Dole and National Disability Insurance Agency

[2023] AATA 1236

Dole and National Disability Insurance Agency [2023] AATA 1236 (16 May 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL  )

)                No: 2023/1593

National Disability Insurance Scheme Division  )

Re: Blake Dole
Applicant

And: National Disability Insurance Agency
Respondent

INTERLOCUTORY DECISION

TRIBUNAL:              Mr S. Webb, Member

DATE:   16 May 2023

PLACE:                    Canberra

The application for an extension of time is refused.

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

Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – application for extension of time in which to make an application for review – no reasonable explanation for delay – prejudice – prospect of success – availability of alternative remedy – not reasonable in all the circumstances to exercise discretion – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 47A, 48, 100

Case Law

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

REASONS FOR DECISION

Mr S. Webb, Member

16 May 2023

1. The Applicant is a participant in the National Disability Insurance Scheme (Scheme). A delegate of the CEO of the National Disability Insurance Agency (Agency) approved a Statement of Participant Supports (SOPS) for the Applicant under s 33 of the National Disability Insurance Scheme Act 2013 (NDIS Act). The Applicant requested review of this decision under s 100 of that Act. The reviewer who conducted the review decided to affirm the SOPS decision (internal review decision). The Applicant received this decision on 19 October 2022.

2. On 23 March 2023, the Applicant’s mother lodged an application for review of the internal review decision by the Tribunal. The application was lodged approximately 4 months outside the prescribed time allowed under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The mother applied for an extension of time in which to lodge the application. The reason for the delay in lodging the application was stated in the following terms:

   The seriousness of the injuries to my son and carers/supports involved with Blake’s services photo evidence of sever bruising.

3. On 31 March 2023, the Tribunal directed the Applicant (through his mother) to provide a further and better explanation for the delay in filing the application for review and any submissions and materials in support of the extension of time application by 14 April 2023.

4. The Applicant failed to comply with the direction.

5. In directions issued on 19 April 2023, the Tribunal allowed further time for the Applicant (through his mother) to provide a further and better explanation for the delay in filing the application for review and any submissions and materials in support of the extension of time application by 26 April 2023.

6. On 26 April 2023, the mother filed additional materials, namely 3 photographs of the Applicant showing bruising to his head and arm, and medical documents relating to his attendance at the Emergency Department of the Shoalhaven District Memorial Hospital on 25 April 2023, including a discharge report by Dr Ord in reference to Dr Cooney (local medical officer).

7. On 15 May 2023, the Applicant’s mother provided additional information in respect of a further admission on 13 May 2023, including a brief report by Dr Cooney, and, aside from the circumstances of the admission, stated:

   The funding through the NDIS is so dire Support workers arent even financially able to collect Webster packs on behalf of [the Applicant] from Kiama Downs chemist. The mental health nurse was hoping to have some assistance as he [the Applicant] likes familiarity and has developed a good connection.

   I have exhausted all hope that the NDIS will be reasonable with funding [the Applicant] 2:1 care as there is always an excuse for not allowing it even though Interchange have also provided evidence that [the Applicant] needs this. This is a dire situation where the NDIS is neglecting the issue that [the Applicant] is suicidal and need extra supports to ensure quality of life and purpose. His aggressive behaviours isn't limited to Myself and immediate family but is also the same with his carers.

   NDIS I feel do not want to recognise the immediate needs of [the Applicant] and add to the possibility of [the Applicant’s] purposeful dangerous behaviours to himself and others around him.

   I strongly believe that if this is not addressed with NDIS this behaviour will eventually lead to life ending results and this is so hard for me to admit as he is my life.

8. As can be seen, the serious issues raised by the mother are primarily directed to and critical of the Agency.

9. Wilcox J set out relevant but not exhaustive considerations[1] in Hunter Valley Developments Pty Ltd v Cohen,[2]which may be summarised as follows:

   (a)An acceptable explanation for the delay provided by the prospective applicant, and the length of the delay. The absence of a satisfactory explanation may not always be determinative but statutory limits on the time for lodging an application cannot be ignored. Generally, an application made outside the prescribed time will not be allowed to proceed unless the Tribunal is positively satisfied there is a good reason and it is appropriate to do so in all the circumstances.

   (b)Whether an applicant has rested on their rights and taken no action to seek review or to communicate an intention to challenge the decision. The public interest in the timely review of administrative decisions must be weighed against any public interest in the delivery of fair and just decisions.

   (c)Any prejudice to the respondent or unfairness to another person. The absence of prejudice does not weigh for the grant of additional time.

   (d)The relative merits of the application should it be allowed, albeit at a very high level. An application which lacks any reasonable prospect of success may not be allowed to proceed.

   (e)Alternative avenues for relief.

   [1] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Mentink v Minister for Home Affairs [2013] FCAFC 113, per Griffiths J (as he then was) at [35]-[39].

   [2] (1984) 3 FCR 344 at 348-350.

10. While the circumstances of the Applicant’s hospital admissions on 25 April 2023 and 13 May 2023 can readily be understood from the documents provided, no explanation has been given for the delay in lodging an application for review of the internal review decision by the Tribunal. The prescribed time limit cannot simply be ignored. The absence of any explanation whatsoever for the delay of approximately 4 months in lodging the application weighs heavily against exercise of the discretion conferred by s 29(7) of the AAT Act to extend time.

11. The notice of decision on 19 October 2022 clearly sets out the Applicant’s review rights and the time limit on applying for review. There is no evidence the Applicant (through his parents or carers) were unaware of the time limit.

12. Noting the mother’s assertions about views expressed by Interchange in respect of support needs for the Applicant, there is no clear evidence the Applicant (through his parents or carers) informed the Agency of an intention to challenge the internal review decision until the application for review by the Tribunal was lodged. In the intervening period, it may be accepted, through his parents, the Applicant rested on his rights.

13. The Respondent did not oppose or support the grant of additional time. No prejudice is asserted. Nevertheless, granting additional time in such circumstances, without any explanation for the Applicant’s failure to abide by the time in which an application for review might be lodged, as notified in the decision he was given on 19 October 2022, may well result in unfairness to others who did not seek to lodge an application for review out of time without explanation. This, too, weighs against the grant of additional time.

14. On the present materials it is not possible to gauge if the application would have any prospect of succeeding should additional time be allowed. Nevertheless, the asserted need for 2:1 supports is clearly expressed in the mother’s communication to the Tribunal on 15 May 2023. On this information and the medical reports of Dr Ord and Dr Cooney, I am satisfied the application might have some prospect of success if it is allowed to proceed. This does not weigh for or against the exercise of discretion to allow additional time.

15. It is open to the Applicant to approach the Agency for a plan reassessment or variation under s 47A or s 48 of NDIS Act. Even if it is accepted the Applicant’s support needs are so urgent and dire as the mother’s communications suggest, exercising discretion to allow the application for review to proceed in the Tribunal does not ensure a quick outcome would follow.

16. The Tribunal is required to proceed in a manner which is procedurally fair to both parties, in which each party has a reasonable opportunity to obtain, consider and adduce relevant materials in presenting their case. Even with urgent consideration, such review processes require time. It is possible a more rapid response might be obtained by approaching the Agency for urgent reassessment of the Applicant’s plan or in respect of a variation of the approved statement of supports for the Applicant if the variation is of a minor nature. This consideration weighs, albeit marginally, against exercise of the discretion to allow more time.

17. In consideration of all the relevant circumstances, I accept the Applicant’s circumstances are difficult and associated with risk which may require an urgent response. Nevertheless, the weight of relevant considerations is against the grant of an extension of time in which to apply for review of the internal review decision. On the available materials, absent any explanation for the delay, I am not satisfied it is reasonable and appropriate in all the circumstances to exercise the discretion conferred by s 29(7) of the AAT Act in this case.

18. For these reasons, the application for additional time is refused.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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

Associate

Dated: 16 May 2023

Applicant:	Self-represented
Solicitor for Respondent:	Self-represented