Fry and National Disability Insurance Agency

[2023] AATA 537

Fry and National Disability Insurance Agency [2023] AATA 537 (27 March 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/1464

Re:Stephen Richard Fry  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Mischin

Date:27 March 2023

Place:Perth

The Tribunal DETERMINES that:

The Applicant’s application dated 10 March 2023 for an extension of time to lodge an application for review is refused.

..........................[Sgd]..........................................

Deputy President Mischin

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Application for review of decision – application lodged out of time – application for extension of time to lodge application for review – whether ‘reasonable in all the circumstances’ to extend time – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), sec. 29
National Disability Insurance Scheme Act 2013 (Cth), sec. 33

Cases

Nil

Secondary Materials

Nil

REASONS FOR DECISION

Deputy President Mischin

27 March 2023

1. This is an application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for lodging an application for review.

2. The Applicant is 66 years old and a participant in the National Disability Insurance Scheme.

3. On 23 September 2022, the National Disability Insurance Agency (the Respondent) issued a plan for the Applicant containing a variety of funded supports approved under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Applicant sought an internal review of that decision under section 100 of the NDIS Act seeking, it appears, to update his goals, change the plan management to self-management of all supports, and to enable his wife to be a paid carer.

4. The internal review decision was made on 28 October 2022. The Applicant’s requests were refused, and the original decision was confirmed.

5. A letter from the Respondent of 28 October 2022 advising the Applicant of the outcome of the review gave reasons for the rejection of his requests.

6. It also, on page 2, advised the Applicant ‘If you don’t agree with our decision, you have a number of options’ and listed those options as follows:

   ·Obtain further evidence between now and your next plan review.

   ·Contact your Support Coordinator to consider other ways of using the supports in your plan.

   ·Ask for a plan review at any time if your circumstances change, including if you have new information to suggest there is a need for a change to your plan.

   ·Apply to the Administrative Appeals Tribunal (AAT) for an external review within 28 days. Information about how to apply is available on the AAT website (aat.gov.au), or by calling 1800 228 333.

7. Bullet point four reflects what is required by section 29(1)(d) and (2) of the AAT Act for lodging an application for review.

8. The application to the Tribunal for a review was lodged online on 8 March 2023. The application for review says that the Respondent’s internal review decision was made on 28 September, rather than October, 2022.

9. A separate ‘Application for Extension of Time for Making an Application for Review of Decision’ form was lodged on 10 March 2023 seeking an extension of time to that date to lodge the application for review.

10. In the form, the Applicant states that he received the decision sought to be reviewed on 28 October 2022. In the section of the form asking the Applicant to ‘Outline your reasons for applying for an extension of time to make your application for review of the decision’ the answer given is ‘DENIAL OF APPLICATION TO HAVE MY WIFE, (MICHELLE), PAID AS MY INFORMAL PAID CAREER [sic], IN OUR REMOTE & ISOLATED AREA’.

11. If the decision was made and received by the Applicant on 28 October 2022, as appears to have been the case, the prescribed 28-day time limit expired on 25 November 2022, and the application for review was lodged 103 days out of time.

12. Advice of the application and of the request for an extension of time within which to lodge it was provided to the Respondent Agency. On 20 March 2023, the Respondent advised that it ‘does not oppose’ the application for an extension of time.

13. That the Respondent does not oppose an application to extend time is, of course, a factor to be considered and weighed when the Tribunal is deciding whether to grant such a request. However, the Respondent’s position is not determinative of the question.

14. The AAT Act prescribes a time within which an application for review must be lodged. It confers upon the Tribunal, in section 29(7), a power that it may exercise at its discretion to extend the time for making an application to the Tribunal for review.

15. That discretion is to be exercised in favour of an extension ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.’

16. The reasons provided by the Applicant in his request for an extension called for further explanation.

17. The information before the Tribunal said nothing to explain why the application for review was lodged some 3½ months after the prescribed lodgement period had expired, or why it ought now to be accepted. 

18. The Tribunal was not satisfied that it was reasonable to extend time in the circumstances that were before it.

19. However, on 22 March 2023 the Tribunal wrote to the Applicant in the following terms:

    Dear Mr Fry

    I refer to your application for an extension of time to lodge an application for review.

    Section 4 of the Extension of Time application asks for an outline of the reasons for applying for an extension of time. Your answer states:

    'Denial of application to have my wife (Michelle), paid as my informal paid career (carer), in our remote and isolated area'.

    This is more of a description of the decision made by the NDIA rather than reasons given for the application being lodged out of time. The reviewable decision letter (titled 'outcome of your internal review decision' letter) states on page 2 that if you do not agree with the decision of the Agency you can apply to the Administrative Appeals Tribunal (AAT) for an external review within 28 days.

    The reviewable decision letter is dated 28 October 2022. Given that your application is currently 104 [sic] days outside this 28 day limit, are there any further circumstances you wish to put before the Tribunal to explain why the application was not lodged within time and why it is reasonable to extend the time to enable to Tribunal to receive your application?

20. On 23 March 2023, the Applicant replied by email:

    At the time of the decision, we were visiting family in the East. One of the demands of NDIS was that to act as my carer, my wife must work for a provider to be able to be paid for that role. This we did through local provider, right at home, so thought the problem had been solved and no need to carry on with any further actions. The employment with right at home was suspended by ndis because michelle was family. By the time your option was required we were well and truly over the 28 days. Please excuse the clumsy attempt at putting all this to you.

    The reference to ‘right at home’ appears to be to a support provider firm employing the Applicant’s wife.

21. Unfortunately, the Applicant’s email does not take the circumstances before the Tribunal much further rather than repeat, with some small additional detail, why he is unhappy with the Respondent’s decision. While his absence interstate provides some hint at why no application for review may have been lodged within 28 days of receipt of the decision, the Applicant does not attempt to explain why one was not lodged sooner than 3½ months later.

22. It is not possible, on the information before it, for the Tribunal to assess the strength of the Applicant’s case as a counterpoint to the extensive delay in the Applicant seeking to avail himself of the remedy of a review of the decision.

23. Notwithstanding that the Respondent does not oppose time being extended, I am not satisfied that it is reasonable to do so.

24. I note other courses of action may remain available to the Applicant, as set out in the letter of advice from the Respondent dated 28 October 2022.

25. However, the application for an extension of time to lodge an application for review is refused.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

...........................[Sgd]........................................

Associate

Dated: 27 March 2023