Federal Court of Australia

Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892

ORDERS

THE COURT DECLARES THAT:

1.    There has been unreasonable delay by the respondent in making a decision under s 45 of the National Disability Insurance Scheme Act 2013 (Cth) in respect of each of the payment requests or claims made by the applicant and identified by the respondent as RTP0338, RTP0372, RTP0396 and RTP0437.

THE COURT ORDERS THAT:

2.    The respondent’s objection to competency dated 2 August 2024 be dismissed.

3.    The respondent forthwith make a decision under s 45 of the National Disability Insurance Scheme Act 2013 (Cth) in respect of each of the payment requests or claims made by the applicant and identified by the respondent as RTP0338, RTP0372, RTP0396 and RTP0437.

4.    By 4.00 pm on 14 August 2024, the respondent file and serve an affidavit addressing its compliance with order 3 above.

5.    Subject to order 6 below, the respondent pay the applicant’s costs, to be taxed or agreed.

6.    If either party seeks any different order as to the costs of the proceeding, that party shall file and serve a brief outline of submissions (no more than 3 pages) by 4.00 pm on 15 August 2024.

7.    The matter be listed for a case management hearing on 16 August 2024 at 9.30 am.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant is a “registered NDIS provider” under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). As such, it has made a series of requests or “claims” for the payment of amounts payable under the National Disability Insurance Scheme (NDIS) in respect of participants’ plans, both in its capacity as the provider of supports to such participants and as a registered plan management provider. While payments of such amounts are ordinarily processed within two or three days through an automated online portal, the respondent (the National Disability Insurance Agency) may conduct a pre-payment claim review in order to substantiate some claims, during which the payment is placed on “hold” until the manual review process is completed. The Agency has initiated such payment integrity review processes to investigate pending payment claims made by the applicant since late June 2024. As at the date of this judgment, the Agency has not yet paid any of those claims. The evidence suggests that this has placed the applicant in some financial difficulties.

2    On 29 July 2024, the applicant filed an originating application under s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for an order of review in respect of the Agency’s failure to make payment to the applicant under s 45 of the NDIS Act, on the ground that there has been an unreasonable delay by the respondent in making such a decision. The applicant seeks an order under s 16(3)(a) of the ADJR Act directing the Agency to make the decision.

3    The originating application was accompanied by an affidavit of Mr Ahmed Mohamud Ahmed, the director of the applicant, affirmed on 29 July 2024. Among other things, Mr Ahmed deposed that there was a total pending amount of $587,135.77 that was “on hold” with the Agency, and that this was having a significant impact on the applicant’s business and was “untenable for ongoing business operations”. In a subsequent affidavit affirmed on 30 July 2024, Mr Ahmed stated that the total amount pending was $577,695.64. Nothing turns on the precise amount that is claimed by the applicant to be payable. It is common ground that the amount claimed is in excess of half a million dollars.

4    Given the urgency arising from such circumstances, the matter was referred to me as the duty judge. A case management hearing was held on 31 July 2024, at which orders were made for the filing of evidence and submissions, and the matter was listed for hearing on 7 August 2024.

5    On 2 August 2024, the Agency filed a notice of objection to competency on the ground that a “decision” to make payment under s 45 of the NDIS Act is not a decision of an administrative character made under an enactment for the purposes of the ADJR Act. In any event, the Agency further opposes the relief sought by the applicant on the basis that there has been no unreasonable delay by the Agency in making the decision.

6    Accordingly, there are two principal issues for determination:

(1)    Is the “decision” whether to make payment to the applicant under s 45 of the NDIS Act a “decision of an administrative character made … under an enactment” within the meaning of the ADJR Act?

(2)    Has there been an unreasonable delay by the Agency in making the decision whether to pay the amounts claimed by the applicant under s 45 of the NDIS Act?

7    I have concluded that the decision made by the Agency or its Chief Executive Officer (CEO) in relation to the payment requests or claims made by the applicant is reviewable as a decision to which the ADJR Act applies. Accordingly, the Agency’s objection to competency is dismissed.

8    I have also concluded that the Agency or the CEO has failed to make a decision whether to pay the amounts claimed in each of the applicant payment requests within a reasonable period for making such decisions, and therefore that there has been unreasonable delay by the Agency in making those decisions. Rather than fixing a timeframe within which those decisions must be made, the Agency should be ordered to make the decisions forthwith, and to file and serve an affidavit addressing its compliance with that order by next Wednesday, 14 August 2024.

Factual background

9    The applicant has been registered as a provider of supports and services under the NDIS since 28 May 2016. There is currently a proceeding pending before the Administrative Appeals Tribunal for the review of a decision made by a delegate of the Commissioner of the NDIS Quality and Safeguards Commission (which is a separate body established by s 181A of the NDIS Act) to refuse the applicant’s application for registration as an NDIS provider. There is no material presently before the Court concerning the subject matter of that review proceeding, and I will proceed on the basis that it has no direct relevance to the issues to be determined in the current proceeding before this Court.

10    In support of its originating application, the applicant filed three affidavits of its director, Mr Ahmed, affirmed on 29 July 2024, 30 July 2024 and 5 August 2024 respectively. There was no objection to the admission into evidence of each of those affidavits with their annexures and exhibits, subject to a minor agreed deletion of several words in one of the affidavits (namely, in paragraph 8 of the third affidavit affirmed on 5 August 2024, to delete the words “due to delay of payments”). Mr Ahmed was not required for cross-examination.

11    The respondent relied on an affidavit of Mr Nicholas Todd Winton affirmed 2 August 2024. Mr Winton is the Branch Manager of the Scalable Integrity Responses Branch at the Agency, in which role he has overseen the Payment Integrity Team (PIT) since the end of February 2024. There was no objection to the admission into evidence of Mr Winton’s affidavit, with a minor typographical correction in paragraph 17 (to replace “PIT” with “PHT”, referring to the Payment Hold Team). Mr Winton was not required for cross-examination.

12    In such circumstances, the core background facts are not in dispute. They may be summarised as follows, before turning to the particular aspects of the evidence relied on by each of the parties.

13    The applicant has been providing services to participants in the NDIS for over eight years, and this constitutes its sole source of revenue. Those services can be divided into three categories:

(a)    services provided by the applicant to participants whose funds are managed by the Agency, where the applicant makes payment requests directly to the Agency (these are referred to as Agency managed funds);

(b)    services provided by the applicant to participants whose funds are managed by another registered NDIS provider who acts as plan manager, where the plan manager submits payment requests to the Agency (these are referred to as externally plan managed funds); and

(c)    services provided by an “external” NDIS provider to participants whose funds are managed by the applicant as plan manager, where the applicant submits payment requests to the Agency on behalf of the external NDIS provider (referred to as NDS plan managed funds).

14    The applicant delivers services to approximately 66 participants who are predominantly from culturally and linguistically diverse backgrounds in the northern suburbs of Melbourne. The applicant currently employs six office administrative staff and has subcontracted 34 support workers. All of the applicant’s staff are of a migrant background from the Middle East, the Indian subcontinent or Africa, and many speak the same language as the relevant participants, including Assyrian, Syrian Arabic, Lebanese Arabic, Hindi and Somali.

15    Over the past eight years, the applicant has submitted payment requests to the Agency in respect of services provided to NDIS participants with Agency managed funds or NDS managed funds. Those payment requests or claims have typically been processed and payments were received within two to three business days. In the case of externally plan managed funds, NDS would invoice the external NDIS provider and would receive payment from that provider within four to five days.

16    Since late June 2024, all payment requests made by the applicant to the Agency have been placed “on hold” and currently remain “open”.

First payment request (RTP0338)

17    Between 26 and 28 June 2024, the applicant made a series of payment requests to the Agency, which were assigned the identifier RTP0338 (first payment request).

18    On 3 July 2024, an officer of the Agency wrote to the applicant advising that the Agency had initiated a review of the payments claimed “as part of the Payments Integrity Review Program”. The officer stated in the letter that the role of the PIT is “to ensure that funds are spent in accordance with the participant’s plan and to ensure the ongoing sustainability of the scheme” and that this is done “by conducting reviews prior to payments being processed”. The officer requested that, by 16 July 2024, the applicant provide a range of supporting documentation for the payment requests under consideration (first payment integrity review). It is convenient to set out in full the terms of the Agency’s letter dated 3 July 2024:

Request for Information

Provider Number:     4050004027

Our Reference:     RTP0338

Dear NORTHERN DISABILITY SERVICE PTY LTD,

This letter is to advise that the National Disability Insurance Agency (NDIA) periodically reviews payments as part of the Payments Integrity Review Program.

The role of the Payments Integrity team is to ensure that funds are spent in accordance with the participant’s plan and to ensure the ongoing sustainability of the scheme. We do this by conducting reviews prior to payments being processed.

To receive payments, please provide documentation for the payment requests in the attached email. These payment requests include any claims received directly from NORTHERN DISABILITY SERVICE PTY LTD or from Plan Managers.

What documents do I need to provide?

•    Copies of Daily Support Log sheets in relation to the services/supports provided to the Participant/s;

•    Copies of timesheets;

•    Copies of Travel logs detailing vehicle details, driver details, travel start and end times, odometer start and end kms, address start and end, and nature of travel in relation to travel claims;

•    Copies of all invoices regarding services/supports provided to the Participant/s;

•    Copies of case notes in relation to support co-ordination services provided to the Participant/s;

•    [C]ontact details of support workers, including NDIS worker screening number, names, date of birth, address, and phone number; and

•    Copies of all service agreements between you and the Participant/s for the provision of services/supports funded under the NDIS.

Please submit your supporting documentation by 16/07/2024 to paymentintegrityreview@ndis.gov.au.

When all the information is provided and if we are satisfied that the documentation supports the pending payment requests, claims will be released and paid once the review has completed. Alternatively, claims will be rejected automatically. If you have identified an error, you can self-correct the claim via the provider portal or by contacting the Plan Manager.

For further information relating to accurate claiming please refer to:

https://www.ndis.gov.au/providers/working-provider/provider-compliance-monitoring

Please note that providing false information to the Commonwealth is a serious offence.

19    By emails sent on 5 July 2024 and 8 July 2024, the applicant provided “substantiation documents” and “additional information” in response to the letter from the Agency dated 3 July 2024. It appears that the first email included a link to the attached documents. The attachments to the second email comprised four “pdf” documents and a “png” image file containing support worker details.

20    On 12 July 2024 (at 8.36 am), four business days after the applicant’s last email dated 8 July 2024, the PIT officer in the Agency sent an email to the applicant stating that “[u]nfortunately I am unable to access the information in the link you provided in your previous email”, and asking whether the applicant could “please send the documentation through as attachments if possible”.

21    By emails sent at 10.33 am on the same day, the applicant provided the requested documents as either “zip” or “pdf” attachments.

Second payment request (RTP0372)

22    Between 2 and 5 July 2024, the applicant made a series of payment requests that were assigned the identifier RTP0372 (second payment request).

23    On 9 July 2024, the Agency sent a letter to the applicant in substantially the same form as the letter dated 3 July 2024 reproduced above, advising that the Agency had initiated a review of the second payment request and requesting the provision of supporting documentation by 23 July 2024 (second payment integrity review). The covering email to the letter dated 9 July 2024 stated that “[p]ayments will not be released until we receive appropriate substantiation for claims outlined in the attached letter”.

24    By emails dated 15 July 2024, the applicant responded to the Agency’s request for information in respect of the second payment request, attaching supporting documents as “zip”, “pdf” and “docx” files.

25    On 18 July 2018, the Agency sent an email to the applicant (which appears to be addressed to the applicant’s solicitor) with the subject line “RTP0372 and RTP0338 – Additional Documents Request”, in which the PIT officer acknowledged the receipt of documents but stated that “we need additional documents to complete our review”. The officer asked the applicant to “send us evidence of supports from your and/or the provider such as but not limited to payslips, activity or journal logs or any documents you have in your possession that will assist in our review”.

26    By email dated 19 July 2024, in response to the Agency’s request for additional documents in respect of the first payment request and the second payment request, the applicant’s solicitor provided further documents “within its control” comprising “payslips”, “contract forms”, and “progress notes”. The solicitor stated:

We note that your email includes a request for any documents that may assist in your review and a request from other providers.

My client will provide what is requested of it, however it cannot and should not have to guess what documents will assist the payments review team.

Likewise, my client is clearly not in a position to provide documentation that is controlled or possessed by another provider.

We appreciate the prompt response received yesterday and seek an urgent review of the claims pending.

Third payment request (RTP0396)

27    Between 8 and 16 July 2024, the applicant made a series of payment requests that were assigned the identifier RTP0396 (third payment request).

28    On 19 July 2024, the Agency wrote to the applicant in similar terms to the letters sent on 3 July 2024 and 9 July 2024, advising that the Agency had initiated a review of the third payment request and requesting the provision of supporting documentation by 2 August 2024 (third payment integrity review). Once again, the PIT officer stated in the covering email that “[p]ayments will not be released until we receive appropriate substantiation for claims outlined in the attached letter”.

29    By emails dated 22 July 2024, the applicant’s solicitor responded to the Agency’s request for information in respect of the third payment request, attaching the requested documents. The solicitor drew attention to the fact that the Agency had stated in its letter dated 19 July 2024 had advised that it “periodically reviews payments as part of the Payments Integrity Review Program” (emphasis in original), and noted that the applicant had “now received its third consecutive request for information within a month”. In circumstances where the information requested was for the same participants as the first and second payment requests, the solicitor “respectfully [said] that requesting the same information from my client is an abuse of process”.

Fourth payment request (RTP0437)

30    Between 18 and 23 July 2024, the applicant made a series of payment requests that were assigned the identifier RTP0437 (fourth payment request).

31    On 24 July 2024, the Agency wrote to the applicant in similar terms to the letters sent on 3 July 2024, 9 July 2024 and 19 July 2024, advising that the Agency had initiated a review of the fourth payment request and requesting the provision of supporting documentation by 7 August 2024 (fourth payment integrity review). The PIT officer again stated in the covering email that “[p]ayments will not be released until we receive appropriate substantiation for claims outlined in the attached letter”.

32    On the following day (25 July 2024), the applicant’s solicitor sent an email to the Agency attaching the requested documents.

The progress of the payment integrity reviews

33    On 12 July 2024, the applicant’s solicitor emailed the Agency on the applicant’s behalf in relation to the first and second payment integrity reviews. This email also appears to refer to earlier payment integrity review request dated 24 June 2024 that is not otherwise within the scope of this proceeding. In the email dated 12 July 2024, the applicant’s solicitor relevantly stated:

My client has not received any payment for services delivered to participants for over a month since the week starting 8 June 2024, nor has it received a reponse [sic] to the documentation provided.

The delay in payment and non-resposive [sic] conduct of the NDIA is causing significant operational challenges to my client, namely:

- severely disrupting my clients cash flow, and

- creating difficulty in compensating staff in timely mannter [sic], and most importantly

- posing a risk to the continuity of care and support provided to participants.

This financial instability directly impacts participants, who rely on consistent and uninterrupted services. Any further delays could result in a failure to deliver essential supports, thereby affecting the well-being and quality of service for participants.

While I acknowledge and appreciate the NDIA’s commitment to ensuring funds are appropriately utilised, the delay and lack of response from the NDIA is untenable for my client.

I request that the NDIA within 7 days either:

a.     Process payment to my client forthwith [sic], or

b.     Provide a response to the documentation provided and/or provide a timeline for when payment will received.

If the NDIA fails to respond to the above request by 19 July 2024, my client reserves its right to seek appopriate [sic] redress and to rely on this letter on the questions of legal costs should it arise.

(Emphasis in original.)

34    On 17 July 2024 and 18 July 2024, the applicant emailed the Agency to “follow up” on the status of the first and second payment requests and the associated integrity reviews. The applicant stated that “[w]e have submitted all the required documents and are now wondering when we can expect to receive the payment”, noting that “our suppliers have been asking about the payment and are now threatening to terminate their services if this matter is not resolved promptly”. The emails concluded:

Your prompt assistance with this matter would be greatly appreciated, as it is critical to maintaining our supplier relationships and ongoing operations.

Thank you for your attention to this urgent issue.

35    There is a reference in subsequent correspondence to a response having been sent by the Agency on 18 July 2024, in which the officer referred to the difficulties encountered in opening the link for the “initial tranche of documentation” provided by the applicant (on 5 July 2024) and stated that the Agency would “endeavour to review the information and provide a response as soon as possible however at this stage there is no outcome of the review”. The correspondence from the Agency dated 18 July 2024 is not itself in evidence.

36    In the email from the applicant’s solicitor dated 22 July 2024 in response to the request for information on the third payment request, the solicitor also followed up on the progress of the first and second payment integrity reviews, noting that additional documents had been provided on 19 July 2024 and stating that “[m]y client eagerly awaits a response to the same, noting the concerns raised in relation to the delay in processing payments [is] severely affecting my client’s ability to service participants”.

37    On 24 July 2024, being the same day on which the Agency wrote to the applicant to advise of the initiation of the fourth payment integrity review, the applicant’s solicitors sent a letter to the Agency headed “RE: Pre-Payment Review”. The letter referred to the first to fourth payment requests, and to the applicant’s prompt provision of the required documentation for the first three payment requests and its follow up emails. The solicitor noted that the information requested by the Agency was “consistent for the same participants on each request” and stated that, as at the date of the letter, the applicant had “not received payments for services delivered to participants nor a response to the documentation provided”. The solicitor contended that there had been unreasonable delay by the Agency in issuing decisions in respect of the payment requests, referring to s 7(1) of the ADJR Act. The solicitor addressed the “prejudicial impact” of the Agency’s failure to make such decisions:

16.    The failure by the NDIA to decide on the Pre-Payment Review requests continues to have a significant impact on NDS. Whilst NDIS [sic] await the NDIA’s Pre-Payment Review Decision, NDS is:

a.     Unable to retain its existing client base as clients elect to transfer to other NDIS providers

b.     Unable to attract clients to its service due to its inability to receive payment for services;

c.     Unable to generate revenue into its business;

d.     Forced to continue employing staff as a commercial matter on the basis that the payment review undertaken by the NDIA may ultimately be in its favour;

e.     Forced into debt as they attempt to remain commercially viable; and

f.     At the risk of the loss of its business, which it has developed and invested into for over eight years.

38    The applicant’s solicitor demanded that the Agency issue a decision in respect of the first and second payment requests by no later than 5.00 pm on 25 July 2024, noting that the short timeframe was due to “the severe impact to our client and pre-existing correspondence between our office and [the Agency]. The applicant reserved his rights to commence proceedings in this Court seeking appropriate orders, including “an order under section 16(3)(a) of the ADJR Act and any other appropriate cause of action directing the making of the respective decisions together with costs”.

39    On 25 July 2024, the Agency responded to the letter of demand from the applicant’s solicitor. While the Agency’s response was marked “without prejudice”, no objection was raised to its admission into evidence in this proceeding. The Agency advised that the information supplied by the applicant was “currently under review”, and stated that the Agency did “not have an outcome on these cases at this time however once the reviews have concluded, the [Agency] will provide a response as soon as possible”. The letter suggested that the concerns raised by the applicant about its ability to provide services while waiting for the Agency to make decisions on the payment requests could be addressed by making “alternative arrangements” for “affected participants”:

During the review process, if NDS are unable to continue providing supports to participants, please notify the NDIA within 24 hours and NDIA will make alternative arrangements for the affected participants.

40    On 29 July 2024, the applicant filed the originating motion in this proceeding, seeking an order under s 16(3)(a) of the ADJR Act directing the Agency to make a decision.

Applicant’s evidence

41    In addition to setting out the correspondence between the parties as outlined above, the three affidavits affirmed by Mr Ahmed addressed the impacts of the Agency’s failure to make a decision on each of the payment requests.

42    Mr Ahmed states that, prior to 3 July 2024, it had submitted payment requests in respect of Agency managed funds and NDS plan managed funds using the Agency’s online portal (PRODA). As mentioned above, Mr Ahmed states that those requests were processed by the Agency and payments were received in the applicant’s nominated account within two to three days. For Agency managed funds, the applicant would disburse the payment to contracted support workers and suppliers. For NDS plan managed funds, the applicant would pay external NDIS providers and retain $104 per month for each participant.

43    In his first affidavit affirmed on 29 July 2024, Mr Ahmed stated that the applicant had $356,820.67 in pending payments that were “on hold” with the Agency in respect of Agency managed funds and NDS plan managed funds. In addition, the applicant had a further $230,315.10 outstanding on invoices sent to third parties in relation to externally plan managed funds that were “on hold” with the Agency. Accordingly, there was a total pending amount of $587,135.77 “for services already delivered to participants by [the applicant] or other NDIS providers”.

44    In his second affidavit affirmed on 30 July 2024, Mr Ahmed deposed that the Agency had not processed its payment requests for services provided since 10 June 2024 by the applicant or by external NDIS providers. Mr Ahmed provided further details of the amounts that were pending – $146,392.42 for Agency managed funds and $212,349.71 for NDS plan managed funds. While those amounts do not add up precisely to the amount specified in Mr Ahmed’s first affidavit, the difference is not material. Mr Ahmed also stated that the Agency had not processed payment requests for services provided by the applicant since 10 June 2024 in respect of funds managed by external NDIS plan managers, amounting to a total of $218,953.51. Again, while this amount does not precisely correspond to the amount provided in Mr Ahmed’s first affidavit, the difference is immaterial. Mr Ahmed’s second affidavit gave a total amount pending payment of $577,695.64.

45    Mr Ahmed stated that the applicant “has had to pay out of pocket for liabilities associated with the [Agency]-managed funds”, including payments to speech therapists, occupational therapists, gardeners, support workers and domestic cleaners. In relation to NDS plan managed funds, Mr Ahmed said that external NDIS providers had sought explanations from the applicant as to why their invoices had not been processed or a timeline given for when payment would be made. Mr Ahmed said that the applicant had received “daily telephone calls and emails for outstanding invoices from service providers”, and that his office staff were unable to provide any clear timeline for the payment of the invoices.

46    In his third affidavit affirmed 5 August 2024, Mr Ahmed annexed a copy of an email sent from an external service provider to the applicant on 2 August 2024 requesting the termination of its agreement, stating “I want to cease support coordination services with your company”. On the same day, a support worker from another external service provider informed the applicant that, he had “taken the matter into my own hands given the length of time it has taken for my outstanding invoices to be paid”, and that the Agency had “asked me to forward my invoices to them directly” so that “[y]ou don't have to chase the NDIS over my invoices any longer”.

47    Since June 2024, the applicant has “lost” 26 NDIS participants, and Mr Ahmed considers that it will continue to do so if the Agency does not urgently process the payment requests or provide a deadline for a response. He annexed an email that had been received on 5 August 2024from one NDIS participant, who had written to the applicant “to urgently address a serious issue regarding my NDIS plan”. The participant stated that his or her service providers had not received any payments since June, and were “now threatening to stop providing their essential services unless they are paid immediately”. The participant stated in the email:

As someone in my mid-50s living with a physical disability, I rely heavily on these services to manage my daily life. The disruption of these services would be a tremendous hardship for me and significantly impact my ability to live independently.

This situation is causing me significant distress and anxiety. I am struggling to cope with the uncertainty of potentially losing the vital support I need. I urge you to process the outstanding payments to my service providers without further delay.

Please provide an immediate update on the status of these payments and outline the steps being taken to prevent this issue from recurring. I need reassurance that this will be resolved promptly.

I appreciate your urgent attention to this matter.

48    Mr Ahmed stated that the applicant has “ceased engaging new participants due to payment uncertainty as [the applicant] does not have faith that services to participants engaged with [it] will be paid for within a timely manner”.

49    Mr Ahmed deposed that he has personally provided a director’s loan of $462,398 to pay staff, contractor support workers and other liabilities, and that he had himself borrowed half of those funds. He says that he no longer has any funds of his own to contribute to the operation of the business, and asserts that “the business will become insolvent as over 150 supplier invoices remain outstanding”.

50    The applicant currently has $16,008.29 remaining in its bank account, and Mr Ahmed states that the applicant has “suffered a loss of $34,193.19 due to the liabilities [it] has had to pay out of pocket in the month of June alone”. Mr Ahmed stated in his second affidavit affirmed 30 July 2024 that he estimates that the applicant “will become insolvent within a fortnight or less considering its current bank balance, its debt to myself as director and additional liabilities associated with new payment requests”.

Agency’s evidence

51    In his capacity as the Branch Manager of the Scalable Integrity Responses Branch at the Agency, Mr Winton oversees the PIT and deals “with payment claims and past payment claims which are considered high risk”.

52    The PIT are responsible for conducting manual reviews of NDIS claims as part of the Agency’s Payments Integrity Review Program. Mr Winton stated that the role of the PIT is to ensure that funds are spent in accordance with a participant’s plan, which is a part of ensuring the ongoing financial sustainability of the NDIS. According to Mr Winton, the PIT “operates in a context where the level of fraud on the NDIS is understood to be significant”, and he is aware that “non-compliance and fraud is being increasingly detected”. Accordingly, the PIT is undertaking more work in relation to payment integrity “[d]ue to concerns about the level of non-compliant claiming”. Mr Winton stated:

The NDIS is undermined, to the disadvantage of participants, if claims are being made for services or supports which were in fact not provided. The PIT’s audit function acts as a safeguard mechanism to make sure the supports that are intended to be received under the NDIS are delivered.

53    When payment claims are selected for review, they are placed on “hold” by marking them in the Agency’s payment system as requiring a manual review before payment. Such claims are allocated a case number and assigned to a case worker to review. Once a case worker is allocated, a request for information (RFI) is forwarded to the payee. When information is received in response to the Agency’s request, the information is reviewed “to determine if it is consistent with the request in the RFI, and if it substantiates the claim being made with the Agency”.

54    If the information provided does not adequately substantiate that the claim is “valid”, the case officer may request further information and staff may also speak with plan participants or other third parties about the claimed services and supports. Mr Winton stated that “[i]f requested information is not provided, then a particular review may not be able to progress, or the payment claim may ultimately be denied”. Otherwise:

13.    Once all information requested has been received, the case officer then reviews the substantiating documentation and determines if the Agency has the authority to make payment, as an amount payable, under sections 45 and 46 of the NDIS Act. Particular cases can be escalated to more senior members if required.

14.    When the case is finalised, an outcome letter is provided to the claimant advising of the determination by the PIT, i.e whether or not the payment claim (or some portion of it) has been accepted as valid and processed.

55    According to Mr Winton, as at 1 August 2024, 1,052 active “holds” had been applied to particular entities, including providers, payees and participants. These were managed by the “Payment Hold Team” (PHT), a smaller team within the PIT. Within each “hold” there may be multiple claims or payment requests. Across all of the active “holds”, there were approximately 9,000 documents to be reviewed, such as invoices, payslips and rosters.

56    Mr Winton stated that “[t]he time taken for a particular review depends on the number and type of concerns identified in relation to the payment requests, the volume of the documents, the nature of the business operations, how responsive the entity is to requests for further information, and whether the investigation requires contacting third parties”. Since he commenced his role with the Agency (in February 2024), the median time for a review to progress from being opened to being closed was approximately 60 days. In relation to current “open” cases, the median time for which the case had been open was 26 days.

57    Mr Winton stated that “[t]he PHT is currently recruiting, with the goal of at least doubling the size of the team in the near future … because more and more cases are being identified where claims need to be reviewed”.

58    Mr Winton stated that “[g]enerally, low risk NDIS payment claims are paid within 2-3 business days”, using an automated payment system “which assumes the claim is compliant and consistent with the claiming rules as a legitimate claim for supports or services delivered under the NDIS”. The statement on the Agency’s website (that “[v]alid claims will generally be paid within 2 to 3 business days”) was “not a commitment”, and was qualified with the term “generally” and the reference to “valid” claims. The website also advised that some claims would be reviewed before payment was processed, and summarised the steps involved in such claim reviews.

59    In relation to the current matter, 849 payment claims had been allocated for a prepayment claim review. Mr Winton said that the nature of the claims was “complicated” by the fact that the applicant provides services both as a Plan Manager Agency, which submits invoices on behalf of other providers, and as a service provider. In order to verify the former claims, the PHT reviews invoices and potentially contacts the service providers to confirm that supports have been provided. In order to verify claims made by the applicant as a service provider, the PHT manually reviews rosters, payslips, invoices, timesheets, support logs and evidence of support worker accreditation.

60    Mr Winton deposed that, since the commencement of the applicant’s payment integrity reviews, the PHT had “allocated a full-time case officer to progress the matter, together with their other cases”. This case officer has been working outside their standard full-time hours in managing their workload.

61    Mr Winton claimed that there were several factors that had contributed “to the time taken thus far to reach a determination”, including that information received from the applicant in response to RFIs had “not always been consistent with the Agency’s requests”, there were still outstanding substantiation documents which the applicant had advised they were not in a position to provide, that some documents received from the applicant did not substantiate the claims, and that the applicant had “significantly contributed to the elapsed time in the review process by not obtaining further evidence from other support providers and by not providing any further evidence of supports sub-contracted out to other entities”.

62    Mr Winton concluded in his affidavit affirmed 2 August 2024:

35.    The PHT must verify each individual claim and in accordance with its responsibilities. Where sufficient information has not been provided and additional material is required, this could result in the Agency issuing a determination that the claim could not be substantiated.

36.    It is the preference of the PHT to attempt to obtain additional information to verify valid claims, and therefore the PHT intends to immediately commence seeking additional information, beyond what has been provided by [the applicant], from third parties.

37.    While the timing will be highly dependent on the cooperation and speed of third parties, I estimate, as best I can, that the Agency will be in a position to finalise the review within the next two weeks.

Statutory framework

NDIS Act

63    The NDIS Act establishes the NDIS and the Agency, and confers a number of statutory functions upon the CEO of the Agency.

64    The NDIS Act, and the delegated legislation made thereunder, are lengthy and detailed enactments. For the purposes of the present application, it is necessary to refer only to certain key provisions to which the parties’ submissions were directed.

65    Part 2 of the NDIS Act deals with the objects of the Act and the general principles which guide actions under the Act.

66    Among other things, the statutory objects include supporting the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports for participants in the NDIS, and enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(c), (d), (e). The objects are to be achieved by, among other things, adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability, and by establishing a national regulatory framework for persons and entities who provide supports and services to people with disability: s 3(2)(b), (c).

67    In giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS: s 3(3)(b).

68    In setting out the general principles guiding actions under the NDIS Act, s 4 relevantly provides that people with disability should be supported to participate in and contribute to social and economic life; that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; that people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports; that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports; and that people with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs: s 4(2), (3), (4), (5) and (9).

69    Further, s 4(15) sets out a principle that “[i]n exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted”.

70    The Agency was established and is continued in existence as a body corporate by s 117 of the NDIS Act. The Agency’s functions relevantly include the delivery of the NDIS, and managing, advising and reporting on the financial sustainability of the NDIS: s 118. In performing its functions, the Agency must use its best endeavours to “act in a proper, efficient and effective manner”: s 118(2)(b).

71    Section 14(1) of the NDIS Act provides that the Agency may provide assistance in the form of funding for persons or entities for various identified purposes, relevantly including “for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development”, and otherwise in the performance of the Agency’s functions: s 14(1)(ab), (b). Section 14(2)(a) provides that, without limiting subs (1), the Agency may provide funding to a person or entity to assist one or more participants to receive supports.

72    Chapter 3 of the NDIS Act deals with participants and their plans. A person becomes a participant in the NDIS when the CEO decides that the person meets the access criteria: s 28. If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan: s 32(1). The matters that must be included in a participant’s plan include the participant’s statement of goals and aspirations and a statement of participant supports: s 33(1), (2). The statement of participant supports, which is to be prepared with the participant and approved by the CEO, specifies (among other things) the general supports (if any) that will be provided to, or in relation to, the participant, the reasonable and necessary supports (if any) that will be funded under the NDIS, and the management of the funding for supports under the plan: s 33(2)(a), (b), (d). To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider: s 33(6).

73    For the purposes of specifying in a participant’s plan the general supports that will be provided and the reasonable and necessary supports that will be funded, the CEO must be satisfied of a number of matters set out in s 34(1) in relation to the funding or provision of each such support.

74    Section 35 provides that the National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports. Such rules may prescribe “methods or criteria to be applied, or matters to which the CEO is to have regard” in deciding the reasonable and necessary supports or general supports that will be funded or provided under the NDIS. The rules may also prescribe the reasonable and necessary supports or general supports that will not be funded or provided under the NDIS, either generally or for prescribed participants, and the supports that will be funded or provided under the NDIS for prescribed participants.

75    Section 39 provides that the Agency “must comply with the statement of participant supports in a participant’s plan”.

76    Division 3 of Pt 2 of Ch 3 of the NDIS Act is titled “Managing the funding for supports under participants’ plans”. For the purposes of the NDIS Act, the phrase “managing the funding for supports” under a participant’s plan means doing one or more of purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports), or receiving, managing or acquitting any funding provided by the Agency: s 42(1). In specifying the management of the funding for supports under a participant’s plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency or the plan nominee: s 42(2). (This is relevant to the distinction on the facts of the present case between payment requests in respect of Agency managed funds and those in respect of NDS plan managed funds.)

77    A participant may request that the funding for supports under his or her plan either be self-managed, or be managed by a nominated registered plan management provider or by the Agency: s 43(1). The statement of participant supports in the plan must give effect to such a request unless a relevant exception applies: s 43(2). For example, a participant must not manage his or her own funding if the participant is insolvent and the CEO is satisfied that self-management of the funding for supports under the plan would present an unreasonable risk to the participant: ss 43(3), 44(1). Similarly, a registered plan management provider cannot be nominated to manage the funding for supports under the plan if the CEO is satisfied that this would present an unreasonable risk to the participant: ss 43(4), 44(2).

78    Section 45 is a critical provision for the purposes of the present application. That provision governs the payment of “amounts payable” under the NDIS:

45     Payment of amounts payable under the National Disability Insurance Scheme

(1)     An amount payable under the National Disability Insurance Scheme in respect of a participant’s plan is to be paid:

(a)     to the person determined by the CEO; and

(b)    either:

(i)     in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subparagraph; or

(ii)     if there are no such rules—in the manner determined by the CEO.

(2)     Paragraph (1)(b) extends to dealing with:

(a)     whether amounts are to be paid in instalments or as lump sums; and

(b)    if amounts are to be paid in instalments—the amounts of those instalments; and

(c)    the timing of payments of amounts.

(3)     The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.

79    Part 4 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) (NDIS Plan Management Rules) deals with the timing and manner of payment of “NDIS amounts”. An “NDIS amount” is defined in s 9 of the NDIS Act to mean “an amount paid under the [NDIS] in respect of reasonable and necessary supports funded under a participant’s plan”. Part 4 of the NDIS Plan Management Rules provides:

Part 4     Payment of NDIS amounts

4.1     A participant’s plan specifies, among other things, the reasonable and necessary supports (if any) that will be funded under the NDIS. Amounts paid under the NDIS in respect of such supports are known as NDIS amounts.

4.2     NDIS amounts are to be paid to the participant, or to a person who is managing the funding for supports under a participant’s plan, in accordance with this Part.

Paragraphs 4.1 and 4.2 summarise paragraph 33(2)(b) and section 45 of the Act.

Timing for payments of NDIS amounts

4.3     The CEO may pay an NDIS amount:

(a)     in a single payment; or

(b)     by instalments.

4.4     If:

(a)     the CEO is paying an NDIS amount by instalments; and

(b)     the CEO requires the participant to provide information or a document relating to expenditure of previous instalments;

the CEO may make a payment of an instalment only after the information or document has been provided.

Manner of paying NDIS amounts

4.5     A participant must provide the CEO with details of an account with a financial institution into which NDIS amounts can be paid.

4.6     The CEO must pay NDIS amounts into the account nominated by the participant.

80    Section 46(1) provides that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan. The NDIS rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, or the retention of records by NDIS providers that receive NDIS amounts on behalf of participants, including requiring that prescribed records be retained for a prescribed period: s 46(2), (3).

81    Section 46A(1) further provides that an NDIS amount is “absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise”, subject to the provisions relating to debt recovery contained in Pt 1 of Ch 7 of the NDIS Act. In particular, s 182 of the NDIS Act provides for the recovery of debts due to the Agency, including where payments are made to a person that is, or purports to be, a payment of an NDIS amount to or in respect of a participant and the payee “is not entitled for any reason to the payment of the NDIS amount”.

82    The salient points to note from the provisions set out above is that an entitlement to funding arises from the approval of a participant’s plan, and in particular from the statement of participant supports set out in that plan. That funding gives rise to the “amounts payable under the NDIS in respect of a participant’s plan” within the meaning of s 45 of the NDIS Act and, once paid, are “NDIS amounts”.

83    As Mortimer J stated in McGarrigle v National Disability and Insurance Agency (2017) 252 FCR 121 at [36]-[37]:

It is the funding for “reasonable and necessary supports” which becomes, once approved and a participant plan is in effect, the “NDIS amount” for the purposes of s 45 and related provisions. The term “NDIS amount” is defined in s 9 to mean:

NDIS amount means an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant’s plan.

Subsection 33(3), when it speaks of the supports “that will be funded or provided” is therefore referring to both general supports provided by the Agency (s 13), and “reasonable and necessary supports” funded by the Agency (s 14), but provided by others.

(Emphasis in original.)

ADJR Act

84    Section 8(1) of the ADJR Act confers jurisdiction on this Court to hear and determine applications made under that Act.

85    Section 7 of the ADJR Act deals with applications in respect of failures to make decisions, and relevantly provides:

(1)     Where:

(a)     a person has a duty to make a decision to which this Act applies;

(b)     there is no law that prescribes a period within which the person is required to make that decision; and

(c)     the person has failed to make that decision;

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

86    A “decision to which this Act applies” is relevantly defined in s 3 to mean “a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) … under an enactment referred to in paragraph (a) … of the definition of enactment”, which (with specified exceptions that are not presently relevant) covers an Act passed by the Commonwealth Parliament.

87    Section 3(2) elaborates on the meaning of “decision” in the ADJR Act:

(2)    In this Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award or determination;

(b)     giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)     issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)     imposing a condition or restriction;

(e)     making a declaration, demand or requirement;

(f)     retaining, or refusing to deliver up, an article; or

(g)     doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

88    The powers of the Court in an application under s 7 in respect of a failure to make a decision are set out in s 16(3):

(3)     On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a)     an order directing the making of the decision;

(b)     an order declaring the rights of the parties in relation to the making of the decision;

(c)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

Consideration

Objection to competency

89    A decision to which the ADJR Act applies must generally be “one for which provision is made by or under a statute”, which is a “substantive determination” and “which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (Mason CJ, with whom Brennan and Deane JJ agreed); see also at 377 (Toohey and Gaudron JJ). In Bond, this was held to preclude the separate reviewability of a finding of fact made by an administrative tribunal that was no more than a step along the way towards making an ultimate decision, and was not a matter for which the statute provided as an essential preliminary to the making of the ultimate decision.

90    In order to be a decision made “under an enactment”, the decision must be expressly or impliedly required or authorised by the enactment, and “must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment”: Griffith University v Tang (2005) 221 CLR 99 at [89] (Gummow, Callinan and Heydon JJ). As was also pointed out in Tang, the inclusion of the words “(whether in the exercise of a discretion or not)” in the definition of “decision to which [the ADJR Act] applies” indicates that the decision can be either required or authorised by the statute; that is, it extends to the performance of statutory duties as well as the exercise of discretionary powers: see Tang at [78]. Further, the definition encompasses decisions that create or give rise to new rights or obligations, as well as decisions that affect rights or obligations derived from the general law: Tang at [89].

91    In support of its objection to competency, the Agency submits that the operation of s 45 of the NDIS Act is premised on an amount being “payable” under the NDIS. Subject to any “procedural matters” set out in s 45 or in the NDIS Rules, such an amount “is to be paid” by force of the statute. The NDIS Act does not expressly provide for the making of requests or claims for payment in respect of supports provided or funded under the NDIS, nor for the determination of such requests or claims by the Agency. In such circumstances, the Agency submits that the Agency’s function is one of simply “ascertaining” the amounts payable under s 45 of the NDIS Act, but that the view or opinion formed by an officer in relation to a payment request does not itself create or affect any legal rights or obligations.

92    Thus, the Agency submits that an amount is not payable simply by reason of the fact that a payment request or claim has been submitted. Conversely, the NDIS Act contemplates that a payment can be made to a person that “purports to be” a payment of an NDIS amount in respect of a participant, in circumstances where that amount is not payable and that, if the person is not entitled to the payment, it may be recovered as a debt due to the Agency (see s 182 of the NDIS Act). The Agency submits as follows:

At bottom, the applicant complains that it is due money which has not been paid. The respondent’s “decision” whether or not to pay the payment claims would not alter the respondent’s liability (if there be one) to the applicant. To adopt and adapt the words of Tang, a “decision” to pay under s 45 of the NDIS Act would not “itself confer, alter or otherwise affect legal rights or obligations”. Rather, those relevant rights and obligations of the parties arise … by operation of the NDIS Act itself, and not by reason of any intervening “decision” of the respondent. Indeed, s 45 does not, in relevant respects, identify a decision-maker at all.

(Emphasis in original.)

93    Counsel for the Agency relied on a number of previous decisions of this Court in support of this submission.

94    In Cardo-o-matic Pty Ltd v Australian Industrial Research and Development Incentives Board (1986) 15 FCR 482, the applicant had received payments by way of an advance in respect of project grants under a Commonwealth Act (the Industrial Research and Development Incentives Act 1976 (Cth)). A dispute subsequently arose relating to whether the advances exceeded the amount of the grant that was “payable” under the terms of certain agreements made under the Act. In such circumstances, the applicable statutory provision required the applicant to repay the excess amount to the Commonwealth upon a demand being made by the Minister for Finance, and provided that the amount repayable was recoverable as a debt due to the Commonwealth. After the respondent made a demand for repayment, the applicant brought proceedings seeking relief under the ADJR Act. The application relied on a number of “decisions” made by the respondent, including that amounts of grants or advances were not payable to the applicant, that the applicant had been overpaid money, and decisions to demand or require repayment of a specified amount and to institute action not recover money from the applicant: at 484-485. As Fox J observed, “in essence what is claimed is relief against payment by the applicant to the [respondent] Board, and payment to it of the moneys in the special bank account” (into which money paid under bank guarantees had been deposited and was frozen): at 485.

95    The proceedings were dismissed by Fox J as incompetent on the basis that the actions of the respondent did not involve any decision to which the ADJR Act applied. While acknowledging the applicant’s desire for relief that would “settle the state of the accounts” between the applicant and the respondent, Fox J considered that the situation comprised a commercial dispute as to the payment of money: Cardo-o-matic at 485. The duty to repay was “a statutory obligation operating on the circumstances” and “a duty to pay the Commonwealth, on demand”, without any intervening decision of the respondent Board. Accordingly, Fox J held that “the ultimate financial accounting is a matter for objective determination, with the Board having at most some assisting function”. Although it “would doubtless be convenient” for the applicant to have the matter dealt with and determined by the Court, the ADJR Act had “an entirely different purpose … and it cannot properly be used for the litigation of common law claims for payment of money”: at 486.

96    The situation addressed in Cardo-o-matic was quite different from the present case. In essence, the statute created a liability to repay certain moneys to the Commonwealth, giving rise to a debt that was enforceable in a court of competent jurisdiction. While the Board had made a demand for payment and had taken or was about to take action to recover the debt, such action did not itself create, alter or affect the applicant’s legal liability to pay money pursuant to the obligation imposed by statute. It is not surprising that an attempt to seek judicial review of the Board’s actions to recover the alleged debt was dismissed as incompetent. Such an outcome is of little relevance to the present case, which involves amounts payable to the applicant under the NDIS and does not in terms seek to enforce or resist any common law claim for the payment of a debt. As the applicant repeatedly emphasised in its written and oral submissions, it is seeking to require the Agency to make a decision on the payment requests and does not seek an order requiring the payment of any amount of money.

97    The applicant next relies on Century Yuasa Batteries Pty Ltd v Commissioner of Taxation (1997) 73 FCR 528 (from which an appeal on other issues was dismissed in Commissioner of Taxation (Cth) v Century Yuasa Batteries Pty Ltd (1998) 82 FCR 288). In Century Yuasa, the applicant sought review of a demand by the Commissioner requiring payment of an amount by way of interest withholding tax and late payment penalties. Putting to one side a decision not to remit late payment penalty, the Commissioner submitted that there was no decision of an administrative character under an enactment for the purposes of the ADJR Act. This submission was accepted by Cooper J, who concluded that the decision to recover and to demand the relevant amounts from the applicant was not a substantive determination and therefore lacked a necessary characteristic of a reviewable decision: Century Yuasa at 540. Rather, “[e]ach alleged decision was merely a statement of opinion as to the operation of the ITAA to the circumstances of the applicant as part of a series of steps leading to the conclusion that the applicant was liable to pay the moneys demanded by the Commissioner”, and “[n]one was in itself a reviewable decision”: Century Yuasa at 541.

98    In reaching this conclusion, Cooper J noted that the Income Tax Assessment Act 1936 (Cth) “did not make either express or implied provision for the Commissioner to make a determination of the applicant’s liability to make payment” of the relevant amounts, and that the applicant’s liability (if any) flowed from the operation of the applicable statutory provisions. Accordingly, “[w]hether or not the Commissioner concludes that an amount is payable by the applicant is irrelevant to its liability in fact and at law to pay the sum to the Commissioner”: Century Yuasa at 540. The situation was not altered by the Commissioner’s demand for payment, which was neither a condition precedent to the applicant’s liability to pay nor a necessary precondition to the Commissioner’s entitlement to sue the applicant in a court of competent jurisdiction to recover the amount as a debt due to the Commonwealth.

99    Again, it is doubtful that the situation in Century Yuasa can be regarded as analogous in any material sense to the facts of the present case. The reasoning was directed to the enforcement of liabilities arising directly under statute and the recovery of debts due to the Commonwealth, in relation to which the views expressed and demands made by the Commissioner were not determinative. Subsequent cases in which Century Yuasa has been referred to and applied stand in much the same position: see e.g. Ruddy v Commissioner of Taxation (1998) 82 FCR 337 at 341-343 (Kiefel J); Madera v Commissioner of Taxation (2004) 141 FCR 95 at [17]-[21] (Stone J); Parker v Vivian [2009] FCA 933 at [25]-[27] (McKerracher J); see also Golden City Car and Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) 56 ALD 177 at [21]-[27], [37] (Cooper J). Additional caution should be exercised in relation to cases involving decisions of the Commissioner in relation to taxation legislation, in the light of the specific exclusion contained in Sch 1 of the ADJR Act from the decisions to which that Act applies: see ADJR Act, Sch 1, item (e).

100    In the present case, the applicant submitted that the Agency had made a decision of an administrative character, referring to decisions in which the test for determining whether a decision is “of an administrative character”: see RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at [592] (Tamberlin J); Roche Products Pty Limited v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 at [31]-[37] (Branson J). Those cases are concerned principally with the distinction between decisions of an administrative character and those of a legislative character. However, that is not the relevant issue arising in the present case. Rather, the question is whether the application seeks review of a “decision” within the meaning of the AJDR Act, and whether any such decision is “under an enactment”.

101    The applicant submitted that there was a decision of an administrative character made by the Agency whether or not to make a payment, referring among other things to the fact that there had been a “selective application” of the Agency’s payment integrity reviews to a relatively small proportion of entities whose claims had been placed on “hold”. The basis on which the Agency has selected the applicant for review was not addressed in the evidence. As discussed below, this may have some relevance to the question whether a reasonable period has elapsed for making a decision on the payment requests. However, for the purposes of the objection to competency, the current application for review does not challenge any decision that might have been made by the Agency to select the payment requests made by the applicant for review as part of the Payments Integrity Review Program. The only question is whether any failure by the Agency to make a decision whether the applicant’s payment requests relate to amounts payable under the NDIS can properly be regarded as a failure to make a decision to which the ADJR Act applies.

102    In my view, the Agency’s review and determination of the applicant’s payment requests will involve the making of a decision under s 45 of the NDIS Act, which is a decision of an administrative character under an enactment. Such a decision is a substantive determination that an amount is payable under the NDIS in respect of a participant’s plan and, if so, the manner in which and the times at which such payments should be made. Contrary to the Agency’s submissions, the determination by the Agency is not merely the ascertainment of an amount that is independently payable by force of the statute, without any “intervention” by the Agency. Accordingly, the failure to make such a decision is reviewable under the ADJR Act, and the objection to competency must be dismissed.

103    Even if the NDIS Act on its proper construction creates or gives rise to an enforceable entitlement to the payment of “amounts payable” under the NDIS in respect of a participant’s plan, the better view is that the ascertainment and determination of that amount by the Agency can still amount to a decision of an administrative character under an enactment that is reviewable under the ADJR Act. There may be broader questions as to the status under the ADJR Act of “self-executing” decisions that are mandated by particular statutory provisions: see generally Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (17th ed 2022), at pp 99-105 [2.420]-[2.440]. In the specific context of the present case, the function performed by the Agency is not simply an anterior step involving the formation by an officer of a non-binding and unenforceable view or opinion about the operation of the relevant provisions of the NDIS Act, with no discernible legal consequence or effect on rights or obligations. The provisions in the NDIS Act and the NDIS Plan Management Rules for approving and giving effect to participant’s plans (including the statement of participant supports) do not necessarily prescribe specific amounts that are payable in a manner capable of objective determination independently of any decision or determination being made by the Agency.

104    It might possibly be said that the question whether an amount is payable under s 45 of the NDIS is one that “has been committed to administrative determination in accordance with established procedures”, rather than the self-executing operation of the relevant provisions of the NDIS Act: compare Comcare v Banerji (2019) 267 CLR 373 at [94] (Gageler J); see also at [138], [158] (Gordon J). The Agency’s established practice of placing payment claims “on hold” and dedicating a team of officers in the PIT to substantiate and pay claims that are determined to be “valid” is redolent of an administrative process involving substantive determinations that affect the rights of participants and providers under the NDIS in both a practical and legal sense. Thus, it may be doubted whether the NDIS Act creates an immediately enforceable debt in respect of such payments that is capable of being recovered by or on behalf of a participant in civil proceedings commenced independently of any payment request or claim made to the Agency.

105    However, it is unnecessary to explore such questions any further in the present case. Section 45 of the NDIS Act in terms provides for the making of a determination by the CEO as to the payment of amounts payable under the NDIS. That determination is unquestionably a “decision” within the meaning of s 3(2) of the ADJR Act, which relevantly refers to “making, suspending, revoking or refusing to make an order, award or determination”: subs (2)(a). The determination made by the CEO under s 45 must deal with the person to whom the amount is to be paid, and the manner in which the amount is to be paid (which must be in accordance with any NDIS rules that have been prescribed for such purposes). The determination may deal with such matters as whether amounts are to be paid in instalments or as lump sums, the amounts of any instalments, and the timing of payments of amounts: s 45(2) of the NDIS Act. In such circumstances, s 45 of the NDIS requires a substantive determination of matters relating to the payment of amounts payable under the NDIS in respect of a participant’s plan, including but not limited to the determination of whether, when and how such amounts are to be paid. The determination has an effect in creating, altering or affecting legal rights and obligations.

106    Counsel for the Agency queried whether the originating application was framed in terms of a failure by the CEO (or his or her delegate) to make a determination under s 45 of the NDIS Act, as opposed to a decision “to make payment” under s 45. However, the originating application as currently drafted identifies the relevant decision as “for the Respondent to make payment to the Applicant under s 45 of the NDIS Act”. In my view, this is sufficient to encompass the decision whether or not to make a determination under s 45 of the NDIS Act in respect of each of the applicant’s payment requests, including a determination as to the person to whom any amount payable is to be paid. As the applicant clarified in its submissions, the proceeding relates to an alleged failure to make a decision under s 45 within a reasonable period, and seeks an order directing the making of such a decision rather than an order directing the payment of any amount or amounts to the applicant.

107    For completeness, I note that it is unnecessary to consider whether this Court may have jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of the Agency’s decisions under s 45 of the NDIS Act or its conduct of payment integrity reviews in respect of payment requests or claims made by NDIS participants or providers. In the course of oral submissions in reply, the applicant’s solicitor advocate belatedly sought leave to amend the originating application to invoke such jurisdiction and to seek relief accordingly in the alternative. I refused to grant leave to amend, having regard to the late stage at which the application was made, and the fact that the amendment would only become necessary in the event that the objection to competency were to be upheld, at which time the applicant would be free to file a fresh application to seek relief under s 39B of the Judiciary Act.

108    As the Court has jurisdiction to hear and determine the application under s 7(1) of the ADJR Act, it remains to consider the substantive merits of that application on the evidence before the Court.

Unreasonable delay

109    There was no real dispute between the parties as to the principles that apply to an application for review of a failure to make a decision to which the ADJR Act applies. Those principles were considered by Bromberg J in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [20]-[29], and were recently summarised by the Full Court in Patrick v Australian Information Commissioner [2024] FCAFC 93 (Patrick FC) at [37] (Bromwich, Abraham and McEvoy JJ).

110    Where a statutory provision imposes a duty to make a decision without specifying a time limit within which such a decision must be made, it will usually be implied that the decision must be made within a “reasonable time”: BMF16 at [20]. Sections 7(1) and 16(3) of the ADJR Act recognise and give effect to such a principle, by permitting judicial review on the ground that there has been “unreasonable delay” and conferring power on the Court to make an order directing the making of the decision.

111    It is accepted that what is a reasonable time for making a decision, and what amounts to “unreasonable delay”, depends on the facts and circumstances of the particular case. This involves an “objective assessment”: BMF16 at [26], referring to Thornton v Repatriation Commission (1981) 35 ALR 485 at 490, where Fisher J said “[i]n my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would, in the circumstances, have approved the delay” (see also Patrick at [37]).

112    In Thornton, the respondent had deferred consideration of the applicant’s claim for a pension on the basis that there was an appeal pending before the High Court raising similar issues, the determination of which would be relevant to the applicant’s entitlement to the claimed pension. Justice Fisher articulated the relevant question as follows (at 492):

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.

113    This passage was accepted as “an authoritative statement of the appropriate test” in ASP15 v Commonwealth (2016) 248 FCR 372 at [21]-[23] (Robertson, Griffiths and Bromwich JJ).  Counsel for the Agency submitted that the passage draws a contrast between, on the one hand, a delay that is justified and for a considered reason, and on the other hand, a delay that is “capricious” or involves some “neglect, oversight or perversity”. I do not draw from Thornton any such bright-line distinction, nor do I consider that the decision in that case should be taken to suggest that a delay will only be unreasonable if it is capricious, neglectful or perverse. The question that arose for determination in Thornton was not concerned with a situation involving lengthy processing times or prolonged and drawn-out investigations, but rather with whether it was reasonable for the respondent to adopt a considered position of awaiting the outcome of an appeal to the High Court, rather than risk making a decision on the applicant’s pension claim which later turned out to be incorrect.

114    In determining whether there has been unreasonable delay, it is necessary to have regard to the scheme of the legislation, including its purpose and subject matter. As Bromberg J stated in BMF16 at [25]:

Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.

115    While the applicant bears a legal onus to establish its ground of review, and therefore must prove on the balance of probabilities the facts necessary to demonstrate that there has been “unreasonable delay” in making the decision, there may be circumstances in which a respondent has a “practical” or “persuasive” onus to provide a reasonable explanation or satisfactory justification for any delay, at least where the delay is prima facie longer than is required by the nature of the process: see BMF16 at [27]-[28]; AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at [59] (Besanko and Thawley JJ). Further, as noted by Besanko and Thawley JJ in AQM18 at [59]:

In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969.

116    The applicant submitted that the time taken by the Agency to date amounted to an unreasonable delay in making decisions under s 45 of the NDIS Act on its payment requests. The applicant noted that from when it was registered in 2016 until 3 July 2024, the Agency had processed claims for payment made by the applicant within two to three business days. In particular, in relation to the first and second payment requests, it is now 28 days and 25 days respectively since the applicant provided the Agency with documents to substantiate the claims. The applicant referred to the impact on participants, some of whom have ceased using the applicant’s services, and one who had raised concerns about the consequences of the delay in payment to her service providers (as set out in paragraph 47 above). The applicant also referred to the number of outstanding invoices from suppliers, and the impact on the financial capacity of the applicant. It was submitted that the ongoing delay in processing payments operated to undermine the objectives and principles of the NDIS, including allowing participants to exercise rights to choice and control in utilising the services of the applicant and allowing access to a diverse and sustainable market for disability supports.

117    The Agency’s submissions emphasised the subject of the power concerning the payment of public moneys, and the important public interest of ensuring that only valid claims for payment are paid by the Agency. While s 182 of the NDIS Act provides for the recovery of wrongly paid moneys, any such recovery would be inherently uncertain and would involve the expenditure of further public resources, and would be subject to risks that any amounts paid might be irrecoverable from an insolvent payee. The Agency submitted that the impact on the applicant, including any potential prejudice, was “essentially commercial” and was “concerned with cash flow considerations”. The Agency contended that the evidence of the applicant’s potential or foreshadowed insolvency was equivocal, and amounted at most to an indication from the applicant’s director that he would have to consider whether to wind up the company by the end of this week. The applicant had not provided any evidence of its financial position, nor the terms of the director’s loan provided by Mr Ahmed.

118    The Agency submitted that the practical limitations involved in the preparation, investigation and consideration of payment integrity reviews called for the review of many individual transactions and supporting documents. The inherent nature of the review process, as opposed to an automated processing of claims that are assumed to be compliant and legitimate, must allow sufficient time to carry out that process. The median time for conducting such payment reviews was approximately 60 days. The Agency submitted that this period “is indicative of what the nature of the payment review process requires in the statutory context with current resourcing”, and that the time taken to review the applicant’s payment requests is not “unusually lengthy”, let alone unreasonable. The Agency submitted that Parliament would not intend that the power to make payments should be required to be exercised “before any realistic opportunity could be had to verify the validity of the payment claims themselves”, and that to impose such a requirement would be “inconsistent with the statutory scheme, including the role of the respondent in ensuring its financial sustainability”.

119    The Agency submitted that, to the extent that any explanation is called for, the time taken by the Agency to date in reviewing the payment requests was justified in the circumstances and could not properly be described as capricious or a consequence of neglect, oversight or perversity. It was necessary for the PHT to review 849 payment claims, both for services provided by the applicant or its subcontractors and services provided by external NDIS providers in respect of which the applicant is the plan manager. Staff within the PHT had multiple reviews on foot at any given time, and the particular staff member to whom the applicant’s payment requests had been allocated had been working overtime to manage his or her workload (albeit not confined to the applicant’s claims). The nature of the review was manual and labour-intensive, requiring the review of documents including rosters, payslips, invoices, timesheets, support logs and evidence of support worker accreditation. Where necessary, the officer may be required to contact third parties to confirm that supports have been provided. The Agency contends that the applicant has not always provided all substantiating information that has been requested, meaning that the officer has been “forced” to seek further information from third parties.

120    In determining what is a reasonable period for the determination of the applicant’s payment requests, and whether there has been unreasonable delay by the Agency in making a decision under s 45 of the NDIS Act in relation to those payment requests, I have had regard to the nature of the NDIS and the statutory objects and guiding principles set out in the NDIS Act. The subject matter of the decisions is directed to the funding of reasonable and necessary supports for NDIS participants. While the decisions immediately affect the financial interests of the applicant as the service provider or plan manager, the decisions (including their timeliness) also have consequential impacts on the interests of the affected participants and their support workers.

121    I accept that there is a public interest in the proper payment of public funds and in ensuring the integrity and financial sustainability of the NDIS. Nevertheless, it is clearly not suggested that every request or claim for payment under s 45 of the NDIS Act can or should be manually reviewed and verified before any payment is made. Rather, as the letters from the Agency to the applicant stated, the Agency “periodically” reviews payments as part of its Payments Integrity Review Program, including to ensure that funds are spent in accordance with the participant’s plan and to ensure the ongoing sustainability of the NDIS (in accordance with its statutory functions). The parameters of the Payments Integrity Review Program and the resources committed by the Agency committed to the conduct of payment integrity reviews are ultimately matters for the Agency, in conjunction with the Commonwealth Government more broadly. The Payments Integrity Review Program is not itself established by the NDIS Act. There was no evidence adduced by the Agency directed to the manner in which cases are selected by the PIT for “periodic” review, nor the basis on which the applicant’s payment requests since late June 2024 had been subjected to such reviews. Although counsel for the Agency drew my attention to Mr Winton’s evidence that his role involves dealing with payment claims “which are considered high risk” (and also refers to the automated process being applied to “low risk NDIS payment claims”), there is no evidence before the Court in the present proceeding to demonstrate or establish any factual basis on which the applicant’s payment requests can be or have been so characterised.

122    It is also necessary to take into account the practical limitations attending the exercise of the power under s 45 of the NDIS Act, including the preparation, investigation and considerations that are called for in making the relevant decisions. In this regard, however, it is to some extent a matter for the Agency to determine the number, scope and extent of payment integrity reviews to be conducted by its officers within its resourcing constraints. Further, once a payment request has been placed on hold and subjected to review, it is a matter for the reviewing officer to determine what is necessary in order to verify or substantiate that the amount is payable under the NDIS in respect of the participant’s plan. As Mr Winton notes in his affidavit, where the claimant has been given an opportunity to substantiate the payment request and sufficient information has not been provided, this may result in the Agency “issuing a determination that the claim could not be substantiated”. The claimant would then be left with the possibility of either resubmitting the claim for payment with additional supporting information, or (perhaps) requesting reasons for or seeking review of the Agency’s decision under s 45 of the NDIS Act.

123    The resources available to the Agency may also be a relevant consideration in determining whether a reasonable time has elapsed for making the decisions. In the present case, Mr Winton has given evidence as to the “current operating environment”, under which the median time to finalise each payment integrity review is approximately 60 days. Mr Winton indicates that the Agency is currently in the process of recruiting additional staff with “the goal of at least doubling the size” of the PHT in the near future.

124    I accept that limits on the available resources to deal with a given workload is, in some circumstances, capable of providing some explanation for the time taken to make a decision on an application. That does not mean that a lengthy delay that is caused by a lack of adequate resources can never be regarded as unreasonable: see e.g. BMF16 at [104], referring to an observation made by the Privy Council in Oliveira v Attorney-General (Antigua and Barbuda) [2016] UKPC 24 at [44] that “absence of resources is not in general an excuse for maladministration”. In Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 477, Neave J stated:

Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.

125    More recently, the relevance of resourcing constraints and the competing demands on finite resources to the question of unreasonable delay in making a decision was addressed by Wheelahan J in Patrick v Australian Information Commissioner (No 2) [2023] FCA 530, and on appeal by the Full Court (Bromwich, Abraham and McEvoy JJ) in Patrick FC, in the context of the time taken by the Commissioner to make a decision on a number of applications for the review of agency decisions refusing freedom of information requests. The Full Court accepted (at [29]-[30]) that resourcing was properly treated as one relevant consideration in the process of determining whether any particular delay is unreasonable, provided that it is part of the explanation for that delay. The Full Court recognised (at [46]) that “[a]n assessment in all the circumstances does not preclude a finding that a delay is unreasonable in circumstances where the explanation provided refers to resourcing of the agency”. In the circumstances of that particular case, the Full Court affirmed the conclusion reached by Wheelahan J that the Commissioner’s delay in making decisions on the pending reviews was not unreasonable, in the context of the limited resources available to the Commissioner and the competing demands on those resources.

126    In the circumstances of the present case, however, the delay by the Agency in making decisions on the applicant’s payment requests is not satisfactorily explained or justified by a lack of resources within the Agency. As discussed above, the payment of claims for amounts payable under s 45 of the NDIS Act does not require manual processing and review in every case. It is a matter for the Agency in the first instance to determine how many and what payment claims will be placed on hold and subjected to payment integrity reviews. The Agency did not seek to call any evidence to justify why such a large number of payment requests or claims made by the applicant had been placed on “hold” such that the Agency was incapable of completing the payment integrity reviews and closing the cases for up to 60 days or more, in contrast to the automated processes of claims made by the applicant between 2016 and June 2024. This is particularly in circumstances where many of the payment requests relate to the same providers and the same participants, and therefore cover information and underlying facts of a similar nature.

127    This is not a case involving any significant periods of inactivity on the part of the Agency in processing or reviewing the payment requests, although I note that the Agency has not always responded to the applicant’s correspondence with alacrity (see, for example, the period of four business days taken to advise the applicant that the officer was unable to open or access documents provided by the applicant in response to the Agency’s request for information referred to in paragraph 20 above). Nevertheless, in my view, the nature of the selective process engaged in by the Agency in conducting periodic payment integrity reviews does not reasonably require up to 60 days or more to substantiate and make a determination on a payment request. The situation might be different if the selection of particular claims for review was directly informed by a particular concern held by the Agency about the integrity of those claims, or was more narrowly targeted to particular claims, whether as a representative sample or otherwise. As discussed above, on the evidence in this proceeding, I do not consider that this has been shown in the present case. Rather, it is a situation in which a “periodic review” has been applied to all payment requests submitted by the applicant since late June 2024.

128    In so far as the Agency contends that the applicant has not provided sufficient documentation to substantiate the payment claims, and that it is therefore reasonable for the relevant officer to make further inquiries with third parties, it is also possible for the Agency to make a decision based on the information available to it. If payment is refused because it has not been properly substantiated as an amount payable under s 45 of the NDIS Act, the applicant will be free to resubmit the claim and attempt to meet or cure any identified deficiency. Alternatively, the applicant may be able to seek judicial review of the Agency’s decision, and if necessary, request a statement of reasons under s 13 of the ADJR Act. It is common ground that the decision would not be subject to merits review under Pt 6 of Ch 4 of the NDIS Act.

129    For completeness, I note that s 7(1) of the ADJR Act requires that the person has a duty to make a decision to which the ADJR Act applies. I have proceeded on the basis that, in so far as the Agency or the CEO makes a decision under s 45 of the NDIS Act that an amount is payable under the NDIS in respect of a participant’s plan, and as to the manner in which that amount is to be paid, there is an implied duty on the Agency or the CEO to make such decisions. The Agency did not advance any submission to the contrary.

130    Accordingly, I find that there has been unreasonable delay by the Agency in making decisions under s 45 of the NDIS Act in respect of the applicant’s payment requests. To adapt the language used by Bromberg J in BMF16 at [30], I consider that the scheme of the NDIS Act does not envisage that the process of assessing a claim for payment under s 45 of the NDIS Act should be a matter of great complexity that requires procedures or processes which are inherently time consuming. The NDIS Act does not provide for any formal hearing or inquiry into such claims, nor does it confer any investigative powers on the Agency in support of the process.

131    Having regard to the fact that such payments are generally processed within two to three business days, I consider that any manual payment integrity review that is initiated by the Agency in respect of a particular claim should have been determined more quickly and that a reasonable period has already elapsed for the making of those decisions, particularly in relation to the first and second payment requests. While the third and fourth payment requests have been pending for slightly shorter periods, I do not consider that it is necessary to distinguish them on that basis. It is not necessary for me to fix a specific time that is determined to be a reasonable period within which a decision ought to have been made on each of the payment requests, other than finding in all the circumstances that it is shorter than the current timeframes. An indicative period might be something in the vicinity of two weeks after the provision of documents in response to a request for information to substantiate the payment.

Conclusion

132    For the reasons set out above, I would make a declaration that there has been unreasonable delay by the Agency, and order that it make decisions forthwith. I note that in other cases it has been considered appropriate to impose a timeframe for the respondent to make the relevant decision: see e.g. BMF16 at [240]. In the present case, however, given the nature of the decisions and the fact that a reasonable period has already elapsed, I consider that the Agency should be ordered to make the decisions forthwith. Instead of fixing a deadline for the decisions to be made, I would order the Agency to file an affidavit addressing its compliance with this order. The matter will then be listed for a case management hearing in a manner that might be considered remotely analogous to the return of a writ of mandamus. Subject to any submissions by the parties, the Agency should be ordered to pay the applicant’s costs.

Associate:

Dated:    9 August 2024