Gratt and National Disability Insurance Agency
[2022] AATA 3379
•17 October 2022
Gratt and National Disability Insurance Agency [2022] AATA 3379 (17 October 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/7198
Re:Lauren Gatt
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member D Connolly
Date:17 October 2022
Place:Sydney
The application to extend time is refused.
................................[SGD]..................................
Senior Member D ConnollyCATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – extension of time to apply for review – delay – prejudice – interests of justice – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Grafton and Commonwealth of Australia (1988) 16 ALD 533Wagner and NDIS [2020] AATA 1775
REASONS FOR DECISION
Senior Member D Connolly
17 October 2022
Background and relevant legislation
Ms Gatt, aged 32, made a request to become a participant in the National Disability Insurance Scheme (the NDIS), administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The Respondent decided on 1 November 2021 that Ms Gatt did not meet the access criteria. Ms Gatt sought an internal review and on 15 March 2022 a decision was made under section 100 of the NDIS Act, confirming the decision to refuse her access request. On 3 September 2022 Ms Gatt made an application to the Tribunal for review of the Respondent’s decision.
Ms Gatt has Turner Syndrome, a genetic condition. She seeks NDIS funding for fertility treatment, any future surgeries relating to her eye condition associated with Turner Syndrome, and private transport after dark, as she struggles to drive at night due to her eye condition.[1] She provided with her access request a letter from her ophthalmic surgeon dated 13 September 2021. The Respondent accepted Ms Gatt has a disability and a permanent impairment but was not satisfied her impairment results in substantially reduced functional capacity, or that she is likely to require lifetime support under the NDIS. It found she does not meet the disability requirements set out in section 24 of the NDIS Act.[2] Nor was the Respondent satisfied she meets the early intervention requirements set out in section 25 of the NDIS Act.[3]
[1] The Applicant’s Application for Review of Decision, filed on 3 September 2022, p. 5.
[2] The Respondent’s Internal Review (s100) Decision, filed on 6 September 2022, pp. 4-7.
[3] Ibid, pp. 7-8.
An application to the Tribunal for review of a decision is made under section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). There is a prescribed time, 28 days, for making applications (subsection 29(2)). The Tribunal may extend the time if it is satisfied that it is reasonable in all the circumstances to do so (subsection 29(7)), however the time limit for review will ordinarily apply.
The internal review decision was made on 15 March 2022 and despatched by email.[4] The application for review was not made until 3 September 2022, 172 days later. Accordingly, Ms Gatt is seeking an extension of 144 days for her application to proceed.
[4] See email from the Respondent, filed on 11 October 2022.
Submissions from the parties
With respect to this delay, when making the application for review, Ms Gatt stated “I tried to utilise other avenues available to me following the decision before applying to the AAT, but they have not been successful and as such I am now reaching out to the AAT.”[5]
[5] The Applicant’s Application for Review of Decision, filed on 3 September 2022, p. 4.
At the hearing on 12 October 2022 Ms Gatt stated that when she received the internal review decision she did not want to go through the appeal process, so she explored other avenues for funding the supports she seeks. She approached the Local Area Coordinator who provided information regarding potential resources. She made enquiries about community support. However she was not able to find the assistance she seeks. She realised her only option for support was the NDIS, so she made the application to the Tribunal. She indicated she understands that she should have appealed within time, and she is willing to apply for access again, but in her view that process is expensive and does not work.
Ms Gatt confirmed that she received the internal review decision by email and she was aware of her review rights. However the email also provided information about other avenues to access support.
The Respondent was invited to comment, in writing and at the hearing on 12 October 2022, on Ms Gatt’s request for an extension of time and made, in summary, the following submissions:
·The delay in filing the application is not insignificant and should be weighed against the requested extension being granted.
·The timeframe for an application to apply to the Tribunal was clearly expressed in the internal review decision letter of 15 March 2022 (see Wagner and NDIS [2020] AATA 1775) and so, while Ms Gatt tried to ‘utilise other avenues available’, she could have, at the same time, applied to the Tribunal.
·The internal review letter dated 15 March 2022 contained information regarding Ms Gatt’s review rights. Ms Gatt was aware of and rested on her review rights. This factor should be weighed against granting the requested extension (see Re Grafton and Commonwealth of Australia (1988) 16 ALD 533).
·There is an alternative avenue for Ms Gatt to pursue as it is open to her to lodge a new access request with any other relevant evidence. This factor should weigh against the extension of time being granted.
Should the Tribunal grant an extension of time?
In determining whether acceptable circumstances exist to extend the time, the Tribunal has considered the guiding principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, by Wilcox J at [348]–[349] in part:
(a)Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.
(b)Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem…
(c)Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension.
(d)However, the mere absence of prejudice is not enough to justify the grant an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(f)Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
Having regard to the relevant legislation and case law, the Tribunal is of the view factors such as the length of the delay, any explanation for it, possible prejudice to the other party, the importance of enforcing statutory timeframes, interests of justice, and the utility in granting the extension are all relevant in determining reasonableness.
The Tribunal is satisfied Ms Gatt was aware of her review rights in March 2022 when she received the Respondent’s internal review decision, emailed to her on 15 March 2022. In considering Ms Gatt’s request, the Tribunal is mindful of the importance of complying with statutory timeframes which are in place so that, among other things, the Tribunal can meet its objectives set out in section 2A of the AAT Act. The Tribunal is of the view the length of the delay in this case is not insignificant. It has taken into account Ms Gatt’s explanation for her delay but agrees with the Respondent that she could have made her application for review to the Tribunal while also making other enquiries. By not making her application for review within the prescribed timeframe, Ms Gatt led the Respondent to believe that she had rested on her review rights and accepted the internal review decision. The Tribunal also notes Ms Gatt admitted she did not want to pursue the appeal process and it was only after exhausting alternative avenues for support that she changed her mind and made the application.
Having considered Ms Gatt’s condition and claims, while not forming a view about the outcome, the Tribunal is satisfied there may be utility in Ms Gatt further arguing her case. However, it is also satisfied it is open to Ms Gatt to ask the Respondent to consider a fresh application based on any updated information she wishes to have taken into account. As Ms Gatt is under the age of 65, it is open to her to make another access request at any time (see subsection 19(2) of the NDIS Act). The Tribunal notes a year has passed since Ms Gatt first requested access to the NDIS and her medical evidence considered by the Respondent is now over a year old. While she submitted at the hearing that it is expensive to obtain supporting medical evidence, it is open to Ms Gatt to make another access request to provide the Respondent with an opportunity to consider her current functional capacity, supported by any new information she may have obtained.
An extension of time is not to be granted automatically. Prescribed timeframes are in place so that, among other things, the Tribunal can meet its statutory objectives. In this case the prescribed timeframe was not observed. The Tribunal considers the delay is not insignificant and was caused to some extent by Ms Gatt changing her mind about pursuing her review rights. While not prejudiced, the Tribunal accepts this led the Respondent to believe Ms Gatt had accepted the internal review decision. While her case might have merit, the Tribunal is not satisfied there will be any demonstrable prejudice to Ms Gatt if the extension is not granted because she is able to make another access request. Therefore, the interests of justice do not favour the grant of an extension of time.
For these reasons, the Tribunal is not satisfied in Ms Gatt’s circumstances that it is reasonable to extend the time for making the review application of the Respondent’s decision.
The application to extend time is refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for the decision herein of SM Connolly
...................................[SGD].....................................
Associate
Dated: 17 October 2022
Date(s) of hearing: 12 October 2022 Applicant: Ms L Gatt, self-represented Solicitors for the Respondent: Ms M Bilal and Mr C Slade, National Disability Insurance Agency
0
2
0