Drain and National Disability Insurance Agency

[2024] AATA 2887

Drain and National Disability Insurance Agency [2024] AATA 2887 (14 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/4697

Re:Andrew Drain  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member N Purcell

Date:14 August 2024

Place:Sydney

The Tribunal grants an extension of time for the Applicant to file his appeal. The Tribunal has jurisdiction to determine the application.

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Member N Purcell

CATCHWORDS

PRACTICE AND PROCEDURE – deemed decision - extension of time - jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 25(5); 29(3)(a)
National Disability Insurance Scheme Act 2013 (Cth) s 100(2); 100(6A)

REASONS FOR DECISION

Member N Purcell

14 August 2024

Background

1. The Applicant is a participant of the National Disability Insurance Scheme (NDIS). He received his NDIS plan dated 6 February 2024 to 6 February 2025 (original decision).

2. On 26 February 2024, the Applicant requested a review of the original decision, pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The request was made within 90 days as specified under section 100(2) of the NDIS Act.

3. Pursuant to section 100(6A) of the NDIS Act, the Agency was required to internally review the original decision within 90 days however it appears this did not occur.

4. On 27 May 2024, at the expiration of the 90-day deadline, a deemed decision occurred by virtue of the operation of section 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). As a result of the deemed decision, the original decision (supports contained in the Applicant’s NDIS plan) were confirmed.

5. On 8 July 2024, the Applicant filed an appeal with this Tribunal. This occurred after the 28-day deadline to appeal a decision pursuant to section 29(3)(a) of the AAT Act.

6. A Tribunal staff member contacted the Applicant on 12 August 2024 to explain the need for him to request an extension of time to file his appeal in writing. The Applicant then emailed the Tribunal the same day requesting an extension of time and explaining that he was confused by NDIS timelines.

7. An interlocutory hearing was listed for 14 August 2024 to determine the question of jurisdiction and an extension of time.

8. The Respondent agreed to the extension of time and conceded the Tribunal has jurisdiction by virtue of the deemed decision in an email to the Registrar dated 24 July 2024.

9. The Tribunal is satisfied on the documents before it that it is appropriate in the circumstances to grant an extension of time to the Applicant, particularly as the Applicant is not legally represented and was understandably confused by not receiving notification of a decision from the Respondent.

10. The Tribunal grants an extension of time and finds that it has jurisdiction to hear the matter.

11. The interlocutory hearing on 14 August 2024 is unnecessary and is therefore vacated.

12. The Applicant’s matter will proceed along the usual pathway to case conference.

    DECISION

13. The Tribunal grants an extension of time for the Applicant to file his appeal. The Tribunal has jurisdiction to determine the application.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Member N Purcell

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Associate

Dated: 14 August 2024