This matter concerned whether, in assessing a “service request” under the National Injury Insurance Scheme, the National Injury Insurance Agency Queensland was permitted to reject a request for external case management and instead appoint itself as the applicant’s case manager. Justice Crow held that such a decision was ultra vires the National Injury Insurance Scheme (Queensland) Act 2016 and National Injury Insurance Scheme (Queensland) Regulations 2016 and so constituted an error of law. In his Honour’s view, this was an appropriate case in which to make an order under s 30(1)(d) of the Judicial Review Act 1991 directing the respondent to approve the request for external case management.
26 May 2020
The applicant was rendered tetraplegic as a result of a motor vehicle accident in 2019. The applicant was accepted as an interim participant in the National Injury Insurance Scheme (the Scheme) administered by the respondent, the National Injury Insurance Agency Queensland. . He was due to be discharged from hospital in June 2020. . Both the applicant and respondent agreed that case management was required, at least for some time, to manage the difficulties faced by the applicant during his transition out of hospital and into suitable accommodation. , . The applicant lodged with the respondent a “service request” for case management services provided by the external provider. . The respondent refused to fund external case management, and decided to appoint itself as the applicant’s case manager. –. The applicant sought a statutory order of review of this decision. . The principal ground was that the respondent lacked authority to appoint itself as the applicant’s case manager and so the decision constituted an improper exercise of power. .
Improper Exercise of Power
Justice Crow identified that assessing this ground required an examination of the purpose of the Scheme and the duties and role of the respondent under it, as provided for in the National Injury Insurance Scheme (Queensland) Act 2016 and National Injury Insurance Scheme (Queensland) Regulations 2016. In reviewing the Scheme (–), his Honour noted that the respondent’s main function did not require actual provision of services to participants. . Its role was to consider whether treatment, care or support requested by a participant was “necessary and reasonable”. This involved “some degree” of case management “in a very general sense”, but not what was required by the respondent’s case. –.
Rather, the respondent’s function was to administer the fund by assessing whether a service request was “necessary and reasonable” and make payments for “treatment, care and support” where a request met the criteria. . The Scheme did not permit the respondent to render internal specialised case management services, nor deny a “necessary and reasonable” service request on the basis that the respondent would perform the service itself. . The National Injury Insurance Scheme (Queensland) Act 2016 demarcated between the administration of the scheme and the delivery of services. . Thus, the respondent did not have power to provide rehabilitative services internally. –. Applying the authorities (–), Crow J held that the respondent’s decision to appoint itself as the applicant’s case manager was an error of law which was ultra vires its authority under the Act. .
The applicant sought that the respondent’s decision be set aside under s 30(1)(a) of the Judicial Review Act 1991 and that an order be made under s 30(1)(d) of that Act directing the respondent to approve the applicant’s request. . The respondent was willing to consent to the former, but not the latter. .
Justice Crow observed that: the respondent had made an unlawful decision involving errors of law; properly applied, the Scheme compelled a decision to appoint the external provider, at least on an interim basis; and, the cost of a three month appointment of the external provider did not represent unreasonable expenditure. . Accordingly, Crow J considered it appropriate to make an order under s 30(1)(d) of the Judicial Review Act 1991 directing the respondent to approve the request for external case management. , . The authorities (–) demonstrated that s 30(1)(d) of the Judicial Review Act 1991 provided:
“a broad discretionary remedy to be exercised in cases where it is considered necessary to do justice between the parties for a direction to be provided. In the present case, where errors of law [had] been established and the relevant facts [were] uncontested … it [was] necessary to do justice to the parties [to direct the respondent to appoint the external case manager].” .
An external provider was the appropriate entity to provide case management, at least until the applicant had left hospital and transitioned into appropriate accommodation. No direction was made as to the time frame for the appointment, but whether these services continued to be necessary and reasonable was a matter of evidence for the future. –.
In the result, the respondent’s decision was set aside and the respondent was directed to approve the applicant’s request for external case management. .