Briggs and National Disability Insurance Agency - [2023] AATA 1094

Briggs and National Disability Insurance Agency [2023] AATA 1094 (5 May 2023)
Division:National Disability Insurance Scheme Division
File Number:2023/1458
Re:Matthew Briggs
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

Tribunal: Senior Member K. Parker
Date:5 May 2023
Place:Melbourne

INTERLOCUTORY DECISION
The Tribunal is satisfied that the Applicant gave notice, in accordance with s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to the effect that this application for review is withdrawn, by the act of lodging a written Notice of Withdrawal with the Tribunal on 11 April 2023. Accordingly, pursuant to s 42A(1B) of the AAT Act, the Tribunal was taken to have dismissed the application for review on 11 April 2023.
The Tribunal has decided on its own initiative, noting the Applicant’s request to do so at the Interlocutory Hearing on 13 April 2023, to reinstate this proceeding under s 42A(10) of the AAT Act, on the basis that it was “dismissed in error” due to the mistaken and misleading advice provided to the Applicant by the Applicant’s disability advocate at the time of withdrawing this application.
This application for review was lodged more than 28 days after the date the reviewable decision was received by the Applicant. The Applicant has applied for an extension of time to lodge his application for review. For the reasons set out in these Reasons for Decision, the Tribunal grants the Applicant’s request and extends the time for lodgement of this application for review to 8 March 2023.
.....................[sgd]...................................................
Senior Member

Catchwords
PRACTICE AND PROCEDURE – Applicant is a participant in the National Disability Insurance Scheme – Applicant seeks review of his NDIS statement of participant supports – Notice of Withdrawal signed by the Applicant and lodged with the Tribunal based on mistaken and misleading advice provided by Applicant’s disability advocate – Tribunal was taken to have dismissed the application for review upon lodgement of the Notice of Withdrawal – Tribunal satisfied that the withdrawal in these circumstances constitutes the application being “dismissed in error” – Tribunal’s discretion to reinstate the proceeding is enlivened under s 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal exercises discretion in favour of reinstating application – Applicant sought extension of time to lodge his application for review – Respondent opposed EOT request – significant delay – consideration of explanation for the delay – whether delay has caused prejudice to Respondent – whether against the public interest to grant EOT request – whether application for review lacked merit – context of beneficial legislation – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of application for review – EOT request granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2) & (7), 42A(1A) & (1B), and 42A(10)
National Disability Insurance Scheme Act 2013 (Cth), ss 103 and 100(6)
Cases
Goldie v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 383
Kalafatis and Commissioner of Taxation [2012] AATA 150
Walls and Comcare (2015) 148 ALD 185
REASONS FOR INTERLOCUTORY DECISION
Senior Member K. Parker
5 May 2023
INTRODUCTION

On 8 March 2023, pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), the Applicant, Mr Matthew Briggs, by his disability advocate, Rights Information and Advocacy Centre (RIAC), lodged an application for review of a decision made on 7 September 2022 by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100(6) of the NDIS Act (application for review). Mr Briggs’s mobility is substantially impaired. He has requested a replacement power wheelchair, power assist device for a manual wheelchair and some home modifications (addition of automated gates and a car port) which he asserts will improve his accessibility and safety when leaving his home by car to access the community. The application for review relates to whether those supports should be included in the statement of participant supports in Mr Briggs’ NDIS plan.
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review must be made within 28 days from the day the reviewable decision was given to the person, which, in this case, was 5 October 2022. This means Mr Briggs has lodged his application for review about five months following expiry of the statutory time limit. There is no question that this is a significant delay.
Mr Briggs has requested an extension of time for lodgement of the application for review pursuant to s 29(7) of the AAT Act to 8 March 2023 (EOT request). The NDIA opposes the EOT request. On 24 March 2023, the NDIA lodged a “Notice of Opposing Application for Extension of Time” form with the Tribunal and gave it to Mr Briggs’ disability advocate.
On 11 April 2023, Mr Briggs’ disability advocate lodged a “Notice of Withdrawal” signed by Mr Briggs with the Registry of the Tribunal (Notice of Withdrawal). It was apparent from the covering email that the action taken by Mr Briggs to withdraw the proceeding, was based upon advice provided to him by his disability advocate about the Tribunal’s review processes. This advice was mistaken and was likely to have misled Mr Briggs about his rights and the process involved in connection with his EOT request. The Registry of the Tribunal, at the request of the Tribunal, informed Mr Briggs’ disability advocate of the correct position in respect of the Tribunal’s processes when dealing with an EOT request.
On 12 April 2023, on behalf of Mr Briggs, his disability advocate wrote to the Tribunal and requested that Mr Briggs’ Notice of Withdrawal be disregarded. The NDIA objected, submitting that despite the Applicant’s disability advocate’s request to disregard the Notice of Withdrawal, the Tribunal was required to take this matter as dismissed, by reason of s 42A(1B) of the AAT Act.
ISSUES
An interlocutory hearing was held before the Tribunal, as presently constituted, on 13 April 2023 (Interlocutory Hearing) where the following issues were addressed with the parties and their representatives:
(a)whether the Applicant has given notice to the Tribunal of his withdrawal and, by reason of this, the Tribunal was taken to have dismissed the application for review under s 42A(1B) of the AAT Act;
(b)whether the Tribunal’s discretion to reinstate the application for review is enlivened under s 42A(10) of the AAT Act and if so, whether the Tribunal should exercise its discretion to reinstate the application for review; and
(c)if the application for review was to be reinstated, whether the Tribunal should grant an extension of time under s 29(7) of the AAT Act to the Applicant, to lodge his application for review on 8 March 2023.
The Tribunal provided the parties with an opportunity to make further written submissions after the hearing. The NDIA did so by lodging three further sets of submissions on 19 and 28 April 2023, and 4 May 2023. The Applicant did not lodge any further submissions or submissions in reply to the NDIA’s further submissions.
CONSIDERATION
Dismissal upon lodgement of notice of withdrawal
At the Interlocutory Hearing, the NDIA referred to and relied upon a decision of the Tribunal by former Deputy President Forgie, in Kalafatis and Commissioner of Taxation (Kalafatis)[1]. As highlighted by the NDIA, the Tribunal stated as follows at paragraphs [55] and [57]:
…as soon as an applicant’s notification of withdrawal arrives at the Tribunal, be it physically in paper form or in electronic form, it has been deposited in, and so lodged, in the Tribunal, the applicant’s application is taken to have been dismissed. The applicant cannot have a change of heart and seek to withdraw the notification. Even if for some reason the Registry did not place the withdrawal on the appropriate file, the application would be withdrawn because s 42A(1B) takes effect on lodgement and not on filing.
…
If a notice is ambiguous, it is proper to ask what an applicant intended but care must be taken to go no further. It is not proper for the Tribunal to question an applicant as to why he or she has lodged a withdrawal.
[citations omitted]
[1] [2012] AATA 150.
The NDIA contends that the notice provided by Mr Briggs was not ambiguous and that the AAT Act does not provide any discretion as to when an application is taken to have been dismissed under s 42A(1B) of the AAT Act.
Kalafatis is a decision by another member, at the time, of this Tribunal. It is not binding upon the Tribunal as presently constituted. However, this Tribunal agrees with the general approach set out above by the former Deputy President of the Tribunal in Kalafatis, subject to one qualification. This Tribunal considers that; if at the time of lodgement, it is aware of a Notice of Withdrawal by an applicant that was or was likely to have been based on a mistake or misapprehension about the Tribunal’s processes and powers, then consistent with the Tribunal’s statutory obligation to pursue the objective of providing a mechanism of review that is, among other things, “fair”, it is appropriate that the Tribunal make enquiries to ensure that the Applicant is aware of an apparent mistake or misapprehension, and at the Interlocutory Hearing, to address whether it is appropriate that the application for review be reinstated.
The Tribunal agrees with the NDIA’s contentions that it must take this matter as dismissed at the time the email attaching the Notice of Withdrawal, signed by Mr Briggs, was physically received by the Tribunal, despite Mr Briggs having lodged it based on mistaken and misleading advice given by his representative as to the processes before the Tribunal. The Tribunal agrees with the NDIA that this Notice of Withdrawal was unambiguous, noting that the Tribunal’s own “Notice of Withdrawal” template was used by Mr Briggs when notifying the Tribunal that he wanted to withdraw his application for review.
As mentioned above, the day after Mr Briggs’ disability advocate lodged the Notice of Withdrawal with the Tribunal, she requested that the Tribunal disregard it, following clarification provided to her about the EOT request processes before the Tribunal. For the reasons stated above, the Tribunal is unable to do so, because it must take this matter as dismissed as of 11 April 2023. However, these circumstances, that is, a decision made by Mr Briggs to withdraw this proceeding based on mistaken or misleading advice provided to him by his disability advocate, gives rise to a question as to whether the Tribunal can and should reinstate this proceeding.
Whether this application for review can and should be reinstated
The provisions of the AAT Act dealing with the reinstatement of applications may be found in subsections 42A(8) to (11), inclusive.
As rightly pointed out by the NDIA’s lawyer at the Interlocutory Hearing, s 42A(8) relies upon the application for reinstatement having been made by a party other than the applicant; therefore, this subsection does not apply.
Section 42A(8A) does not apply as it relates only to the reinstatement of a proceeding where it was dismissed under s 42A(2), being where a party (not being the person who made the decision) failed to appear at a directions hearing, substantive hearing or an alternative dispute resolution event. That does not apply here.
Reinstatement under s 42A(10)
The Tribunal has considered whether its discretion to reinstate this proceeding is enlivened under s 42A(10) of the AAT Act, and if so, whether any such discretion should be exercised in favour of reinstating this proceeding.
After the NDIA lodged a Notice of Opposing Application for Extension of Time with the Tribunal, on 24 March 2023, the Applicant’s disability advocate wrote to the Tribunal, on 11 April 2023, to advise: “We wish to withdraw from the interlocutory hearing that was to be scheduled for this Thursday 13th April at 2 pm”. The Registry sought clarification from the Applicant on the same day, enquiring as to whether Mr Briggs’ disability advocate was unavailable on this particular date and time, or whether RIAC was no longer acting for the Applicant. This prompted a response from Mr Briggs’ disability advocate as follows:
Dear AAT and NDIA,
Apologies, we realise that the agency is correct when they didn’t approve the extension as the process for review was not carried out correctly.
We have applied for a change in circumstances review and await that decision.
[emphasis added]
One hour later, on 11 April 2023, Mr Briggs’ disability advocate lodged the Notice of Withdrawal. The Tribunal is satisfied that it was evident from the statements by the Applicant’s disability advocate in the email referred to in the above paragraph, that she mistakenly considered that it was up to the NDIA to approve, or not, the EOT request, when, in fact, this is a matter under the provisions of the AAT Act for the Tribunal to exercise its discretion.
The Tribunal finds on the evidence that Mr Briggs’ decision to lodge the Notice of Withdrawal with the Tribunal on 11 April 2023, was based on mistaken and misleading advice provided by his disability advocate, as to the Tribunal’s review processes in respect of dealing with an EOT request. Specifically, it was not explained to Mr Briggs that it is for the Tribunal, and not the NDIA, to decide whether to extend the time for lodgement of his application for review, and that the Tribunal may do so, even if there had been a significant delay in him lodging it, depending on the various other factors that are considered when the Tribunal exercises its discretion about this. Instead, the Applicant was given the impression by his disability advocate that because the NDIA had not approved the EOT request that this was the end of the matter, and that he would instead pursue a request for an unscheduled reassessment of his NDIS plan directly with the NDIA under s 48 of the NDIS Act.[2]
[2] This is commonly referred to as a “change of circumstances review”.
The NDIA contends that “a misunderstanding of the EOT process or the Respondent’s submission, whilst unfortunate, does not necessarily result in error under s42A(10). A misguided or unwise decision to withdraw without understanding the consequences is not an error for the purposes of this section”.[3]
[3] Refer paragraph [25] of the NDIA’s submission dated 19 April 2023.
The Tribunal considers that the NDIA’s contention as set out in the paragraph above, relies upon an unduly narrow interpretation of the phrase “dismissed in error” within s 42A(10) of the AAT Act. The NDIA refers to several decisions in its submissions, described as “authorities”, at paragraph [21] and again, in its further submissions dated 4 May 2023. However, the Tribunal notes they are all decisions of other members or former members of this Tribunal. While they helpfully outline past approaches by the Tribunal to the interpretation of s 42A(10) of the AAT Act for consideration by the Tribunal in this application, they do not constitute a set of principles which the Tribunal is bound to apply.
The Tribunal notes the Full Court of the Federal Court of Australia decision in Goldie v Minister for Immigration & Multicultural Affairs (Goldie).[4] The Tribunal agrees with and is bound by the judicial approach in Goldie in interpreting the meaning of “dismissed in error” within s 42A(10), as set out in the following paragraphs:
[4] (2002) 121 FCR 383.
27.The s.42A(10) issue is more problematic. The difficulty with Mr Macliver's argument, and the decision of Deputy President Hotop, is that each requires the Court to read into the subsection a word ("administrative") which is not there. The stated condition for the exercise of the subs (10) power is that "it appears to the Tribunal that an application has been dismissed in error". The subsection does not impose any qualification or limitation on the word "error".
28. The only limitations that we can see in s.42A(10) are:
(i) that the Tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
29.We do not think it is necessary, in order to enliven the Tribunal's power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".
…
32.The considerations to which we have referred suggest it is erroneous to place any limitation on the "error" referred to in s.42A(10). Standing in the way, however, are the observations in Brehoi and the material on which those observations were based. While it is correct to say the observations were obiter, they were unanimous and made only after consideration of the history of s.42A. The Court noted that s.42A(10) was inserted in order to give effect to a recommendation contained in the Report of the Review of the Administrative Appeals Tribunal presented in November 1991. That report stated (Appendix 9, Proposal 28) that an "application which has been dismissed for failure to appear cannot at present be reinstated although such failure is found to be excusable". To repair that omission, the report recommended what became subss (8) and (9) of s.42A. The Full Court in Brehoi went on, at paras 28-29, to explain the genesis of subs (10):
"As to what became s 42A(10), the report had identified as a problem ... the following:
The amendment proposed by Proposal 28 would deal with the situation of vacation of a dismissal after failure to appear, and that failure is later found to have been excusable. There remains a need, both generally and if Proposal 23 [which was that an applicant permitted to `discontinue' an application in writing] be enacted, for there to be a power to vacate a dismissal where the application has been dismissed by administrative error on the part of the [Tribunal].
In other words, the problem identified was the absence of a `slip' rule. The report's proposed amendment to overcome the problem had been to provide that `the Tribunal may vacate the dismissal of any application for review where such dismissal has occurred through administrative error on the part of the Tribunal'.
The Senate explanatory memorandum for the bill which became the 1993 Act, in explaining the clause which became, without debate or amendment, s 42A(10), adopted (at p11) the language which had been used in the report, saying that the clause provided for the Tribunal `to reinstate an application which has been dismissed through administrative error on the part of the Tribunal'."
33.The difficulty we see with this analysis, with respect to the Brehoi Full Court, is that Parliament did not in fact adopt the amendment wording proposed in the Review Committee's Report. For reasons unknown to us, it did not include the adjective "administrative" as a limitation on "error". Accordingly, although it might be correct to say that the problem perceived by the Review Committee was the "absence of a `slip' rule", whatever that means in this context, the adopted solution arguably did more than rectify the problem. Whether it did more is the very issue of construction presently under discussion.
34 Although it is appropriate to take account of the Senate explanatory memorandum (see s.15AB(1) and (2) of the Acts Interpretation Act 1901), too much ought not to be made of it. It seems incorrect to say, as the memorandum did, that "the clause provided for the Tribunal to `reinstate an application which has been dismissed through administrative error on the part of the Tribunal'" (Our emphasis). Although rectification of administrative errors (whatever they might be in this context) was apparently the idea behind the amendment, the word adopted by Parliament was not so limited.
35 After careful consideration of the matter, and with reluctance, we have come to the conclusion that the view expressed on this issue in Brehoi is not correct. It ought not be followed.
[emphasis added]

The Tribunal agrees with the judicial observations by the Full Court in Goldie as set out above. In a further submission lodged by the NDIA on 4 May 2023, its legal representative submits that while Goldie could be taken to be authority for the principle that the term “error” is not limited to administrative error, it has no substantive relevance to this matter because the factual basis of this case is markedly different.[5] The Tribunal does not agree that this case it irrelevant as the propositions referred to in the judicial observations set out above, are potentially wide reaching. In the present application, the Tribunal is satisfied that the dismissal of Mr Briggs’ application for review (deemed to have occurred upon the lodgement of the Notice of Withdrawal), happened because Mr Briggs had made a mistake, based on the mistaken and misleading advice provided to him by his disability advocate as to who was to make the decision about whether his EOT request would be granted. Mr Briggs and his disability advocate mistakenly thought, or was under the misapprehension, that because the NDIA did not approve the EOT request, this was the end of the matter when, in fact, as mentioned above, this is not the case, and it is a matter for the Tribunal to decide. The Tribunal does not accept the NDIA’s contention that “the accompanying text in the email is unequivocal evidence that the Applicant had at that time formed the view that the pursuing the application was futile”.[6] This characterisation is at odds with the statement by the Mr Briggs’ disability advocate in her email that the “agency” had not approved the extension (referring to the EOT request).
[5] NDIA’s submissions dated 4 May 2023, at [7].
[6] Ibid, at [10].
The Tribunal does not consider there to be any contextual basis as to why it should interpret the phrase “dismissed in error” in a manner which is overly technical or narrow, as contended for by the NDIA. The Tribunal considers that, foremost, it should afford the ordinary meaning of the phrase “dismissed in error” when interpreting the meaning of this phrase in s 42A(10). In the Collins English Dictionary, the phrase “in error” is defined as follows:[7]
PHRASE
If you do something in error or if it happens in error, you do it or it happens because you have made a mistake, especially in your judgment.
[7] accessed on 2 May 2023.
If Parliament intended to qualify or limit the meaning of this phrase, it would have done so by adding further words to qualify or limit the type of errors that were being referred to in this provision.
This is a case where Mr Briggs has, in good faith, acted on mistaken or misleading advice from his disability advocate, as referred to above. The Tribunal is satisfied that his decision to lodge the Notice of Withdrawal, which, in turn, deemed the application for review as having been dismissed by the Tribunal, resulted in this application being “dismissed in error” within the meaning of the phrase in s 42A(10) of the AAT Act.
For this reason, the Tribunal is satisfied that its discretion to reinstate this proceeding is enlivened under s 42A(10) of the AAT Act.
In exercising this discretion, the Tribunal considers that it is appropriate to reinstate this application for review for the following reasons:
(a)at the Interlocutory Hearing, Mr Briggs indicated his wish for the matter to be reinstated and for the review of the reviewable decision dated 7 September 2022 to take place. He explained why it was important for him to receive the supports he was requesting. In withdrawing this application for review on 11 April 2023, Mr Briggs was relying on the advice of his representative. That advice was mistaken and misleading as described above. The Tribunal does not consider it appropriate that the Applicant suffer disadvantage by reason of acting on the erroneous advice of his representative as to the process before the Tribunal. While it is true that Mr Briggs is at liberty to lodge a new application for review and new EOT request, as pointed out by the NDIA, the Tribunal does not consider this to be an adequate reason why the Tribunal should not reinstate this application for review given the circumstances in which it was dismissed under s 42A(1B) of the AAT Act. The Tribunal also considers that the separate request that Mr Briggs has made for an unscheduled reassessment of his plan under s 48 of the NDIS Act, has little bearing on whether he should be afforded the opportunity for the Tribunal to review the decision not to approve funding for a replacement power wheelchair and the home modifications. The prospect of a review by the NDIA, which has declined his requests for additional supports twice already, is not comparable to the prospect of a merits review to be undertaken by this Tribunal;
(b)the Tribunal is not satisfied that the NDIA would be prejudiced by the reinstatement of this proceeding; and
(c)as dealt with in more detail below, in paragraphs [42] to [49] of these Reasons for Decision, the Tribunal is satisfied, following a preliminary assessment of the evidence, that this application for review does not lack merit. Instead, the Tribunal notes that it involves a participant who has substantial mobility issues and wishes to maximise his independence by being funded for a replacement power wheelchair, power assisted device for a manual wheelchair and home modifications. Since the NDIS Act is beneficial legislation, and this matter raises important questions about the disability-related supports Mr Briggs should receive funding for under his NDIS plan, which is currently living without, the Tribunal considers that this as a factor weighing in favour of reinstatement.
Accordingly, on its own initiative, the Tribunal considers it appropriate to exercise its discretion under s 42A(10) of the AAT Act to reinstate this application for review. In its further submissions on 4 May 2023, the NDIA suggests that the Tribunal may be acting ultra vires were it to reinstate this proceeding because it has not given any notice of dismissal. The Tribunal does not accept this submission. The dismissal in this instance occurred as consequence of the deeming provision in s 42A(1B) of the AAT Act. There is not a requirement in the AAT Act compelling the Tribunal to formerly acknowledge to the parties that the operation of this provision has been triggered. Further, the Tribunal reinstates this proceeding under s 42A(10) of the AAT Act, of its own initiative. Finally, the NDIA sought to rely upon the reference in Goldie,[8] at [28], that the “limitations” of s42A(10) are, at [28]: (i) that the Tribunal has dismissed the application; and (ii) that the act of dismissal was attended with error. The difficulty with this contention is that the first requirement under (i) has been met in Mr Briggs’ case. As the Tribunal has mentioned above, it is satisfied and concludes that the Tribunal was deemed to have dismissed his application for review, by the operation of s 42A(1B) of the AAT Act.
[8] NDIA’s submissions dated 4 May 2023, at [17] to [26].
Reinstatement under s 42A(9) was not specifically addressed at the Interlocutory Hearing. After the Interlocutory Hearing, the Tribunal invited the parties to make further written submissions about this provision. The NDIA contends that it does not apply in this instance because s 42A(9) is linked to applications for reinstatement made under either s 42A(8) or s 42A(8A) only. Ultimately, it was not necessary for the Tribunal to decide upon this issue because it has decided to reinstate this proceeding under s 42A(10) of the AAT Act.
Given the Tribunal’s decision to reinstate this application for review under s 42A(10) of the AAT Act, the Tribunal will now consider the Applicant’s EOT request.
EOT request
Section 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement if it is satisfied that it is reasonable in the circumstances to do so. The Tribunal must decide whether to exercise its discretion under this provision to grant Mr Briggs’ EOT request.
The factors the Tribunal will consider in exercising its discretion are:
(a)the length of the delay in lodging the application for review;
(b)Mr Briggs’ explanation for the delay in lodging the application for review;
(c)the Tribunal’s general impression as to the merits of the application for review;
(d)whether the NDIA has suffered any prejudice on account of the delay;
(e)public interest in granting the extension; and
(f)any other matter the Tribunal considers appropriate.
Firstly, the Tribunal must consider the length of the delay. The NDIA contends as follows:
The Applicant’s right to review the decision dated 7 September 2022 is contained in s103. However, the Applicant’s AAT application was filed 155 days outside the 28 day period in s29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Respondent submits that the delay in filing this application is significant and should be weighed against the requested extension being granted.
The Tribunal agrees with the NDIA that the length of the delay in lodgement in this case is significant. This weighs against granting the EOT request.
Secondly, the Tribunal must consider any explanation given for the delay in lodgement. Mr Briggs’ disability advocate states on the application for review form that Mr Briggs was “unaware what to do about his decision and had to go on a waitlist for advocacy assistance”, as the reason for the delayed lodgement.
The NDIA contends that the timeframe for lodgement of an application to the Tribunal was clearly expressed in the internal review decision letter of 7 September 2022 and submits that “this is not an explanation that excuses a significant delay, and should not be entertained”.
At the Interlocutory Hearing, the Tribunal sought further information from Mr Briggs’ representative about the delay in lodgement. Mr Briggs’ representative apologised to the Tribunal and conceded that she had created this confusion. She said it was her mistake and that she should have lodged the application for review on behalf of Mr Briggs straight away, rather than trying to seek further evidence from the occupational therapist (OT) to satisfy that the requested home modifications support represented “value for money”. She conceded she was “trying to do it the long way around”. She said she takes full responsibility for this and that she was focussed on how Mr Briggs was able to answer the NDIA’s questions. Mr Briggs’ disability advocate conceded that she was confused about the process because she was unsure whether Mr Briggs should request a “change of circumstances review”, merely because he had received further information from the OT. She said that she contacted the NDIA via the webchat about one week before she lodged the application for review with the Tribunal and the NDIA had suggested that she submit a request for a “change of circumstances review” anyway.
The webchat produced by the NDIA on 19 April 2023 does not show that the NDIA had misinformed the Applicant or his representative. While the advice given was disjointed in its delivery, the position reached by the end of the exchange, included that Mr Briggs should consider requesting an unscheduled plan reassessment (under s 48 of the NDIS Act), and seeking review by the Tribunal, even though the statutory time period for lodgement of an application for review had expired. It was not a case where the NDIA had incorrectly advised a participant to request an unscheduled plan reassessment, instead of seeking review of an earlier NDIA internal review decision by the Tribunal.
The Tribunal finds that Mr Briggs received advice from his disability advocate about how to approach his request for further supports, being that he should obtain further evidence from the OT, instead of doing this after he had lodged an application for review with the Tribunal, which has resulted in the significant delay in lodging his application for review with the Tribunal. The Tribunal considers that it does not matter greatly whether this misguided approach arose as a result of advice given to Mr Briggs by the NDIA or by his disability advocate. He sought out and received this guidance from his disability advocate in good faith, that given her role she would understand the correct process for seeking review of the NDIA internal review decision. It turns out that she was confused about the Tribunal’s review processes, mistaken in the approach she adopted and unwise in ignoring the possible consequences of not complying with the statutory time frames. Mr Briggs’ disability advocate told the Tribunal she accepts responsibility for the difficulty she said she had created in this instance. The Tribunal does not consider it appropriate that Mr Briggs should be disadvantaged as a consequence of the approach taken by his disability advocate. The Tribunal considers that this is an acceptable explanation for the significant delay in the Applicant lodging his application for review.
This factor weights in favour of granting the Applicant’s EOT request.
Thirdly, the Tribunal will seek to form a preliminary impression about the merits of the application for review. The decision sought to be reviewed as part of the substantive application involves a decision by the NDIA not to approve funding for a replacement power wheelchair, power assist device for a manual wheelchair, and a carport and automated gates.
In the NDIA’s internal review decision, the “reviewer” states that the carport and automated gates do not represent “value for money” and, therefore, the criteria under s 34(1)(c) of the NDIS Act are not met, after noting that Mr Briggs does not own the property in which he is living and is renting it from the Department of Family, Fairness and Housing (DFFH). The NDIA asserts that it is the responsibility of the DFFH to assist with complex home modification requests and therefore, the criteria under s 34(1)(f) of the NDIS Act are not met.
The Tribunal notes a letter by the DFFH on the Tribunal’s file dated 5 August 2022 which states that public housing is not designed to meet disability specialist accommodation standards, while acknowledging that, on occasions, minor modifications might be completed. The DFFH asserts in this letter that the requested carport and automated gates requested by Mr Briggs were not the responsibility of the DFFH as it constituted a major structural change to his current public housing.
As for the requested mobility assistive technology, the NDIA “reviewer” states that the criteria under s 34(1)(c) of the NDIS Act are not met because Mr Briggs’ current NDIS plan provides funding of $3,879.80 for an OT to assess and make recommendations to increase Mr Briggs’ independence and mobility, and $7,273.17 of funding is provided for repair of Mr Briggs’ assistive technology. The NDIA notes that an OT has stated in her report (the report was later cited as being dated 29 November 2021 and 13 January 2022), that Mr Briggs’ wheelchair had been regularly maintained and is likely to require replacement in the next few years. The “reviewer” considers there is no evidence of assistive technology requiring repair, due to be being “broken, not working or because it could not be repaired”. The “reviewer” requested an updated assessment report and a quote in Mr Briggs’ next NDIS plan for consideration.
The NDIA does not address the consideration of the merits of the application for review in its notice opposing the EOT request.
The Tribunal invited the NDIA to do so at the Interlocutory Hearing. The NDIA contended that the threshold for merit in an extension of time application was “a low bar”. When asked by the Tribunal whether the NDIA’s position was that this application lacked merit, the NDIA’s lawyer responded that it was not in the sense that it was a low bar.
Mr Briggs’ disability advocate was invited to do the same. She contended that Mr Briggs could not get out of his house because there were so many barriers.
At this preliminary stage, the Tribunal formed a preliminary impression that this application does not lack merit. The factual and legal issues to be decided in this application for review are arguable. That is all the Tribunal is required to satisfy itself of, for the purposes of the present application.
This factor weighs in favour of the Tribunal granting the EOT request.
Fourthly, the Tribunal will consider whether there was any prejudice suffered by the delay in the lodgement of the application for review. The NDIA has not contended that it has suffered any prejudice because of the delay.
This factor does not weigh against the Tribunal granting the EOT request.
Fifthly, there is an expectation that parties will observe statutory time frames when seeking review before this Tribunal. The NDIA also made the following contentions when opposing this EOT request:
Resting on Review Rights
The Applicant received the decision letter on 7 September 2022. Following that decision which clearly sets out external rights of review, The Applicant has provided no evidence of having taken steps to seek review between the Internal Review decision having been made and 8 March 2023. As such, the Respondent considers that the Applicant rested on their review rights and this factor should be weighed against granting the requested extension: see Re Grafton and Commonwealth (1988) 16 ALD 533.
Alternative Avenues for Relief
The Respondent submits that there is an alternative avenue for the Applicant to pursue regarding their request to have their NDIS Plan reviewed. Namely, it is open to the Applicant to request an unscheduled review of their plan at any time, and if that decision is unfavourable they have further rights of review within that avenue. The Respondent submits that this factor should weigh against the EOT being granted: see Hassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1629 & Macdonald and National Disability Insurance Agency [2021] AATA 2459 at [67].
At the hearing, Mr Briggs’ representative responded to those contentions by explaining the reason for the delay, which included her efforts to seek out and obtain further evidence from an OT to answer questions posed by the NDIA. The Tribunal is not satisfied that Mr Briggs rested on his rights. His disability advocate was seeking to obtain further evidence to fill information gaps which had been suggested by the NDIA.
The Tribunal considers that prima facie it would be against public interest to grant an extension of time, without good reason, when the delay in lodgement has been in the order of five months out of time, as was the case in this instance. The delay in lodgement certainly has been significant. However, given the circumstances of this case and Mr Briggs’ reliance upon the mistaken or misleading advice being provided by his disability advocate, which by the disability advocate’s own evidence was the wrong approach and based on an incorrect understanding the review processes, the Tribunal does not consider that it would be against the public interest to grant the EOT request in the circumstances of this case. This factor does not weigh against granting the EOT request.
Sixthly, the NDIS Act is beneficial legislation. In this case, Mr Briggs has a disability causing substantially reduced functional impairment in respect of his mobility and the application for review relates to his request to be funded for supports which he asserts relate to his disability and maximising his independence and improving the ease of access between his place of residence and the community.
These are two further factors weighing in favour of the Tribunal granting the EOT request.
CONCLUSION
On balance, the Tribunal considers that the factors referred to above weighing in favour of granting the EOT request outweigh the factors referred to above weighing against it. For this reason, the Tribunal is satisfied that it is reasonable in all the circumstances to grant an extension of time under s 29(7) of the AAT Act to Mr Briggs to lodge this application for review to 8 March 2023.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

...................SGD.....................................................
Associate
Dated: 5 May 2023

Date of hearing:

Date of last submission:

13 April 2023

4 May 2023

Applicant:

Applicant’s representative:

Mr Matthew Briggs

Ms Tanya Harding,
Rights Information and Advocacy Centre, disability advocate

Respondent: Mr Caleb Slade,
National Disability Insurance Scheme, in-house lawyer