In our recent post Whose job is it? we discussed the issues with:
a) the supports the AAT can consider following an internal review; and
b) what happens if the plan is due to end, or the participant is running out of funding
A recent decision of the AAT gives us some further clarification on how the Tribunal may view these questions.
The supports in dispute
In Whitby-Smith and National Disability Insurance Agency  AATA 3446 (28 September 2021) the Tribunal said that:
” The Tribunal considers that where a NDIS participant can establish, on the evidence, that a particular type of support has been raised with the NDIA by the participant or any of their representatives, or mentioned by the participant’s treating medical practitioner or allied health practitioner when making recommendations to the NDIA that such support be made available to the participant (as was the case in this application), then this is sufficient to amount to those matters being before or having been put before the decision-maker.”
In this case there were supports mentioned in letters from therapists, but not mentioned in the internal review. The file had notes from the internal reviewer, which did not include mention of these items, but the Applicant and her mother disagreed with the notes.
The Tribunal decided that because those items were included in the letter from the therapist, they were supports that the reviewer could have considered, even if they chose not to.
Importantly, the Tribunal also said:
“In the context of dealing with applications involving beneficial legislation intended to support persons with disabilities, the Tribunal as presently constituted is not prepared to make that distinction. The Tribunal considers that an NDIS participant, who later seeks review by the Administrative Appeals Tribunal, should not in any way be disadvantaged as a result of an internal reviewer failing to access, engage with or to address any matter(s) prior to making their decision, when such matters were properly before the decision-maker and they ought to have done so.”
This is extremely important in terms of the power imbalance between the NDIA and participants, and the implied expectation in QDKH that a participant must be able to articulate in the precise words necessary, each support in dispute. Many NDIS participants cannot do this, and we do not believe it is an acceptable expectation.
In this decision the Tribunal also made an important comment about plan rollover.
“it did not consider that it was necessary or appropriate to remit this proceeding for reconsideration in order for the NDIA to implement a new SOPS and plan for Ms Whitby-Smith to roll over existing supports on a pro rata basis pending the hearing and determination of this application. The Tribunal considers that the NDIA was at liberty to take that step without intervention by the Tribunal.”
In other words, the NDIA can make a new plan with the same supports as the old one, without having to ask the permission of the Tribunal, and they should do that.
This is a much simpler process to get a new plan in place, and we hope other members will consider this a reasonable way to approach the expiry of plans.