Barnes and National Disability Insurance Agency
[2022] AATA 4344
•15 December 2022
Barnes and National Disability Insurance Agency [2022] AATA 4344 (15 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/7428
Re:Philip Barnes
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member D. Barker
Date:15 December 2022
Place:Sydney
The Applicant has lodged an application for a review of a decision made on 13 August 2015.
The Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
.........................[SGD]...................................
Member D. Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – PRACTICE AND PROCEDURE – interlocutory applications – jurisdiction and extension of time – issue: whether the decision before the Tribunal is reviewable – relevant law and material considered – decision not reviewable – application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 29, 42A
Migration Act 1958 (Cth)
National Disability Insurance Scheme Act 2013 (Cth), ss 9, 21, 23, 99, 100, 103, 196.
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 (Cth)
CASES
Deacon and National Disability Insurance Agency [2022] AATA 3209
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Hempel and Civil Aviation Safety Authority (2006) 90 ALD 118; [2006] AATA 188
Hill and National Disability Insurance Agency [2022] AATA 3431
NNXF and National Disability Insurance Agency [2019] AATA 5552
Rogers and National Disability Insurance Agency [2022] AATA 2809
Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520
REASONS FOR DECISIOn
Member D. Barker
15 December 2022
INTRODUCTION
Mr Philip Barnes (the Applicant), born in 1950, was diagnosed with a progressive neurological condition, multiple sclerosis, in 1981 at 30 years of age. The condition has progressed to where he is now severely disabled with paralysis of all four limbs. The Applicant ceased working in 2011 and from 2012 received funding support from a Victorian DHHS ISP package, which he self-managed.
On 22 June 2015, the Applicant made an access request to the National Disability Insurance Agency (NDIA or the Respondent) to become a participant in the National Disability Insurance Scheme (NDIS).
On 13 August 2015, that application was refused, as set out in a decision of a delegate of the Chief Executive Officer of the NDIA, on the basis that the Applicant did not meet the access requirements as required in section 23 of the NDIS Act. The delegate stated that in terms of residency requirements, the Applicant was residing outside of the trial site (the access decision).
On 2 November 2018, the Applicant contacted the NDIA and spoke with an employee of the NDIA.
On 12 September 2022, the Applicant applied to the Tribunal for review. In his application, the Applicant indicated that he received the decision he wanted reviewed on 13 August 2015. He also indicated that he wished to apply for an extension of time in which to apply for a review of the decision of 13 August 2015.
An interlocutory hearing by telephone was held on 10 October 2022, to determine whether there was a reviewable decision that could be reviewed by the Tribunal. The Applicant and a representative for the Respondent appeared at the hearing.
THE ISSUES
The issues for the Tribunal to determine is whether there is a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act; if so, should the Applicant be granted an extension of time in which to apply for the review.
THE LEGAL FRAMEWORK
The Tribunal is limited to exercising powers given to it under relevant sections of the Administrative Appeals Tribunal Act 1975 (AAT Act) when exercising jurisdiction conferred upon it by other enactments. The Tribunal’s jurisdiction is enlivened by an application for review of a decision made under an enactment which provides for the decision to be reviewed by the Tribunal. The Tribunal has no broader or general power to review decisions made outside this legislative framework.
Section 25 of the AAT Act, relevantly provides that:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred
by that enactment; or
(b) for the review of decisions made in the exercise of powers
conferred, or that may be conferred, by another enactment having
effect under that enactment.
(2) The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the
provision applies;
(b) may be expressed to apply to all decisions of a person, or to a
class of such decisions; and
(c) may specify conditions subject to which applications may be made.
Section 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act) in force at the time of the NDIA’s decision refusing access provided[1] for certain decisions to be reviewed by the Tribunal and relevantly provides that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
[1] Unless otherwise indicated references to the NDIS Act refer to the National Disability Insurance Scheme Act 2013 – Registered 16 July 2014, covering period 1 July 2014 to 4 March 2016.
Section 100 of the NDIS Act provided[2]:
[2] Section 100(1A) was inserted by the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act2017 (Cth) and commenced on 1 July 2018.
100 Review of reviewable decisions
(1) The CEO must give written notice of a reviewable decision to each person directly affected by the reviewable decision. The notice must include a statement:
(a) that:
(i) the person may request the CEO to review the reviewable decision; or
(ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b) that the person may seek further review under section 103.
(2) A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3) A request may be made by:
(a) sending or delivering a written request to the CEO; or
(b) making an oral request, in person or by telephone or other means, to the CEO.
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
(5) If:
(a) the CEO receives a request for review of a reviewable decision; or
(b) the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(c) to whom the CEO’s powers and functions under this section are delegated; and
(d) who was not involved in making the reviewable decision.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the CEO is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.
(8) A failure of the CEO to comply with subsection (1) does not affect the validity of the reviewabledecision or the right of a person directly affected to request review of the decision.
(9) To the extent that this provision relates to a decision referred to in paragraph 99(g) or (h), a reference in this section to a person includes a reference to an entity.
CEO was defined in section 9 of the NDIS Act as ‘means the Chief Executive Officer of the Agency’.
A ‘reviewable decision’ was defined in section 9 of the NDIS Act as having ‘the meaning given by section 99’. Section 99 of the NDIS Act set out the decisions which are reviewable. A decision that a person does not meet the access criteria is the first item listed.
(a) a decision under paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) that a person does not meet the access criteria;
Paragraph 20(a) of the NDIS Act requires that if a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request, decide whether or not the prospective participant meets the access criteria. Subsection 21(3) provides for circumstances in which the CEO is taken to have decided that the prospective participant does not meet the access criteria. Paragraph 26(2)(c) provides for the CEO deciding whether or not a prospective participant meets the access criteria subsequent to the CEO considering information from assessments or examinations which had been requested by the CEO.
Section 196 of the NDIS Act sets out the methods by which notification may be sent to a person. Section 196 provides:
If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the CEO to notify a person, the CEO may notify the person:
(a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the CEO; or
(b) by giving the notice to the person personally; or
(c) in any other way the CEO considers appropriate.
Subsection 42A(4) of the AAT Act provides:
(4) The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal
Subsection 29 of the AAT Act provides:
……..
Tribunal may extend time for making application
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b)require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
consideration
The application filed with the Tribunal on 12 September 2022 seeks a review of the decision made by the Respondent on 13 August 2015 and consent to an extension of time in which to apply for a review of that decision. In association with his application for a review of the access decision and for an extension of time in which to request the review, the Applicant provided written submissions as follows:
Reasons for Applications:
1.I was diagnosed with a progressive neurological condition in 1981 at 30 years of age. Whilst being able to work somewhat until 50 years of age, my health progressively deteriorated to the point that I am now severely disabled with paralysis of all four limbs. In 2011 I ceased working altogether. From 2012 I received funding support from a Victorian DHHS ISP package which I self-managed.
2.In June 2015 I was 64 years of age, a resident of Australia and disabled. I made an access application to the NDIS consistent with Sections 22, 23 and 24 of the NDIS Act. Therefore, I met the access requirements for the NDIS pursuant to Section 21(1).
3.In the alternative, I am eligible for access approval by the NDIA and on review, the AAT on the basis of Section 22(2) of the NDIS Act, given that I would relinquish my DHHS ISP support package on receiving support funding from the NDIS.
4.The access application was refused by the NDIA, stating that I did not reside in the Trial area, despite this not being a ground for refusal in the Act. The only residential requirement is that I should be Australian. I received the refusal on 13 August 2015, over one month prior to turning 65.
5.I was advised to not appeal the matter at the time, given arrangements made by the Commonwealth and the Victorian Governments pursuant to the Bilateral Agreement between the Commonwealth and Victoria of 16 September 2015, that people with disability who were in receipt of support funding, would have that funding honoured going forward with a Continuity of Support program (CoS) under the same conditions as previously provided by the State Government and this would be ongoing and for life. As per the State Government support, this includes a self-managed plan, funding for support workers, assistance with a range of 2 therapies, health, medical, equipment, house, and transport assistance etc., given my extensive disability issues.
6.I accepted this advice in good faith.
7.Since transitioning to the CoS program some of my supports have been cancelled and eroded and as from 1 July 2023, I will not be allowed to self-manage my allocated funding.
8.This is a gross breach of agreement.
9.Self-management of funding is an option with the NDIS, the Victorian DHHS ISP and the CoS Program. I have been self-managing my funding continuously from 2011 to the present. I have managed my funding professionally and meticulously, being commended for my work. Self-management has significant economic, social, health and safety benefits. Self-management reduces Government expenditure on disability support.
10.Therefore, I submit that there has been a significant change of circumstances since the transition to the CoS program which justifies an extension of time to appeal my NDIS access application.
11.Accordingly, I respectfully request that I be given the opportunity to be heard in this matter.
[emphasis in original]
The Tribunal is not in this interlocutory matter considering the merit of the Applicant’s claims as to why the decision of the NDIA in 2015 to not grant him access to the NDIS was incorrect. This is the substantive issue the Applicant has asked the Tribunal to review. The interlocutory issue is whether the Tribunal has the power to undertake the requested review. In light of this, the Tribunal has considered the submissions provided by the Applicant in so far as they are relevant to this jurisdictional issue.
The position of the Respondent was summarised in an email received by the Tribunal on 7 October 2022 in which it is submitted:
1.The Applicant is a 72 year old male with a diagnosis of multiple sclerosis residing in [location provided], VIC.
2.The Applicant applied for access on 22 June 2015. At the time he was 64 years old.
3.On 13 August 2015 access was declined on the basis that the Applicant resided outside of the Trial Site.
4.He did not seek a s100 review of the decision to not grant access which is a reviewable decision under s99.
5.The Applicant made an enquiry approximately 3 years later on 2 November 2018 asking why he did not meet access. There is no further correspondence between the Applicant and the Agency since 6 November 2018.
6.In his AAT application, the Applicant states at the time access was declined, he was advised to not appeal the decision. Presumably, he means apply to the AAT.
7.The Applicant has been in receipt of funding support from a Victorian Government with a Continuity of Support program (CoS) since 2012. He would need to relinquish his support package should access have been granted to the NDIS.
8.He further states “Since transitioning to the CoS program some of my supports have been cancelled and eroded and as from 1 July 2023, I will not be allowed to self-manage my allocated funding.”
9.He submits “that there has been a significant change of circumstances since the transition to the CoS program which justifies an extension of time to appeal my NDIS access application.” Whilst this provides some reasoning for why an EOT is sought, it does not enliven the Tribunal’s jurisdiction.
10.The primary issue is that the Applicant did not seek a s100 review of the Agency’s decision to decline access. Had this occurred, the Applicant would simply need to request an EOT.
11.It has been 7 years since the Applicant requested access to the scheme. He took no measures to seek review or to appeal to the AAT at the time and instead choose to keep his CoS funding.
12.It is the Respondent’s position that no internal review was requested within the 3-month period following the access not met decision. Therefore, the Tribunal does not have jurisdiction to hear the matter.
Evidence provided by the parties at hearing was consistent with that outlined in their respective written submissions. There is common ground with regard to the NDIS not carrying out an internal review of the access decision and that the application for access to the NDIS was made at a very early stage of the implementation of the scheme when the record keeping procedures within the NDIA were not likely to have been as well developed or robust as they are at the present time.
What is the initial interlocutory issue for the Tribunal to consider in this matter?
There is no provision in the AAT Act or NDIS Act which prescribes the specific order in which matters are to be dealt with in interlocutory proceedings.
At hearing, the Applicant contended that it is not necessary to consider potential jurisdictional uncertainty arising from the lack of an internal review decision, prior to considering the request for an extension of time in which to apply for the review. The position of the Respondent is evident from their submissions, they contend the jurisdictional issue arising from the lack of an internal review decision enlivening the Tribunal’s review power under section 103 of the NDIS Act needs to be determined first, as if it is not determined in the Applicant’s favour, the issue of an extension of time falls away, as there is no decision over which the Tribunal has jurisdiction to review.
In Re Hempel and Civil Aviation Safety Authority (2006) 90 ALD 118; [2006] AATA 188 (Hempel), the Tribunal (differently constituted) held that it is appropriate when considering an application for an extension of time for the Tribunal to assure itself that it has jurisdiction to deal with the application, as to do otherwise could result in a waste of resource in undertaking a hearing. Consideration of whether to consent to an extension of time requires consideration of the strength of an Applicant’s case, that is, whether the Applicant’s case has an obvious weakness or is unlikely to succeed[3]. In Deacon and National Disability Insurance Agency [2022] AATA 3209, the Tribunal (differently constituted) held that there was no necessity for the Tribunal to address a request for an extension of time to lodge the application for review of a decision, where the Tribunal concluded the application was invalid.
[3] Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520.
After giving consideration to the appropriate order in which to deal with the interlocutory issues in this matter, the Tribunal is satisfied that the jurisdictional issue arising from whether there is a decision which the Tribunal has authority to review is appropriately dealt with first. This is because to do otherwise would, in a manner consistent with that described in Hempel, be a waste of resource as there is a weakness in the strength of the Applicant’s case with respect to the request for an extension of time, which is that if the Tribunal decides the review application is invalid, there is no necessity for the Tribunal to address the extension of time request.
Is there a reviewable decision that can be reviewed by the Tribunal within the meaning of sections 99, 100 and 103 of the NDIS Act?
The Tribunal is satisfied that the decision of 13 August 2015 that the Applicant did not meet required access criteria to become a participant of the NDIS is a reviewable decision pursuant to the provisions of section 99 of the NDIS Act.
Was the Applicant appropriately notified about the reviewable decision?
Implications may arise if an Applicant is not notified of a decision in the correct way, resulting in the notice being invalid. Whilst this, to the best of the Tribunal’s knowledge, is not an issue which has been tested in relation to the NDIS Act, here have been a number of cases considering whether a notice under the Migration Act 1958 (Cth) (Migration Act) is invalid[4] from which relevant general principles may be derived.
[4] DFQ17 v MIBP [2019] FCAFC 64; MHA v Parata [2021] FCAFC 46.
The general principles which can be derived from these cases is that where there is a requirement in the Migration Act as to what the decision notification must state, then the notification letter must set out the information which is not only complete but clear as well. A notification that does not clearly convey the information required will result in an invalid notification so that the prescribed time period in which to apply for review will not have started to run (DFQ17 v MIBP [2019] FCAFC 64 at [47], [62], [1], [67]). In this case the Court held that whether the content of the notification is sufficiently clear and complete requires assessment in each case.
The Tribunal is satisfied that there is no logical reason as to why these general principles would not apply to notices sent in relation to decisions made by the NDIA. It follows that the access decision notification letter, sent 13 August 2015, must in a clear and complete way set out the information required by the NDIS Act. The version of the NDIS Act in operation at the time of the access decision required each person directly affected by a reviewable decision, such as the access decision, to be given a written notice which includes a statement that they may request a review of the reviewable decision.
The Tribunal has reviewed the letter from the NDIA sent on 13 August 2015. The Tribunal is satisfied the letter was sent to the postal address provided by the Applicant on an NDIS Access Request Form prepared by the Applicant on 22 June 2015[5]. As such, the provisions of paragraph 196(a) of the NDIS Act are satisfied.
[5] Provided to the Tribunal in association with the review application.
The Tribunal notes that the format of the letter outlining the access decision is different to that of notices sent in more recent times explaining decisions made by the NDIA, such as a decision not to grant access to the NDIS. The Tribunal is satisfied this reflects the early stage of implementation of the NDIS in August 2015. The first four paragraphs of the letter states as follows:
I am writing to advise you that I have assessed your request to access the National Disability Insurance Scheme and I regret to inform you that I have determined that you do not meet the access requirements as required in section 23 of the National Disability Insurance Scheme Act 2013. I have attached information sheet on the access requirements for Victoria for your information.
While I note you have provided information on your residency, I have determined that you do not meet the requirements of the legislation in terms for residency as you reside outside of the Trial site.
If you would like to discuss this decision please call the National Disability Insurance Agency (NDIA) on [1800 800 110] to make a time to speak with me.
I have also included a fact sheet on your review rights. This explains what your options are if you are unhappy with the decision made or an aspect of the decision-making process.
The fact sheet included in conjunction with the access decision provided information as to options available to the subject of the access decision, if they thought the decision in the letter was incorrect in any way. The following options are outlined in the letter:
What can I do if I think the decision in the letter is incorrect?
If you think the decision in the letter is incorrect in any way you should contact the decision maker to explain your concerns. It is possible you have further relevant information that should be considered.
Alternatively you may request the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) to review the decision as provided in the National Disability Insurance Scheme Act 2013.
How can I request a review?
You can request a review by:
·sending or delivering a written request to:
Chief Executive Officer
National Disability Insurance Agency
GPO box 700
Canberra ACT 2601
·making a request orally at an office
·calling 1800 800 110
·sending an email to: [email protected]
At the time of asking for a review, you should explain why you think the decision is incorrect.
A form requesting a review is also available from ndis.gov.au/document/394
You do not have to use this form but it can help you to describe why you want a review.
When do I need to submit a request for review?
A request for review must be made within three months of the day you receive this letter.
The CEO will ask a NDIA staff member to review the decision. This person will not have been involved in the earlier decision. They may want to talk with you directly as part of this process.
What can I do if I’m still not happy after my first review by the CEO?
If you are still unhappy after this first review by the CEO, you have two choices:
·you may seek a further reconsideration by and NDIA which will be carried out by a more senior staff member who was not involved in the earlier decisions or
·you could ask for a review by the Administrative Appeals Tribunal.
Full information about these two choices will be provided to you in the notice of decision you receive advising the outcome of the internal review by the CEO.
On a plain reading, the letter sent 13 August 2015, informing the Applicant that he did not meet the access requirements to become a participant of the NDIS sets out how and when to request a review. In the view of the Tribunal, it includes more information than required by subsection 100(1). The Tribunal is satisfied the letter can be regarded as written notice of the reviewable decision which in a clear and complete way sets out the information required by subsection 100(1) of the NDIS Act. As a consequence, the Tribunal finds the notification of the access decision was valid and as such a request for a review of that decision needed to be made within three months of the day the Applicant received the letter (subsection 100(2)).
Is there an internal review decision of the access decision?
It is not in dispute that there is no internal review decision with respect to the access decision made on 13 August 2015 is accepted by both the Applicant and Respondent. Previous Tribunals have decided[6], where they were satisfied that a review request had been made, there is not yet a decision made under subsection 100(6) of the NDIS Act, and it has been longer than what is ‘reasonably practicable’ to make the decision, then by subsection 25(5) of the AAT Act, a decision to affirm the original decision is deemed. As a consequence, in such circumstances the Tribunal’s powers to undertake a review of that decision would be enlivened under section 103 of the NDIS Act.
[6] NNXF v NDIA [2019] AATA 5552.
Was there a request for an internal review of a reviewable decision?
Other than specifying the request must be made either in writing or orally (subsection 100(4)], there are no requirements in the NDIS Act as to the wording that must be used to make a request. Previous Tribunals have considered the question of whether a request for review has been made and found that a beneficial approach is to be taken when interpreting the communications from persons affected by a reviewable decision to the NDIA, within the three month period in which a request for review may be made. In Hill and National Disability Insurance Agency [2022] AATA 3431 (Hill), the Tribunal (differently constituted) found that a person must convey a request consistent with the exercise of their right to review of a reviewable decision and that the expression of dissatisfaction with a reviewable decision, alone, may not be enough to constitute a request for review of the decision. In comparison, the Tribunal (differently constituted), in Rogers and National Disability Insurance Agency [2022] AATA 2809 (Rogers) found the communications between the parties including the dissatisfaction conveyed by the Applicant were enough to constitute a request for review.
The Tribunal has reviewed the available evidence and is satisfied that there is no record of the Applicant requesting a review of the August 2015 access decision, either by writing, or by way of records of phone interactions with the Applicant in which a review was requested.
The Applicant gave evidence at hearing that he can recall making a number of calls to the NDIA and other agencies following on from when he received the decision in August 2015 refusing his request to become a participant of the NDIS. He said that there was a Commonwealth State agreement made on 15 August 2015 within days of the August 2015 access decision, which was designed to give people in his sort of circumstance confidence that funding through the Victorian Government Continuity of Support (CoS) program. The Applicant gave evidence that as a result of information provided to him in the phone calls, he decided to stay with the CoS program and not pursue a review of the decision to refuse his request to become a participant of the NDIS.
The Applicant nonetheless thinks that it is reasonable to assume that the phone call or calls he made to the NDIA in August 2015 conveyed his concern that his request to become a participant of the NDIS should have been sufficient to trigger a section 100 review of the access decision. The Applicant suggested that the record of a phone call which should have triggered an internal review may have been lost. The Applicant contends he should be given the benefit of the doubt and be accepted that he did request a review of the access decision.
With respect to whether the Applicant asked the NDIA to review the decision to refuse his request to become a participant of the NDIS, the Respondent contends that there is no record of the Applicant making such a request, whether this be in writing or orally. The Respondent acknowledged that it is feasible records of interactions between the NDIA and the Applicant may have been lost, as there was a change in the recordkeeping systems used by the NDIA in 2016. The Respondent also acknowledged that as the NDIS was in the early implementation stage in 2015 its record keeping systems may have not been as robust as they are now.
The Tribunal is required to make findings of fact on the basis of probative evidence that is before it. A distinction between the present matter and the circumstances relevant to Hill and Rogers is that in those cases there were records of communication between the NDIA and Applicants pertaining to decisions made by the NDIA. In the view of the Tribunal, it would be stretching the beneficial approach to find there has been a review request made, where there is no record of such a request, unless there were other reasons to be satisfied the request was made.
The fact that an internal section 100 review of the access decision did not take place does not give weight to a contention that a review request was made, but not acted on by the NDIA. Whilst it is theoretically possible a request was ignored, or neglected the Tribunal is not persuaded, for the purpose of considering whether the review request was made, an assumption can be made that this occurred. The Applicant’s evidence at hearing, namely that he decided not to pursue a review of the access decision because he felt confident, after the Commonwealth State agreement on 15 August 2015, to remain with the Victorian CoS scheme, is a further factor which does not give weight to a contention that a review request was made.
There are records of interactions, initiated by the Applicant, between him and the NDIA in November 2018, in which he enquired as to the status of his 2015 application to become a participant of the NDIS. As this enquiry was made well beyond the three month time frame in which a review request needed to be made following the access decision on 13 August 2015, the Tribunal does not consider the communication between the Applicant and the NDIA in November 2018 gives weight to a contention that a review request in the prescribed form was made.
CONCLUSION
On the basis of its assessment, the Tribunal is not persuaded the available evidence supports a finding that the Applicant requested a review of the decision made on 13 August 2015 to refuse his request to become a participant of the NDIS. There is not a decision made by the NDIA that is reviewable by the Tribunal. Therefore, in this matter, the Tribunal has no power of review, and the application is invalid.
Extension of time request
As a consequence of the Tribunal concluding the application is invalid, because there is no decision that is reviewable by the Tribunal, there is no necessity for the Tribunal to consider the extension of time request.
DECISION
The Applicant has lodged an application for a review of a decision made on 13 August 2015.
The Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Barker
............................[SGD].....................................
Associate
Dated: 15 December 2022
Date(s) of hearing: 10 October 2022 Applicant: Self-Represented Solicitor for the Respondent: Ms S Minhas, National Disability Insurance Agency
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