Catt and National Disability Insurance Agency
[2024] AATA 3006
•23 August 2024
Catt and National Disability Insurance Agency [2024] AATA 3006 (23 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2024/4243
Re:Kayla Catt
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member T Bubutievski
Date:23 August 2024
Place:Sydney
The Tribunal grants an extension of time to lodge an application for review until 28 June 2024.
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Member T Bubutievski
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time – factors that are relevant when considering an application for extension of time – length of delay – explanation for the delay – merits of the substantive application for review – alternative avenues for relief available – application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Johnson and Minister for Home Affairs [2018] AATA 3469
Zizza v Federal Commissioner of Taxation [1999] FCA 37REASONS FOR DECISION
Member T Bubutievski
23 August 2024
INTRODUCTION
At issue before the Tribunal is an application for the Applicant to be granted an extension of time to file an application for review by this Tribunal. For the reasons which follow, I find that it is reasonable, in all the circumstances, for the requested extension of time to be granted.
The Applicant is seeking access to the National Disability Insurance Scheme (NDIS or the Scheme) on the basis of disabilities caused by cauda equina syndrome and psychosocial impairments.
On 12 December 2023 the Respondent rejected her application for access to the scheme. This was affirmed by an internal review decision made on 28 March 2024. On 21 June 2024 Ms Catt’s representative, Ms Ryan, made an application for an extension of time to lodge an application for review on Ms Catt’s behalf. On 28 June 2024 Ms Ryan submitted an application for review by this Tribunal on the Applicant’s behalf. If an extension of time is granted the Tribunal would have jurisdiction to review the decision in accordance with the provisions of section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). If an extension of time is not granted, the Applicant would need to apply for access to the Scheme again if she still wants to be considered for entry.
The Respondent opposes the granting of an extension of time based on the length of the delay; its view that the reasons for delay were not compelling or supported by evidence; and its view that the Applicant rested on her rights.
The Tribunal noted that the Applicant herself had not filed or signed either the application for an extension of time or the substantive application. It consequently had a concern about whether the Applicant was aware of the application and consented to it being made. Ms Ryan would not have standing to make such an application on her own account. During the course of the interlocutory hearing Ms Ryan provided the Tribunal and the Respondent with a copy of a third-party consent signed by the Applicant giving Ms Ryan authority to act on her behalf in all matters relating to the NDIS. The Tribunal was satisfied that this document provides sufficient authority for Ms Ryan to act on behalf of Ms Catt in this stage of the proceedings before the Tribunal.
LEGAL FRAMEWORK FOR AN EXTENSION OF TIME
Two provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) are of relevance. They comprise, first, s 29(2)(a), which compels an Applicant to lodge an application for review within 28 days after the day on which a document setting out the terms of the decision is given to them. Secondly, in the circumstances in which an Applicant has not made their application for review within the required timeframe, s 29(7) empowers the Tribunal to extend the time for making an application if satisfied “that it is reasonable in all the circumstances to do so.”
The Tribunal’s discretion to extend the time for making an application is not unfettered. There are relevant factors informing the discretion. The principles which inform the discretion are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Johnson and Minister for Home Affairs [2018] AATA 3469. These cases make it clear that I must consider:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)whether the Applicant rested on her rights;
(d)any prejudice to the Respondent or the general public arising from an extension of time;
(e)the merits of the substantive application for review; and
(f)any alternative avenues of relief for the Applicant should the extension of time not be granted.
Zizza v Federal Commissioner of Taxation [1999] FCA 37 requires me to weigh together all relevant factors in determining whether to exercise the discretion. A “ranking” approach as to the weight afforded to each of the abovementioned six elements is to be avoided.
I will turn now to an assessment of each of the relevant principles.
What is the extent of the delay?
The delegate’s decision is dated 28 March 2024. The evidence before the Tribunal does not establish how the Applicant was notified of this decision although it is addressed to her home address. The Respondent’s submissions indicate that it was most likely delivered to her by email on the day that it was made. It is legislatively established that the time of receipt of an electronic communication such as an email for the purposes of a law of the Commonwealth (for example, the NDIS Act) is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. This general rule applies unless otherwise agreed between the originator and addressee.[1] For the purposes of this application, I find that the day on which the Respondent’s decision was validly given to the Applicant was 28 March 2024.
[1] Electronic Transactions Act 1999 (Cth) s 14A(1)(a).
It therefore follows that the Applicant was required to file an application for review (i.e., this proceeding numbered 2024/4243) by 25 April 2024 in order to safely comply with s 29(2) of the AAT Act. What in fact occurred was that the application was not filed or lodged with the Tribunal until 28 June 2024. This is 64 days outside the statutory time limit for the Applicant to lodge her application.
The Tribunal finds that the delay in making an application to this Tribunal for review of the delegate’s decision made on 28 March 2024 is, to adopt the words of the Respondent, ‘significant’. This weighs against granting an extension of time.
What is the Applicant’s explanation for the delay?
The initial reason given for the delay was a deterioration in the Applicant’s mental health, which caused her not to want to have any further contact with the Respondent. Although the documents before the Tribunal indicate that the Applicant does have diagnoses of depression and anxiety there was no specific evidence provided about her mental health during the period of the delay, in particular that it prevented her from instructing her representative.
At hearing, Ms Ryan explained that this is the third time that the Applicant has been rejected for access to the NDIS and this rejection led to her experiencing spiralling depression. Although she was seeing a psychologist, she had difficulty engaging. Ms Ryan did not think that third-party evidence about the Applicant’s mental health would be available for the relevant time period.
Ms Ryan gave evidence to the effect that she and the Applicant had a discussion about the decision in April 2024. The Applicant decided to pursue appealing the decision and authorised Ms Ryan to do so on her behalf. Ms Ryan stated that she made an application to this Tribunal on the Applicant’s behalf in April 2024. She stated that it had been done online and she did not receive any confirmation from the Tribunal that the application had been lodged. As she was unfamiliar with the process, she simply assumed that she would not hear anything for some time. When she contacted the Tribunal to follow up on the application, she was advised that no application had been received. It was at this time that she made the application for an extension of time and subsequently, the current application for review.
Ms Ryan was unable to nominate a date in April on which she thought she attempted to make this prior application. The Tribunal has no record of contact. Ms Ryan did state that she and the Applicant sought legal advice about the application on 26 April 2024. The Respondent’s chronology of events also notes that on 26 April 2024 the Respondent received an email from Ms Ryan advising the Respondent that they were considering taking this matter to the media and that they had notified Minister Shorten and were waiting for a response.
Following the interlocutory hearing the Respondent asked for additional time to consider this new evidence. On 19 August 2024 the Respondent confirmed that it still opposed an extension of time on the same basis.
The Tribunal accepts Ms Ryan’s evidence that she thought that she had correctly submitted an application to the Tribunal in April 2024. Further, the seeking of legal advice on 26 April 2024 indicates that the Applicant was attempting to have the decision reviewed at that time, as does the content of Ms Ryan’s email to the Respondent of the same date.
Upon following up the application she thought that she had made with the Tribunal and being told that there was no application lodged, Ms Ryan immediately lodged an application for an extension of time and also lodged a substantive application seven days later. Once she became aware of the state of affairs there was no delay.
The Tribunal finds that the explanation given for the delay is plausible, although not compelling. The other actions taken by Ms Ryan in April 2024 are consistent with the Applicant seeking a review of the decision at around the time an application for review by this Tribunal was due. In the context of a prior application having gone astray and the Applicant and her representative being unaware of that fact, the delay is not unreasonable. This weighs in favour of an extension of time being granted.
Did the Applicant rest on her rights?
The Respondent submits that the Applicant rested on her rights. This may be correct if the Applicant and her representative did nothing between receiving the original decision on 28 March 2024 and lodging the application for review on 28 June 2024. The evidence before the Tribunal indicates that this is not what occurred. The Tribunal has accepted Ms Ryan’s evidence that she attempted to lodge an application for review in April 2024 and thought that she had done so. The Applicant also sought legal advice and Ms Ryan contacted the Minister and informed the Respondent that she had done so.
Ms Ryan followed up on the application that she thought had been lodged. On discovering that it had not been lodged she ensured that both a substantive application and an application for an extension of time were lodged.
The Tribunal finds that the Applicant did not rest on her rights. This weighs in favour of an extension of time being granted.
Does any prejudice arise to the Respondent or the general public from granting the request to extend time?
The Respondent did not contend that it would suffer prejudice upon the granting of an extension of time. The Tribunal could not find that there is any particular prejudice to the Respondent or the general public from granting an extension of time. In a practical sense, although a decision by the Tribunal in favour of the Applicant would have the result of granting her access to the scheme from the date of her application for access she has been provided with no supports by the Respondent and there is no significant financial consequence. Not so much time has passed that the Respondent is unable to properly present its case or that the general public’s expectations of administrative process would be subverted. Neither the Respondent nor the general public would be prejudiced if an extension of time was granted.
That said, it is well-established that the absence of prejudice is not, of itself, a reason to grant the requested extension. Ultimately, this component of the relevant test is not material to determination of whether the time should be extended.
What are the merits of the substantive application for review and do they warrant an extension of time?
The decision of the Respondent in this particular case is that the Applicant has a permanent disability, being cauda equina syndrome, but that it has not been established that she has a substantially reduced function in any of the relevant functional domains. It is a requirement that a person has a substantially reduced functional capacity before they can be granted access to the NDIS (s 24 of the NDIS Act).
The evidence provided about the Applicant’s functional capacity is conflicting. It is noted that she has good strength in her lower limbs and still has a car and driver’s licence. Nonetheless, letters from Austin Health, dated 12 May 2023 and 22 August 2023 say that she is ‘doing extremely poorly’[2] and is ‘significantly limited in terms of function’[3]. Her treating doctor says that she is incontinent of bladder and bowel, has a weakness in her right lower limb and an antalgic gait.[4] An Occupational Therapy functional assessment notes that the Applicant is not independent in her bathing and showering, toileting and functional mobility.[5]
[2] letter from Dr Charles Li, Neurosurgery Registrar, 12 May 2023.
[3] letter from Dr Forum Tilvawala, Stroke Fellow, 22 August 2023.
[4] letter from Dr Robert Shepherd, 16 January 2024.
[5] OT Functional Assessment, Mr Travis Keeck, Occupational Therapist, 23 August 2023.
The Tribunal finds that although there is some inconsistency in the evidence, the question of whether the Applicant has a substantially reduced functional capacity in any of the relevant domains is a question which is reasonable for the Tribunal to consider. Among the initial documents provided in support of the application there is evidence which indicates that the Applicant may meet the access criteria. There is certainly a legal argument to be considered, which may be decided in the Applicant’s favour. The application may succeed. There is merit in the application. The consequences of a decision in the affirmative would grant the Applicant immediate access to the NDIS.
In all the circumstances, the Tribunal will treat this factor as weighing very heavily in favour of granting the extension of time.
Are there any alternative avenues for relief for the Applicant if the extension of time is refused?
If the Tribunal refuses this application for an extension of time, it is open to the Applicant to re-apply for access to the NDIS at any time. This will be an entirely fresh application. The Tribunal appreciates that doing so will cost the Applicant in terms of her energy and likely her mental health. The Tribunal notes that the Applicant is indigenous and has mental health conditions, limited informal supports and caring responsibilities for her child. The Tribunal further notes that the Applicant’s previous applications for access to the NDIS have been rejected and she is consequently demoralised. So, although there is alternative relief available in the form of making a new access application, the Tribunal considers that the Applicant will likely find it difficult to do so.
This factor therefore neither weighs for or against granting the extension of time.
Conclusions
On balance, the Tribunal is satisfied that there was a cogent reason presented for the delay, the Applicant did not rest on her rights and there is merit in the substantive application. While the delay was significant, there is no prejudice to the Respondent and although there is alternative relief available the Applicant is likely to find accessing that relief difficult. The Tribunal finds that the first three factors decisively outweigh the second three factors in favour of a finding that it is reasonable, in all the circumstances, to grant the extension of time sought by the Applicant.
As the substantive application was lodged on 28 June 2024 the Tribunal therefore grants an extension of time to lodge the application to 28 June 2024.
DECISION
The Tribunal grants an extension of time to lodge an application for review until 28 June 2024.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski
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Associate
Dated: 23 August 2024
Date of hearing: 7 August 2024 Date final submissions received: 19 August 2024 Advocate for the Applicant: Ms K. Ryan, Cardinia Community Care Solicitors for the Respondent: Mr L. Nguyen, National Disability Insurance Agency
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