Keating and National Disability Insurance Agency - [2022] AATA 4797

Keating and National Disability Insurance Agency [2022] AATA 4797 (6 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8080
Re:Oisin Keating
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Member Dr C Huntly
Date:6 December 2022
Place:Perth

The application by the Respondent for the dismissal of the Applicant’s application before the Tribunal is granted. The application for review is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Member Dr C Huntly
Catchwords
PRACTICE AND PROCEDURE – application for dismissal of application for review – whether Tribunal satisfied that application “has no reasonable prospect of success” – general principles – application for review of decision that applicant’s supports not eligible for funding under National Disability Insurance Scheme Act 2013 (Cth) – application for review dismissed – Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)(b)
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Filsell v Comcare [2009] AATA 90
Hinds v Australian National University [2012] AATA 495
Kristoffersen v Secretary, Department of Social Services [2018] AATA 524
Paraponiaris and Secretary, Dept of Employment [2015] AATA 895
Christopher Paul Williams v Electoral Commission and the Greens [1995] AATA 160
REASONS FOR DECISION
Member Dr C Huntly
6 December 2022
background

The Applicant is a 61-year-old male who lives in an Access Housing Home in [suburb], Western Australia. He has organic delusional disorder and chronic depression, which occurred after surgery to excise an astrocytoma (brain tumour) in 1975. It was on this basis that he was granted access to the National Disability Insurance Scheme (NDIS) pursuant to s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
On 27 June 2020, the Applicant’s NDIS plan commenced.[1] The plan included total funded supports in the amount of $37,719.42. The NDIS plan period was from 27 June 2020 to 27 June 2021. The Applicant’s plan has now been automatically extended on a pro rata basis while the matter remains before the Tribunal.
[1]T documents; T11.
On 25 August 2020, the Applicant applied for internal review of the decision to approve the statement of supports under the Applicant’s current NDIS plan.[2] The Applicant requested the following supports:
(a)purchase of a motor vehicle for the Applicant’s personal use (support one); and
(b)purchase of dental implants to replace the Applicant’s missing teeth (support two).
[2]T7.
In support of his application for internal review, the Applicant provided supporting documentation to the Agency. Of the eight documents provided by the Applicant to the Agency, only two documents made any reference to the Applicant’s transport or dental needs, although neither of those two documents made recommendations for the Agency to fund a motor vehicle or dental implants in the Applicant’s plan.
On 4 November 2020, a delegate of the CEO of the Agency (the delegate) made a decision under s 100 of the Act affirming the decision made on 27 June 2020 under s 33(2) of the Act on the basis there was insufficient evidence that the request for a car for personal use (support one) and dental implants to replace his missing teeth (support two) were related to his disability, as required by rule 5.1(b) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).[3]
[3]T2.
The delegate also found the purchase of the car was to enable the Applicant to volunteer in an area of the community some distance from the Applicant’s home and that the stated need for the car did not arise as a direct result of the Applicant’s disability. The delegate found further that the treatment for the Applicant’s missing teeth was not related to the Applicant’s disability and was better provided through mainstream healthcare services.
Prior proceedings
On 29 November 2020, the Applicant applied to the Tribunal for review of the delegate’s decision dated 4 November 2020.[4]
[4]T1; T1A.
After the application for review was made, the Tribunal received a letter written by the Applicant dated 6 January 2021, which stated that he needed a car to volunteer in a plant nursery as he was unemployable, and his short-term memory was profoundly amnesiac, but he completed a TAFE horticulture course three decades ago and his long-term memory was good.[5]
[5]T1A.
The Applicant did not explain, however, why he could not find some other way to commute to the nursery other than through the purchase of a car and provided no detail about his request for dental implants.
On 2 March 2021, the Respondent filed a Statement of Issues that, amongst other things, identified the further evidence the Applicant could provide, to demonstrate the link between his requested supports and his conditions.
On 16 March 2021, the first case conference in the matter was conducted, which the Applicant attended. Following the conference, the Conference Registrar issued a Direction requiring the Applicant to give any evidence he sought to rely on at hearing by 13 April 2021. A copy of this Direction is included at Annexure A.
By a letter dated 17 March 2021, and received by the Respondent on 22 March 2021, the Applicant provided a neuro-psychometric test result from Susan Scott, Senior Psychologist, dated 21 March 1991.[6] It is notable that the psychometric test result makes no reference to the Applicant requiring a vehicle or dental implants, and fails to demonstrate that the requested supports relate to his organic delusional disorder and chronic depression.
[6]Received by the Perth Registry on 19 March 2021.
On 16 April 2021, the Respondent wrote to the Tribunal outlining its view that the Applicant had not provided any probative or relevant evidence in support of the review application and that, in the continued absence of any further evidence, the application would be liable to be dismissed under s 42B(1)(b) of the AAT Act because it lacked reasonable prospects of success. The Respondent’s letter also noted the Applicant had not complied with the Conference Registrar’s earlier Direction.[7] A copy of the Respondent’s letter dated 16 April 2021 is included at Annexure B.
[7]See above para [12].
On 27 April 2021, the Respondent wrote again to the Tribunal requesting that the matter be listed for a directions hearing. The matter was subsequently listed for a directions’ hearing as part of the Alternative Dispute Resolution (ADR) process.
On 8 June 2021, the Applicant failed to attend the scheduled directions hearing and the matter was dismissed for non-attendance by Deputy President Boyle on 8 July 2021. A copy of Deputy President Boyle’s Order under 42A(2) of the AAT Act is included at Annexure C.
By a letter dated 30 July 2021, but received by the Tribunal on 10 August 2021, the Applicant applied for reinstatement of the application on the bases that:
(a)he had profound amnesia and depression;
(b)he claimed he had telephoned the Tribunal well in advance of the second telephone conference on 8 June 2021 to explain his condition and ability to participate in the conference; and
(c)he contended the conference should not have been heard without him attending.
A copy of the Applicant’s letter to Tribunal seeking reinstatement is included at Annexure D.
On 24 September 2021, the Respondent received a brief Statement of Issues from the Applicant dated 13 September 2021 which, notably, did not explain his non-attendance at the previous case conferences or how the requested supports related to his conditions.

A copy of the Applicant’s Statement of Issues dated 13 September 2021 is included at Annexure E.
Current proceedings
On 1 October 2021, a directions hearing was held before the Tribunal as presently constituted with the consequence that the Applicant’s review application was reinstated by consent, after it was accepted that the Applicant had contacted the Tribunal prior to the ADR process to indicate he was unable to attend.
On 16 December 2021, a further directions hearing was held, which was attended by both the Applicant and the Respondent. In preparation for the directions hearing, the Respondent filed a Statement of Issues that (amongst other things) requested that the Applicant provide further evidence to demonstrate the link between his requested supports and his conditions.
The Assistant Case Assessment Registrar made a Direction that required the Applicant to give to the Tribunal and the Respondent any further evidence upon which he wished to rely by 20 January 2022.
By a letter dated 7 January 2022 and received by post on 18 January 2022, the Applicant again provided a further copy of the same neuro-psychometric test result dated 21 March 1991 from Susan Scott which, as noted at [12] above, made no reference to a vehicle or dental implants.
On 14 March 2022, the Respondent filed a Statement of Issues, Facts and Contentions which contended that the requested supports were prohibited from being funded by operation of Part 5 of the Rules and that there was insufficient evidence to positively satisfy the Tribunal that they were reasonable and necessary supports for the purposes of s 34(1) of the Act.
On 3 March 2022, the matter was listed for a telephone directions hearing (TDH) before the Tribunal as presently constituted, at which the Applicant was encouraged by the Member and the Respondent to seek legal representation. There was no indication that the Applicant had sought legal representation previously, or that he wanted the assistance offered by the Respondent in sourcing legal representation. During this TDH, a good faith expression was made by the Respondent to the Applicant, to assist the Applicant in securing appropriate legal representation to help him better formulate his submissions.

The Applicant expressed a principled refusal of this good faith offer by the Respondent.
On 5 May 2022, the Applicant filed a submission explaining why he was seeking funding for a motor vehicle and dental implants; being that a motor vehicle would provide him with greater mobility than using public transport, and that his dental issues arose as a consequence of his disability. The Applicant asserts that he felt next to no pain when his teeth decayed as his cranial nerves were damaged due to collapsed brain ventricles.

This material essentially replicated the Applicant’s previous submissions.
On 1 June 2022, the Tribunal advised the parties of its concerns that, on the basis of the evidence before the Tribunal, the Applicant’s review application may have no reasonable prospect of success. The Tribunal invited the parties to file submissions addressing whether the matter should be dismissed, pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Respondent filed submissions in response on 22 June 2022 and the Applicant had three weeks from this date to provide any submissions in response.
Correspondence from the Applicant was received on 20 July 2022, advising that the Applicant had received the Respondent's submissions on 28 June 2022, but was unable to respond within the three weeks, due to illness. On 22 July 2022, the Tribunal granted the Applicant a further five weeks’ extension, to file submissions by 26 August 2022.
The Applicant did not respond within the required timeframe. A reminder letter was sent to the Applicant on 7 September 2022, advising that the date for submissions had passed and that the Registry had been unable to contact him via telephone. On 21 September 2022, parties were invited to attend a TDH to consider the question of whether or not the application should be dismissed.
A hearing of the Tribunal’s consideration of its s 42B(1)(b) discretion took place on 7 October 2022. The Respondent attended the hearing via telephone; the telephone number for the Applicant was not in service and despite several attempts to contact the Applicant, the hearing eventually commenced with only the Respondent present.
Following commencement of the hearing, the Applicant contacted the Registry and asked to be connected to the hearing. The Applicant had received the listing notice and at some stage had changed his contact number but had not informed the Registry.
At the hearing, the Applicant was reminded that he had not responded to the invitation to respond issued on 1 June 2022, nor had he responded by the extended date of 26 August 2022. The Tribunal indicated that, in the interests of procedural fairness, a further opportunity to respond would be granted in the form of a written direction.
Following the hearing, a direction was issued to the parties in the following terms:
1.On or before 31 October 2022, the Applicant to provide a response to the Respondent’s submissions made on 22 June 2022, regarding whether the application should be dismissed for no reasonable prospect of success, with a copy to the Respondent.
2.On or before 14 November 2022, the Respondent be given leave to make submissions in reply, with a copy to the Applicant.
3.A decision in this matter to be made on the papers, following receipt of both parties’ submissions.
The Applicant made no further submissions to the Tribunal in response to this direction.

On 3 November 2022, the Respondent emailed the Tribunal, relying on its submissions of 22 June 2022, and requested that the matter be determined.
The Respondent’s principal contentions are that the Applicant has failed to engage meaningfully with the process of the Tribunal on review, and despite having been given reasonable opportunities to provide further and better particulars, the Applicant has either failed to provide such additional material or has provided irrelevant material in response to the questions.
The basic premise of the Respondent’s submissions is that it is important for the Applicant to do anything necessary for the Tribunal to reach a positive state of satisfaction about the relevant statutory requirements under the NDIA Act, particularly at s 34. This submission is trite law.
the power to dismiss
Subsections 2A(a) and (b) of the AAT Act specify that the Tribunal in carrying out its functions must pursue the objective of providing a mechanism of review that is, among other things, accessible and fair, just, economical and quick.
Paragraph 42B(1)(b) of the AAT Act provides (emphasis added):
(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.
The power is entirely discretionary. The Tribunal may (or may not) dismiss an application depending on its assessment (satisfaction) of the prospects of success in overturning or amending an original decision, the subject of review in the Tribunal.
Section 42B(1)(b) of the AAT Act relevantly provides that the Tribunal may dismiss an application for review at any stage of the proceeding, if the Tribunal is satisfied that the application has no reasonable prospect of success. The relevant principles governing dismissal of applications for review pursuant to s 42B(1)(b) of the AAT Act include that:
(a)it be attended with caution;
(b)it involves a consideration of the merits of the matter;
(c)the application must not require resolution of a real issue of fact or law;
(d)the Tribunal ought not confine itself to the case as put by the Applicant; it must consider the wider statutory context; and
(e)such a dismissal reflects that it would be futile for the proceedings to continue and inappropriate to use the time and resources of the Tribunal to put the Respondent to the expense of a hearing.[8]
[8]Paraponiaris and Secretary, Dept of Employment, Re [2015] AATA 895 (Paraponiaris).
The law relating to s 42B is well summarised in Respondent submissions. Further to this, I note the cautionary observation of the Tribunal in Christopher Paul Williams v Electoral Commission and the Greens[9] that applicants are entitled to their “day in court.”[10]

In Re Hinds v Australian National University,[11] the Tribunal stressed that the dismissal power should be used sparingly.[12]
[9](1995) 38 ALD 366.
[10]At [38].
[11][2012] AATA 495.
[12]At [21].
The Tribunal in Re Kristoffersen v Secretary, Department of Social Services relevantly observed:[13]
c)    For the Tribunal to be satisfied of ‘no real prospect’ of success of a given application there must exist a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to hearing in the ordinary way’;
d)    Reaching (or not reaching) the ‘no prospects of success’ standard involves an assessment of an application’s merits to ascertain whether it can reasonably sustain any reasonable contention or line of argument; and
e)    The threshold of satisfaction of the ‘no prospects of success’ standard is not reached if the Tribunal apprehends that it is unlikely that an applicant will succeed on a question of law, fact (or both).
[13][2018] AATA 524 [10] (Senior Member Tavoularis).
In Re Filsell v Comcare,[14] Deputy President Jarvis expanded on the principles that should be applied in s 42B matters. The Deputy President noted that:
The power of the [T]ribunal to dismiss proceedings is a power that should be used cautiously.[15]
and:
However, if proceedings have no reasonable prospect at all of success they should be dismissed, since it would be futile for the proceedings to continue and inappropriate to use the time and resources of this [T]ribunal and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.[16]
[14][2009] AATA 90.
[15]At [33(c)].
[16]At 33(d).
In Paraponiaris,[17] Deputy President Alpins stated:[18]
Where the success of an application for review depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable, as a matter of proper statutory interpretation, in my opinion it is open to the tribunal to be satisfied the application has no reasonable prospects of success for the purposes of s 42B(1)(b).
[17][2015] AATA 895 (see paras [22]-[34])
[18]See above fn 8, [28].
These considerations essentially raise questions of futility. If one accepts the submissions of the Respondent, the evidence that the Applicant has provided to date could not satisfy a reasonable person that his application has a reasonable prospect of success if this matter proceeds to hearing.
In response to these express submissions, while the Applicant has been given multiple opportunities to demonstrate that his application meets the requirement of a reasonable prospect of success for the relevant purposes of the Act, he has not met that requirement.
The Substantive issue
The purchase of a motor vehicle for the Applicant, which is referred to above as support one. Respondent submissions of 22 June 2022, relating to the Applicant’s failure to engage meaningfully with the process of the review, were as follows:
34.Despite the Tribunal’s Directions of 16 March 2021 and 16 December 2021 requiring the Applicant to provide relevant evidence to support his requested supports, the Applicant has simply provided:
(a)Under the cover of letters dated 17 March 2021 and 7 January 2022 copies of the same neuro-psychometric test result dated 21 March 1991 from Susan Scott, which is seriously dated and deficient from an evidentiary perspective for the reasons identified at [14] above.
(b)A submission filed on 5 May 2022 in which the Applicant explained why he sought funding for a motor vehicle and dental implants, although those reasons are not substantiated by any expert evidence that the Applicant has provided.
35.The Applicant has provided no further documents or expert evidence recommending funding for his requested supports or explaining why the requested supports meet the reasonable and necessary criteria in s 34(1) of the Act.

Specifically with respect to support one, the Respondent further contends that:
40.…
The Applicant has not filed any evidence outlining why the costs of a motor vehicle would be an additional living cost solely and directly incurred because of his disability support needs or why it would be ancillary to another support which is funded in the Applicant’s statement of participant supports, as required by sub-rules 5.2(a) to (b) of the Rules. Additionally, no evidence has been filed addressing how the requested motor vehicle would relate to the functional impacts of the Applicant’s disability.
…
I accept that the objections raised by the Respondent to this application - while not in any way determinative - are satisfactory in terms of deciding whether or not there are reasonable prospects of success based on the application as currently framed.
With respect to the requested dental implants, identified above as support two, the Respondent submissions were that “there is no evidence identifying how this support would relate to the functional impacts of the Applicant’s disability.”[19]
[19]Respondent SFIC at para [42].
In response to these further submissions, the Applicant, while having been given multiple opportunities to meet the requirements that he demonstrate that his application has a reasonable prospect of success for the relevant purposes of the Act has not met that requirement.
In summary, the Respondent’s contention relating to the Applicant’s prospects of success are as follows:
44.Given the paucity of evidence and information provided by the Applicant in support of his application and to indicate that his two requested supports meet the reasonable and necessary criteria in s 34(1) of the Act, despite being afforded multiple opportunities to remedy the evidentiary deficiencies in his case over an extended period of time, the present application has no reasonable prospects of success. In circumstances where the Applicant has had multiple opportunities to provide probative medical evidence to demonstrate how his requested supports meet the applicable legislative criteria, and seek legal representation, but has repeatedly failed to do so, it would be futile for the proceedings to continue and inappropriate to use the time and resources of the Tribunal to put the Respondent to the expense of a hearing.
The Tribunal notes that, as at the date of this decision, the Applicant has not responded to the Respondents’ submissions dated 22 June 2022. The Tribunal is further satisfied that the Applicant has been afforded procedural fairness in every material respect.
The substantive issue in this matter is whether the Applicant’s two requested supports, namely:
(a)the purchase of a car for the Applicant’s personal use (support one) and
(b)the purchase of dental implants to replace the Applicant’s missing teeth (support two),
are reasonable and necessary, pursuant to s 34(1) of the Act.
The Respondent’s final submissions were provided in response to the email sent by the Tribunal to the Respondent on 1 June 2022, inviting the Respondent to file submissions addressing the following:
(a)the Tribunal’s concern that, based on the evidence, the application may have no reasonable prospect of success; and
(b)as such, whether the Tribunal should consider dismissing the application pursuant to s 42B(1)(b) of the AAT Act.
Having regard to the paucity of evidence that might show how the Applicant’s two requested supports satisfy the criteria in s 34(1) of the Act, despite the length of time this matter has been before the Tribunal and the multiple opportunities afforded to the Applicant to present and progress his case, the Respondent is of the view that this matter lacks reasonable prospects of success and that the review application ought to be dismissed pursuant to s 42B(1)(b) of the AAT Act as it “would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal”.[20]
[20]Respondent SFIC at para [4], referring to Paraponiaris.
I find that the Tribunal can be satisfied that the Applicant’s application has no reasonable prospect of success.
It is therefore appropriate for the Tribunal to exercise its discretionary power under paragraph 42B(1)(b) of the AAT Act and dismiss the Applicant’s application.
DECISION
The application by the Respondent for the dismissal of the Applicant’s application before the Tribunal is granted. The application for review is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

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Associate
Dated: 6 December 2022

Applicant: Self-represented

Counsel for the Respondent: Mr M Daly

Solicitors for the Respondent: Mills Oakley Lawyers

Applicant:	Self-represented
Counsel for the Respondent:	Mr M Daly
Solicitors for the Respondent:	Mills Oakley Lawyers