Jackson and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 987
•22 May 2025
Jackson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 987 (22 May 2025)
Applicant/s: Debra May Jackson
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/9276
Tribunal:General Member I Selley
Place:Adelaide
Date:22 May 2025
Decision:Pursuant to section 97 of the Administrative Review Tribunal Act, the Tribunal dismisses the application dated 10 November 2024.
Statement made on 22 May 2025 at 4:16pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – Tribunal jurisdiction - whether the Tribunal Application concerns a reviewable decision – whether the Agency made an overt or deemed internal review decision – whether the requirements of an access request in section 19 of the NDIS Act are mandatory – whether the Agency had an approved access request form – whether an access request in the approved form made – obligation of the CEO to make a decision when access request not in the approved form - sections 9A, 18, 19, 20, 21, 22 and 197 of the NDIS Act - no reviewable decision – jurisdiction not found
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)Cases
National Disability Insurance Agency v Foster [2023] FCAFC 11
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192Statement of Reasons
INTRODUCTION
The issue for my determination in this case is whether the application made by the Applicant, Ms Debra Jackson, to the Tribunal on 10 November 2024 (the Tribunal Application) is an application to review a “reviewable decision” as defined in section 12 of the Administrative Review Tribunal Act (the ART Act). That is, whether the Tribunal has jurisdiction to decide the case. If I decide no reviewable decision had been made at the date of the Tribunal Application, then under section 97 of the ART Act, I have no option other than to dismiss it.
The issue of the validity of the Tribunal Application is critical because Ms Jackson turned 65 years of age on 7 November 2024. The National Disability Insurance Scheme Act 2013 requires that a person be under the age of 65 at the time of making the access request. Therefore, Ms Jackson cannot overcome any problems with the validity of the Tribunal Application simply by resolving to start again and make a new access request to the Agency.
The key question of fact and law I need to determine in this case is whether Ms Jackson made an access request in the form (if any) approved by the CEO of the National Disability Insurance Agency (the Agency) in accordance with section 19(1)(a) of the NDIS Act.
My reasons for this view of the law, and for determining on the evidence before me that Ms Jackson did not make such a request, are set out below.
Given this decision concentrates on the interpretation of the NDIS Act, I continue to refer for its remainder to the NDIS Act simply as “the Act” and the Administrative Review Tribunal Act as “the ART Act”.
THE APPLICATION
On 10 November 2024, Ms Jackson, through her sister and representative Ms Keen, made the Tribunal Application seeking the Tribunal's review of a decision made by the Agency received by Ms Jackson on 3 November 2024. The Application did not attach the decision Ms Jackson wanted reviewed.
In response to the Tribunal’s request to provide a copy of the reviewable decision, Ms Keen replied by email on 13 November 2024 that the Agency had not yet processed her sister's access request. She stated that Ms Jackson had her first meeting with the Agency’s delegate, LaTrobe Community Health Service on 10 January 2024. She noted extensive delays since then, and statements from the Agency that her sister needs another meeting to proceed. She feels the access request has been lost for 10 months. While trying to find out who to speak to, the Agency advised Ms Keen to make the Tribunal Application and “go through the three steps”. She continues:
I am now wondering has this all happened because Debra turned 65 on the 7/11/24.
Debra went to this organisation to ask for direction, and help navigating her application.
She has been poorly treated and let down by a process.
Debra cannot sign her name now, cannot open a milk container, she is in constant pain.
On the same day, the Tribunal emailed the Agency requesting a copy of the reviewable decision and gave the Agency a copy of Ms Keen’s email.
On 19 November 2024 the Agency replied stating that it required further time to investigate.
On 3 December 2024, the Agency stated in written submissions to the Tribunal there was no internal review decision of the Agency made on or around 3 November 2024 which could confer jurisdiction on the Tribunal. The Agency invited the Tribunal to follow an “alternative pathway” to finding jurisdiction, which I detail further below.
The matter was listed on 11 January 2025 for an interlocutory hearing on 6 February 2025 (the hearing) to assist the Tribunal to determine whether it had jurisdiction.
On the morning of the hearing, the Tribunal asked the Agency to provide a copy of the decision referred to by the Applicant as the 3 November 2024 decision. The Agency replied reiterating there is no internal review decision dated 3 November 2024 but that it had “discovered an original section 99(1) access not met decision” dated 5 December 2024. No explanation was provided by the Agency as to why it had made this purported access decision after Ms Jackson had made her Tribunal Application and any connection between the two.
The Tribunal received no further information from the Applicant between 13 November 2024 and 6 February 2025.
It is agreed between the parties, and the Tribunal also accepts based on the information above and the other evidence before it, that the Agency did not make either an original or an internal review decision record prior to 10 November 2024 and did not overtly make an original or internal review decision. I understand from the information given by Ms Keen at the hearing and her above email that the reference in the Tribunal Application to a 3 November 2024 decision is a reference to her phone conversation with the Intake Division of the Agency in which she realised her sister’s attempts to access the NDIS had not been progressed.
On 25 February 2025, the Agency made further written submissions to the Tribunal retracting much of its 3 December 2024 submissions. It submitted that the purported access decision dated 5 December 2024 might provide “a potential pathway to Jurisdiction”. On 25 March 2025, the Agency gave the Tribunal a copy of a purported, negative internal review decision.
I note that it is not the role of this Tribunal to seek out pathways to jurisdiction. The only question the Tribunal can and should determine is whether the Tribunal application is an application for review of a reviewable decision.
Any decisions by the Agency, whether valid or not, that come into existence after the date of the Tribunal Application cannot be or give rise to a reviewable decision in this matter and I do not consider the Agency’s arguments in relation to those purported decisions further.
LEGISLATIVE FRAMEWORK
In reaching a decision in this matter I need to consider three aspects of the legislative framework: the relevant statutory provisions relating to reviewable decisions, those governing the objects of the Act and those relating to seeking and determining access to the NDIS.
Reviewable Decisions under the ART and NDIS Acts
A reviewable decision for the purposes of the Tribunal is defined in section 12 of the ART Act. Section 12(1) relevantly states:
(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made.
Looking to the Act, applications to this Tribunal are enabled, and limited, by section 103. Section 103(1) relevantly states:
(1) Applications may be made to the Administrative Review Tribunal for review of a decision made by a reviewer under subsection 100(6).
Section 100 of the Act concerns the review of “reviewable decisions”, as defined for the purposes of that legislation, or what are known as internal review decisions. Section 100(6) requires the Agency’s internal reviewer to confirm, vary of set aside the reviewable decision. Section 99(1) of the Act confirms that a decision by the CEO of the Agency under section 20(1)(a) of the NDIS Act that a person does not meet the access criteria, as defined in section 24 of the NDIS Act, is a reviewable decision for the purposes of section 100.
In effect, section 103 of the Act limits the decisions of the Agency that can be reviewed by this Tribunal to decisions “made by a decision maker of the agency under subsection 100(6), to confirm, vary or set aside a reviewable decision as defined in section 99(1) and (2) of that legislation”. That is, a reviewable decision for the purposes of this Tribunal is limited to, in the context of the NDIS, an internal review decision by the Agency.
As stated above, the Agency did not, prior to the date of the Tribunal Application, overtly make a section 100(6) internal review decision. On the facts of this matter therefore the question is whether the Agency made a deemed decision. That determination in turn pivots on whether the Agency had earlier decided, under section 21(3)(a) of the NDIS Act, that Ms Jackson did not meet the access criteria. That is in turn contingent on whether Ms Jackson had made an access request under section 18 of the Act. I discuss these provisions below.
Objects and principles of the NDIS Act
The courts have stated in cases concerning access to the NDIS that the established principles of statutory construction in Australian law apply[1]. When interpreting provisions of the Act, decision makers should have regard to the text and context in which the text appears[2].
[1] National Disability Insurance Agency v Foster [2023] FCAFC 11, at [30]
[2] Ibid, at [31] citing Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192, at [4]
The objects and principles of the Act are contained in sections 3 to 7. Section 3(1) relevantly includes amongst the objects of the Act:
to: … (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
Section 3(3) states:
(3) In giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy, 2010-2020 as endorsed by COAG on 13 February 2011; and
(ii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments of organisation and the need for interaction between mainstream services and the provision of supports under the National Disability Insurance Scheme
Section 6 of the Act contains the principle that the Agency may provide support and assistance to both prospective participants and participants. It states:
To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of this Act.
Note: For example, the Agency might assist a participant to prepare the participant’s statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations.
Section 7 contains responsibilities for the Agency as to how it communicates the contents of its official documents to people with disability:
(1) The contents of any notice, approved form or information given under this act, the regulations or the National Disability Insurance Scheme rules to a person with disability must be explained by the giver of the notice, approved form or information to the maximum extent possible to the person in the language, mode of communication and terms which that person is most likely to understand.
Access requests and decisions under the NDIS Act
The provisions for becoming a participant of the NDIS are contained in Chapter 3 of the Act.
To become a participant in the NDIS, a person must satisfy the “access criteria” in section 21 of the Act, being:
·the age requirements detailed in section 22; and
·the residence requirements detailed in section 23; and
·the disability requirements detailed in section 24 of the Act; or
·the early intervention requirements detailed in section 25 of the Act.
Section 18 states the right to request access to the NDIS in simple terms:
A person may make a request (an access request) to the Agency to become a participant in the National Disability Insurance Scheme.
Section 20 compels the CEO of the Agency to either decide the access request, or to request further information within specified timeframes:
(1) If a person (the prospective participant ) makes an access request, the CEO must:
(a) decide whether or not the prospective participant meets the access criteria; or
(b) make one or more requests under subsection 26(1).
(2) The CEO must do a thing referred to in paragraph (1)(a) or (b) within the following number of days of receiving the access request:
(a) 21 days…
Section 26(1) enables the Agency to request further information from a prospective participant that would assist it to decide the access request. It also enables the agency to ask the person to undergo an assessment or independent medical examination for the purposes of producing a relevant report. If any such request is made, then section 26(2) requires the Agency, within 14 days of receiving the last information or report, to decide the access request or make another request under section 26(1).
Section 21(3) operates as a failsafe for prospective participants and to the scheme in the event the Agency fails to decide the access request or make a section 26(1) request within the required timeframe. If that occurs, section 21(3) deems the Agency to have refused the access request. It states:
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable under section 20; or
(b) if subsection 26(2) applies--the CEO does not do one of the things referred to in that subsection within the 14 - day period referred to in that subsection.
Note: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
Section 21(3) ensures access requests can progress to internal review if the Agency fails to determine the request in a timely manner, including circumstances where the Agency unwittingly loses track of a request altogether.
Section 21(3) is complemented by section 100(5) of the Act, which makes it mandatory for the Agency to conduct an automatic internal review of a deemed decision to refuse access under section 21(3). This logically deviates from the ordinary course where a prospective participant has received a written decision within the statutory timeframes. In such circumstances, the prospective participant must actively seek internal review of an access refusal. Section 100(5) states:
(5) If:
(a) the decision - maker receives a request for review of a reviewable decision; or
(b) the decision - maker is taken to have made a reviewable decision because of subsection 21(3), 47A(5) or 48(4);
the decision - maker (the reviewer ) must review the reviewable decision.
Section 100(6A)(b)(iI) requires the Agency to make the internal review decision within 90 days from the day after the deemed refusal. If that time lapses without an internal review decision being made, section 16 of the ART Act deems the Agency to have affirmed its original deemed decision to decline access. It states:
If:
(a) a decision of a person not to do a thing is a reviewable decision; and
(b) an Act or an instrument made under an Act provides for a quantified period within which the person is required or permitted to do the thing; and
(c) the person does not do the thing within the period;
the person is taken, for the purposes of this Act and the Act or instrument that provides for an application to be made to the Tribunal for review of the decision, to have made a decision at the end of the period not to do the thing.
The combined effect of these provisions is to preserve the internal and external merits review rights of a person who makes a valid access request that is subsequently mislaid or neglected by the Agency, as Ms Jackson claims has occurred in her case.
Section 19 is the provision of the Act on which this decision substantially hinges. It deals with the form and features that are required for an access request to be valid, stating:
(1) An access request must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person.
Section 9 of the NDIS Act defines an “approved form” as meaning a form approved under section 9A, which in turn states:
(1) The CEO may, in writing, approve a form for the purposes of a provision of the Act.
(2) The CEO must publish each approved form on the Agency’s website.
I am required to apply the principles of statutory construction as summarised by the High Court in The Bay Street Appeal and applied by the Full Federal Court in the NDIS access matter of Foster[3]:
… The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted]
[3] Ibid
A plain reading of the text in section 19(1) and the use of the word “must” indicates that the stipulated features of the request outlined in sub-paragraphs (a) to (c) are mandatory and cumulative, meaning all must in turn be satisfied.
The mandatory nature of section 19(1) is reinforced by the accompanying Note, which critically states:
The CEO is not required to make a decision on the access request if this section is not complied with (see section 197).
Section 197 is a contextual provision contained in Chapter 7, Part 2, which deals with “other matters” of a general nature. Chapter 7 is a broad chapter of the Act capturing the regulation of other matters relating to the Agency and the scheme. It permits a wide range of circumstances in which the CEO of the Agency is not required to make a decision:
(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the CEO, the CEO is not required to make a decision on the request or application if it is not in that form
I am also guided by the comments of Mortimer J in Mulligan v National Disability Insurance Agency[4], who reasoned through a detailed and purposive examination of Chapter 2, Chapter 3 and supporting background materials to the Act, that access to the NDIS “is reserved for a subcategory of persons with disabilities”[5] who satisfy the specific thresholds in section 24 of the Act[6]. I am also guided by Mortimer J’s observations in National Disability Insurance Agency v Davis[7] that the construction of the Act “be approached with a reasonable degree of common sense” noting that the Act is “beneficial and remedial legislation designed to operate in relatively high volume decision making, in a pragmatic context, and in respect of people (and their families and carers) already facing great challenges in their daily lives”[8].
[4] [2015] FCA 544
[5] Ibid at [50]
[6] Ibid, at [61]
[7] [2022] FCA 1002
[8] Ibid, at [142]
Reading sections 3(1), 9A, 19(1), 20, 22, 24, 26(1) and 197 together it is my view that Parliament intended for the viability and fairness of the NDIS, for the effective administration of its high volume and for it to reach the sub-category of people with disability who meet the thresholds for access, there would be the possibility for a clear and transparent set of mandatory minimum administrative and evidentiary requirements to be contained in an access request form that inform people wanting access to the NDIS about the information and documents the CEO will be looking for and place weight on in making their decision. The form equally directs the CEO’s delegates as to what they must take into consideration in every access request. An approved access form enables the Agency to publish the baseline information that the head of the Agency has determined, through analysis and case experience, to be most relevant and helpful to the Agency’s substantive considerations in sections 22 to 25 of the Act. In this way, an access form acts as the frontline assessment tool in a suite of tools comprising in addition the Rules and the Guidelines and section 19(1) as a threshold provision that must be satisfied before the Agency is obliged to assess an access request.
With a mandatory form, a power to request specific information and documents, and a certification from the requester that their request is complete, the CEO has the confidence to be bound by section 20 to decide the request in a timeframe that is efficient and considers the needs of people with disability seeking support. With the prospective participant having completed all that is expected to them, fairness requires that the Agency shoulder the responsibility of deciding the request and being deemed to have decided it and a requester’s review rights being protected where their administrative decision making procedures fall over, and that review rights flow in either scenario.
Similarly, section 197 protects the CEO and the viability and fairness of the scheme when the baseline administrative, evidentiary and certification requirements are not met by the requester. If one or more of its elements are not met, the obligations of the CEO in section 20 determine the access request and the consequential protective deeming provisions in section 21 if the CEO fails to do so within the required timeframes, do not come into effect.
For these reasons, I conclude that it is mandatory for a requester to make their request in compliance with the requirements of section 19(1)(a) to (c) of the Act for the obligations on the CEO of the Agency to decide the request to be activated. As in this case the CEO did not overtly make a decision until after the Tribunal Application was made, there is no reviewable decision before me unless I am satisfied the CEO is deemed to have made one.
I note that there are no provisions in the Act that give the CEO of the Agency the power or discretion to determine an access request that is not in the approved form, when such an approved form exists. Section 197 does not create a discretion per se, rather it is protective of the CEO to ensure they are not required to make decisions in the absence of a prescribed form application. Such circumstances (which are beyond the scope of this matter) may invoke a more fulsome examination of the purposes of the Act with reference to sections 6 and 7.
THE ISSUES
Having determined that it is mandatory for an access request to be in the approved form in circumstances where one exists and no overt section 20 decision has been made by the CEO of the Agency, there are two key questions for my determination:
·Question 1: Was there a form for an access request that had been approved by the CEO of the Agency, within the meaning of sections 9 and 9A, at the time Ms Jackson claims she made the access request?
·Question 2: If yes, did Ms Jackson make an access request in the approved form in accordance with sections 18 and 19(1)?
HEARING, EVIDENCE AND SUBMISSIONS
The Agency’s pre-hearing submissions
Although the Agency has since resiled from much of its submissions dated 3 December 2024, they represent its position prior to and at the hearing. They influenced the course of the proceedings and the stance of the Applicant up to then. In these submissions the Agency invited the Tribunal to find the Agency made a reviewable decision.
It is not in dispute between the parties, and the Tribunal also accepts, Ms Jackson and Ms Keen attended a meeting with the Local Area Coordinator (LAC) at Latrobe Community Health on 10 January 2024 to discuss Ms Jackson’s intention to request access to the NDIS.
It is also accepted by the parties and the Tribunal that on 21 January 2024, Ms Keen sent an email to the Agency attaching Ms Jackson’s identity documents and several medical reports.
The Agency submitted that it was open to the Tribunal to find the 21 January 2024 email and its attachments as an access request “given the beneficial nature of the NDIS legislation”, but did not elaborate further. The Agency submitted that no access request form was attached to the 21 January 2024 email. Prior to the hearing this was not disputed between the parties.
Accordingly, the Agency submitted:
·As the Agency had failed to determine that access request within 21 days, in accordance with section 20 of the Act, it is deemed, pursuant to section 21(3), to have refused the access request on 12 February 2024; and
·By virtue of section 100(6) of the Act and section 16 of the ART Act, the Agency is deemed to have made an internal review decision that is reviewable by this Tribunal on 14 May 2024; and
·The Tribunal should in all the circumstances exercise its discretion under section 19 of the ART Act to permit Ms Jackson to have an extension of time to make the Tribunal Application.
The interlocutory hearing
The Tribunal heard oral evidence from Ms Keen. Ms Jackson also attended. The Agency was self-represented by Mr Burston. At the beginning of the hearing Ms Keen stated she expected the Agency to speak for her and her sister and that they would listen. Neither party appeared prepared for the Tribunal’s doubts about the Agency’s legal arguments or questions about whether Ms Jackson completed an access request form.
Ms Keen stated that the Agency did require Ms Jackson to fill out an access request form. She said Ms Jackson filled that out digitally and sent it to the Agency along with 100 points of identity by email on 19 or 21 January 2024. She also appeared to say later that she submitted a completed form through the Agency’s website.
Mr Burston stated the Agency did not hold a copy of an access request and had no record that an access request form was attached to Ms Keen’s 21 January 2024 email. Mr Burston was unable to answer my questions about the terminology and markers in the Agency's records and what they indicate about the status the Agency had given to Ms Keen’s communications on that date. He was unable to say whether as a matter of fact, the Agency was behaving at that time as if it had received an access request.
Ms Keen gave evidence, which I accept, that between about February and December 2024, she received requests for further information from the Agency. Mr Burston stated his instructions were that these were not requests for information made under section 26. He was unable to comment on whether the requests might indicate the Agency was still helping Ms Jackson to put the access request together.
I advised the parties I would issue post-hearing directions requiring them to provide additional information and submissions. These were issued on 13 February 2025. I indicated the Tribunal’s willingness to grant an extension of time to Ms Jackson to make the Tribunal Application if it had the power to do so.
The Agency replied with further information and submissions dated 25 February 2025. The Agency now submits the Tribunal Application should be dismissed given the absence of a section 100(6) decision. The Agency did not provide substantial arguments of statutory interpretation.
Ms Keen replied with further information and submissions by way of six emails variously dated 11 February 2025 and 21 February 2025.
Question 1: Was there a form for an access request that had been approved by the CEO of the Agency, within the meaning of sections 9 and 9A, at the time Ms Jackson claims she made the access request?
The Agency submits that on 27 June 2023, the CEO had validly approved an access request form. It provided the Tribunal with a copy of the form and referred to the notation on the web version which states this approval date and marks the template as Version 12. I note from the Agency’s website that this form is still current in April 2025. The Agency submits that this form was published on the Agency’s website and operating as the approved access request form for the purposes of sections 19 and 9A on or about 21 January 2024.
The Agency further submits that Ms Jackson had previously given the Agency two completed access request forms and provided the Tribunal with copies, dated 29 April 2021 and 26 May 2022. I have reviewed the copies provided and accept the Agency's submission. The Agency submits and I accept that these two prior requests were determined and refused.
I accept the Agency’s submissions and find that on 27 June 2023 the CEO of the Agency pursuant to section 9A approved a form for making an access request under section 19(1) of the Act that was in force and available on the Agency’s website at all relevant dates for the purposes of these proceedings.
Question 2: Did Ms Jackson make an access request in the approved form in accordance with sections 18 and 19(1)?
I note at the outset in my consideration of this question that there are submissions before me from Ms Keen and Ms Jackson that the Agency did not communicate with them in an effective and timely fashion. Without diminishing the potential significance of this, I am not required to explore, if I find no access request in the approved form was made, whether the Agency might have been at fault. I note that had I before me an overt internal review decision made prior to the Tribunal Application and no access request in the approved form, then any such evidence would likely have required my further examination given the principles in section 6 and 7 of the Act. That is not the case here, however.
In her email to the Tribunal dated 11 February 2025, Ms Keen provides a timeline of her and Ms Jackson’s engagement with the Agency in relation to “Debra’s latest application”. Ms Keen states that on 30 November 2023 Ms Jackson received an email headed “NDIS access request form” and that “the above form was handed over” to a named Agency representative. No further details are provided by Ms Keen, and no copy of the form was given to the Tribunal under cover of this email.
In their response dated 21 February 2025 to the Tribunal’s directions, Ms Keen reiterates that she and Ms Jackson do not have a copy of the access request form, they believe it was completed by the Agency’s representative at the 10 January 2024 meeting, they were not provided with a copy of it and did not get a treating professional to complete the form.
I find Ms Keen and Ms Jackson to be vague in their above responses and note their inconsistency with Ms Keen's statements at the hearing that she and/or Ms Jackson completed an access request and emailed it to the Agency on or about 21 January 2024.
In response to the Tribunal’s directions, the Agency provided a complete copy of the email to them from Ms Keen dated 21 January 2024 and its attachments. I find that no access request form is attached. The Agency submits that having made further inquiries into the fields and entries in its case management system on that day, there is no indication the Agency considered an access request was made at that time. It submits that on further inquiries into its systems and with the officers allegedly involved, the Agency remains unable to locate an access request form from Ms Keen or Ms Jackson that coincides with the interactions with the Agency from November 2023 onwards.
On the evidence as a whole, I do not accept that Ms Keen and Ms Jackson made an access request in the approved form in January 2024, as required by section 19(1) of the Act in the absence of the Agency being able to locate one.
I have focused only on the requirement that the access request be in the approved form in sub-section 19(1)(a). This is because the word “must” precedes all three cumulative requirements in section 19(1). Ms Jackson’s failure to give the Agency a completed access request in the approved form is determinative and she cannot meet the requirements that follow in sub-sections 19(1)(b) and (c).
Accordingly, I find that no reviewable decision as defined in section 12 of the ART Act was made at the date of the Tribunal Application. Pursuant to section 97 of the ART Act, I dismiss the Tribunal Application.
Date(s) of interlocutory hearing: 6 February 2025 Solicitors for the Applicant: Self Represented (assisted by Ms Keen) Solicitors for the Respondent: Mr J Burston, NDIA
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