First Gen Healthcare Solutions Pty Ltd and National Disability Insurance Agency

[2023] AATA 31

First Gen Healthcare Solutions Pty Ltd and National Disability Insurance Agency [2023] AATA 31 (18 January 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/10373

Re:First Gen Healthcare Solutions Pty Ltd

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member K. Parker

Date:18 January 2023

Place:Melbourne

The Tribunal is satisfied that the decision of the Respondent dated 19 December 2022 to cancel claims by the Applicant, a National Disability Insurance Scheme (NDIS) service provider, to certain payments and to raise a debt against the Applicant, is not reviewable by this Tribunal.

Accordingly, the Tribunal dismisses this application under section 42A(4) of the Administrative Appeals Tribunal Act (Cth).

........................[sgd]................................................

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – application for review lodged by a service provider delivering supports under the National Disability Insurance Scheme (NDIS) – decision made by the National Disability Insurance Agency (NDIA) to cancel claims by the service provider for 57 payments totalling $186,045.31 and intention to raise debt for this amount - whether NDIA has the power to review this type of decision – Tribunal is satisfied this type of decision not a “reviewable decision” under s 99 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – even if it was a reviewable decision, no request was made by the Applicant for review by NDIA “reviewer” under s 100(6) of the NDIS Act - application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal is satisfied that the decision is not reviewable by the Tribunal

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360

REASONS FOR DECISION

Senior Member K. Parker

18 January 2023

1. First Gen Healthcare Solutions Pty Ltd (First Gen) is a registered National Disability Insurance Scheme (NDIS) service provider under the National Disability Insurance Scheme Act 2013 (NDIS Act). In a letter dated 19 December 2022, the National Disability Insurance Agency (NDIA) advised First Gen of its intention to cancel 57 payment claims, totalling $186,045.31, as it considered those claims were unsubstantiated, and noted its intention to raise a debt in that amount (Debt Decision).

2. First Gen sought review by the Administrative Appeals Tribunal (Tribunal).

3. The Tribunal has considered the written submissions made by the parties and the oral submissions of a representative from each party at the Interlocutory Hearing which took place by telephone on 13 January 2023 (Interlocutory Hearing).

4. For the reasons set out below, the Tribunal is satisfied that the Debt Decision is not reviewable by this Tribunal. On this basis, the Tribunal dismisses this application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

   CONSIDERATION

5. The Tribunal does not have inherent jurisdiction. Its jurisdiction or power to review a particular decision is derived from the express provisions of the relevant enactment operating in conjunction with s 25(1) of the AAT Act.

6. The relevant enactment in this case is section 103 of the NDIS Act. Subsection (1) states that (emphasis added):

   Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

   Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.

7. A decision made by a reviewer under section 100(6) of the NDIS Act, will be made when a review of a “reviewable decision” under s 100(2) of the NDIS Act take place at the request of a person directly affected by that reviewable decision. A person who is directly affected by a reviewable decision may, within three months of receiving a notice from the person who made the “reviewable decision”, request a review of that decision.[1]

   [1] NDIS Act, s 100(2).

8. Section 9 of the NDIS Act defines “reviewable decision”, as having the meaning given by ss 99(1) and 99(2) of the NDIS Act. Section 99(1) contains an itemised table setting out the different types of reviewable decisions under the NDIS Act and the decision-maker in respect of those decisions. In Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency,[2] Deputy President Forgie, in general terms, summarised those items as follows:

   …the first six items specify decisions that are made in respect of a person’s entitlement to be a participant in the NDIS and decisions that affect the content of a participant’s plan. The next ten…are concerned with registered provider[s] of supports…Items 17 to 19 are concerned with decisions relating to determinations made by the Chief Executive Officer of the Agency (CEO) regarding a person who may do acts or things required or permitted to be done by the NDIS Act in relation to a child. Items 20 to 22 specify…decisions made in relation to the appointment, suspension or cancellation of a plan nominee or a correspondence nominee…items 23 to 28…relate to decisions made under Chapter 5 of the NDIS Act. Chapter 5 is concerned with decisions relating to compensation…Items 29 to 33…[are] concerned with decisions to write off or waive a debt where the debt is owed to the Agency.[3]

   [2] [2020] AATA 360.

   [3] Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2020] AATA 360 [11]-[14]. This decision was referred to by the NDIA in its submissions for convenience, given First Gen was unrepresented, the Tribunal arranged for this decision to be sent to First Gen before the Interlocutory Hearing.

9. The Tribunal notes that none of the items specified under section 99(1) of the NDIS Act relate to cancelling payment claims and raising a debt against a service provider. Section 99(2) provides that the NDIS rules may provide that a decision made under a specified provision of the rules is a “reviewable decision”.

10. Both parties were given an opportunity to identify an item under s 99 that covered the type of decision made by the making of the Debt Decision. Neither party was able to do so. The Tribunal, itself, could not identify any reference under s 99 that would support such a conclusion.

11. Even if one were to accept for a moment (which the Tribunal does not), that the Decision is a “reviewable decision”, First Gen has not at any stage requested a review under s 100 of the NDIS Act of the Decision by an NDIA “reviewer”. For this reason, no power arises under s 103 of the NDIS Act for the Tribunal to undertake a review.

12. The Tribunal acknowledges Mr James Vercoe’s assistance to First Gen’s representative at the end of the Interlocutory Hearing to explain alternative avenues that are open to First Gen to make further enquiries about the Debt Decision directly with the NDIA.

    CONCLUSION

13. The Tribunal considers that the Debt Decision is not a type of decision listed within s 99(1) of the NDIS Act. Nor is it a “reviewable decision” by reason of s 99(2). Further, even if it is, no decision has been made by an NDIA “reviewer” under s 100(6) of the NDIS Act as no request was made by First Gen for this type of review.

14. For these reasons, the Tribunal is satisfied that the Debt Decision is not reviewable by the Tribunal. Accordingly, the Tribunal dismisses this application under s 42A(4) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

........................[sgd]................................................

Associate

Dated: 18 January 2023

Date of hearing:	13 January 2023
Advocate for the Applicant:	Self-represented - Mr Russell Aseno
Advocate for the Respondent:	Mr James Vercoe, NDIA lawyer