KTJX and National Disability Insurance Agency

[2024] AATA 3360

KTJX and National Disability Insurance Agency [2024] AATA 3360 (3 June 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2024/1393

Re:KTJX  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member J Toohey  

Date of decision:               3 June 2024

Date of written reasons:      6 August 2024

Place:Brisbane

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, the Tribunal does not extend the time for the making of an application for review of the decision of the Respondent.

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Member J Toohey

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME –
Extension of time to lodge application – Access to the scheme – Further access request made – Application lodged 142 days out of time – Further time required to provide information about delay – whether ‘reasonable in all the circumstances’ to extend time – Extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Cases

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

1 August 2024

PROCESS STEPS

1. On 6 March 2024, the Applicant lodged with the Administrative Appeals Tribunal (Tribunal) an application to review a decision made by the National Disability Insurance Agency (Respondent) on 18 September 2023 refusing the Applicant access to the National Disability Insurance Scheme (Scheme).

2. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requires an application for review to be made within 28 days from the date the decision. In this case, the time limit for an application to the Tribunal was 16 October 2023. The application for review was over 20 weeks out of time.

3. On 9 March 2024, the Tribunal invited the Applicant to request an extension of time and she responded on 12 March 2024 saying that her email had been ‘hacked’.

4. On 19 March 2024, the Tribunal asked the Respondent whether it opposed the Applicant’s extension of time request. On 2 April 2024 the Respondent advised the Tribunal that it did oppose an extension of time, along with its reasons for opposing one.  

5. On 19 April 2024, the Tribunal held a Case Management Directions Hearing (CMDH) to hear the extension of time application. At this CMDH it became clear that the Respondent had not sent a copy of their notice opposing the extension of time to the Applicant. The Respondent advised it would do so. The Respondent also agreed to include more specific information about the factors that the Tribunal was required to consider in deciding whether to extend time and set out the Respondent’s position in relation to each of them. The Applicant agreed to provide further information in response to support her application for an extension of time. The Tribunal also raised with the parties the option of the Applicant being able to reapply for access to the scheme. 

6. The Tribunal directed that the Respondent write to the Applicant to confirm the factors to be considered in relation to an extension of time request and the Respondent’s position on these factors by 26 April 2024. The Tribunal then directed that the Applicant provide any further information about the reason for the delay in making the application to the Tribunal, and to clarify whether she intended to continue with the current application or instead make a further access application to the Respondent, by 3 May 2024. I also directed that the Respondent advise whether it maintained its opposition to the extension of time and provide any further submissions to the Tribunal by 17 May 2024.

7. The Applicant did not comply with the direction to provide further information or advise whether she was continuing by 3 May 2024. On 9 May 2024, the Respondent confirmed that it had written to the Applicant as directed on 26 April 2024, had not received any further response, and that the Respondent’s opposition to the extension had not changed.

8. On 21 May 2024, Queensland Advocacy for Inclusion (QAI) emailed the Tribunal to request the documents for the Applicant’s review application and provided the Applicant’s consent to release these documents. QAI advised that they were assisting the Applicant but were not acting for her. The Tribunal provided the relevant documents on 22 May 2024.

9. On 23 May 2024, QAI provided submissions in support of the Applicant’s application for an extension of time and requested further time to gather medical records to show that she had suffered from a persistent infection that required multiple hospital attendances in late 2023 and early 2024.

10. On 24 May 2024, the Tribunal held an interlocutory hearing to consider the extension of time request. QAI did not participate in this interlocutory hearing. The Applicant attended by telephone. She advised that she had now made a new application for access to the Scheme. The Respondent’s representative advised that this had not been received but that a new access application would be created based on the verbal request made during the interlocutory hearing. The Applicant became abusive and was cautioned to communicate to the Tribunal and the Respondent with respect. I agreed that the Tribunal would follow-up with QAI to seek an estimate on how long it might take to provide further supporting medical information. The Respondent agreed to confirm in writing that a new access application had been commenced for the Applicant.

11. On 29 May 2024, QAI estimated that it would take 5 weeks to provide further hospital records. On the same day, the Respondent confirmed in writing that a new access application had been commenced.

12. On 3 June 2024, I decided that the extension of time was not granted and advised the parties of the decision.

    WHY THE TRIBUNAL REFUSED AN EXTENSION OF TIME

13. Section 29(2) of the AAT Act requires applications to be made within 28 days of a person being notified of the reviewable decision. Section 29(7) allows the Tribunal to extend the time for making an application ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.’ In deciding whether it is reasonable to approve an extension of time, the Tribunal must consider the following:[1]

    (a)Whether the applicant provided an acceptable explanation for the delay such that it would be fair and equitable in the circumstances to extend the time.

    (b)Any action taken by the applicant to make the Agency aware that the decision was being contested.

    (c)Any prejudice to the Agency which may have resulted from the delay.

    (d)Any wider prejudice to the general public in terms of disruption to established practices.

    (e)The merits of the application.

    [1] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

14. In her application for an extension, the Applicant stated that the reasons she was requesting an extension of time was that: she had suffered a near-fatal infection; in combination with an acquired brain injury, this infection impacted her ability to process information and her vision; and an emergency department discharge summary supported the seriousness of this infection.  

15. The Respondent submitted that the Applicant had provided little information to support that the duration and severity of the infection would explain a 142-day delay in lodging her application. The Respondent acknowledged that the Applicant provided a hospital discharge letter dated 18 February 2024, but submitted that this indicated that the Applicant was admitted and discharged on the same day. The Respondent also noted that the Applicant provided a hospital discharge letter dated 19 March 2024. The Respondent submitted that this hospitalisation did not support an extension of time as it occurred after the Applicant lodged her application for review with the Tribunal on 6 March 2024.

16. QAI suggested that further records could be sought to demonstrate the number of admissions relating to the Applicant’s infection. However, on balance, I do not consider that an adjournment of the application for an extension to explore that possibility should be granted. These records mainly relate to the extension of time request and not to the Applicant’s basis for seeking access to the Scheme. I am not satisfied that these records would support the delay of over 20 weeks to lodge an application for review. The Applicant has not complied with a direction to provide further supporting information. The Applicant has had sufficient time to provide these records. 

17. I note that QAI also emphasised the impact of the Applicant’s acquired brain injury and complex PTSD on her capacity to meet these timeframes. During the interlocutory hearing, the Applicant was adamant that she did not want her acquired brain injury and complex PTSD to be considered and did not want to provide any further information about these conditions. I do not consider that the Applicant has provided an acceptable explanation of the delay such that it would be fair and equitable in the circumstances to extend the time.

18. The Applicant has also not provided any information to demonstrate that she took steps to make the Respondent aware that the decision she seeks to have reviewed was being contested. The Respondent concedes that they would not be prejudiced by a late application, and I accept that this is the case. QAI submitted that the Applicant would be prejudiced in reapplying for access because QAI’s advocacy service would not be available for this process. I note that the Scheme has a guideline about ‘community connections’.[2] This guideline states that that people with a disability, including those who are not Scheme participants, can receive assistance to apply for access to the Scheme, and to connect with supports available in their community, through NDIS local area coordinators. If QAI advocacy services are not available to the Applicant for her new application, I would encourage the Applicant to seek support through the community connections program. In any case, it may well be that the fresh application with the Agency may result in her application for access being granted and, if not, QAI can support her in an application for review as they are doing now.     

    [2] >

    I do consider that there is a wider prejudice to others in terms of disruption to established practices. Other applicants are required to comply with the time limits to lodge and delays can be expected in Tribunal reviews if these time limits are not implemented. The Applicant is not prevented from lodging a new access application and the Respondent has confirmed that this has commenced. In my view, it is appropriate for the Applicant to take part in this new access application before seeking a review at the Tribunal. This will provide the Applicant and the Respondent with an opportunity to consider more up-to-date information about her impairments rather than the Tribunal process being used for such information gathering.

19. As this is an extension of time application, the Tribunal is not able to fully assess the merits of the Applicant’s application. I note that an acquired brain injury and complex PTSD are conditions that can result in significant impairments. The Applicant was very clear that she did not want impairments related to these conditions to be considered. The Applicant only wanted her neck condition to be considered, and she has provided records that relate to her neck condition, including a referral to a pain clinic, chiropractic reports, and a Centrelink job capacity assessment report. There may be some merit to the Applicant’s application based on these reports, but I am not able to say. I would suggest that an up-to-date functional capacity assessment would also assist in assessing the Applicant’s eligibility for access to the scheme.

    DECISION

20. For these reasons, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal does not extend the time for the making of an application for review of the decision of the Respondent.  

I certify that the preceding 21 paragraphs are a true copy of the reasons for the decision herein of Member J Toohey

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Associate
Dated: 6 August 2024

Date of interlocutory hearing:	24 May 2024
Advocate for the Applicant	Louise O’Rourke – Queensland Advocacy for Inclusion