‘Kindness is meritorious’ … but does not create reviewable decisions: Complete Nursing and Home Care Pty Ltd v National Disability Insurance Agency [2020] AATA 360

David McMullen

In a recent decision, the Administrative Appeals Tribunal (“AAT” or “Tribunal”) has held that it lacked jurisdiction to review a decision by the National Disability Insurance Agency (“NDIA” or “Agency”) not to pay certain invoices submitted by a registered NDIS provider.

The decision serves as a reminder to Government-funded providers of care and services (whether NDIS or other programmes) of the importance of understanding funding terms and conditions. It also illustrates the nature of the statutory review jurisdictions overseen by the AAT and similar State and Territory-based statutory tribunals.

Background

Complete Nursing and Home Care Pty Ltd (“CNHC”) is a registered NDIS provider under the National Disability Insurance Agency Act 2013 (“NDIS Act”). 

The NDIA refused to pay CNHC’s invoices regarding two NDIS participants (i.e. persons with disability who were clients of CNHC). In short:

  • CNHC claimed $2,639.28 for services it said were provided to one client (“XY”) within relevant service agreement dates, and a further $4,363.44 for services beyond the client’s approved budget. CNHC had provided the services at the request of the client’ father.
  • In respect of the other client (“BC”), CNHC had provided services on the belief that there was more money in his plan than may have been the case. CNHC had provided the services at the request of the client’s mother.

CNHC applied to the AAT for review. However, the Tribunal held that it did not have jurisdiction to review the NDIA’s decision.

The Tribunal acknowledged the situation faced by CNHC, who had provided services to clients in need, yet would not receive the expected Government funding in return:

‘I recognise that CNHC is in an invidious position.  It has provided services in response to cries for help from XY’s and BC’s parents but it has done so either knowing or at least doubting whether sufficient funds remained in XY and BC’s plans to pay for the services …  Kindness is meritorious but participants’ plans are funded on the basis of purchasing services from those who earn their income in providing them. 

Nevertheless, the Tribunal made its decision based on the NDIS Act provisions which define the decisions that may be reviewed by the AAT. It was held:

  • The NDIS Act provides for review of a range of decisions, but these are only some decisions and not others: ‘Determining whether the Tribunal has jurisdiction or power to review a particular decision is a matter of statutory interpretation’.
  • In this case, it was possible to apply to the AAT (under section 103 of the NDIS Act) for review of a decision made by a reviewer under subsection 100(6). This means, a person directly affected by a reviewable decision may request the decision-maker to review the reviewable decision (under s 100 of the NDIS Act). It is that second decision (i.e. the review of the initial reviewable decision) which may in turn be reviewed by the AAT.
  • ‘Parliament has chosen those decisions which should be reviewed and those which should not.  It is not for the Tribunal to attempt to stretch the boundaries of the scheme of review established by the Parliament in an endeavour to make the Agency accountable for its expenditure and administration’. 
  • There may be other means to ensure accountability in respect of the NDIS; for example, the Commonwealth Ombudsman, the Auditor General, and/or (through the responsible Minister) Parliament.

None of the ‘reviewable decisions’ defined in section 9 of the NDIS Act concerned decisions of the type that CNHC sought to have reviewed. The NDIA’s decision simply did not fit within any of the decisions that the NDIS Act states may be reviewed.  Accordingly, CNHC had no entitlement to ask the Tribunal to review the decision. 

Comment

For many care-centred organisations, client care comes first. But care providers should not have to be left holding the bill when government funding does not come through. It is important to understand the terms and conditions that go with any funding. Where in doubt, don’t rely on assumptions or past experience that things have always been done a certain way previously.

Consider also what the service agreement with your clients says about funding shortfalls (whether due to changes in Government funding, withholding of funding, changes in care needs or simply because a client’s budget is inadequate for their needs and choices).

Please contact Gemma McGrath or David McMullen if you have any queries about NDIS or any other government-funded care.