Higson and National Disability Insurance Agency

[2022] AATA 277

Higson and National Disability Insurance Agency [2022] AATA 277 (23 February 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/0917

Re:Deborah Higson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:23 February 2022

Place:Sydney

The application made by Mrs Deborah Higson is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal under section 42B of the Administrative Appeals Act (Cth) – application for review of a decision that applicant does not meet the access requirements of the National Disability Insurance Scheme Act 2013 (Cth) – whether applicant was aged under 65 years when access request made – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme Act 2013 (Cth) ss 21-25

REASONS FOR DECISION

Dr L Bygrave, Member

23 February 2022

INTRODUCTION

1. The applicant, Mrs Deborah Higson, completed an access request form to become a participant in the National Disability Insurance Scheme (the NDIS) on 5 January 2021.

2. The National Disability Insurance Agency (the NDIA), both initially and on review, decided that Mrs Higson did not meet the access criteria specified in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

3. On 15 February 2021, Mrs Higson made an application for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).

4. On 12 October 2021, the NDIA wrote to the Tribunal seeking the dismissal of Mrs Higson’s application pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that her ‘application for review is unmeritorious and has no reasonable prospects of success’. The NDIA subsequently filed written submissions dated 14 January 2022.

5. The Tribunal held an interlocutory hearing by telephone on 16 February 2022. Mrs Higson, with the support of her social worker, and the NDIA’s legal representative attended the hearing and made oral submissions.

   RELEVANT LEGISLATION

6. The access criteria to become a participant in the NDIS are summarised in subsection 21(1) of the NDIS Act, which states:

   (1)A person meets the access criteria if:

   (i)the CEO is satisfied that the person meets the age requirements (see section 22); and

   (ii)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (iii)the CEO is satisfied that, at the time of considering the request:

   (iv)the person meets the disability requirements (see section 24); or

   (v)the person meets the early intervention requirements (see section 25). [emphasis added]

7. Section 22 of the NDIS Act stipulates the age requirements as follows:

   22 Age requirements

   (1) A person meets the age requirements if:

   (a) the person was aged under 65 when the access request in relation to the person was made; and

   (b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules. [emphasis added]

8. The relevant NDIS rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation. Part 3 of the Participant Rules state:

   Part 3    When does a person meet the age requirements?

   3.1  Generally, a person meets the age requirements if the person was aged from birth up to 65 when the access request in relation to the person was made.

   (This summarises paragraph 22(1)(a) of the [NDIS] Act.)

   3.2  However, additional age requirements apply, as set out in Schedule A to this Instrument. [emphasis in original]

9. Schedule A in the Participant Rules sets out additional age and residence requirements for each Australian state and territory. For the purposes of Mrs Higson’s request to access the NDIS as a person residing in New South Wales, Schedule A states there are ‘no additional age requirements (the person is under 65 on the day of the access request)’.

   CONSIDERATION

10. At the Tribunal hearing, Mrs Higson confirmed that she was aged 68 years old at the date she made her request to access the NDIS on 5 January 2021. However, she made oral submissions that her disabilities had been diagnosed 12 years prior to her requesting access, she did not know about the NDIS and she had not been informed there was an age requirement to access the NDIS. Mrs Higson explained her particular circumstances to the Tribunal, which included that her late husband had cared for her until his unexpected death, and contended that it was ‘unfair’ and discriminatory that she is not permitted access to the NDIS on the basis of her age. Mrs Higson also submitted that, in the absence of a reference to ‘special circumstances’ in the NDIS Act, it was open to the Tribunal to provide consideration to her particular situation.

11. I have considered the criteria in section 21 of the NDIS Act for a person to access the NDIS. I have also considered the age requirements to access the NDIS in section 22 of the NDIS Act and Part 3 of the Participant Rules.

12. I am satisfied that the age requirement in sections 21 and 22 of the NDIS Act – that the person is aged under 65 years when they made their access request – is a mandatory requirement for a person to access the NDIS. Further, I find there is no discretion in either the NDIS Act or the Participant Rules that would allow the age requirement to be disregarded on the basis of Mrs Higson’s personal circumstances.

13. As Mrs Higson was not aged under 65 years when she made her access request to the NDIS on 5 January 2021, I am satisfied that her application for review cannot succeed.

14. Section 42B(1) of the AAT Act states:

    (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)  is frivolous, vexatious, misconceived or lacking in substance; or

    (b)  has no reasonable prospect of success; or

    (c)  is otherwise an abuse of the process of the Tribunal. [emphasis added]

15. For the reasons set out above, I find Mrs Higson’s application has no reasonable prospect of success and is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act.

    DECISION

16. The application made by Mrs Deborah Higson is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 23 February 2022

Date(s) of hearing:	16 February 2022
Advocate for the Applicant:	Ms Jessica Reed, Hills Community Health Centre
Solicitors for the Respondent:	Ms Sarah Ryan, National Disability Insurance Agency