Golding and National Disability Insurance Agency

[2023] AATA 2877

Golding and National Disability Insurance Agency [2023] AATA 2877 (7 September 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/5377

Re:Dominic Golding

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Mr S. Webb, Member

Date:7 September 2023

Place:Canberra

Application refused.

..................................[sgd]......................................

Mr S. Webb, Member

CATCHWORDS

PRACTICE AND PROCEDURE - extension of time - no adequate explanation for delay - consideration of relevant factors - objections refused

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

National Disability Insurance Scheme Act 2013, s 100

REASONS FOR DECISION

Mr S. Webb, Member

7 September 2023

1. On 16 September 2022, the Respondent approved a statement of participant supports for the Applicant (reviewable decision).

2. On 12 December 2022, the Applicant requested internal review of the reviewable decision. The Applicant wanted the Respondent to ‘reinstate’ cerebral palsy as his primary disability.

3. On 6 March 2023, the Respondent issued an internal review decision (IR decision) under s 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act), confirming the reviewable decision. Notice of the IR decision was given to the Applicant’s plan nominee, Heidi Kraus.

4. Under the heading ‘Next Steps’, the Notice set out information about the Applicant’s options if he was not satisfied with the decision, including:

   If you don’t agree with our decision, you have a number of options.

   You can:

   oObtain further evidence between now and your next plan reassessment.

   oContact your Local Area Coordinator to talk about other ways of using the supports in your plan.

   oAsk for a change to your plan at any time. For more information refer to the Our Guideline – Changing your Plan by visiting the NDIS website (ndis.gov.au) hovering over ‘Understanding the NDIS’, selecting ‘Our Guidelines’ and then selecting ‘Changing your plan’, or go to 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.

5. On 25 July 2023, the Applicant lodged an application for review of the IR decision by the Tribunal and an application for the grant of an extension of time in which to do so.

6. The Applicant gave the following reasons for the delay in lodging his application for external review:

   I have had multiple changing circumstances in my life including being a full-time carer, post recovery from a cochlear operation, taking on new responsibilities at work which are time-sensitive, and completing my PhD, which have made it difficult to begin the AAT process. I now have time and have been able to seek out formal support from a disability advocate.

7. On 8 August 2023, the Respondent opposed the extension of time application.

8. On 11 August 2023, the Tribunal issued the following direction:

   On or before the 25 August 2023, the Applicant must provide the Tribunal and the Respondent with a response to the Respondent’s submissions opposing the application for grant of an extension of time, setting out a further and better explanation for the delay in lodging his application with any supporting materials he intends to rely upon.

9. The Applicant did not comply with the direction.

10. The Applicant was notified of the 28-day time limit on lodging an application for external review by the Tribunal. The prescribed 28-day period ended on 4 April 2023.

11. The Applicant’s application for review on 25 July 2023 is 16 weeks out of time.

12. The Applicant’s explanation for the 16-week delay in lodging the application for review of the IR decision is not adequate. The Applicant asserts the delay is attributable to ‘changing circumstances’, including new work responsibilities and completing a PhD. What it was about the changing circumstances that prevented the Applicant from lodging an application for review within the prescribed time is not clear. The Applicant has been given opportunity to provide a further and better explanation for the delay, but he has failed to do so.

13. There is no evidence the Applicant made any effort to communicate an intention to challenge the IR decision to the Respondent or to the Tribunal before 25 July 2023.

14. On the present materials, it appears the Applicant rested on his rights for a time and only lodged an application for external review when it was convenient for him to do so. In so doing, he failed to abide with the prescribed time limit about which he was notified. The prescribed time limit cannot simply be ignored or stepped around on the basis of convenience.

15. There is no prejudice asserted to either party should the Applicant be granted an extension of time. Nevertheless, the grant of additional time on grounds of convenience is not consistent with the statutory requirements and it may result in unfairness to other participants in the National Disability Insurance Scheme who have not sought additional time to apply for external review without an adequate explanation.

16. If the extension of time sought is not granted, the Applicant has other avenues for relief. The Applicant may request a plan variation or a plan reassessment by the Respondent and, in that context, the issue of primary disability for which he contends may be raised for further consideration.

17. Weighing the relevant considerations in the particular circumstances of this case for the purposes of s 29(7) of the Administrative Appeals Tribunal Act 1975, I am satisfied the considerations weighing in favour of exercising the discretion to grant the Applicant’s extension of time application are outweighed by contrary considerations.

18. In conclusion, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time.

    Decision

19. Application refused.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

...................................[sgd].....................................

Associate

Dated: 7 September 2023

Date final submissions received:	8 August 2023
Advocate for the Applicant:	Madeleine Drahos, Advocacy for Inclusion
Respondent:	Self-Represented