Howard-Smith and National Disability Insurance Agency

[2018] AATA 3434

Howard-Smith and National Disability Insurance Agency [2018] AATA 3434 (13 September 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2018/4325

Re:Alexander Howard-Smith

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 September 2018

Place:Sydney

The application for the extension of time is granted.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – extension of time application – whether reasonable in the circumstances to grant application – delay in seeking extension of time – merits of substantive application considered – disability and early intervention requirements under National Disability Insurance Scheme Act – substantive matter may have merit – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

National Disability Insurance Scheme Act 2013 (Cth) ss 21, 24, 25

CASES

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SECONDARY MATERIALS

NDIS Operational Guideline Access Disability Requirements 

REASONS FOR DECISION

Dr L Bygrave, Member

13 September 2018

INTRODUCTION

1. On 2 August 2018, Mr Alexander Howard-Smith applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made by the National Disability Insurance Agency (the NDIA) on 27 January 2018 that Mr Howard-Smith did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the NDIS Act) to become a participant of the National Disability Insurance Scheme (the NDIS).

2. Mr Howard-Smith then lodged an application to the Tribunal on 8 August 2018 in accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for an extension of time to make his application.

3. The NDIA opposed the extension of time sought.

4. The application was heard by the Tribunal via teleconference on 5 September 2018. Mr Howard-Smith was represented at the hearing by Mr Paul Howard-Smith (his father), Mrs Joanne Murphy (Central Coast Primary Care) and Mr James Millar (Disability Advocacy NSW).

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

5. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.

6. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].

7. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:

   (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay;

   (d)whether the general public would suffer any prejudice as a result of the extension;

   (e)the merits of the substantial application; and

   (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.

8. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

9. All of the circumstances of the case must be considered; the overriding consideration being whether it is “reasonable in all the circumstances” to grant the extension.

   REASONS FOR DELAY

10. The length of delay in Mr Howard-Smith seeking a review of the decision by the NDIA on 2 August 2018 is more than five months after the 28 day limit.

11. In his application for an extension of time, Mr Howard-Smith provided the following explanation for the delay:

    This has gone on far too long already, system errors, strange decisions (etc). We had given up and lost faith in the NDIS, but all the doctors and specialists Ale[x] sees strongly recommend he be on the scheme…

12. Mr Paul Howard-Smith (the applicant’s father) told the Tribunal that he and his wife had encountered many problems in their contact with the NDIA. He noted the original decision by the NDIA dated 31 July 2017 incorrectly refused his son (who is 22 years old) access to the NDIS because he was not under 65 years of age. The internal review decision dated 27 January 2018 also contained errors with the applicant’s name and the listed medical reports relied on by the NDIA internal reviewer in making their decision.

13. At the Tribunal hearing, Mr Paul Howard-Smith said he and his wife were frustrated with the process for their son to access the NDIS. In addition to the errors in decisions from the NDIA, they were told incorrect information by the NDIA including that their son could not reapply for the NDIS. It was not until Mr Paul Howard-Smith contacted Mrs Murphy in early August 2018 that they understood and decided to pursue their right to apply for an external review by the Tribunal.

14. I accept Mr Paul Howard-Smith’s explanation for the delay in lodging a review of the decision. In view of these circumstances, I am satisfied that Mr Howard-Smith did not “rest on his rights” in seeking a review of the decision.

15. This finding weighs for granting the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

16. It is in the interests of both the NDIA and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.

17. I am satisfied the NDIA would have expectations about the finality of the decision-making after five months and therefore find that there would be prejudice to the NDIA if the extension of time is granted.

18. This factor weighs against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

19. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Mr Howard-Smith can meet the access requirements set out in the NDIS Act.

    Relevant legislation and consideration – access criteria

20. To become a participant in the NDIS, Mr Howard-Smith must satisfy the access criteria. The primary access criteria are summarised in section 21(1) of the NDIS Act:

    21 When a person meets the access criteria

    (1)       A person meets the access criteria if:

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

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

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

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

    (ii)    The person meets the early intervention requirements (see section 25).

21. Section 21(2) of the Act also provides alternative access criteria that, described simply, outlines that a person may be able to access the NDIS if they were receiving supports from a “qualifying program” during the relevant “qualifying period”.

22. Sections 24 and 25 of the Act state:

    24 Disability requirements

    (1)       A person meets the disability requirements if:

    (a)The person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

    (b)The impairment or impairments are, or are likely to be, permanent; and

    (c)The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)    learning;

    (iv)   mobility;

    (v)    self‑care;

    (vi)   self‑management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)       For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

    25 Early intervention requirements

    (1)       A person meets the early intervention requirements if:

    (a)the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)    is a child who has developmental delay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)    preventing the deterioration of such functional capacity; or

    (iii)    improving such functional capacity; or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)       The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)       Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

23. Mr Howard-Smith’s impairments were set out and briefly considered in the NDIA decision on 27 January 2018, which stated that the internal reviewer was not satisfied Mr Howard-Smith’s impairments met the requirements of paragraphs 24(1)(c) and 24(1)(e) of the NDIS Act, or met the requirements of section 25 of the NDIS Act.

24. The Tribunal was not provided any medical evidence or other documentation that could support the merits of the substantive application. However, I note that Mr Howard-Smith has been diagnosed with Charcot-Marie-Tooth (CMT) neuropathy, which is listed in the NDIS Operational Guidelines for access to the NDIS under the heading of “[p]olyneuropathies and other disorders of the peripheral nervous system” as a “[p]ermanent condition for which functional capacity [is] variable and further assessment of functional capacity is generally required”.

25. In considering this information about Mr Howard-Smith’s diagnosis of CMT, I am of the view that his substantive matter may have merit. This weighs for the extension of time being granted.

    CONCLUSION

26. Taking into account all of the information before me, I am satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

27. The application for the extension of time is granted.

I certify that the preceding 27 (twenty–seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 13 September 2018

Date(s) of hearing:	5 September 2018
Advocate for the Applicant:	Mr J Miller, Disability Advocacy NSW Mrs J Murphy, Central Coast Primary Care
Solicitors for the Respondent:	Ms S Prasad, National Disability Insurance Agency