Dewar and National Disability Insurance Agency

[2023] AATA 2900

Dewar and National Disability Insurance Agency [2023] AATA 2900 (11 September 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3947

Re:Wayne David Ronald Dewar

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member Joanne Collins 

Date:11 September 2023

Place:  Brisbane

The Applicant’s recusal application is refused. 

................................[SGD].............................
Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – application for recusal – National Disability Insurance Scheme - recusal application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) sections 19A

National Disability Insurance Scheme Act 2013 (Cth) sections 21, 24, 25, 100(2)

REASONS FOR DECISION

1. Mr Dewar is a 54-year-old man who applied to the Agency for access to the National Disability Insurance Scheme (‘the scheme’) on 9 February 2022.

2. To become a participant in the scheme, Mr Dewar must satisfy the ‘access criteria’ which are set out in subsection 21(1) of the National Disability Insurance Act 2013 (the ‘NDIS Act’) and provide as follows:

   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).

3. On 3 March 2023 the Agency wrote to Mr Dewar advising him of its decision to refuse him access to the scheme.[1]

   [1] T1G

4. On 24 March 2023 Mr Dewar sought an internal review of this decision by the Agency.[2]

   [2] T1H; Section 100(2) NDIS Act.

5. On 26 April 2022, following an internal review, the Agency notified Mr Dewar that they confirmed their original decision (‘the decision under review’).

6. Dissatisfied with the outcome of the internal review, on 17 May 2022 Mr Dewar applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the decision under review.[3] The issue for determination before the Tribunal (‘the substantive issue’) is whether Mr Dewar has met the access criteria.

   [3] T1.

7. Pursuant to section 19A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) this matter was constituted to me as the member for the hearing and determination of Mr Dewar’s application for a merits review.

8. In an email dated 1 September 2023 Mr Dewar requested that this matter be re-assigned to another member of this Tribunal. I have decided to treat Mr Dewar’s email as an application that I recuse myself as the Senior Member constituted to hear this matter. Mr Dewar contends that I am not a ‘fit and proper person’ insofar as he contends that I am ‘ignorant’ and represent an ‘Occupational Health and Safety issue’.

9. I have decided not to recuse myself. Having been appointed as a Senior Member of the Administrative Appeals Tribunal pursuant to section 6 of the Administrative Appeals Tribunal Act 1975 (Cth) I have satisfied the necessary statutory requirements and been deemed a fit and proper person in respect of the conduct of matters before the Tribunal in the NDIS division. Furthermore, Mr Dewar provides no objective evidence to support his opinion or his contentions which would cause me to consider abrogating my responsibility as the member constituted by the Tribunal for the hearing of this application.

10. The application for recusal is refused.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

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

Associate

11 September 2023