Henschke and National Disability Insurance Agency

[2021] AATA 1523

Henschke and National Disability Insurance Agency [2021] AATA 1523 (28 May 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/2384

Re:Andrea Henschke

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Thompson

Date:28 May 2021     

Place:Adelaide

The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the Applicant’s application for review is dismissed.

............................[Sgnd]............................................

Member Thompson

Catchwords

PRACTICE AND PROCEDURE – Jurisdiction – Whether internal review requested and conducted –– Tribunal does not have jurisdiction – Application dismissed.

Legislation

National Disability Insurance Scheme Act 2013, ss 99, 100, 103

Administrative Appeals Act 1975, s 25

Cases

NNXF & National Disability Insurance Agency [2019] AATA 5552

REASONS FOR DECISION

Member Thompson

28 May 2021  

INTRODUCTION

1.The Applicant, Ms Andrea Henschke, made an unsuccessful access request to become a participant under the National Disability Insurance Scheme (NDIS).

2.In her substantive application to the Tribunal, the Applicant asserts that her request for access to the NDIS should have been granted. The preliminary issue, however, is whether the Tribunal has jurisdiction to review that application. The Respondent, the National Disability Insurance Agency (the Agency) contends that the Tribunal does not have jurisdiction as the Applicant had not made a prior request for internal review by the Agency. The Applicant contends that she made a request for internal review which the Agency has not processed.

1. The matter was listed for an interlocutory hearing on the issue of jurisdiction before the Tribunal on 24 May 2021 at which the Applicant was represented by Mr Crowe and the Agency by Ms Harwood.

   BACKGROUND

2. On 10 July 2020 the Applicant submitted an access request form to become a participant in the NDIS. The request was rejected in correspondence from the Agency to the Applicant on 24 July 2020.

3. Subsequently the Applicant sent an email to the Agency on 4 August 2020 in which she stated relevantly: – “I am trying to access a review of the decision of my application. It’s not working for me. I’m Andrea Henschke.” [1]

   [1] T10 p 48

4. The Agency logged the Applicant’s email in its interaction records and responded some 33 minutes later by email in which it thanked her for contacting the Agency and advised that she can request a review of the access decision: – “by completing an ‘Application for a review of a decision’ form which is available in our website by clicking here. Alternatively, you can contact our 1800 800 110 number and our agents will be able to assist you with your request.” [2]

   [2] T10 p 48

5. The Applicant did not complete and submit an ‘Application for review of a decision form’. She did not contact the Agency on the 1800 number or by any other means.

6. Nothing further happened in the ensuing 8½ months. The Agency did not hear again from the Applicant and did not consider that a request had been made for an internal review. Hence an internal review did not occur.  The Applicant’s next step, on 17 April 2021, having not heard from the Agency, was to lodge an application with the Tribunal in which she sought review of the decision to reject her request for access to the NDIS. In the application form[3] she noted relevant history as: –

   “Applied for the NDIS, 10/7/20
              Denied Access 24/7/20

   Review lodged 4/8/20, no response from the NDIS.”

   THE PARTIES’ CONTENTIONS

   [3] T1 p 2

7. Noting the sequence of events as outlined, the Agency submits that the Tribunal does not have jurisdiction to review the Agency’s decision dated 24 July 2020 as this was a reviewable decision that has not been subject to an internal review as required by s 100(6) of the National Disability Insurance Scheme Act 2013 (NDIS Act).

8. The key point is the characterisation of the Applicant’s email which she sent to the Agency on 4 August 2020. That email, according to the Agency, amounts to no more than a request for advice or assistance about making a review request arising out of technological difficulties rather than an actual, completed request for an internal review. It is contended that the Applicant did not make a request for internal review at that time or thereafter.

9. The Applicant disputes the Agency’s contentions. At the interlocutory hearing it was contended that her email to the Agency dated 4 August 2020 can be interpreted properly as a request, which she clearly expressed, for an internal review. That request should be seen in the context of her disability. The Tribunal was referred to a report by the Applicant’s general medical practitioner Dr Cole which provides details of her medical problems which are summarised under headings as neuropathic pain/chronic low mood, weakness in left side/risk of falls, poor memory, cognitive decline, poor diabetic control and seizure activity.[4] Dr Cole also completed the supporting information section in the Applicant’s access request form.[5]

   CONSIDERATION

   [4] T8 p 38

   [5] T9 p 40

10. It seems that the Applicant at some point formed the impression that she had made an appropriate request to the Agency for an internal review of its decision. 

11. However, the Tribunal must assess what occurred as a matter of law, and whether a decision of a reviewer pursuant to s 100 of the NDIS Act was requested, which the Tribunal has jurisdiction to review.

12. The decisions which are reviewable are set out in s 99 of the NDIS Act and they include a decision that a person does not meet the access criteria to become a participant in the NDIS.

13. Section 100 provides for review of a reviewable decision by a “reviewer” who is required to confirm or vary the reviewable decision or set aside the reviewable decision and substitute a new decision.

14. The Tribunal is conferred with jurisdiction by s 103 to review “a decision made by a reviewer under subsection 100(6)”.

15. The NDIA wrote to the Applicant on 24 July 2020.[6] The letter, which complies with the requirements of s 100(1) & (1A) of the NDIS Act, provided the result of her NDIS access request, namely that she did not meet the disability requirements under s 24 of the NDIS Act and she did not meet the early intervention requirements under s 25. The letter includes information about the ways in which a review of the access decision can be requested, including disability specific means, together with contact details of the Agency including postal address, email address, telephone details, and website access. The letter also includes guidance about making a request as follows: –

    “When asking for a review, explain why you think the decision is incorrect and provide any relevant information. The staff member who works on the review will not have been involved in the earlier decision. They may want to talk to you directly as part of this process.
    

    [6] T2 p 6

    Following the review, if you still think the decision is incorrect you can seek further review by making an application to the Administrative Appeals Tribunal.”

16. Section 100(2) of the NDIS Act provides that:

    “A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.”

17. Section 100(3) of the NDIS Act stipulates that a request for review may be made by:

    (a) sending or delivering a written request to the decision-maker; or

    (b) making an oral request, in person or by telephone or other means, to the decision-maker.”

    20.The Applicant emailed the Agency on 4 August 2020 which is within 3 months of receiving notice of the reviewable decision.

    21.An important submission made on behalf of the Applicant was to the effect that her understanding of the mechanisms for requesting an internal review of the access decision and her capacity to make a request, to the extent that it appears to have been via the Agency’s website, should be understood in the light of Dr Cole’s report about her medical problems. Nonetheless, the website is not the only pathway for making an internal review request. The NDIA provided details of other pathways in its letter to the Applicant on 24 July 2020 and, as already mentioned, they include options such as making a phone call or sending a letter.

    22.The contents of email correspondence between the parties on 4 August 2020 supports the Agency’s contention about the correct way of interpreting those communications. It is clear that the Agency understood the Applicant’s email to be a request for assistance as she was having practical or technical problems with the electronic submission. The Agency responded promptly and provided her with information about other ways in which an internal review request can be made. In effect, the Agency’s response supplemented the type of information provided in its letter of 24 July 2020 about the various ways of sending or delivering a written request, or making an oral request for internal review.

    23.The Tribunal considers that the Applicant’s email sent to the Agency on 4 August 2020 is properly interpreted as request for assistance about the technological means of applying for a review. The Tribunal is not satisfied that the email is a request that satisfies s 100(3) of the NDIS Act.

    24.The Applicant must satisfy the requirement of s 100(3) in order for the processes for review of a reviewable decision in s 100(5) and s 100(6) of the NDIS Act to be activated. The outcome of an internal review will be either confirmation of the reviewable decision, variation of that decision, or setting it aside and substituting a new decision (s 100(6)) and it is that decision which may be reviewed by the Tribunal (s 103).

18. Even if the Applicant had been successful in the contention that an internal review request had been made, the remaining conundrum would be the absence of an internal review decision. There must have been an internal review decision for the Tribunal to review. This would raise the question of whether a deemed decision was made in circumstances which would enable the Tribunal to exercise jurisdiction.

19. Section 25(5) of the Administrative Appeals Act 1975 (AAT Act) relates to “failure of the decision-maker to meet deadline” and provides:

    “(5) for the purposes of an enactment that makes provision in accordance with this section for the making of implications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.”

    27.In NNXF & National Disability Insurance Agency (NNXF) [7] the Tribunal decided that s 25(5) of the AAT Act can operate to deem a decision under 100(6) of the NDIA Act to have been made in circumstances where none was made.

    [7] [2019] AATA 5552, a majority decision of the Tribunal comprising President Justice Thomas and Deputy President Britten-Jones.

20. The Tribunal’s jurisdiction must be determined by reference to whether a reviewable decision and a request for a reviewable decision have in fact taken place under the NDIS Act. In NNXF, the Tribunal confirmed that:

    “The beginning of the period expressed in s 100(6) is when the person directly affected by the reviewable decision requests the decision-maker to review the reviewable decision under s 100(2).” [8]

    [8] Ibid, paragraph 94.

    29.There must be a request for a review of a reviewable decision, otherwise the provisions in s 25(5) of the AAT Act do not apply. As previously indicated, the Tribunal is not satisfied that a request for internal review was made within 3 months of that primary, reviewable decision.

    CONCLUSION
    
    

    30.It follows, therefore, that a reviewable decision was made, the decision being the Applicant’s request to access the NDIS was not successful. That decision has not been reviewed under s 100 as a request for review has not been made in accordance with s 100(3) of the NDIS Act. A review by a reviewer under s 100 is a precondition to the Tribunal having jurisdiction under s 103. Accordingly, the Tribunal does not have jurisdiction with respect to the application lodged on 17 April 2021, and the application must therefore be dismissed

    31.This decision does not prevent the Applicant from initiating another request for access to the NDIS. Unfortunately it does mean that considerable time has elapsed which might otherwise have been used in consideration of the substantive issue. However this underscores the importance of complying with the procedural, sequential steps set out in the legislation.

    DECISION
    
    

    32.The Tribunal decides that it does not have jurisdiction to hear the application for review. Accordingly, the Applicant’s application for review is dismissed.

I certify that the preceding one hundred and thirty two [32] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

..................[Sgnd]..............................

Administrative Assistant Legal

Dated    28 May 2021            

Dates of hearing:  24 May 2021

Applicant’s Representative:  Adrian Crowe, Advocacy for Disability Access and Inclusion Inc.

Respondent’s Representative:                   Zoe Harwood, NDIA