CRLW and National Disability Insurance Agency

[2024] AATA 2686

CRLW and National Disability Insurance Agency [2024] AATA 2686 (25 July 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/7704

Re:CRLW  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:25 July 2024

Place:Brisbane

The application is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Act 1975 (Cth).

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

Senior Member D Connolly

CATCHWORDS 

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – the applicant passed away before the application for review was finalised – residence requirement for access cannot be met – no reasonable prospect of success – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 25, 42B
National Disability Insurance Scheme Act 2013 (Cth) ss 21-25, 99, 103

REASONS FOR DECISION

Senior Member D Connolly

BACKGROUND

1. The Applicant sought review of a decision made by the National Disability Insurance Agency (the Respondent), which affirmed an earlier decision to refuse his request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

2. On 12 July 2022, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the NDIS Act. An internal reviewer confirmed the decision on 19 August 2022.

3. There was no dispute that, at the time the Applicant requested access to the NDIS and at the time of the internal reviewer’s decision, the Applicant met the age and residence requirements set out in sections 22 and 23 of the NDIS Act. However, the internal reviewer formed the view the Applicant did not meet the disability requirements set out in section 24 of the NDIS Act or the early intervention requirements set out in section 25 of the NDIS Act.

4. On 16 September 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision. Throughout the review, the Applicant was represented by his two sisters, including Ms P.

5. In April 2023 and before the review application was finalised by the Tribunal, the Tribunal received notification that, sadly, the Applicant had passed away on 10 April 2023. By an email to the Respondent dated 30 April 2023, Ms P confirmed an intention to proceed with the review despite the Applicant’s death. The same email chain revealed that on 19 April 2023, the Respondent, who was unaware that the Applicant had died on 10 April 2023, had agreed to grant the Applicant access to the NDIS and provided draft terms of agreement for the Applicant’s consideration.

6. On 3 May 2023, Ms P and the Respondent attended a conference by telephone facilitated by a conference registrar.

7. On 8 January 2024, the Tribunal wrote to Ms P and provided general information as to the effect of the death of an Applicant for a review in the Tribunal, essentially advising that, in situations where an applicant for access to the NDIS has passed away prior to a decision being made by the Tribunal, the only decision available to the Tribunal is to dismiss the application.

8. On 25 July 2024, the Tribunal held an interlocutory hearing by telephone. The Tribunal acknowledged throughout the hearing the grief Ms P has experienced and the difficulties she has faced in dealing with an outstanding review application after her beloved brother passed away.

9. At the hearing the Tribunal discussed with the parties its concern that, while acknowledging Ms P’s grief associated with losing her beloved brother, there appeared to be no utility in pursuing the matter at the Tribunal because there are mandatory requirements for access that could no longer be met, for example the residence requirement under sections 21 and 23 of the NDIS Act. The Tribunal also explained that the disability requirements (section 24 of the NDIS Act) or the early intervention requirements (section 25 of the NDIS Act) could not be assessed because the Applicant had passed away. The Tribunal acknowledged that the Applicant did meet the residence requirement before he passed away. It also acknowledged that, ultimately, the Respondent changed its view regarding the Applicant meeting the access criteria but this was not until after he had passed away.

10. Ms P submitted that over the course of this review the Respondent had made errors and should be held accountable. The Tribunal explained that it does not have the jurisdiction to make determinations or recommendations regarding these allegations. The Tribunal’s jurisdiction, by virtue of section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and 103 of the NDIS Act, is limited to reviewing the “reviewable decision” as set out in section 99 of the NDIS Act.

11. The Tribunal explained its preliminary view that, as the application has no reasonable prospects of success, that the matter should be dismissed pursuant to paragraph 42B(1)(b) of the AAT Act.

12. The parties agreed that at the time of the hearing the access criteria could not be met. Ms P explained that she wanted to pursue concerns she had regarding the Respondent’s conduct during the proceedings at the Tribunal. The Tribunal indicated that her concerns may be more appropriately raised with other agencies who could investigate complaints and recommend remedies. She indicated she had approached the Ombudsman but had been told that office would not investigate while the matter was before the Tribunal.

13. The Tribunal gave Ms P an opportunity to provide written submissions after the hearing. She took the opportunity to read to the Tribunal written submissions she had prepared which addressed the way she and her brother had felt about the ways the Respondent had dealt with the matter. Ultimately however she agreed that the matter should be dismissed as it would be futile to pursue. She did however indicate that she wanted the Tribunal to put in writing its reasons for its decision and to note that her brother had met the residence requirement and other access criteria immediately before his death.

14. The Tribunal made an oral decision to dismiss the application pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) and agreed to provide its reasons in writing.

15. After the hearing Ms P wrote to the Tribunal raising her concern about the appropriateness of the applying section 42B of the AAT Act, given the header reads Power of Tribunal if a proceeding is frivolous, vexatious etc. She was concerned her brother’s review application “will be perceived as having been frivolous, vexatious etc. I ask if anywhere in your written decision, any merits of the matter in his favour, can be considered. Versus feeling he’s been placed in the ‘naughty corner’ under such a title of law.”

16. Clearly at the time the Applicant made his application for review, until he passed away, his application had reasonable prospects of success, as indicated by the Respondent ultimately changing its position. However, at the time he passed away the matter had not been finalised and, after he passed away, mandatory criteria could not be met. This does not mean the application, or Ms P’s intention to continue with the review, was vexatious or frivolous as referred to in paragraph 42B(1)(a) of the AAT Act. The relevant provision in this case falls under the “etc” part of the header, paragraph 42B(1)(b) of the AAT Act.

    RELEVANT LEGISLATION

17. The access criteria to become a participant in the NDIS includes the following requirement set out in subsection 21(1) of the NDIS Act:

    (1)A person meets the access criteria if:

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

18. Section 23 of the NDIS Act sets out the residence requirements as follows:

    Residence requirements

    (1) A person meets the residence requirements if the person:

    (a) resides in Australia; and

    (b) is one of the following:

    (i) an Australian citizen;

    (ii) the holder of a permanent visa;

    (iii) a special category visa holder who is a protected SCV holder.

    (2) In deciding whether or not a person resides in Australia, regard must be had to:

    (a) the nature of the accommodation used by the person in Australia; and

    (b) the nature and extent of the family relationships the person has in Australia; and

    (c) the nature and extent of the person’s employment, business or financial ties with Australia; and

    (d) the nature and extent of the person’s assets located in Australia; and

    (e) the frequency and duration of the person’s travel outside Australia; and

    (f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

19. Subsection 42B(1) of the AAT Act states:

    The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)  is frivolous, vexatious, misconceived or lacking in substance; or

    (b)  has no reasonable prospect of success; or

    (c)  is otherwise an abuse of the process of the Tribunal.

    INTERLOCUTORY HEARING

20. The Tribunal held an interlocutory hearing by telephone on 25 July 2024. The Applicant’s estate was represented by the Applicant’s sister, Ms P. The Respondent’s legal representative attended the hearing. Both parties made oral submissions.

21. The Applicant’s death certificate was not filed with the Tribunal. However Ms P provided a link to the Applicant’s funeral notice and confirmed that the Applicant passed away on 10 April 2023.

22. The Respondent’s representative submitted that its position would be for the application to be dismissed.

    CONSIDERATION

23. The Tribunal is satisfied that the reference in section 21 of the NDIS Act to “at the time of considering the request” is the time the Tribunal makes its decision.

24. The Tribunal is satisfied that the residence requirement in sections 21 and 23 of the NDIS Act is a mandatory requirement for a person to access the NDIS. There is no discretion in the NDIS Act that would allow the residence requirement to be disregarded because of the present unfortunate circumstances.

25. As the Applicant cannot satisfy the residence requirement, the Tribunal finds the access criteria cannot now be met and the review application has no reasonable prospect of success. Accordingly it dismisses the application pursuant to paragraph 42B(1)(b) of the AAT Act.

    DECISION

26. The application is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

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

Associate

Dated: 31 July 2024

Date(s) of hearing:	25 July 2024
Date final submissions received:	28 July 2024
Advocate for the Applicant:	Ms M P, the Applicant’s sister
Solicitors for the Respondent:	Ms G Kurewa