Cox and National Disability Insurance Agency

[2019] AATA 2774

Cox and National Disability Insurance Agency [2019] AATA 2774 (2 July 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2019/3065

Re:Sarah Cox

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:2 July 2019

Date of written reasons:        20 August 2019

Place:Sydney

The application for an extension of time is refused.

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

Dr L Bygrave, Member

CATCHWORDS

EXTENSION OF TIME – principles to be applied – where applicant rested on her rights – where prejudice to the respondent caused by the delay – where no evidence to support a finding on the substantive merits of the application – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975(Cth) s 29
National Disability Insurance Scheme Act 2013 (Cth) s 21, 24, 25

CASES

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr L Bygrave, Member

20 August 2019

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 2 July 2019. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

2. On 3 June 2019, Ms Sarah Cox lodged an application with the Tribunal in accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made by the National Disability Insurance Agency (the NDIA) on 6 December 2017 that Ms Cox did not meet the access requirements in the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

3. The NDIA opposes Ms Cox’s application for an extension of time.

4. Ms Cox’s application was heard by the Tribunal on 2 July 2019; she attended the hearing by teleconference and was supported by Ms Joanne Murphy.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

5. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

6. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].

7. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:

   (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)considerations of “fairness as between the applicant and other persons” in a similar position.

8. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

9. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

   REASONS FOR DELAY

10. The length of delay in Ms Cox seeking a review of the decision by the NDIA on 6 December 2017 is approximately 17 months after the 28 days limit.

11. In her application to the Tribunal, Ms Cox stated that she was applying for an extension of time because she had tried another avenue for support services but this was “not enough” and her “existing service is not comparable” to her previous supports.

12. Ms Cox told the Tribunal that when the NDIA decided to refuse her application to become a participant of the National Disability Insurance Scheme (the NDIS) on 6 December 2017, she accessed funding for a home care package through the Commonwealth Department of Health. However, this funding is not sufficient for her requirements and so she is applying to the Tribunal to review the decision by the NDIA on 6 December 2017.

13. In view of the extensive delay and Ms Cox seeking an alternative avenue for funding, I am satisfied that she “rested on her rights” and allowed the NDIA to believe the matter relating to the decision on 6 December 2017 was finalised.

14. I find that these circumstances weigh against granting an extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

15. It is in the interests of both the NDIA and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.

16. I am satisfied the NDIA would have expectations about the finality of the decision-making, particularly given the substantial delay in Ms Cox seeking a review. I therefore find that there would be prejudice to the NDIA if the extension of time is granted.

17. This factor weighs against granting an extension of time to Ms Cox.

    MERITS OF SUBSTANTIVE APPLICATION

18. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Ms Cox can meet the access requirements set out in the NDIS Act.

    Relevant legislation and consideration – access criteria

19. To become a participant in the NDIS, Ms Cox must satisfy the access criteria. The primary access criteria 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).

20. Subsection 21(2) of the Act also provides alternative access criteria that, described simply, outlines that a person may be able to access the NDIS if they were receiving supports from a “qualifying program” during the relevant “qualifying period”.

21. Sections 24 and 25 of the Act state:

    24 Disability requirements

    (1)       A person meets the disability requirements if:

    (a)The person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

    (b)The impairment or impairments are, or are likely to be, permanent; and

    (c)The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)    learning;

    (iv)   mobility;

    (v)    self‑care;

    (vi)   self‑management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

    25 Early intervention requirements

    (1)       A person meets the early intervention requirements if:

    (a)the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)    is a child who has developmental delay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)    preventing the deterioration of such functional capacity; or

    (iii)    improving such functional capacity; or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

22. Ms Cox has been diagnosed with cystic fibrosis. In her application to the Tribunal, Ms Cox described cystic fibrosis as an incurable genetic condition that affects the lungs and the digestive system. She noted that the effect of cystic fibrosis on the lungs is such that it requires “daily physiotherapy in the form of ‘percussion and postural drainage’ in order to clear the airways of an excessive accumulation of mucus”, and this support is “required for lifetime”.

23. The decision by an internal reviewer at the NDIA on 6 December 2017 stated they were not satisfied Ms Cox’s impairments met the requirements of paragraphs 24(1)(c) and 24(1)(e) of the NDIS Act. I note that this decision did not consider whether Ms Cox met either the alternative access requirements of subsection 21(2) of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act.

24. For the purposes of this application for an extension of time, the Tribunal was not provided with any medical evidence or other documentation that could support the merits of Ms Cox’s substantive application. I am therefore unable to consider the merits, or otherwise, of her substantial application. I note that it is open to Ms Cox to lodge a new application to become a participant to the NDIS and to provide updated and supporting evidence in relation to meeting the requirements in sections 24 and 25, as well as subsection 21(2) of the NDIS Act.

25. Taking into account all of the information that I have before me, I am not satisfied that it is reasonable in the circumstances to grant an extension of time.   

    DECISION

26. The application for an extension of time is refused.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 20 August 2019

Date(s) of hearing:	2 July 2019
Applicant:	By telephone
Solicitors for the Respondent:	S Nguyen-Aulmann, National Disability Insurance Agency