 189 [opens in new window], where the Full Court of the Federal Court made clear that, in reviewing a SoPS, the Tribunal can only consider those supports that could have been included in the SoPS. The Tribunal cannot take into account matters that were not before the original decision maker (the internal reviewer in the NDIA) if doing so would change the nature of the decision or question before the decision maker. 

At [21] of the decision in Rogers [opens in new window], the Tribunal clarified that on internal review under s 100 of the NDIS Act, the internal reviewer can consider the supports that could have been specified for the period that the Applicant's plan is in effect, but not other supports. If the Applicant seeks review by the Tribunal, then the Tribunal has the same limitations as the internal reviewer. All of this is separate to the process of seeking a review due to a change of circumstances under s 48 of the NDIS Act [opens in new window].

In applying these principles to this case, the Tribunal decided at [42] [opens in new window] that it did not have power to review whether the type of SDA sought by the Applicant was a reasonable and necessary support based on any later, changed circumstances, because this goes beyond the Tribunal's role of re-exercising the original statutory power. If the Applicant wanted the later decisions to be reviewed based on changed circumstances, then he had to seek internal review. 

Discussion

The Tribunal's decision highlights the difficulties that arise from the pre-1 July 2022 version of the NDIS Act: In short, plan durations are frequently shorter than the time required to carry out a review of a decision, and a person's needs might well change during the period that review proceedings are occurring. This decision sets out various previous decisions of the Tribunal, which sometimes came to opposing conclusions about what the scope of the Tribunal's jurisdiction was. 

The new ss 101 and 103 of the NDIS Act [opens in new window] deals with this problem by making clear that if a new plan comes into effect, or the plan is varied, while either an internal review or Tribunal proceedings are on foot, then the internal review or Tribunal proceedings are taken to cover both the original decision and the new plan or varied plan. This eliminates the need for Applicants to seek multiple reviews of multiple decisions.

However, as this decision makes clear, the new provisions only apply to decisions made after 1 July 2022. That means that there will continue to be some decisions, at least for the next little while, that might be subject to the old legislation - this case will provide some assistance for clarifying those jurisdictional issues.