Grammar and National Disability Insurance Agency

[2022] AATA 4044

Grammar and National Disability Insurance Agency [2022] AATA 4044 (9 November 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/8573

Re:Dylan Grammer

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Deputy President Mischin

Date:9 November 2022

Place:Perth

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal, noting that the Respondent does not oppose the application to extend time and satisfied that it is reasonable in the circumstances to do so, extends the prescribed time for the making of an application for review of the Respondent’s decision dated 31 August 2022 to 17 October 2022

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

Deputy President Mischin

Catchwords

National Disability Insurance Scheme – application for review of decision

Practice and Procedure – application for review lodged out of time – application to extend time to lodge application – cogency of reasons and explanation

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 29

REASONS FOR DECISION

Deputy President Mischin

9 November 2022

1. I have before me an application by the Applicant, Dylan Grammar, to extend time to lodge with the Tribunal an application for review.

2. Mr Grammar seeks to have a decision made by the Respondent National Disability Insurance Agency (NDIA) on 31 August 2022 reviewed by the Tribunal. The decision confirms an earlier decision regarding funding for Specialist Disability Accommodation and certain Core Consumables.

3. On page 2 of the letter from the NDIA of that date informing him of its decision, the NDIA advised Mr Grammer that if he did not agree with the decision he had four options. The first was to supply further evidence before the next plan review; the second was to seek advice from his Support Coordinator as to other ways of using the supports in the plan; and the third was to seek a review of the plan in the light of changed circumstances or new information. The fourth, and the one material to this application, was to ‘Apply to the Administrative Appeals Tribunal (AAT) for an external review within 28 days.’ The letter also advised of links to information as to how to apply and to assist him regarding an external review.

4. The combined operation of subsections 29(1)(d) and (2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) requires that an application for review of a decision must be lodged with the Tribunal within 28 days of the decision.

5. The time to lodge an application for review expired on 28 September.

6. Mr Grammer’s application was lodged late on 17 October. It was 19 days out of time.

7. Subsection 29(7) of the Act empowers the Tribunal to extend time for making an application to the Tribunal ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.’

8. As part of his application for a review, Mr Grammer applied for an extension of time in which to lodge it. The reasons he gave for applying for an extension of time, including why he did not apply within time, were stated merely as ‘We had tried contacting the ministers office however the decision was not reviewed and we’re directed back to the AAT [sic passim].’ I take from the context that the minister’s office referred to is that of the Minister for the National Disability Insurance Scheme.

9. Mr Grammer is represented by his service coordinator, who I shall refer to as Ms B. The application appears to have been prepared by Ms B. Presumably the ‘we’ in the reasons for seeking an extension of time is a reference to both Mr Grammer and his representative Ms B.

10. The NDIA has advised that it does not oppose time being extended. However, while that is a factor to be taken into account when deciding whether to extend time, it is not determinative of the question; the Tribunal must be ‘satisfied that it is reasonable in all the circumstances to do so.’

11. It is apparent from the reasons and explanation accompanying his application for review that Mr Grammer knew the avenue prescribed by law by which he could seek a review. Instead, he chose, for reasons undisclosed in his application, to do otherwise. That alternative having failed, he now seeks to do what he, sensibly, should have done in the first place.

12. The failure of his preferred alternative, to my mind, does not provide a satisfactory reason to extend time.

13. In case there was some further explanation that Mr Grammer had not fully or properly expressed, the Tribunal wrote to him on 24 October, with a copy to Ms B, asking ‘Are there any further circumstances you wish to put before the Tribunal to explain why your application was not lodged within time and why it is reasonable to extend the time to enable it to be received?’

14. Mr Grammer did not respond. However, Ms B responded by email on 25 October, with a copy to Mr Grammer. The explanation she provided for what had happened, to the extent material, can be distilled down to the following:

    (a)She is not an advocate or a lawyer, but a support coordinator;

    (b)She had been seeking an advocate on behalf of Mr Grammer since March this year without success;

    (c)This is her first ‘application’ (presumably ‘application for review’);

    (d)She applied to the AAT because there were no advocates to help, and no one of her ‘usual contacts in the ministers office or other ministers’ was ‘getting back’ to her; and

    (e)She and Mr Grammar ‘were not aware’ that ‘we (persons with disability) are only given 28 days to respond [to the internal review decision made on 31 August]’.

15. She concluded by saying ‘We have never had to go the AAT before and to be honest this was something I tried relentlessly to deal with the ministers office about and didn’t feel that an AAT was necessary as it was a clear violation of the rights of people with disability and their right to choose where they live and whom with [sic passim].’ She then expanded on what she considers to be the merits of Mr Grammer’s case with reference to what she asserts are his rights, United Nations Conventions, and other matters.

16. If, in fact, she and Mr Grammar were not aware that an application for review needed to be lodged within 28 days, that ignorance was due to an inexplicable failure to read the advice provided by the NDIA in its letter of 31 August, and to an equally inexplicable neglect in seeking information readily available to the public and anyone working in the disability support sector.

17. Rather, it appears to have been a conscious decision on Ms B’s part, convinced of the compelling justice of Mr Grammer’s case, to choose to attempt to secure a political intervention from the Minister through contacts in the Minister’s office she considered she could exploit, in favour of the avenue of review provided by law.

18. It is only when those attempts proved unsuccessful that resort was made to the rationally preferable and, one would have thought, obvious course of making an application for review.

19. Ms B does not say so, but it is reasonable to infer that Mr Grammer accepted her advice, judgment, and assistance in taking this course. Given that she is his support coordinator, I am comfortable in inferring that he did so with confidence in her judgment and in good faith.

20. Accordingly, the deliberate decision to take such a course and, in doing so, ignore or exceed the time prescribed by statute to seek remedy by way of review is one for which Ms B must take responsibility. The failure to achieve success – indeed, its apparent rebuff by those from whom she sought a remedy – does not provide a satisfactory reason to now extend time.

21. Ordinarily, then, I would refuse the application to extend time.

22. I accept that Ms B is uninformed as to the law and may not have been able to obtain the guidance she desired. However, her decision to ignore the explicit avenue for remedy notified in the letter from the NDIA in favour of uninformed alternatives has jeopardised Mr Grammer’s ability to apply for a review on the merits of his case.

23. Nevertheless, I am mindful that Ms B – albeit misguided in her approach – was attempting to promote Mr Grammer’s interests. Importantly, I also take into account that Mr Grammer relied on Ms B’s counsel in good faith.

24. In the circumstances and taking into consideration that the NDIA does not oppose an extension, I conclude that it would be unfair on Mr Grammer to prevent him obtaining a review of the decision of 31 August 2022 on its merits, and I am satisfied that it is reasonable in all the circumstances to extend the time for him to do so.

25. I therefore extend time for lodging the application to 17 October 2022.

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: 9 November 2022

Applicant:	Self represented
Respondent:	Self represented