Jackson and National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 987

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 192
Statement 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Jackson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 987
Case: [2025] ARTA 987
Decision Date: 22 May 2025

CaseChat Overview and Summary

The parties in this case were Ms Jackson and the National Disability Insurance Agency (the Agency). The dispute concerned Ms Jackson's application for access to the National Disability Insurance Scheme (NDIS), and whether the Agency had made a reviewable decision that could be reviewed by the Administrative Review Tribunal (the Tribunal). The case was heard in the Tribunal, where the key legal issues revolved around the requirements for an access request under the NDIS Act and whether the Agency had made a reviewable decision. The Tribunal examined whether an approved form for an access request existed and whether Ms Jackson had submitted an access request in the approved form. The court determined that the Agency had not made a reviewable decision, as it had not overtly decided that Ms Jackson did not meet the access criteria, nor had it made a deemed decision under section 21(3)(a) of the NDIS Act.

The Tribunal's reasoning hinged on the interpretation of the NDIS Act and its provisions regarding access requests and reviewable decisions. The court found that it was mandatory for an access request to be in an approved form when one exists and no overt section 20 decision had been made by the CEO of the Agency. The Tribunal concluded that the Agency had not made an overt section 20 decision, and therefore, it was necessary to determine whether the Agency had made a deemed decision under section 21(3)(a) of the NDIS Act. This determination depended on whether Ms Jackson had made an access request in the approved form. The Tribunal found that there was no evidence that an approved form for an access request existed at the relevant time, and therefore, the Agency had not made a deemed decision. Consequently, the Tribunal held that it did not have jurisdiction to review the Agency's decision.

The outcome of the case was that the Tribunal found it did not have jurisdiction to review the Agency's decision regarding Ms Jackson's access request. The Tribunal determined that no reviewable decision had been made by the Agency, as it had not overtly decided that Ms Jackson did not meet the access criteria, nor had it made a deemed decision under section 21(3)(a) of the NDIS Act. The court's decision was based on its interpretation of the NDIS Act and the requirements for an access request, as well as the absence of an approved form for an access request at the relevant time. The Tribunal's final orders would likely reflect this determination, dismissing Ms Jackson's application for review of the Agency's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 SUBMISSIONSThe 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.

Decision

Reasons for decision

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;

Ratio Decidendi

Legal Principle Established

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