Al Sadek and National Disability Insurance Agency

[2021] AATA 3081

Al Sadek and National Disability Insurance Agency [2021] AATA 3081 (27 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4194

Re:Yassmin Al Sadek

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:27 August 2021

Place:Sydney

The application is dismissed pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

............................[SGD]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Dismissal application – Whether the application should be dismissed under s 42A of the Administrative Appeals Tribunal Act 1975 – Where Public Guardian appointed to the Applicant – Where Public Guardian has no authority to instruct the proceedings on the Applicant’s behalf – Where Applicant has failed within a reasonable time to proceed with the Application – Application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 42A

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

27 August 2021

BACKGROUND

1. The Applicant in this matter is a 21-year-old woman who has been diagnosed with schizophrenia. The Applicant has previously resided with her mother and 3 younger siblings. She is currently said to be receiving treatment in a secure mental health facility.

2. The Applicant’s current plan, which commenced on 16 March 2020, contains funding for the following supports:

   (a)$49,035.12 in funding for core supports, which includes $1,784.00 for transport;

   (b)$12,389.87 in funding for capacity building supports, which includes:

   (i)$1,454.89 for improved life choices;

   (ii)$6,228.10 for improved daily living; and

   (iii)$4,706.88 for support coordination.

3. On 13 July 2020, the Applicant lodged an application for review with the Tribunal, seeking review of the internal review decision of the National Disability Insurance Agency (‘the Agency’) dated 1 July 2020 to affirm the Agency’s earlier decision of 16 March 2020, which approved the statement of supports under the Applicant’s disability support plan.

4. In the course of the proceedings before the Tribunal, a question arose as to whether the Applicant’s mother had authority to represent the Applicant for the purposes of her application.

5. On 8 April 2021, the Tribunal directed the Applicant’s mother to provide written certification from an independent legal practitioner that the Applicant had given lawful consent for her mother to represent her in the proceedings. The Tribunal direction also required certification that the Applicant had the legal capacity to give such consent on the basis of a relevant psychiatric report.

6. The Applicant’s mother made a number of claims in support of her having authority to represent the Applicant but was not able to present any proof that she has the requisite authority, despite being given time to get the necessary authority, properly signed by the Applicant and witnessed by an independent and properly qualified person.

7. On 16 June 2021, the Tribunal published an interlocutory decision which had the effect of removing the Applicant’s mother as her legal representative in the Tribunal proceedings. By that decision, the Tribunal also directed the Applicant to inform the Tribunal in writing on or before 14 July 2021 whether she still sought review of the Agency’s decision dated 1 July 2020.The Applicant was further directed to provide medical evidence from a properly qualified medical practitioner certifying her legal capacity to instruct the Tribunal application.

8. On 6 August 2021, the Agency’s representative notified the Tribunal that the Public Guardian had been appointed to the Applicant. The Public Guardian notified the Agency and the Tribunal on a number of occasions that they did not consider that they had authority to instruct this Tribunal application on behalf of the Applicant.

9. On 19 August 2019, the Agency’s representative contacted the Tribunal and requested that the matter be listed for an interlocutory hearing, with a view to seeking orders that the matter be dismissed pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).

   THE LAW

10. The Agency seeks dismissal of the application pursuant to s 42A(5)(a) of the AAT Act. Subsection 42A(5) provides as follows:

    Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction (emphasis added)

    (5) If an applicant for review of a decision fails within a reasonable time:

    (a) to proceed with the application; or

    (b) to comply with a direction by the Tribunal in relation to the application;

    the Tribunal may dismiss the application without proceeding to review the decision.

    THE ISSUE

11. The matter for determination is whether the application should be dismissed pursuant to paragraph 42A(5)(a) of the AAT Act, on the basis that the Applicant has failed within a reasonable time to proceed with the application.

    DISCUSSION

12. As outlined in the background material above, this matter has had a long and rather tortured history.

13. The reviewable decision in the matter is dated 1 July 2020. Initially the Applicant’s mother was her representative before the Tribunal, but the situation changed and the relationship between the Applicant and her mother appears to have broken down completely.

14. The Tribunal was informed by the Agency that the Applicant no longer wished her mother to be her representative although her mother persisted in her efforts to continue to represent the Applicant. She was, however, unable to present any authority of any kind authorising her to represent her daughter, despite being given a number of opportunities to obtain suitable proof that she had appropriate authority to do so.

15. Significantly, on or around 23 July 2021, the Public Guardian was appointed to the Applicant. Shortly before the interlocutory hearing in these proceedings on the issue of dismissal, the Tribunal received an email from the Public Guardian which stated as follows:

    As noted in correspondence from the Respondent to the Tribunal, the Public Guardian understands (in the absence of any common law, or legislative, authority that supports the contrary) that limited ‘personal guardianship’ provides her with neither the authority necessary to make decisions, nor provide instructions, in respect of a person’s legal proceedings (as say ‘tutor’; ‘litigation guardian’ or ‘guardian ad litem’). Save as to note, the Public Guardian could consider exercising her legal function to seek the advice of, or make a referral to, a legal service for the person under guardianship, if such action were in the “welfare and interests” of the person under guardianship (see s 4(a) of the Guardianship Act 1987 (NSW)). Given the delay likely to be encountered by the proceedings having to be adjourned to engage such a service (assuming available resources of any such service to take on the matter), the Public Guardian tends to the view that, in this instance and on the limited information known to her about these proceedings, that would not be appropriate. However, the Public Guardian considers that to dismiss the proceedings without a binding order to the intent that a plan review will take place within a specified timeframe (which has been suggested by the Respondent) would be contrary to the interests of Yassmin ‘Toway’ Al Sadek (the Applicant).

16. It is clear from the above that the Public Guardian did not have instructions to represent the Applicant in these proceedings and was unlikely to be in a position to do so, at least within a reasonable timeframe. The Applicant is therefore not in a position to pursue her current application before the Tribunal, either in person or through an authorised representative, for the foreseeable future.

17. The Applicant has been unable to proceed at least since the date of the original telephone directions hearing on 7 April 2021. In the meantime, the Applicant’s mental health would appear to have deteriorated and/or significantly changed in a way that potentially makes the plan the subject of these proceedings of limited value to her. In other words, time spent on the current proceedings may be of limited or no benefit to the Applicant, even if eventually the Public Guardian were to obtain instructions on her behalf at some future time. Accordingly, dismissal of the application would appear to be very much in the best interests of the Applicant, as it would enable the Agency to review her plan in light of her needs at this time rather than in the past. I note in particular that the Applicant is soon to be released from a mental health facility and that there are issues in relation to gender identity which may not have been known at the time of the plan the subject of this application.

18. In the circumstances, the proper course is in my opinion, to dismiss the proceedings under s 42A(5)(a) of the AAT Act and to make an order requiring the Agency to conduct a review of the Applicant’s statement of participant supports contained in the disability support plan by 30 September 2021. This order will be conditional on the Public Guardian having the opportunity to participate in the review, on behalf of the Applicant, or waiving its right to do so, by notice in writing to the Applicant within seven days of the date of the orders. A copy of these orders will be provided by the Tribunal to the Public Guardian.

19. I note that the orders were in fact made and provided to the parties as outlined above approximately 48 hours prior to the issuing of these reasons. This was done in the interests of time and certainty, especially in enabling the Public Guardian to consider its position.

    DECISION

20. The application is dismissed pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD]...........................................

Associate

Dated: 27 August 2021

Date of hearing:	24 August 2021
Date final submissions received:	24 August 2021
Solicitors for the Respondent:	N Donaghy, Australian Government Solicitor