Tribunal: Senior Member K Parker
Issue
The issue before the Tribunal was whether the presiding member should recuse herself due to a claim by the applicant’s mother that the member was biased. The applicant is a child participant of the National Disability Insurance Scheme (NDIS) and he lives with his father.
AAT decision
The Tribunal found there was no evidence of actual or apprehended bias and no grounds for recusal. On that basis, the Tribunal refused the application for recusal.
Details
GMXV, a child applicant represented by his mother ‘M’ and father ‘F’, lodged an application with the AAT to review a decision made by the NDIA concerning his Statement of Participant Supports (SOPS). The AAT remitted the National Disability Insurance Agency’s (NDIA) decision, and the NDIA approved a new SOPS, which became the decision under review. M was dissatisfied with the new SOPS and proceeded with the application for review.
The AAT asked M several times to provide details of the changes to the SOPS that she was requesting, but she did not do so. After numerous adjournments to accommodate M over a period of 2 years, the Tribunal held an interlocutory hearing to consider a number of requests made by M. The Tribunal observed that M had prepared lengthy submissions containing complex information for the case and considered that this had demonstrated she could prepare a short list of requested changes.
M then wrote to the AAT that she would not participate in the review process if Senior Member Parker presided over the case. M claimed that the Senior Member was biased in favour of the NDIA, and against GMXV.
The Senior Member treated the claim to be a recusal application and decided to hold a hearing to consider the issue. M, F and the NDIA were invited by the Tribunal to provide written submissions with their views. M and F did not provide additional written submissions, and the NDIA stated its position in relation to the recusal application was ‘neutral’.
Summary of reasons for decision
The Senior Member considered M’s complaints and confirmed that she did not have a personal connection to any of the parties and that she did not have a general tendency to make decisions in favour of or against the NDIA.
She noted that her previous comments about M’s ability to prepare a list of supports did not demonstrate actual or apprehended bias but rather an objective and reasonable assessment based on M’s proven ability to prepare a complex submission.
The Senior Member noted that M had not provided reasons or specific examples to support her bias claim and that M’s complaints were simply bald assertions, absent any particulars of the basis for them.
For those reasons, the Tribunal was not satisfied that the claim of actual or apprehended bias was made out or that there were any other grounds upon which she should recuse herself.
Read the full decision on AustLII
GMXV and National Disability Insurance Agency [2022] AATA 505
Glossary
Actual bias Requires finding that a decision maker was ‘so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented’.
Apprehended bias Where a fair-minded ordinary person with knowledge of the material facts of the case might have a reasonable fear that the decision maker might not be impartial about the issues they need to resolve. This test requires a real rather than remote possibility of bias.
Interlocutory hearings Held to deal with a specific issue related to a case.
Remit If the Tribunal remits a matter, it sends the matter back to the original decision-maker to be reconsidered in accordance with any directions or recommendations of the Tribunal.
Recusal When a member or decision maker withdraws from hearing or deciding a case.
Statement of Participant Supports (SOPS) The statement of participant supports specifies, amongst other matters, the general supports (if any) that will be provided, and the reasonable and necessary supports (if any) that will be funded under the NDIS (section 33(2)).
Disclaimer
Every case before the AAT is determined on its individual facts. This summary may not include all information considered by the AAT and does not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.