Bellesini and National Disability Insurance Agency

[2024] AATA 9

Bellesini and National Disability Insurance Agency [2024] AATA 9 (9 January 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2023/8948

Re:Teresa Bellesini

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:9 January 2024

Place:Melbourne

The Tribunal grants the Applicant’s extension of time application. Pursuant to sub-s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal extends the date for lodgement of the substantive application for review of decision, to 29 November 2023.

..................................[sgd]......................................

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – application for extension of time (EOT) for lodgement of application for review  – Respondent initially opposed EOT application but, by the end of the hearing, did not oppose it – Applicant is an adult participant in the National Disability Insurance Scheme (NDIS) – Applicant seeks review of a decision by a “reviewer” of the Respondent not to approve funding in the Applicant’s NDIS plan for an electric bed and chair lift, or to recognise that she has a physical disability in addition to her disability attributable to psychosocial conditions – delay in lodgement of approximately four months – consideration of Applicant’s explanation for the delay – Applicant wished to obtain all supporting documentation for the review prior to lodging her substantive application for review – whether any prejudice to the Respondent would arise from the belated lodgement of the substantive application for review – consideration of public interest – alternative avenues of review – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of the substantive application for review – EOT application granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 29

National Disability Insurance Scheme Act 2013 (Cth), s 100

Cases

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member K. Parker

9 January 2024

INTRODUCTION

1. On 29 November 2023, the National Disability Insurance Agency (NDIA) emailed to the Tribunal a completed and signed AAT Application for Review of Decision form and Application for Extension of Time for Making an Application for Review of Decision form dated 23 November 2023, which it had received from Ms Teresa Bellesini, the Applicant, by ordinary post. The Tribunal will treat these documents as:

   (a)an application by Ms Bellesini to the Tribunal (AAT Application) made on 29 November 2023, to undertake a review of a decision by a “reviewer” of the NDIA made on 21 June 2023 (Internal Review Decision) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act); and

   (b)an application for an extension of time to lodge the AAT Application (EOT Application).

2. The Internal Review Decision affirmed an earlier decision made by the NDIA to approve a statement of participant supports for Ms Bellesini, forming part of her National Disability Insurance Scheme (NDIS) plan, which did not include funding to enable her to purchase the electric bed and chair lift which she had requested as supports. The reason the NDIA refused to approve this funding was that it did not agree that Ms Bellesini had a “secondary disability” for which she should receive supports under the NDIS arising from a back condition. The NDIA’s view is that there remain treatments which Ms Bellesini could undertake, but has not yet done so, to treat her back condition and/or to manage the symptoms arising from this condition.

3. It is not in dispute that Ms Bellesini did not lodge the AAT Application within the statutory time frame prescribed under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It was lodged over four months after the statutory time limit expired (the date of lodgement is taken to be 29 November 2023). Ms Bellesini seeks an order by the Tribunal to extend the time for her to lodge the AAT Application for review of the Internal Review Decision. Initially, the EOT Application was opposed by the NDIA.

4. The Registry listed this matter for an interlocutory hearing on an extension of time application (EOT Hearing), which took place on 9 January 2024. Ms Bellesini was self-represented at the EOT Hearing. Her support worker/carer was in attendance to provide her with support. The NDIA was legally represented by one of its in-house lawyers and the relevant case manager.

5. By the end of the hearing to determine the EOT Application and having heard supplementary information in the form of oral evidence given by Ms Bellesini, and after a short adjournment, the NDIA contended that it considered Ms Bellesini’s explanation for the delay to be “compelling” and that the NDIA no longer opposed the EOT Application.

6. After hearing from both parties and considering the written material before the Tribunal, the Tribunal grants the EOT Application for the reasons set out below.

   ISSUE

7. The issue arising in this matter is whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Ms Bellesini to lodge a substantive application for review of the Internal Review Decision.

   CONSIDERATION

8. Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging an application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:

   Prescribed time for making applications—general

   (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

   (a)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

   (b)  …

9. Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement of an application for review of decision, if it is satisfied that “it is reasonable in all the circumstances to do so”.

   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.

10. The factors the Tribunal will consider in making this assessment are:[1]

    (a)the length of the delay in lodging the AAT Application;

    (b)the explanation given for the delay;

    (c)the Tribunal’s preliminary impression as to the merits of the AAT Application;

    (d)whether the NDIA has suffered any prejudice on account of the delay;

    (e)whether Ms Bellesini had rested on her rights of review;

    (f)public interest; and

    (g)any other matter the Tribunal considers appropriate (such as alternative avenues of review).

    [1] Hunter Valley Developments v Cohen (1984) 3 FCR 344.

11. Firstly, the Tribunal has considered the length of the delay in Ms Bellesini lodging the AAT Application, being just over four months. The Tribunal considers this to be quite a significant delay in lodgement. Accordingly, the Tribunal considers that this is a factor weighing against granting an extension of time.

12. Secondly, the Tribunal has considered the explanation given by Ms Bellesini for the delay in lodgement of the AAT Application. Ms Bellesini has stated that she wanted to wait until she had obtained supporting documentation from her health professionals before lodging the AAT Application. She said she had to wait for those documents. She also said her printer had broken down at this time and that she was suffering high levels of anxiety.

13. It appeared that Ms Bellesini misunderstood that it was a requirement for her to lodge all supporting documentation before she lodged the AAT Application. There is no such requirement under the AAT Act or the NDIS Act. However, the Tribunal is satisfied that Ms Bellesini genuinely misconceived the requirements in the lodgement process when seeking review by this Tribunal.

14. The Tribunal acknowledges that Ms Bellesini should have become aware of the statutory time limits when she read the letter constituting the Internal Review Decision, which sets out clearly that any application for review of decision must be lodged within 28 days. However, the Tribunal is mindful that Ms Bellesini has conditions affecting her mental health function and that it is appropriate to grant some lenience to Ms Bellesini when assessing whether it was reasonable for her to have ignored this written advice in the Internal Review Decision as to the 28-day time frame. On this basis and on the basis that the Tribunal is satisfied that Ms Bellesini held a genuine misconception about the Tribunal’s processes, the Tribunal is willing to accept the explanation as provided by Ms Bellesini as being reasonable and that it satisfactorily explained why she had been delayed for over four months in lodging the AAT Application.

15. This factor weighs in favour of granting the EOT Application.

16. Thirdly, in relation to the merits of the AAT Application, it would be inappropriate to make definitive findings as to the merits of the AAT Application at this stage of considering an EOT Application. Instead, the Tribunal is required to form a preliminary impression about the merits of the AAT Application and to form a view about whether the AAT Application, if allowed to proceed, is at least, arguable. The Tribunal is satisfied that this is so. The AAT Application cannot be said to be without merit as it will involve a detailed consideration of whether the evidence supports the NDIA’s contention that there exist further treatments available to Ms Bellesini which she could undertake and has not done so before a conclusion can be drawn about whether her back condition is permanent. There are also complicated legal issues to be decided about what significance, if any, should attach to findings about permanence in relation to her back condition and whether a participant is required to establish that her back condition is a disability for which she would be granted access to the NDIS, before she may be funded as an existing participant, for supports that she requires as a result of having the back condition. Given those matters, it cannot be said that the AAT Application is without merit as Ms Bellesini may succeed in relation to the contest about those various legal and factual issues. This factor weighs in favour of granting the EOT Application.

17. Fourthly, the NDIA could not point to any prejudice that the NDIA would suffer from the delay in lodgement of the AAT Application. The prejudice identified by the NDIA related to the burden of requiring to engage in a process of review should the EOT Application be granted. This is not prejudice occasioned by the delay itself and, as such, is not relevant to the Tribunal’s consideration. Accordingly, the Tribunal concludes that this factor weighs in favour of granting the EOT Application.

18. Fifthly, the Tribunal has considered whether Ms Bellesini has “rested on her rights”. The Tribunal is satisfied that Ms Bellesini has proactively sought to address the Internal Review Decision by taking various steps to follow up with her health professionals to obtain supporting evidence, even though she erred in not lodging her AAT Application until she had received such evidence. In these circumstances, the Tribunal is not satisfied that Ms Bellesini has “rested on her rights”. Accordingly, the Tribunal considers this to be a neutral factor and does not weigh against the granting of the EOT Application.

19. Sixthly, the public interest gives rise to an expectation that parties will observe statutory timeframes when seeking review before this Tribunal. The delay in lodgement in this application was quite significant. The Tribunal considers that, overall, this factor weighs against granting the EOT Application.

20. Finally, the NDIA contends that Ms Bellesini would suffer “little prejudice” if the Tribunal dismissed this matter because Ms Bellesini may participate in the upcoming “plan review” and has available to her further review rights flowing from that process. Based on an exchange which took place at the EOT Hearing, it was not clear to the Tribunal that the plan reassessment process, which is scheduled to take place before 15 February 2024 (being the notional end date of Ms Bellesini’s NDIS plan), would result in a comprehensive review of the type and level of supports that will be funded under Ms Bellesini’s NDIS plan going forward. On the balance of probabilities, it would seem more likely than not to involve an auto-renewal of her plan to reinstate funding for the existing supports in her plan. The Tribunal accepts that it is possible that a review of the requested supports could be considered as part of a subsequent internal review process under s 100 of the NDIS Act, as pointed out by the NDIA at the hearing. The Tribunal does not consider this to be an adequate alternative review process to the option of Ms Bellesini being permitted, as from today, to progress her AAT Application before this Tribunal.

21. The Tribunal has not placed any weight on this factor.

    CONCLUSION

22. The Tribunal notes that the NDIA no longer opposes the EOT Application.

23. The Tribunal has concluded that there are two factors weighing against granting the EOT Application, specifically:

    (a)the length of the delay in lodgement of the AAT Application was quite significant; and

    (b)the public interest giving rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal.

24. The Tribunal has concluded that there are three factors weighing in favour of granting the EOT Application, specifically:

    (a)based on a preliminary assessment of the evidence, the Tribunal is satisfied that the AAT Application cannot be said to be lacking in merit and is, at least, arguable;

    (b)the Tribunal considers the explanation given by Ms Bellesini for the delay as being acceptable; and

    (c)the NDIA has not suffered any prejudice as a result of the delay.

25. The Tribunal considers that the factors weighing in favour of granting the EOT Application outweigh the factors weighing against it. Accordingly, the Tribunal grants the EOT Application and orders, pursuant to sub-s 29(7) of the AAT Act, that the date for lodgement of the substantive application be extended to 29 November 2023.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

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Associate

Dated: 9 January 2024

Dates of hearing:	9 January 2024
Applicant:	Self-represented
Advocate for the Respondent:	Ms Yolanda Kuruc, In-house Lawyer, NDIA