Armstrong and National Disability Insurance Agency
[2023] AATA 4843
•7 November 2023
Armstrong and National Disability Insurance Agency [2023] AATA 4843 (7 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/6503
Re:Susan Armstrong
APPLICANT
National Disability Insurance Agency And
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:7 November 2023
Place:Adelaide
Mrs Armstrong’s application for an extension of time pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975 (Cth) in which to seek review of the Agency’s decision, dated 10 May 2023, is granted. Time is extended until 4 September 2023.
.....................................[Sgnd]...................................
Member I Thompson
CATCHWORDS
PRACTICE AND PROCEDURE – access request to become a participant of the NDIS rejected – decision affirmed on internal review – application for review by the Tribunal not lodged in time – application for extension of time – whether reasonable in all the circumstances to extend time – application granted.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Zizza v Federal Commissioner of Taxation [1999] FCA 37
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Johnson and Minister for Home Affairs [2018] AATA 3469
REASONS FOR DECISION
Member I Thompson
7 November 2023
This matter concerns an application for an extension of time in which to seek review of an internal review decision of the National Disability Insurance Agency (“the Agency”) made on 10 May 2023. That decision confirmed an original decision of the Agency on 6 February 2023 that Mrs Armstrong does not meet the access criteria to become a participant of the National Disability Insurance Scheme (“NDIS”).
The Administrative Appeals Tribunal Act 1975 (“the AAT Act”) requires applications for review to be lodged within 28 days of the decision under review. On 4 September 2023, Ms Armstrong lodged an application to the Tribunal for review of the Agency’s internal review decision. In her application, she requested an extension of time which included her reasons for not applying for a review within the required time limit. That request is 89 days outside the required timeframe. In explanation of her reasons for not lodging the application for review in time, Ms Armstrong wrote:
“Court cases for my sons death. Had to relive him being hit by a truck at 100kms hour, 90 tonnes of grain crushing his cabin, grain catching alight. There was very little remains so I had to do DNA swabs to identify what little remains there was. Also doing Victim Impact Statements for myself and my granddaughters.”
An interlocutory hearing was convened by telephone at which the Tribunal heard submissions from Ms Armstrong, supported by Ms Fearnhead from a disability & mental health agency, together with submissions provided by the Agency’s representative, Mr Burston.
In written submissions, the Agency explained its reasons for neither consenting to or opposing Ms Armstrong’s request for extension of time. The written submissions provided a clear and comprehensive chronology of relevant processes and timeframes together with an analysis of the applicable, legal principles and perspectives about Ms Armstrong’s explanation for the delay.
Having heard the parties’ oral submissions, the Tribunal reserved its decision. Two days later, Mr Burston informed the Tribunal that the Agency does not oppose the request for extension of time. For reasons which follow, the Tribunal is satisfied that the request should be granted.
Section 29(2) of the AAT Act requires that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) enables the Tribunal to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so.
While the Tribunal is given a discretion, it is accepted that the starting point is that proceedings not commenced in time should not be permitted.
There are several, important considerations regarding the Tribunal’s discretion as to whether or not an extension of time ought to be granted. The principles which inform the discretion are set out in numerous decisions of the Federal Court[1] and the Tribunal. The main factors which the Tribunal must consider are the extent of the delay; the explanation for the delay; any prejudice to the respondent or the general public arising from an extension of time; the merits of the substantive application for review; and any alternative avenues of relief for the applicant should the extension of time not be granted. The Tribunal should weigh together all relevant factors while avoiding a ranking approach.[2] All of the circumstances must be considered in deciding whether it is reasonable to allow the extension
[1] see, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Johnson and Minister for Home Affairs [2018] AATA 3469
[2] Zizza v Federal Commissioner of Taxation [1999] FCA 37[45]
Each of the relevant criteria relating to the application for extension of time will be considered in turn.
The extent of the delay and the reasons for it: Ms Armstrong is 65 years old. She has become sole carer for her two adolescent granddaughters. In the aftermath of her son’s death in a motor vehicle accident in 2021 she is focussed presently on engagement with police and a social worker in Victoria in relation to legal proceedings, which includes preparation of a victim impact statement. Ms Fernhead described Ms Armstrong’s difficulties in meeting multiple responsibilities in the aftermath of her son’s death combined with additional, full-time responsibilities for her grandchildren. These challenges are extreme. The Agency submitted that the Tribunal would need to consider Ms Armstrong’s role in relation to the interstate court case, the preparation of victim impact statements, and the bereavement in the context of their bearing, if any, in relation to a failure to lodge the Tribunal application within the 28-day timeframe.
The written request for an extension of time to review the internal review decision was lodged on 4 September 2023. The Agency submitted that this delay of 89 days outside the 28-day period specified in s 29 (2) of the AAT Act is a significant delay. The Agency referred to the letter dated 10 May 2023 to Ms Armstrong which contained the outcome of her internal review request. The letter includes information about applying to the Administrative Appeals Tribunal for external review within 28 days if she disagreed with the internal review decision. According to the Agency’s records, the letter was sent by email to Ms Armstrong.
Ms Armstrong told the Tribunal that she did not receive the letter either by hardcopy in the post or by email. While she acknowledged that the email address in the Agency’s records is correct, she said that communications which she had with the Agency occurred through the postal system, not by email. She does not have a computer and any email correspondence, in and out, is via her iPhone. She stated that she was first aware of the contents of the internal review outcome letter on 21 July 2023 in discussions at a meeting with a Local Area Coordinator at the Gawler office of Feros Care. At the interlocutory hearing, Mr Burston’s search of the Agency’s records did not record whether the letter had been sent by post or as an attachment to an email. However, Mr Burston was able to check and confirm that the Agency had recorded in a contact details section that Ms Armstrong’s preferred method of communication was by post.
It remains unclear why Ms Armstrong’s Local Area Coordinator would be in receipt of the internal review outcome letter rather than Ms Armstrong herself. Nonetheless she is adamant that she did not receive the letter by email or in the post. The Agency itself is not much the wiser on the question of post or email, although its assumption appears to be, quite logically, that the letter was sent by email to the correct address. It is significant, however, that Ms Armstrong had previously received Agency correspondence by post, and it is equally significant that the Agency’s records acknowledge that her preferred contact was by post. In the end, all that the Tribunal can discern is that Ms Armstrong’s contention that she only became aware on 21 July 2023 of the internal review outcome letter and its contents is not contradicted by any material available to the Tribunal.
Copies of interaction notes were provided of meetings on 21 July 2023 and 28 August 2023 which Ms Armstrong attended with Local Area Co-ordinators. The notes of the first meeting suggest that Mrs Armstrong was provided with a number to contact the Tribunal and a copy of the form for applying to the Tribunal for a review. Ms Armstrong told the Tribunal that she remembers those two meetings. In her view the second meeting became unpleasant. The notes suggest that the Local Area Co-ordinator did not have authority to write a letter in support of a request for extension of time. There was an implication that Ms Armstrong did not readily accept the advice she was given.
The Tribunal is unable to conclude that Ms Armstrong received the Agency’s internal review outcome letter, either by email or in the post. It seems clear that her Local Area Coordinator acquired the letter and brought its contents to her attention on 21 July 2023. By that time the 28-day time limit had expired. Ms Armstrong sought a second meeting with her Local Area Coordinator which took place on Monday, 28 August 2023. Clearly, she understood by that time that she had to take responsibility herself for lodging the application. She completed the form and lodged it one week later on Monday, 4 September 2023.
Having considered the oral submissions at the interlocutory hearing, it is clear that the overwhelming circumstances which continue to confront Mrs Armstrong, concerning her deceased son, take this situation far away from the ordinary demands of daily life. The Tribunal considers that the length of the delay is significant. However, there are explanations for the delay which, on balance, are satisfactory and weigh in favour of granting the extension.
Prejudice: While the Agency did not assert significant prejudice would follow if the application was granted, the delay presents some difficulty for the Agency in the sense of having previously had the benefit for about three months of apparent finality of the decision
The Agency has a right to rest on its decision if applicants understand their review rights and do not apply for review within the required timeframes. While it is difficult to point to any particular prejudice to the Agency if the extension would be granted, the Tribunal accepts that the absence of prejudice would not, of itself be a reason to grant the requested extension.
Merits of the substantive application for review: The Tribunal accepts that it is not appropriate at this stage to conduct a comprehensive review on the merits of the substantive application. The documentary material available to the Tribunal includes the Agency’s internal review outcome letter dated 10 May 2023. It includes explanations for the Agency’s findings on internal review. The Agency was satisfied that the criteria under s 24(1)(a) of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”) were met, namely that Ms Armstrong has a disability attributable to physical impairment from obstructive pulmonary disease (COPD) and psychosocial impairment from depression and post-traumatic stress disorder. In the absence of further evidence about permanence of the impairments, the internal reviewer explained that the Agency was not satisfied that the remaining criteria in s 24 of the NDIS Act were met, nor was it satisfied that the early intervention criteria in s 25 of the NDIS Act were met
The Agency’s internal reviewer explained that further evidence would be required both in relation to permanency of impairments and the reduction in Ms Armstrong’s functional capacity. Without detracting at all from those explanations, it is significant for present purposes to note that the internal reviewer acknowledged that Ms Armstrong had provided reports by her respiratory and sleep physician, an occupational therapist, her general medical practitioner, and a pulmonary rehabilitation physiotherapist. The respiratory physician wrote that her condition is permanent and would not be able to be cured. The occupational therapist’s report contains comprehensive details of the results of a functional capacity assessment.
It is clear to the Tribunal that Ms Armstrong’s substantive application is not without substance or merit. On the contrary, she has provided already considerable supporting evidence. Whether or not her evidence is sufficient ultimately to satisfy the criteria for permanence in s 24 of the NDIS Act, and sequentially other criteria in s 24 of the NDIS Act, or s 25 of the NDIS Act, is not a matter for the Tribunal to determine at this point. Clearly, however, the reports from the physician and the occupational therapist provide significant content about Ms Armstrong’s medical conditions and the impact of her impairments on activities of daily living.
Accordingly, this consideration concerning the merits of the substantive application, does not weigh against the granting of an extension of time.
Alternative avenues of relief: if the application for extension of time was not granted, Ms Armstrong would be unable to reapply to become a NDIS participant. She is now 65 years old, and she would not satisfy the age criteria (S 22 NDIS Act). That fact alone is not sufficient to add weight to the request for extension of time to lodge this application. As an alternative, she may be eligible for supports that are available in the aged care system. Inevitably, however, those supports, and their funding could vary significantly from the supports that she seeks through the NDIS. In weighing up these matters, the Tribunal considers that the potential availability of another avenue for a different form of relief is not a compelling factor against granting an extension of time.
Conclusion
The authorities indicate that there is a need for finality in administrative decision-making. The sense of finality enhances the certainty for all parties involved and other individuals in similar circumstances. The considerations are nonetheless finely balanced
In deciding that it is reasonable to grant the extension the Tribunal is satisfied primarily that Ms Armstrong’s personal difficulties, together with some doubts about her receipt of the Agency’s internal review decision, are primary factors in favour of the extension. The other factors in this matter, regarding prejudice to the respondent, the merits of the substantive application, and the availability of any alternative avenues of relief, do not count against the extension.
DECISION
Mrs Armstrong’s application for an extension of time pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975 (Cth) in which to seek review of the Agency’s decision, dated 10 May 2023, is granted. Time is extended until 4 September 2023.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.
...........................[Sgnd]..............................
Associate
Date of Decision: 7 November 2023 Date of Hearing: 23 October 2023 Applicant’s Representative Susan Armstrong
Self-RepresentedSolicitor for the Respondent: Jeremy Burston
National Disability Insurance Agency
0
3
0