KMGX and National Disability Insurance Agency

[2023] AATA 11

KMGX and National Disability Insurance Agency [2023] AATA 11 (11 January 2023)

Division:National Disability Insurance Scheme Division

File Number:           2022/7279

Re:KMGX  

APPLICANT

And National Disability Insurance Agency

RESPONDENT

Tribunal:                  Senior Member K. Parker

Date:11 January 2023

Place:Melbourne

INTERLOCUTORY DECISION

The Tribunal extends the time for lodgement by the Applicant of an application for review numbered 2022/7279 to 1 September 2022.

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Senior Member

Catchwords

PRACTICE AND PROCEDURE – request for extension of time for lodgement of application for review – substantive decision is an internal review decision in relation to a statement of participant supports approved for the Applicant under the National Disability Insurance Scheme – beneficial legislation – reasonable explanation for the delay – length of delay – request not opposed – no prejudice to National Disability Insurance Agency – public interest – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of application for review – extension of time request granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2) and 29(7)

National Disability Insurance Scheme Act 2013 (Cth), ss 103 and 100(6)

REASONS FOR INTERLOCUTORY DECISION

Senior Member K. Parker

11 January 2023

1. On 1 September 2022, pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), the Applicant, KMGX, by her mother, sent to the Registry of the Tribunal, an application for review of a decision made by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100(6) of the NDIS Act, in relation to an earlier decision to approve a statement of participant supports for KMGX (Decision Under Review). On the same day, KMGX’s mother also lodged an application for an extension of time for lodgement of application for review (EOT Application). On the EOT Application form, it states that the Decision Under Review was received by the Applicant on 9 March 2022. On 6 January 2023, the EOT Application was referred by Registry to the Tribunal to decide whether to grant the requested extension of time.

2. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review must be made within 28 days from the day the reviewable decision was given to the Applicant. The 28^th day after the date the reviewable decision was given to the Applicant is 6 April 2022. This means KMGX lodged her application for review over four and half months “out of time”. KMGX has requested an extension of time for lodgement of the application for review pursuant to s 29(7) of the AAT Act.

3. Section 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement if it is satisfied that it is reasonable in the circumstances to do so.

4. The factors the Tribunal will consider in making this assessment are:

   (a)the length of the delay in lodging the application;

   (b)KMGX’s explanation for the delay in lodging the application;

   (c)the Tribunal’s general impression as to the merits of the substantive application;

   (d)whether the NDIA has suffered any prejudice on account of the delay;

   (e)whether it would be against the public interest to grant the extension of time; and

   (f)any other matter the Tribunal considers appropriate.

5. Firstly, the Tribunal must consider the length of the delay. In this case, the delay was considerable being four and half months out of time, in the context of a statutory time frame requiring it to be lodged within 28 days. This weighs against granting the requested extension of time.

6. Secondly, the Tribunal must consider the Applicant’s explanation for the delay. On the EOT Application form, KMGX’s mother provided the following explanation for the delay:

   I am [KMGX]’s mother and my father passed away from cancer in January 2022 and my family have been overwhelmed. I felt unprepared for the review in Feb, which was less than a month after my father died. I have not had the capacity to access the AAT until now. I am caring for my elderly mother and I have 4 children. [KMGX]’s sister ([name omitted], 10) is also on the NDIS with very high needs. [KMGX’s sister] has had many viral infections over the past 6 months and has a compromised immune system. She has been extremely unwell, with multiple hospital appointments. This has also affected my ability to contact the AAT. I would like an opportunity to challenge the NDIS decision that I do not need more support. [KMGX]’s LAC [name omitted] advised me to use this form to apply for a [sic] extension.

7. The Tribunal considers that the explanation provided by KMGX’s mother is a reasonable explanation for the delay in lodgement in this instance. She has clearly been dealing with very challenging circumstances which have led to a reduced capacity to be able to arrange for the making of an application for review to challenge the Decision Under Review, until she did so in September 2022. The Tribunal considers that this factor weighs in favour of granting the request for an extension of time.

8. Thirdly, the Tribunal will seek to form a preliminary impression about the merits of the substantive application. The decision sought to be reviewed is a decision about an earlier decision regarding the statement of participant supports approved for KMGX. There have been significant changes in circumstances of KMGX’s mother, arising from the loss of her father and the need to care for her elderly mother (and her other daughter who is on the NDIS and who has suffered a number of infections). Those matters, and the absence of any suggestion by the NDIA that the substantive application lacks merit, are sufficient at this preliminary stage to satisfy the Tribunal that the substantive application is not without merit. This factor weighs in favour of granting the extension of time.

9. Fourthly, the Tribunal will consider whether there was any prejudice suffered by the delay in the lodgement of the application for review. The NDIA informed the Tribunal that it does not oppose the request for an extension of time. For this reason, the Tribunal considers it appropriate to make this decision without the need to conduct an interlocutory hearing before the parties. The Tribunal also infers, from the absence of any opposition by the NDIA to the request for an extension of time, that the NDIA has not suffered any prejudice as a result of the delay. This factor weighs in favour of granting an extension of time.

10. Fifthly, the public interest gives rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal. The delay in this instance, being four and half months, was considerable. The Tribunal considers, as a general proposition, that it is against public interest to allow persons to lodge applications for review so long after the relevant statutory time frame has expired. This factor weighs against granting an extension of time.

11. Sixthly, the NDIS Act is beneficial legislation. In this case, the Applicant is a child participant who has been accepted as a participant in the NDIS on the basis that she has a disability resulting in functional impacts. KMGX’s mother, who cares for KMGX, also cares for her other daughter who is a participant in the NDIS with care needs. These are further factors weighing in favour of the Tribunal granting the requested extension of time.

12. On balance, the Tribunal considers that the factors weighing against the granting of the EOT Application, being the considerable delay and that to grant the extension would be against the public interest, are outweighed by the other considerations referred to above which weigh in favour of granting the EOT Application.

13. Accordingly, the Tribunal has reached a state of satisfaction that it is reasonable in all the circumstances to grant an extension of time under s 29(7) of the AAT Act to KMGX to lodge this application for review on 1 September 2022.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

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

Associate

Dated:  11 January 2023

Date of hearing:	On the papers
Applicant:	KGMX, by her mother
Respondent:	National Disability Insurance Scheme