GPFH and National Disability Insurance Agency

[2022] AATA 447

GPFH and National Disability Insurance Agency [2022] AATA 447 (10 March 2022)

Division:National Disability Insurance Scheme Division

File Number(s):      2021/6903

Re:GPFH

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Peter Smith

Date:10 March 2022

Date of written reasons:        15 March 2022

Place:Sydney

The application filed on 21 September 2021 is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth)

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

Member Peter Smith

CATCHWORDS

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – where the applicant and his representative failed to appear at three scheduled events – reasonable steps taken by the Tribunal to contact the applicant and his representative – oral reasons – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s42A(2), 42A(7)

CASES

Nil

SECONDARY MATERIALS

Nil

ORAL REASONS FOR DECISION

Member Peter Smith

15 March 2022

INTRODUCTION

1. GPFH (the Applicant) is a 14 year old child who became a participant of the National Disability Insurance Scheme (NDIS) in around mid-2020.   He has a number of diagnosed conditions, including Autism Spectrum Disorder (Level 2), a mild intellectual disability, severe receptive and expressive language delays, Attention Deficit Hyperactivity Disorder, Micro-array CGH Macrocephaly and mild bilateral hearing loss.

2. On 19 April 2021, a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) approved a statement of participant supports (the plan) pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2015 (Cth) (the NDIS Act). 

3. Around 16 June 2021, the Applicant applied to the Respondent for an internal review of the Respondent’s decision to approve the Applicant’s plan on 23 April 2021.  In his internal review application, the Applicant requested that a number of other supports be approved and funded on the basis that they were reasonable and necessary. In particular, the Applicant sought: 

Requested Supports

·           an increase in Speech Pathology, 32 hours per year;

·           the inclusion of funding for Physiotherapy, 7 hours for report;

·           an increase in occupational therapy, 32 hours per year;

·           an increase funding for support worker for daily activities;

·           an increase in funding for Psychology, 16 hours per year;

·           the inclusion of funding for a dietician;

·           the inclusion of funding for 20 hours improved relationships, 10 hours for development of behaviour support plan;

·           the inclusion of funding for social, community and civic participation; and

·           an increase in funding for support coordination.

1. On 25 August 2021, the Respondent approved an increase in funding for 7 hours of physiotherapy, 32 hours per year of speech pathology and 32 hours per year of occupational therapy on the basis that those supports were reasonable and necessary.  The remaining requested supports referred to above at paragraph 3 were not approved on the basis that they were not reasonable and necessary.

2. On 21 September 2021, the Applicant applied to the Tribunal for a review of the decision made by the Respondent on 25 August 2021.

3. The Applicant was previously represented by Ms Wendy Bramble of ‘A Positive Approach Support Services’ and is currently represented by his mother.  Two Telephone Conferences (TC) were held on 8 December 2021 and 23 February 2022 and two Non-compliance Telephone Directions Hearings (NCTDH) were held on 3 and 10 March 2022.  The Applicant’s representative, his mother, and a representative for the Respondent appeared at the TC on 8 December 2021.  The Applicant and his representative did not attend the TC on 23 February 2022 and the two NCTDHs on 3 and 10 March 2022.  A representative for the Respondent did attend the TC on 23 February 2022 and both NCTDHs.

   THE ISSUE

4. This issue in this matter is whether the Application for review filed by the Applicant on 21 September 2021 should be dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis of the Applicant’s failure to appear at the TC on 23 February 2022 and the two scheduled NCTDHs.

   CHRONOLOGY

5. The following chronology is relevant to the determination of whether the Application filed on 21 September 2021 should be dismissed pursuant to subsection 42A(2) of the AAT Act.

6. On 5 October 2021, the Tribunal sent the Applicant a Notice of Listing (the Notice) via the email address of his (then) representative, Ms Bramble. The Notice informed the Applicant that his Application had been listed for a TC on Wednesday, 8 December 2021 at 2.00pm. The Notice stated that if the Applicant could not attend the TC at the time specified in the Notice, they should advise the Tribunal as soon as possible. The Notice also stated that if the Applicant or the Applicant’s representative failed to attend the TC, the Tribunal may dismiss the application under subsection 42A(2) of the AAT Act.

7. Prior to the TC, on 12 October 2021 the Tribunal emailed Ms Bramble and asked that she provide a contact telephone number for the Applicant’s mother.  Ms Bramble emailed a mobile number to the Tribunal on the following day. 

8. On 8 December 2021, a Conference Registrar of the Tribunal conducted the TC at the time specified in the Notice dated 5 October 2021.  The Applicant’s representative and the Applicant’s mother attended the TC, as did the representative for the Respondent.

9. At the TC on 8 December 2021, the Conference Registrar made directions requiring the Applicant to give to the Tribunal and the Respondent, on or before 31 January 2022, written confirmation of the supports he is seeking, a reply to the request for further information as set out in Annexure A to the Respondent’s Statement of Issues dated 6 December 2021, and any additional evidence on which the Applicant intends to rely on in these proceedings.  The Conference Registrar also made a Direction requiring the Respondent to give to the Tribunal and the Applicant an updated Statement of Issues on or before 21 February 2022.  The Conference Registrar also listed the matter for a further TC on 23 February 2022 at 4.00pm.  At the TC on 8 December 2021, the Conference Registrar was provided with the email address of the Applicant’s mother.

10. On 9 December 2021, Ms Bramble, who commenced acting for the Applicant on 24 September 2021, ceased acting for the Applicant following concerns raised at the TC on 8 December 2021 by the Conference Registrar.

11. Also, on 9 December 2021, the Tribunal sent the Applicant a second Notice. The Notice was sent to the Applicant via his mother’s email address. The Notice informed the Applicant that his Application had been listed for a further TC on Wednesday, 23 February 2022 at 4.00pm. The Notice stated that if the Applicant could not attend the TC at the time specified in the Notice, the Applicant should advise the Tribunal as soon as possible. The Notice also stated that if the Applicant or the Applicant’s representative fails to attend the TC, the Tribunal may dismiss the application under subsection 42A(2) of the AAT Act.

12. On 10 January 2022, Ms Sharon Staines, from ‘A Positive Approach Support Services’, emailed the Tribunal and made reference to having ‘received further evidence of supports for [the Applicant]’ that were due to be provided on 31 January 2022.  Ms Staines asked the Tribunal to confirm where the Applicant should send this information.

13. On 11 January 2022, a Tribunal Officer replied to Ms Staines’ email of 10 January 2022.  The Tribunal stated in their reply email that copies of any additional documentation for this matter should be sent through to the Tribunal Registry by email and advised that copies of any additional documentation for this matter should also be emailed to the Respondent’s representative.

14. Ms Staines responded to the Tribunal’s email of 11 January 2022.  In her response, Ms Staines informed the Tribunal that it appeared there was an error in the email address that she had been provided with, [email protected]’, stating that she assumed the Tribunal meant [email protected].

15. Regrettably, it appears there were two errors on the Tribunal’s part.  The first was that the email address the Tribunal provided to Ms Staines on 11 January 2022 was incorrect due to a typographical error.  The second was that when the error, which had been raised by Ms Staines, had been corrected and a draft reply prepared, the email remained as a draft and was inadvertently not sent. 

16. On 31 January 2022, the Tribunal did not receive any of the information that the Applicant was required to provide as set out in the Direction of 8 December 2021. 

17. On 21 February 2022, the Respondent informed the Tribunal that they had not received any material from the Applicant in accordance with the Direction of 8 December 2021.

18. On 23 February 2022, the Applicant’s mother did not attend the TC at the time specified in the Notice dated 9 December 2021.  A representative for the Respondent did however attend the TC.

19. On 24 February 2022, the Tribunal sent the Applicant a third Notice via his mother’s email address. The Notice informed the Applicant that his Application had been listed for a NCTDH on Thursday, 3 March 2022 at 9.20am because it appeared that the Applicant had failed to comply with the direction made by the Tribunal on 8 December 2021, and no extension of time had been granted. The Notice informed the Applicant that they will be asked to explain why they failed to comply with the direction. The Notice also stated that if the Applicant or the Applicant’s representative fails to attend the NCTDH, the Tribunal may dismiss the application under subsection 42A(2) of the AAT Act.

20. On 1 March 2022, the Tribunal tried to contact the Applicant’s mother by calling the mobile number that Ms Bramble provided to the Tribunal on 13 October 2021.  The purpose of the call was to confirm with the Applicant’s mother if she would be attending the NCTDH on 3 March 2022 on behalf of her son.  The Tribunal called the mobile number Ms Bramble provided to the Tribunal twice but, on each occasion, there was no response.  The Tribunal left two voicemail messages.  The Applicant’s mother did not return either of the Tribunal’s calls.

21. Noting the emails received from Ms Staines on 10 and 11 January 2022, the Tribunal also contacted Ms Staines by telephone to confirm whether she was acting for the Applicant.  The Tribunal was informed by Ms Staines that the Applicant’s mother is no longer using ‘A Positive Approach Support Services’ for her son’s case.

22. On 2 March 2022, the Tribunal emailed the Applicant’s mother referring to the NCTDH listed on 3 March.  The Associate included in her email that the Tribunal had tried reaching the Applicant’s mother on her mobile number but was unable to and requested that the Applicant’s mother call her back as soon as possible.  The Applicant’s mother did not call the Associate back.

23. On 3 March 2022, the Applicant’s mother did not attend the NCTDH at the time specified in the Notice dated 24 February 2022.  On the morning of the NCTDH, the Associate made three attempts to reach the Applicant’s mother by calling her on the mobile number the Tribunal was provided by Ms Bramble on 13 October 2021, with no success.  In the circumstances, the Tribunal adjourned the matter to 10 March 2022 so that further attempts could be made to reach the Applicant’s mother.

24. Following the NCTDH on 3 March 2022, the Tribunal sent the Applicant a fourth Notice via his mother’s email address. The Notice informed the Applicant that his Application had been listed for a further NCTDH on Thursday, 10 March 2022, at 9.20am because it appeared that the Applicant had failed to comply with the direction made by the Tribunal on 8 December 2021, and no extension of time had been granted. The Notice informed the Applicant that they will be asked to explain why they failed to comply with the direction. The Notice also stated that if the Applicant or the Applicant’s representative fails to attend the NCTDH, the Tribunal may dismiss the application under subsection 42A(2) of the AAT Act.

25. On 7 March 2022, the Associate made a further attempt to reach the Applicant’s mother by calling her on the mobile number the Tribunal was provided by Ms Bramble on 13 October 2021.  The Applicant’s mother did not return the call made by the Associate. The Associate sent an email to the email address that was given to the Conference Registrar at the TC on 8 December 2021.  Referring to the NCTDH listing on 10 March 2022 at 9.20am, the Associate stated that she had tried to reach the Applicant’s mother on her mobile number numerous times but had not been able to.  The Associate requested that the Applicant’s mother return her call as soon as possible.  The Applicant’s mother did not return the call made by the Associate.

26. The Associate also sent a text message on 7 March 2022 to the mobile number of the Applicant’s mother that Ms Bramble provided to the Tribunal in her email on 13 October 2021.  The text message sent was the same message that the Tribunal sent in its email of 7 March 2022.  Later that day, the Tribunal received a message from MessageNet SMS Gateway confirming that the text message had been sent.

27. Further, on 7 March 2022, the Associate called Ms Staines to ask if she had any alternative contact details for the Applicant’s mother.  Ms Staines informed the Associate that she did not have any alternative contact details for the Applicant’s mother.  Noting the emails Ms Staines sent to the Tribunal on 10 and 11 January 2022, the Associate also asked Ms Staines if she had sent the Tribunal the material referred to in those emails.  Ms Staines informed the Associate that she had no record of providing any material to the Tribunal or to the Respondent in January, but she said she was only intending to provide a report prepared by an Occupational Therapist dated 10 December 2021 following a functional capacity assessment of the Applicant.

28. On 10 March 2022, the Applicant’s mother did not attend the NCTDH at the time specified in the Notice dated 3 March 2022.  On the morning of the NCTDH, the Associate made three attempts to reach the Applicant’s mother by calling her on the mobile number the Tribunal was provided by Ms Bramble on 13 October 2021, again without success. 

    THE LAW

29. Subsection 42A(2) of the AAT Act gives the Tribunal the power to dismiss an application for review if a party (other than the person who made the decision) fails to appear. Subsection (2) provides:

    (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

    (a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or

    (b) in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.

30. Subsection (7) provides that before exercising the power under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear at the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

    DISCUSSION

31. The Tribunal has sent numerous Notices to the Applicant via his mother’s email address advising him that his Application for review had been listed before the Tribunal on 23 February 2022, and 3 and 10 March 2022.

32. The Notice that was sent to the Applicant via his mother’s email address on 9 December 2021 informed the Applicant of the date and time of the TC and indicated that the event would take place via telephone. The Notice required the Applicant to attend a TC to discuss the future conduct of his matter. The Notice also informed the Applicant that if he could not attend the scheduled TC at the time specified in the Notice, he should advise the Tribunal as soon as possible. Further, the Notice informed the Applicant that if he or his representative failed to attend the scheduled TC, his application may be dismissed under subsection 42A(2) of the AAT Act.

33. The Applicant’s mother did not attend the scheduled TC on 23 February 2022, nor did she contact the Tribunal to advise that she could not attend the scheduled TC on behalf of her son.  The Tribunal notes that the Notice sent to the Applicant was sent to his mother’s email address, which is the email address that was given to the Conference Registrar at the scheduled TC on 8 December 2021 and is the same email address that Ms Staines used to correspond with the Tribunal and the Applicant’s mother in January 2022.

34. The Notice that was sent to the Applicant via his mother’s email address on 24 February 2022 informed the Applicant of the date and time of the NCTDH and indicated that the event would take place via telephone. The Notice informed the Applicant that the NCTDH had been listed because it appeared that he had not complied with the Direction made by the Tribunal on 8 December 2021. The NCTDH was an opportunity for the Applicant’s mother to explain why the Applicant had not complied with the Direction made by the Tribunal on 8 December 2021. The Notice also informed the Applicant that if he could not attend the scheduled NCTDH at the time specified in the Notice, he should advise the Tribunal as soon as possible. Further, the Notice informed the Applicant that if he or his representative failed to attend the scheduled NCTDH, his application may be dismissed under subsection 42A(2) of the AAT Act.

35. The Applicant’s mother did not attend the scheduled NCTDH on 3 March 2022, nor did she contact the Tribunal to advise that she could not attend the scheduled NCTDH on behalf of her son.  The Tribunal notes that the Notice sent to the Applicant was sent to his mother’s email address which is the email address that was given to the Conference Registrar at the scheduled TC on 8 December 2021 and is the same email address that Ms Staines used to correspond with the Tribunal and the Applicant’s mother in January 2022.

36. The Notice that was sent to the Applicant via his mother’s email address on 3 March 2022 informed the Applicant of the date and time of the NCTDH and indicated that the event would take place via telephone. The Notice informed the Applicant that the NCTDH had been listed because it appeared that he had not complied with the Direction made by the Tribunal on 8 December 2021. The NCTDH was a further opportunity for the Applicant’s mother to explain why the Applicant had not complied with the Direction made by the Tribunal on 8 December 2021. The Notice also informed the Applicant that if he could not attend the scheduled NCTDH at the time specified in the Notice, he should advise the Tribunal as soon as possible. Further, the Notice informed the Applicant that if he or his representative failed to attend the scheduled NCTDH, his application for review may be dismissed under subsection 42A(2) of the AAT Act.

37. The Applicant’s mother did not attend the scheduled NCTDH on 10 March 2022, nor did she contact the Tribunal to advise that she could not attend the scheduled NCTDH on behalf of her son.  The Tribunal notes that the Notice sent to the Applicant was sent to his mother’s email address which is the email address that was given to the Conference Registrar at the scheduled TC on 8 December 2021 and is the same email address that Ms Staines used to correspond with the Tribunal and the Applicant’s mother in January 2022.

1. The Tribunal has made a number of attempts, by text message and email, to contact the Applicant about the two scheduled NCTDHs, including the making of telephone calls on the morning of each NCTDH and prior to each NCTDH, to the only mobile number and email address for the Applicant’s mother that have been provided to the Tribunal.  The Tribunal contacted Ms Staines to obtain alternative contact details for the Applicant’s mother.  In the circumstances, the Tribunal considers it has made all reasonable attempts to contact the Applicant to provide important information about his application.  However, despite these steps the Applicant’s mother has not appeared at either NCTDH on behalf of the Applicant as required by the Notices sent by the Tribunal.

2. In reference to the representation of the Applicant by Ms Bramble and Ms Staines, the Tribunal notes that records of the Tribunal show that Ms Bramble was the nominated representative from 24 September 2021 up to and including 9 December 2021 but, after that date, Tribunal records show that she had no further involvement in the representation of the Applicant for the purposes of these proceedings.  Therefore, it was not appropriate for the Tribunal to send any of the Notices of Listing after that date to the Applicant via Ms Bramble.

3. In relation to Ms Staines, it appears from Tribunal records that she sent two emails to the Tribunal on 10 and 11 January 2022 intending to send documentation in support of the Applicant’s application, however the documentation was not sent until 7 March 2022 following a telephone conversation that ensued between Ms Staines and the Associate on 7 March 2022.  Moreover, Ms Staines, during an earlier telephone conversation with the Associate on 1 March 2022 confirmed that ‘A Positive Approach Support Services’ was no longer engaged by the Applicant’s mother for the purposes of these proceedings. 

4. Ms Staines has provided assistance to the Tribunal.  However, Ms Bramble, from ‘A Positive Approach Support Services’, ceased representing the Applicant on 9 December 2021.  No other representative from ‘A Positive Approach Support Services’ was appointed.  Ms Staines was, helpfully, providing assistance to the Tribunal during a period when difficulties were experienced getting in touch with the Applicant.  Ms Staines was at no time acting for the Applicant.  Therefore, Notices of Listing were sent to the Applicant’s representative of record, his mother.

5. For the reasons given, the Tribunal is satisfied that the Applicant was given appropriate notice of the time and place of the TC and the two scheduled NCTDHs as required under subsection 42A(7) of the AAT Act.

   DECISION

6. The application filed on 21 September 2021 is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member Peter Smith

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

Associate

Dated: 15 March 2022

Date(s) of hearing:	10 March 2022
Applicant:	Did not appear
Solicitor for the Respondent:	Ms B Audsley, Australian Government Solicitor