Bouteris and National Disability Insurance Agency

[2019] AATA 5401

Bouteris and National Disability Insurance Agency [2019] AATA 5401 (10 December 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2019/6292

Re:ANGELA BOUTERIS

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:  Dr L Bygrave, Member

Date:10 December 2019

Date of written reasons:        16 December 2019

Place:Sydney

The application is dismissed in accordance with paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – application to dismiss application for review – no reasonable prospects of success – access – age requirements – applicant 70 years old when access request made – whether the applicant meets the access requirements – whether the applicant meets the age requirements – Tribunal has no discretion under the legislation – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

National Disability Insurance Scheme Act 2013 (Cth) ss 21 and 22

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) Pt 3

REASONS FOR DECISION

Dr L Bygrave, Member

16 December 2019

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 10 December 2019. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

2. The applicant, Mrs Angela Bouteris, lodged an access request form to become a participant in the National Disability Insurance Scheme (NDIS) on 7 May 2019.

3. The National Disability Insurance Agency (the NDIA), both initially and on review, decided that Mrs Bouteris that did not meet the access requirements in the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

4. Mrs Bouteris subsequently applied for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) on 2 October 2019.

   RELEVANT LEGISLATION

5. To become a participant in the NDIS, Mrs Bouteris must satisfy the access criteria, which are summarised in subsection 21(1) of the NDIS Act:

   21 When a person meets the access criteria

   (1)  A person meets the access criteria if:

   (a)The CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)The CEO is satisfied that, at the time of considering the request:

   (i)     The person meets the disability requirements (see section 24); or

   (ii)    The person meets the early intervention requirements (see section 25).

6. Relevant to this matter, the age requirements are set out in section 22 of the NDIS Act:

   22 Age requirements

   (1)  A person meets the age requirements if:

   (a)the person was aged under 65 when the access request in relation to the person was made; and

   (b)the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules. [emphasis added]

7. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation, are also relevant. Notably, however, Part 3 of the Participant Rules effectively replicates the language in paragraph 22(1)(a) of the NDIS Act.

   CONSIDERATION

8. The husband of Mrs Bouteris confirmed to the Tribunal that, at the date of lodging her access request form to become a participant in the NDIS on 7 May 2019, Mrs Bouteris was aged 70 years.

9. The Tribunal is satisfied there is no discretion in the NDIS Act or the Participant Rules regarding the age requirements. As Mrs Bouteris was not aged under 65 years when she made her access request to the NDIS, the Tribunal finds that her application has no reasonable prospects of success.

10. For these reasons, the Tribunal dismisses the application of Mrs Bouteris in accordance with paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

    DECISION

11. The application is dismissed in accordance with paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 16 December 2019

Date of hearing:	10 December 2019
Advocate for the Applicant:	Mr G Bouteris
Solicitors for the Respondent:	Mr L Stewart & Ms E Gale, National Disability Insurance Agency