LKZX and National Disability Insurance Agency - [2022] AATA 327

LKZX and National Disability Insurance Agency [2022] AATA 327 (25 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/4927
Re:LKZX
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:25 February 2022
Place:Canberra

Application refused.
……………[sgd]………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – extension of time – reasons for delay – factual dispute about internal review procedure – utility of application – preliminary considerations of merit – prejudice – interests – application refused
Legislation
Administrative Appeals Tribunal Act 1975, s 25, s 29(7)
National Disability Insurance Scheme Act 2013, s 48, s 100, s 100(2), s 100(6), s 103
Cases
Al Kateb v Godwin [2004] HCA 37
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
NNXF and NDIA [2019] AATA 5552
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 146
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
25 February 2022

LKZX is a child participant in the National Disability Insurance Scheme (NDIS). LKZX’s mother (Mother) applied for review of an internal review decision of the National Disability Insurance Agency (Agency). The decision is not an actual decision made by a person, rather it is a decision that is deemed to have been made by operation of statutory provisions for the review of decisions under the National Disability Insurance Scheme Act 2013 (NDIS Act). There is a factual dispute about the engagement of these statutory provisions in the particular circumstances, namely whether the Mother withdrew a request for internal review of a Statement of Participant Supports (SPS) in 2018. On this point an issue of the Tribunal’s jurisdiction arises. That aside, if an internal review decision is deemed to have been made, the Mother’s application is well outside the time allowed for the lodging of an application for review by the Tribunal. On that issue, the Agency asserts an extension of time should not be granted.
Consequently, there are issues for determination in respect of:
(a)the Tribunal’s jurisdiction; and
(b)the grant of an extension of time in which to lodge an application for review.
Each party has made written submissions addressing these issues and materials have been given to the Tribunal. The parties are in agreement that the issues should be decided without a hearing, on the papers.
Jurisdiction
The Mother asserts that the Agency should be deemed to have made an internal review decision that the Tribunal has jurisdiction to review. In her submission, she requested internal review of the original decision in July 2018 to approve an SPS for LKZX. She asserts that this request was not subsequently withdrawn. She contends that she discussed plan reviews with the Agency as the SPS was not adequate for LKZX’s needs and an agreement was reached about making a new plan, but she did not withdraw the request for internal review of the approved SPS. She argues that the Agency’s records, including apparently contemporaneous notes, are inaccurate and, if they suggest she withdrew her internal review request, they are wrong. She relies on supporting accounts given by LKZX’s Support Coordinators.
The Agency contends that the Mother withdrew her internal review request and that is why the internal review did not proceed. It is the Agency’s submission that in such circumstances no internal review decision can be deemed to have been made, and without an internal review decision, LKZX’s application to the Tribunal cannot proceed for want of jurisdiction.
The Tribunal’s jurisdiction is conferred by s 103 of the NDIS Act:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
As can be seen, the Tribunal’s jurisdiction is not at large, it is confined to review of a decision under s 100(6):
100 Review of reviewable decisions
…
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
(7) ...
There is no express deeming provision in respect of a decision under s 100(6). The issue of a deemed decision arises where a decision is not made as soon as reasonably practicable. That phrase describes the period within which a decision is required to be made under s 100(6). It commences with the request for internal review under s 100(2) and ends as soon as reasonably practical thereafter. The majority in NNXF and NDIA (NNXF)[1] concluded that this period does not involve indefinite parameters that cannot be objectively ascertained,[2] albeit not confined to a particular period of days.[3]
[1] [2019] AATA 5552.
[2] Ibid, per Thomas J (then sitting as Tribunal President) and DP Britten-Jones at [97].
[3] Ibid, at [102].
The basis on which the Tribunal is to objectively decide the final parameter of the period described by the phrase as soon as reasonably practicable for the purposes of s 100(6) of the NDIS Act and s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) is not amenable to rigid definition. Nonetheless, it requires consideration of the 3 elements identified by the Full Federal Court in Snedden v Minister for Justice for the Commonwealth of Australia (Sneddon)[4]:
116. There are essentially three elements to the composite expression “as soon as is reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”. It identifies that which is able to put into practice and which can be effected or accomplished. Second, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. Third, the phrase “as soon as” supplies a temporal element. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so.
[Citations removed.]
[4] [2014] FCAFC 146 at [116].
Furthermore, where a great deal of time has elapsed without a decision being made in response to a request under s 100(2), and that amount of time is a period well in excess of the time required to make a decision as soon as reasonably practicable, it may not be necessary to fix upon a particular date the period came to an end.
For reasons explained in NNXF’s case,[5] with which I respectfully agree, where an internal review decision is not made with the prescribed period for the purposes of s 25(5) of the AAT Act, the previously existing status quo is preserved and the CEO’s original SPS approval decision under s 33(2) of the NDIS Act is deemed to have been confirmed.
[5] NNXF at [122]-[136].
The brief facts are as follows:
(a)On 5 July 2018, the CEO approved a Statement of Participant Supports (SPS) for LKZX. The approved SPS included a decision that LKZX’s plan would no longer be self-managed but would be plan-managed thenceforth.[6] The SPS made provision for:
[6] Interaction Records filed on 13 September 2021, page 36.
(i)Improved life choices -           $1,536.45;
(ii)Improved daily living -            $5,377.80;
(iii)Improved relationships -        $6,752.70;
(iv)Support coordination -           $2,304.96; and
(v)Review before 5 July 2019.
(b)The SPS was instrumental in a new participant’s plan (Plan A) which commenced on 5 July 2018.
(c)On 5 October 2018, the Mother requested review of the SPS under s 100 of the NDIS Act.
(d)On 19 October 2018, the Agency sent a letter to the Mother, including the following:
While I can confirmthat this request has been received and is currently assigned to the relevant department for allocation to a delegate for assessment, I apologise that I am unable to provide a timeframe for the outcome. Please also be advised that under s100 of the NDIS Act 2013there is no legislated timeframe to make an internal review of decision, however the Agency will endeavour to make a decision as soon as operationally practicable.
I acknowledge your frustrations relating to the time it has taken to undertake the request for review. The Agency as a whole is very aware of the delays participants are currently experiencing with regards to requests of this nature which is the result of the sheer volume of participants transitioning across to the NDIS from state-based funding as the schemerolls out across the country. It was always anticipated that these early stages through to full implementation of the Scheme would see a period of significant volume in requests. In response to this, strategies have been developed and are currently being rolled out to manage this volume of work and to reduce these delays. As there is still a large number of participants in a similar situation, to ensure each participant receives fair and equitable consideration of their requests, allocation of such requests are determined by the order in which they are received in to the Agency.[7]
[7] Interaction Records filed on 13 September 2021, pages 80-81.
(e)On 25 October 2018, the Agency made the following interaction record:
25/10 - Advised MP Office mum has been contacted and advised docs for review have been received. No time frame for review available[8]
[8] Ibid, page 81.
(f)On 15 February 2019, the Agency made the following interaction record:
S100 request received and logged on spreadsheet. Waiting to be allocated to a delegate.[9]
[9] Ibid, page 75.
(g)On 11 March 2019, the Agency further recorded that:
Not started S100 request assigned to the NRT as per current process and National Advice relating to the stand-up of the NRT/IRT and Participant Review Request (PRR) process.
Interaction to be closed off as this request will be tracked and completed using NSW Reporting Tool data provided to the NRT by the Unscheduled Work Team (UWT).[10]
[10] Ibid.
(h)On 25 May 2019, the Mother request information about the progress of her internal review request.[11]
[11] Ibid, page 63.
(i)On 28 June 2019, additional documents were given to the Agency in the context of a review of Plan A.[12]
[12] Ibid, page 60.
(j)On 3 July 2019, following a review of Plan A under s 48 of the NDIS Act, the CEO approved another SPS for LKZX.[13]
[13] Ibid, page 61.
(k)This SPS was instrumental in a replacement plan (Plan B) which came into effect on 4 July 2019.
(l)On 24 September 2019, the Agency created an interaction record in which it was noted that:
[The Mother] has confirmed that the internal review request dated 05.08.2018 is still required and that the new plan that has been approved since the request was submitted still has not addressed their needs.
[The Mother] confirmed that she would like to provide additional information relevant to the request to be considered. [The Mother] Has advised she will need to submit this information as it is not on her
I confirm that I have advised [the Mother] that their request will be passed on to the appropriate team for an internal review decision.
After investigation of the participants CRM record I confirm that a s100 decision is required to be made as at this time no outcome report, or participant contact has been made to advise of the s100 decision.[14]
[14] Ibid, page 56.
(m)On 30 October 2019, the Agency created the following interaction record:
s.100 Withdrawn 05/10/2018
Contacted [the Mother] and poi confirmed 30/10/2019 to discuss the review submitted on 5/10/2018. She was not happy about the time frame taken andhas been given different information from staff of NDIS, she is currently focusing on the new plan and request submitted is no longer required if needed will submit the review on the new plan. She also gave verbal consent to discuss the review with her Bek Thompson - Support Coordinator to discuss the review and inform what is required further. She confirmed that will request a review if required in future but its okay to cease the old review as confirmed and discussed by child representative. I confirm that [the Mother] along with Bek Thompson - Support Coordinator has agreed that their request for review is no longer required and they wish to withdraw the request. They have been informed that as no decision will be made in relation to the request they are unable to seek an external review of a decision via the AAT. Request is taken to be withdrawn under s102(b).[15]
[15] Ibid, page 54.
(n)The accuracy and meaning of this record is disputed. The Mother asserts that she did not agree to withdraw the 5 October 2018 request for internal review, and she proceeded on the expectation this was still on foot.
(o)On 4 February 2020, Ms Thompson provided information to the Agency about a change in LKZX’s circumstances, namely LKZX has exhausted all f his Capacity Building (Improved Daily Living) Funding.[16]
(p)On 5 February 2020, the Agency made an interaction record which included the following: Uploaded COC and created s100 for Change of Circumstances.[17] Later that day a delegate of the CEO decided that an unscheduled plan review under s 48 of the NDIS Act was required as LKZX is probably on path of regression due to decreased supports.[18]
(q)On 30 March 2020, the CEO approved a further SPS for LKZX which was instrumental in a new plan (Plan C) which replaced Plan B and came into effect on that date.
(r)On 4 September 2020, the Mother lodged a freedom of information request with the Agency. This was decided on 22 September 2020.[19]
(s)On 26 November 2020, a plan review request was lodged on LKZX’s behalf.[20] This was approved on 9 December 2020.[21]
(t)On 6 January 2021, an unscheduled plan review was completed under s 48 of the NDIS Act.[22]
(u)On 14 January 2021, the CEO approved a further SPS for LKZX which was instrumental in a new plan (Plan D) which replaced Plan C and came into effect on that date.
(v)On 21 July 2021, the Mother applied to the Tribunal for review, stating:
I wish to appeal a deemed decision by the NDIA in relation to an Internal Review that was submited in August 2018. I ws still trying to follow up the 2018 Internal review and get a decision in 2020 when, the NDIA indicated the decision was withdrawn in October 2019. I did not give consent for the Internal review to be withdrawn. I was not advised of the decision until 2020 and i have needed time to gather documents and seek advice.
[16] Ibid, page 53.
[17] Ibid, page 52.
[18] Ibid, page 50.
[19] Ibid, page 32.
[20] Ibid, page 29.
[21] Ibid, page 25.
[22] Ibid, page 21.
As can be seen, no internal review decision was made in response to the Mother’s 5 October 2018 request for review under s 100 of the SPS approval decision made on 5 July 2018.
With regard to the elements discussed in Sneddon’s case, it is very clear that the Agency was technically capable of proceeding with the review once the request was made under s 100(2) of the NDIS Act. The request triggered the requirement under s 100(5) for the decision-maker to review the SPS approval decision of 5 July 2018. The element of practicality refers to action that is able to put into practice and which can be effected or accomplished.[23] Once the legal authority to proceed under s 100 was triggered, the Agency was bound to review the reviewable decision. The question of practicality is directed to the circumstances of the particular case rather than the operational capabilities of the Agency more generally. It is not to the point that the Agency had a substantial workload it was struggling to undertake or to administer efficiently. The available evidence does not establish that it was not practicable for the Agency to review the 5 July 2018 decision once relevant materials had been provided.
[23] Sneddon at [116], citing Al Kateb v Godwin [2004] HCA 37, per Gummow J at [121].
The terms of the Mother’s request are detailed and extensive, but are summarised in the following terms:
[The Mother] feels the following items should have been included in the plan:
1) Self management
2) increased funding for therapies, which should be more or equal to the previous plan.
3) home modifications
4) funding for incontinence underwear (the ones that look like knickers)
5) in home supports
6) hydrotherapy for muscular development / Maintenance
In consideration of these matters, it was reasonable for the Agency to consider all relevant materials, including further materials provided on LKZX’s behalf. One would expect such materials would be obtained and placed before the decision-maker promptly, without undue delay. On the Agency’s records, this occurred on or before 25 October 2018. In the circumstances of this case, the period which is appropriate or suitable to the purpose of the legislative scheme is a period in which the relevant materials could be properly considered for the purposes of making a decision under s 100(6).
The obligation to make a decision under s 100(6) as soon as reasonably practicable, requires the decision-maker to act promptly, without delay, once it is reasonably practical to do so. On the Agency records, it is very clear that there was a substantial delay dealing with the Mother’s request for review of the 5 July 2018 SPS approval decision. The apparent reason for the delay was the Agency’s operational workload at the time. This notwithstanding, it was reasonably practical for the Agency to decide the Mother’s s 100(2) request soon after 25 October 2018. There can be no doubt that it was reasonably practical to do so before undertaking the review of Plan A in June 2019.
The Agency asserts the period ended in or about March 2019. The interaction notes on which the Agency relies suggest that the Mother was pressing for a decision to be made, but it appears there were administrative issues relating to the filing of forms and information about the 5 October 2018 request. To my mind those administrative matters, and any administrative error that may have been made, are not matters that bear upon the period in which it was reasonably practical for the Agency to make a decision in response to the Mother’s 5 October 2018 request.
It is reasonable to conclude that the words as soon as might refer to a period of weeks rather than months once all relevant materials have been provided to or obtained by the decision-maker. In the circumstances of this case, I am satisfied that the period described by as soon as reasonably practical ended on or about 25 November 2018, a period of 4 weeks after the Mother provided information in support of her s 100(2) request.
The Agency did not make a decision under s 100(6) within that period or before completing the review of Plan A on 3 July 2019.
Consequently, as of 25 November 2018, a decision is deemed to have been made to affirm the CEO’s SPS approval decision on 5 July 2018.
Extension of time
In submissions made for LKZX, Mr Oliver Wrathall, LKZX’s Disability Advocate, asserts there are very powerful reasons for the delay in applying for review by the Tribunal. He contends that the domestic circumstances of the Mother and her children changed dramatically in May 2019 and 2 of her 4 children (both with disabilities) experienced difficult health issues in the period from July to November 2020. In Mr Wrathall’s submission, the Mother also experienced emotional and mental health difficulties. Furthermore, he asserts that her loss of agency was exacerbated by changes in and delays obtaining advocacy support in 2020.
Mr Wrathall rejects the proposition the Mother’s 5 October 2018 request for internal review was withdrawn at any time. He relies upon the Mother’s contrary account and supporting materials provided by Helen Sutherland (LKZX’s previous Disability Advocate) and Northcott Disability Services, including a letter from LKZX’s Support Coordinator Bek Thompson. In his submission, the Mother believed the internal review process was ongoing despite the delay, and she continued to agitate for a decision to be made in 2020 and 2021. It was in relation to this, Mr Wrathall submits, that the Mother made a freedom of information request in September 2020 and, having obtained relevant documents, then wrote to the Agency on 27 April 2021, again asking the Agency to make a decision in response to her 5 October 2018 internal review request.

It is Mr Wrathall’s submission that the matters relating to supports identified in the Mother’s 5 October 2018 request (see [14] above) remain to be reviewed as these have not yet adequately been addressed in Plans B, C or D. He asserts that the issues in dispute include but are not confined to ‘Vuly’ OT equipment, Hydrotherapy equipment and Outdoor OT area.[24] LKZX, he argues, should be permitted to have those matters reviewed and, where no such review has been undertaken for the purposes of s 100 of the NDIS Act, the Tribunal should exercise discretion to extend time for LKZX’s application and allow a review to proceed and a decision to be made.
[24] Applicant’s written submissions, 24 September 2021 at [11].
The Agency does not agree. In the Agency’s submission, should an extension of time be granted, the Tribunal’s review is confined to the period in which the SPS initially approved on 5 July 2018 was in effect. This period, the Agency submits, ended on 4 July 2019 and, consequently, the only possible benefit to LKZX would be if supports were found to be reasonable and necessary in that period, whereupon consideration could be given to reimbursement of costs incurred. The Agency argues that this case is unusual insofar as reimbursement is the sole issue for resolution in the proceedings, which can have no prospective effect. While the Agency accepts that reimbursement might arise indirectly in Tribunal proceedings, it argues that the Tribunal cannot order the Agency to reimburse a participant.
The Agency asserts that the available materials suggest that supports sought on LKZX’s behalf were obtained and related costs were incurred before a request had been made for internal review, and without approval being given by the Agency, in all likelihood, prior to the period in which the SPS approved on 5 July 2018 was in effect. This, the Agency argues, raises serious questions about the utility and merit of the proceedings. If the Tribunal is satisfied the supports sought were not obtained during the period the disputed SPS was in force, so the argument goes, there would be no issues capable of resolution in the proceedings and the Tribunal should not grant the extension of time. The Agency alleges, furthermore, that allowing the application to proceed several years later would not be consistent with good public administration or the Tribunal’s statutory objectives.
While the Agency accepts some responsibility for delays responding to LKZX’s request for internal review, it asserts that the Mother withdrew the request and rested on LKZX’s rights. Furthermore, the Agency contends that the delay is not fully explained by the difficult circumstances the Mother and her family encountered during and after 2018, which are discussed in written submissions in support of LKZX’s extension of time application. Reopening the matter would cause prejudice, the Agency asserts, as it would not now be able to properly obtain evidence relevant to the matters that must be considered under s 34(1) of the NDIS Act, particularly in respect of value for money and the effectiveness and benefits of the requested supports in respect of LKZX’s functional capacities at the time.
The issue is one of discretion arising under s 29(7) of the AAT Act:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Commonly in cases of this kind, the matters Wilcox J set out in the oft cited case of Hunter Valley Developments Pty Ltd v Cohen[25] are taken to be relevant considerations. Nevertheless, those matters should not be construed as exhaustive or applied as “rules of law fettering the discretion” – “In each case the discretion must be exercised with regard to all the circumstances”.[26]
[25] (1984) 3 FCR 344 at 348-350.
[26] Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 97.
Delay
In any consideration of an application for an extension of time under s 29(7) of the AAT Act, the starting point is the 28-day limit prescribed by s 29(2). This limit must be applied unless the Tribunal is positively satisfied that it is reasonable and equitable to extend time in all of the circumstances of the particular case.
The amount of time is a relevant consideration and, prima facie, an application lodged outside the 28 day limit will not be entertained unless there are good reasons to exercise the flexibility s 29(7) allows.
If one proceeds on the basis that a decision is deemed to have been made under s 100(6)(a) of the NDIS Act on or about 25 November 2018, or in or about March 2019 (if one accepts the Agency’s submission), then the extension of time in which to make an application would run from 24 December 2018 (or a date in April 2019) to 21 July 2021, a period of more than 2 years.
While the length of this period, alone, is not determinative, generally, longer delays increase the likelihood of prejudice or unfairness and the requirement for more compelling reasons to grant an extension. Consideration of these matters involves balancing the public interest in the efficient conduct of merit-review processes, such that timely decisions can be made and acted upon with finality, and the public interest in concluding matters in a manner that is fair and equitable.
It is in this regard that the explanation for delay is an important consideration, albeit not necessarily determinative. As the Full Court said in Comcare v A’Hearn[27] -
“Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential prerequisite.” [citations omitted]
[27] (1993) 45 FCR 441.
I accept that the Mother experienced very difficult circumstances involving domestic violence in 2018 and 2019, the breakdown of her marriage in 2019 and a series of adverse health events involving herself and her children in 2019 and 2020.
I also accept that the Mother was actively pursuing her request for internal review of the 5 July 2018 SPS approval decision on 24 September 2019.
The records of Northcott Disability Services contain the following notes from 23 October 2019:
Support Coordinator (SC) spoke with [LKZX’s] mother … and advised of conversation with NDIS review Planner, Discussed that complaint was a different team and she was dealing with the review form 2017/18. SC advised that for the review to be considered that more evidence needs to be provided from Occupational Therapist and Behaviour support Practitioner. Discussed that current review would not be pursued. SC to correspond with NDIS in regards to review.
[The Mother] also advised that she was concerned that funding was not being drawn down on and asked SC to follow this up.
SC to contact [LKZX’s] current supports and discuss [LKZX’s] current supports.
On this material and the Agency’s interaction record dated 30 October 2019, there are reasonable grounds to conclude that the Mother decided to discontinue her request for internal review of the 5 July 2018 SPS approval decision. Her protestations to the contrary are not consistent with the contemporaneous materials, although they are somewhat supported by Ms Thompson 25 October 2021 letter in which she states:
It is also my understanding that the 2017/18 Application to review a reviewable decision was still live and that [the Mother] did not want this to be withdrawn.
Whether or not the Mother discontinued her request for internal review of the 5 July 2018 SPS approval decision on 30 October 2019, there is no subsequent reference to her raising the internal review in the interaction records (or any other materials before the Tribunal) until 21 July 2021.[28] There are, however, records relating to other review processes in respect of LKZX’s plans.
[28] Interaction Records filed on 13 September 2021, page 7.
Ms Thompson notified the Agency of a change in LKZX’s circumstances on 4 February 2020 and an unscheduled plan review commenced under s 48 of the NDIS Act. The Agency’s interaction records relating to this review do not refer to the previous internal review process in respect of the 5 July 2018 SPS approval decision. A further plan review was undertaken following lodgement on 30 November 2020 of additional information about changes in LKZX’s circumstances. This review was completed on 13 January 2021.[29] The records do not refer to the previous internal review process in respect of the SPS approval decision on 5 July 2018.
[29] Ibid, pages 9-29.
While I accept that the Mother may have believed the internal review of the 5 July 2018 SPS was ongoing on and after 30 October 2019, her belief may have been confused with other subsequent review processes, including the plan review processes in 2020 and 2021. Even if that is not correct, one would expect to find some subsequent reference to her continuing interest in the internal review of the 5 July 2018 SPS approval decision. But there is no such reference.
These considerations weigh against exercising the discretion to extend time.
Merit and prospects of success
Much of the Agency’s submission goes to the prospective merit of LKZX’s application in respect of review of the 5 July 2018 SPS approval decision. The Agency asserts that there may be little utility as the supports sought on LKZX’s behalf may not have been acquired during the period the SPS approved on 5 July 2018 was in effect.
It is important to observe immediately that it is not possible or appropriate to engage in a detailed assessment of the relative merits of LKZX’s case for present purposes. The stochastic nature of relative merit based on incomplete information suggests that the measure of relativity relates to strength, whereby a strong case may weigh in favour of granting the extension sought whereas a weak case may not weigh so heavily against the grant. [30]
[30] Mentink v Minister for Home Affairs [2013] FCAFC 113 at [37] to [40].
The 27 September 2018 letter of LKZX’s Occupational Therapist and the 24 November 2017 invoice of OnSport Pty Ltd establish that the Vuly Swing set was purchased on 24 November 2017. This purchase is outside the period the SPS approved on 5 July 2018 was in effect.
It appears that the quote the Mother obtained from a builder on 10 July 2018 relating to the construction of a pergola was prospective. There is no material that points to the works being undertaken or a payment being made. On the available materials, I am not satisfied that the quoted works were undertaken during the effective period of the 5 July 2018 SPS.
With regard to the sales order of Spa World Australia Pty Ltd dated 29 August 2018, this is evidence that a deposit of $1,000 was paid on that date. The remaining balance of the deposit is recorded to be $9,200 and the overall price is $33,999. The available materials do not establish that the sale was completed during the period to 4 July 2019.
Thus, with regard to these 3 items, there is a real prospect they are not within the period in which the 5 July 2018 SPS approval decision was in effect. This means, should the application be allowed to proceed, the Tribunal may not be capable of deciding the application in a manner that would be beneficial to LKZX. Aside from any issue about the Tribunal’s power, or its jurisdiction, in respect of the retrospective funding for reasonable and necessary supports, reimbursement of the cost of such supports would only be permissible where the purchase is made and the costs are incurred and expended within the effective period of any relevant SPS.
But that is not the end of the consideration. As Mr Wrathall stated in written submissions dated 24 September 2021, the 3 items I have referred to are not the only supports sought on LKZX’s behalf, other supports that were sought but not included in the SPS that was instrumental in Plan A are also pressed.
The difficulty with this submission is one of utility. Unless a support that was sought but not approved on 5 July 2018 was actually obtained and paid for in the period thereafter to 4 July 2019 there is no utility in a positive but retrospective finding under s 33(2) of the NDIS Act which cannot now be implemented. A participant cannot return to the past to buy or acquire a service or a thing which was not actually bought or acquired at the time.
In my assessment, LKZX’s case is weak, with little prospects of succeeding should it be allowed to proceed. This is not because or any merit or lack of it in respect of the thresholds for reasonable and necessary supports. It is because of the passage of time and the difficulty of attempting to obtain present remedies to past claims.
In my assessment these matters weigh against exercising discretion to extend time.
Prejudice and other considerations
The Agency asserts it will be prejudiced should the application be allowed to proceed.
I agree that, in all likelihood, the Agency will encounter difficulties obtaining evaluative materials address the likely benefits of supports in the past, and that this may prejudice preparation and presentation of its case should the application proceed.
I am also satisfied that LKZX and the Mother are likely to encounter similar kinds of prejudice given the effluxion of time. To my mind, they also encountered a similar prejudice as a result of the Agency’s extensive delay in responding to the request for internal review of the 5 July 2018 SPS approval decision. That delay was extensive and it was prejudicial to LKZX’s interests. Claimed supports for LKZX that could and should have been addressed in (then) current time, were forced into the past as plans were successively replaced with new plans in which successive SPS approval decisions were instrumental.
The prejudice the Agency now asserts is, itself, the product of the delay that resulted, at least in part, from its failure to make an internal review decision as soon as reasonably practical after 5 October 2018 or at all.
While in my assessment, these considerations do not weigh for or against the exercise of the discretion under s 29(7) of the AAT Act, there is, nevertheless, a powerful public interest in the timely resolution of disputes over the provision and funding of reasonable and necessary supports for people with disability who are participants in the NDIS. It is inevitable that such matters are time-sensitive for the person who is seeking funding for or approval of the contested supports. It is an unfortunate reality that review processes take time and in some cases delays occur that cannot be remedied in any practical sense by further review proceedings. This is such a case.
Conclusion
In all the circumstances, weighing the relevant factors and considerations, I am not persuaded that it is appropriate in all the circumstances to grant the extension of time Mr Wrathall and the Mother seek on LKZX’s behalf. Much as I am sympathetic to the case presented for LKZX, and having carefully considered the difficult circumstances of the Mother and her children, this is not a case that is supported by sufficient evidence to justify grant of an extension of more than 2 years in which to apply for review.
Decision
Application refused.
I certify that the preceding 59 (fifty-
Nine) paragraphs are a true copy of
The reasons for the decision herein of
Mr S. Webb, Member
........................[sgd]...............................................
Associate
Dated: 25 February 2022
Applicant: LKZX represented by his mother and advocate Mr. Wrathall
Solicitor for the Respondent: Ms Zoe Harwood