FEDERAL COURT OF AUSTRALIA

SSBV by his Litigation Guardian v National Disability Insurance Agency [2018] FCA 1021

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 17 October 2017 to affirm the decision under review is set aside.

2.    The appellant’s application for a review of the decision of the Chief Executive Officer’s delegate not to conduct a review of his plan as requested under s 48 of the National Disability Insurance Scheme Act 2013 (Cth) is to be remitted to the Chief Executive Officer to consider that application according to law.

3.    The respondent is to pay the appellant’s costs of and incidental to the appeal.

4.    All references in the file and reasons to the appellant by name are to be replaced with the pseudonym ‘SSBV’, and references to his guardian’s name are to be removed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

Corrected from the transcript

REEVES J:

1    The facts of this matter are set out in the Administrative Appeal Tribunal’s (the Tribunal’s) decision (see SSBV v National Disability Insurance Agency [2017] AATA 2174) at paragraphs 1 to 9.

2    The Scheme of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) is described by Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121; [2017] FCA 308 at [22]–[44].

3    To those observations, and relevant to this particular matter, I would add the following. Under the Scheme, each participant has a plan. Under the Act, a plan commences on the date prescribed by s 37(1), and it continues in force until one of the events specified in s 37(3) occurs. It is therefore incorrect to refer to a plan expiring on a specified date. A plan may be reviewed from time to time under s 33(2)(c) of the Act, but such a review does not result in a plan ceasing to operate.

4    In this case, SSBV made an application under s 48 to have his plan reviewed. He provided certain information to the National Disability Insurance Agency (the Agency). That information is referred to in the letter from the Agency to his guardian dated 31 January 2017. That letter also records the decision of the Chief Executive Officer’s delegate not to review SSBV’s plan. That decision gave rise to the internal review decision. In turn, that led to the Tribunal’s decision the subject of this appeal.

5    I consider that the Tribunal erred in, among other things, concluding that, in the particular circumstances of the application before it, there was a situation of urgency, the exigencies of which had to be dealt with before SSBV’s plan expired. That conclusion necessitated the Tribunal making the decision it did, that is to affirm the internal review decision not to review SSBV’s plan, while at the same time expressing the view that his plan should have been reviewed.

6    In my view, the Tribunal member was led into this conclusion by various statements made by the respondent, particularly those contained in “the undertakings” described in paragraph 34 of the Tribunal’s decision. They included statements such as: “the applicant’s current plan was due to expire on 30 October this year”; “[t]he respondent would undertake a plan review with a view to a new plan being in place for the applicant on or before the current plan expired on 30 October 2017” and “[t]hat plan would be for a six month period”.

Associate:

Dated:    11 July 2018