Corkish and National Disability Insurance Agency

[2023] AATA 539

Corkish and National Disability Insurance Agency [2023] AATA 539 (30 March 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/9054

Re:Ms Jennifer Lee Corkish

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D. Connolly

Date:30 March 2023

Place:Sydney

The Tribunal orders that application for review of this matter is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD]...................................

Senior Member D. Connolly

CATCHWORDS

PRACTICE AND PROCEDURE – request for access to the National Disability Insurance Scheme – dismissal application pursuant to paragraph 42B(1)(b) – no reasonable prospect of success – application made on 65^th birthday – age requirements not met – whether Applicant sought internal review of an earlier decision – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016

CASES
Wagner and National Disability Insurance Agency [2020] AATA 1775

REASONS FOR DECISION

Senior Member D Connolly

30 March 2023

BACKGROUND  

1. Ms Jennifer Lee Corkish has sought review of an internal review decision made by the National Disability Insurance Agency (the Agency) on 14 October 2022[1], that she did not meet the access requirements as she was not younger than 65 on the day she requested access to the National Disability Insurance Scheme (NDIS), as required by section 22 of the National Disability Insurance Scheme Act 2013 (Cth) (the age requirement). The delegate found Ms Corkish made her access request on 22 August 2022, the day she turned 65.[2] The delegate found there is no discretion to waive this legislative requirement.

   [1] ST2, p 1.

   [2] ST4, p 19.

2. The Agency has argued that, as Ms Corkish cannot meet the age requirement, a mandatory access requirement, there is no reasonable prospect of success, and so the Tribunal should dismiss her application for review under paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[3]

   [3] Respondent’s Statement of Issues dated 14 February 2023, p 4.

3. Paragraph 42B(1)(b) of the AAT Act provides that the Tribunal may dismiss an application for review if it is satisfied that the application has no reasonable prospect of success.

   ISSUE

4. The Agency has submitted that correspondence emailed to the Agency on 22 August 2022, Ms Corkish’s 65^th birthday, pertained to a new access request and therefore the mandatory age requirement set out in section 22 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) cannot be met. It has argued therefore that the application for review has no prospect of success and should be dismissed.

5. Ms Corkish has submitted that she thought the correspondence emailed on 22 August 2022 related to her earlier access request, made before she turned 65, which she did not realise was ‘closed’.[4]

   [4] Transcript of proceedings, 13 March 2023.

6. The issue for the Tribunal to decide is whether Ms Corkish’s application for review, in relation to the Agency’s internal review decision dated 14 October 2022, made under subsection 100(6) of the Act, which confirmed a decision made on 12 September 2022 to decline access to the NDIS, should be dismissed because it has no reasonable prospect of success.

   CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL

7. The Agency’s records confirm that Ms Corkish first applied for access to the NDIS before 8 April 2022 (her first access request), before she turned 65, as there is correspondence confirming that on that date the Agency refused her first access request on the basis that she did not meet the disability or early intervention requirements.[5] [6] That letter advised Ms Corkish as follows:

   If you disagree with this decision or have new information, you can submit a request for the decision to be reviewed within 3 months of the date of this letter.

   [5] T4, pp 18-20.

   [6] A person must, among other things, meet either the disability requirements (section 24 of the Act) or the early intervention requirements (section 25 of the Act) to meet the access criteria: subsection 21(1)(c) of the Act.

8. The Tribunal asked at the hearing if Ms Corkish had any evidence that she had sought review of the Agency’s decision of 8 April 2022. She stated that she had not asked for the decision to be reviewed but her advocate Ms Anya Carolan, a support worker from One Door[7], had.

   [7] One Door Mental Health is a mental health service provider and advocacy service.

9. Ms Corkish provided to the Tribunal a case note record, dated 12 April 2022, made by Ms Carolan, who was assisting Ms Corkish with her access request, indicating she received a call from an Agency officer, Patrick, who explained why Ms Corkish’s application had been unsuccessful.[8] Ms Carolan recorded in her own case note that she had formed the view it would be easy to resolve the issue, by having Ms Corkish’s psychologist, Ms Alison Lucas, reword her letter of support, and then they could submit amended evidence. Subsequent emails between Ms Corkish, Ms Lucas and Ms Carolan confirm Ms Lucas was not willing to reword her letter and it was decided Ms Corkish would consult another psychologist, Mr Rod Armour.[9] Ms Carolan’s case notes, provided by Ms Corkish, indicate Ms Corkish first saw Mr Armour on 10 May 2022[10].

   [8] Applicant’s Submission, filed on 5 January 2023.

   [9] Ibid.

   [10] Ibid.

10. Ms Corkish also provided case notes indicating Ms Carolan called Ms Corkish on 6 July 2022 to check her progress and Ms Corkish indicated that, at her next appointment on 11 July 2022, she would check if Mr Armour would complete a form relevant to her access request or write a separate supporting letter.[11]

    [11] Ibid.

11. The Tribunal noted that by this time three months had passed since the Agency sent the refusal notice dated 8 April 2022 advising Ms Corkish that she had three months to seek a review. It discussed this with Ms Corkish at the hearing. She told the Tribunal that Mr Armour had indicated he would not agree to provide a report until he had seen her at least seven or eight times. She was seeing him fortnightly. That is why his report was not ready until towards the end of August.

12. Ms Corkish also told the Tribunal she had not grasped the information in the Agency’s refusal notice dated 8 April 2022, that she had three months to request a review of the Agency’s decision to refuse her access. She did not realise that in making that decision her case had been ‘closed’.

13. The Agency has provided to the Tribunal contemporaneous notes made by the Agency officer, Patrick. On 12 April 2022 he recorded that he had spoken to Ms Corkish and she was “upset but was receptive to the reasoning behind the decision.”[12] At her request he then called Ms Carolan and made the following note:

    Anya was understanding of the reasoning but very keen to help Jennifer provide clarification evidence in a new application.[13]

    (emphasis added)

    [12] Respondent’s Statement of Issues dated 14 February 2023, p 3.

    [13] Ibid.

14. The Tribunal gave Ms Corkish an opportunity to comment on this case note. She indicated she thought that Ms Carolan did not realise she was making a new access application. They thought that, once the wording was changed in the psychologist’s letter, they could just send further information. That was why they only sent three doctors’ reports when Ms Carolan sent her email (on 22 August 2022).

15. The Tribunal also gave Ms Corkish an opportunity to file any other evidence indicating she, or her representative, had been in contact with the Agency at any time between 12 April 2022 and 21 August 2022, to lodge new information or request that the Agency review its decision of 8 April 2022. Ms Corkish provided copies of emails between herself and Ms Carolan and annotated phone logs. Those phone logs confirm that Ms Corkish made phone calls to Ms Carolan, Ms Lucas and Mr Armour in that period. However her first phone call with the Agency was not until 31 August 2022, after information was provided on 22 August 2022.[14] There is no evidence in those phone logs to confirm that Ms Corkish contacted the Agency after 12 April 2022 and before 22 August 2022.

    [14] Applicant’s Submission dated 24 January 2023.

16. Having regard to all the evidence before it, the Tribunal is not satisfied there was any contact between, or on behalf of, Ms Corkish and the Agency between 12 April 2022 and 21 August 2022, to lodge new information or to seek a review of the Agency’s decision of 8 April 2022.

17. While the Tribunal accepts that Ms Corkish may have thought that her first request for access had not been ‘closed’, the Tribunal is satisfied, with respect to her first access request, the Agency conveyed to Ms Corkish its decision that she did not meet the access requirements but that she could seek review of that decision within three months. While there is evidence of contact between Ms Corkish, Ms Carolan and the Agency officer on 12 April 2022, during which the Agency officer clarified why the requirements were not met, the Tribunal is not satisfied this evidence confirms that a request was made for review of the decision made on 8 April 2022. This finding is supported by the contemporaneous note made by the Agency officer that he had discussed with Ms Carolan the evidence that would assist in a new application.

18. The Tribunal also notes that Ms Corkish’s information indicates she needed to consult another psychologist, Mr Armour, on several occasions, before he would agree to provide her with supporting documentation. While he ultimately agreed to do this on 16 August 2022,[15] that information was not provided to the Agency, along with other documentation, until 22 August 2022. While the Tribunal notes Ms Carolan’s accompanying email states “please find attached further information requested for Jennifer Corkish’s application…” and provides an explanation for the delay in the provision of this material, it does not state that the information is provided pursuant to a request for review and it was not provided within three months of the notice advising Ms Corkish that her access request had been refused.[16]

    [15] ST6, pp 25-26.

    [16] Applicant’s Submission, filed on 13 March 2023.

19. The Tribunal asked Ms Corkish about the timing of the provision of this information, and if it was a coincidence that it was provided on her 65^th birthday. She indicated she had wanted to provide the information the week before her birthday, but Ms Carolan could not see her because she had COVID. The Tribunal asked why Ms Carolan needed to see her before Ms Carolan provided the information to the Agency. Ms Corkish indicated that Ms Carolan was her advocate and had guided her through the process and talked her through the documentation. Ms Carolyn called her on 16 August 2022 and said that they needed to make an appointment to get it done and they could now do that because she (Ms Carolan) was clear for COVID.[17] However they did not arrange to meet until 22 August 2022, her 65^th birthday.[18]

    [17] Applicant’s Submission dated 24 January 2023.

    [18] Ibid.

20. The Tribunal notes Ms Corkish has not argued that the Agency’s decision of 8 April 2022 was wrong. Rather she understood that the issue was that her evidence from her former psychologist, Ms Lucas, did not demonstrate that she met the disability or early intervention requirements. The Tribunal also notes that it was not until 16 August 2022 that Mr Armour agreed to provide his report. The Tribunal is of the view these circumstances indicate that Ms Corkish was making a fresh access request, rather than seeking review of the Agency’s decision of 8 April 2022.

21. The Tribunal has considered all the information provided by Ms Corkish and the Agency. It notes at the hearing Ms Corkish stated she did not seek a review of the first access refusal decision. It has taken into account that, despite having an advocate assisting her with her access request and the Agency’s notice explicitly stating she needed to request a review within three months, Ms Corkish did not understand that the Agency had made its decision on 8 April 2022 and she needed to seek review of that decision within three months. It has considered Ms Carolan’s case notes, provided by Ms Corkish. They do not record that she sought a review on Ms Corkish’s behalf. The Tribunal also notes from Ms Carolan’s case notes that, as at 6 July 2022, there was still some question as to whether her new psychologist, Mr Armour, was going to agree to provide the information she needed to address the concern raised by her former psychologist’s evidence. The case note recorded that Ms Corkish would discuss that with the psychologist on 11 July 2022, more than three months after the first access refusal decision was made.[19] The Tribunal is of the view this indicates that, three months after the first access refusal decision was made, Ms Corkish and Ms Carolan were still not sure whether Ms Corkish would be able to provide new evidence to address the evidentiary shortcoming and so did not have a basis on which to seek a review.

    [19] Ibid.

22. The Tribunal has concluded that, while it is clear Ms Corkish and Ms Carolan discussed with the Agency officer on 12 April 2022 the reasons Ms Corkish’s request for access was refused, and she subsequently sought to address that evidentiary shortcoming, it has not seen anything confirming that Ms Corkish, or Ms Carolan on her behalf, asked the Agency to review the decision of 8 April 2022, within three months of that decision or prior to her 65^th birthday.

23. Accordingly the Tribunal is of the view that the information provided to the Agency on 22 August 2022 was essentially a new request for access to the NDIS.

24. The Tribunal has considered Ms Corkish’s concern that she cannot access NDIS-funded supports and that her numerous attempts at accessing My Aged Care have been futile, which she expressed in her oral submissions at the hearing. She also wrote to the Tribunal after the hearing, setting out attempts she had made to access aged care services. She stated she had investigated entering an over-55 retirement village, as her conditions would prevent her moving to a small unit, but she could not afford it. Her only option was to put her home on the market.[20] The Tribunal has considered whether there is any discretion to waive the age requirement. The Agency indicated in its submissions that Part 3 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 deals with any exceptions to the general age requirements. The Tribunal has considered Part 3 and notes it provides for additional age requirements and does not provide any exception relevant to Ms Corkish’s circumstances. There is nothing before the Tribunal to indicate there is any discretion to waive the age requirement.

    [20] Applicant’s Submission dated 24 March 2023.

25. As the request for access, the subject of this review application, was not made until Ms Corkish’s 65^th birthday, the Tribunal is satisfied she cannot meet the age requirement set out in section 22 of the Act.

26. The Tribunal notes in Wagner and National Disability Insurance Agency [2020] AATA 1775 Deputy President Forgie found that, as the applicant in that case could not meet the age requirement, she could not become a participant of the NDIS and so she dismissed that application for review under paragraph 42B(1)(b) of the AAT Act as it did not have a reasonable prospect of success. While not bound by that decision, the Tribunal is of the view this is the appropriate course to take in this case and it dismisses the application for review as it is satisfied the application has no reasonable prospect of success.

    DECISION

27. The Tribunal orders that the Applicant’s application for review is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. Connolly

.....................................[SGD]...................................

Associate

Dated: 30 March 2023

Date(s) of hearing:	13 February 2023
Date final submissions received:	24 March 2023
Solicitors for the Respondent:	Ms S Minhas, National Disability Insurance Agency