Long and National Disability Insurance Agency

[2024] AATA 3015

Long and National Disability Insurance Agency [2024] AATA 3015 (21 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2024/5299

Re:Alan Long  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member N Purcell

Date:21 August 2024

Date of written reasons:        26 August 2024

Place:Sydney

The Tribunal finds it does not have jurisdiction because an internal review decision had not been made at the time the application was filed with the Tribunal on 28 July 2024. The application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

....................[sgd]..........................

Member N Purcell

CATCHWORDS

PRACTICE AND PROCEDURE – deemed decision – jurisdiction – no internal review – alternative pathway – agreement to withdraw – fresh application – to avoid uncertainty application dismissed for lack of jurisdiction.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25(5), 42A(4)

National Disability Insurance Scheme Act 2013 (Cth) ss 20, 21(3),100(1A)(a)(ii),100(5)(b),100(6), 100(6A), 103(1)

REASONS FOR DECISION

Member N Purcell

26 August 2024

Interlocutory issue

1. The National Disability Insurance Agency (the Agency) contends that the Tribunal does not have jurisdiction to review the application of Mr Long (the Applicant) filed with the Tribunal on 28 July 2024 because the decision nominated in the application is not a section 100(6) internal review decision which would confer jurisdiction on the Tribunal pursuant to section 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

   Background

2. The Applicant made a request to the Agency to access the National Disability Insurance Scheme (NDIS) on 30 April 2024.

3. By operation of section 20 of the NDIS Act, a 21-day statutory period commenced for the Agency to decide whether the Applicant meets the access criteria. The 21-day time frame expired on 21 May 2024.

4. On the 22 May 2024, as the Agency had not decided whether the Applicant meets the access criteria, a deemed decision was made by operation of section 21(3) of the NDIS Act. This had the effect of declining the Applicant’s request for access (original decision).

5. A deemed decision is subject to automatic internal review by operation of sections 100(1A)(a)(ii) and 100(5)(b) of the NDIS Act. The prescribed time for the Agency to complete the internal review is 90 days from the day after the expiry of the 21 day statutory period for making a decision (section 100(6A)(b)(ii)).

6. The relevant period for the internal review to occur commenced on 22 May 2024 and concluded on 19 August 2024.

7. On 19 July 2024, an Agency staff member recorded an internal note stating:

   An access decision was not made in the legislative timeframe of 21 days. Under s21(3) the applicant is taken to not meet the access requirements, and under s100, an internal review of the decision was commenced. As a delegate of the CEO, I … have reviewed and overturned the decision to avoid further delays for the applicant. The access request will now be re-considered.

8. The Tribunal accepts that the staff member was attempting to assist the Applicant by expediting the review process.

9. On 25 July 2024, the Agency sent the Applicant a letter titled ‘NDIS Access decision’ declining his access to the NDIS and informing him of the right to seek internal review if dissatisfied with the decision.

10. On 28 July 2024, the Applicant filed an application with this Tribunal seeking review of the Agency’s decision received on 25 July 2024.

11. An interlocutory hearing was held on 21 August 2024 to determine the question of whether the Tribunal has jurisdiction.

    Agency’s submissions

12. The Agency submitted that the delegate’s decision of 25 July 2024 should be characterised as a re-making of the original decision (declining access) deemed to have occurred on 22 May 2024 by operation of law and not a section 100(6) internal review decision. This characterisation is reflected in the delegate’s internal note and terms of the letter sent on 25 July 2024 informing the Applicant of his right to request internal review of the decision. Further, as an internal review decision was not made or deemed, the Tribunal’s jurisdiction is not enlivened under section 103(1) of the NDIS Act.

    Applicant’s submissions

13. The Applicant and his disability advocate made submissions that the lack of communication from the Agency about its decisions caused confusion and uncertainty about the process.  The Tribunal acknowledges that it can be a complex process and the Applicant found it confusing.

14. The Tribunal agrees with the Agency’s submissions on the question of jurisdiction and finds that an internal review decision was not made at the time the Applicant filed his application with the Tribunal.

15. The Agency proposed an alternative pathway so the Tribunal would have jurisdiction to review the decision declining the Applicant’s request to access the NDIS. As mentioned at paragraph 5 above, a deemed decision is subject to automatic internal review by operation of sections 100(1A)(a)(ii) and 100(5)(b) of the NDIS Act. The Agency had 90 days to complete the internal review after the original decision (section 100(6A)(b)(ii)) which concluded on the 19 August 2024.

16. As an internal review decision was not made during the 90-day period, on 20 August 2024 a deemed internal review decision (affirming the Agency’s original decision of 22 May 2024) occurred by operation of section 100(6A) of the NDIS Act and section 25(5) of the Administrative Appeals Tribunal Act1975 (Cth).

17. The Agency submitted the Tribunal would have jurisdiction to review the decision deemed on 20 August 2024 if the Applicant were to file a fresh Application for Review of a Decision within 28 days. I am satisfied there is an alternative pathway for the Applicant to seek review of the Agency’s decision.

18. The Tribunal finds that the original decision was deemed to have been made on 22 May 2024 and the internal review decision was deemed to have been made on 20 August 2024 for the reasons detailed above.

19. The Applicant has been informed how to make a fresh application to the Tribunal so that it has jurisdiction to determine whether he meets the NDIS access criteria. The Applicant was invited to withdraw his current application 2024/5299 due to a lack of a jurisdiction, to which he agreed. To avoid any uncertainty in the event the Applicant does not make a fresh application and withdraw his application in writing, I dismiss the current application (2024/5299) pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

    DECISION

20. The Tribunal finds it does not have jurisdiction because an internal review decision had not been made at the time the application was filed with the Tribunal on 28 July 2024. The application is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member N Purcell

......................[sgd]................................

Associate

Dated: 26 August 2024

Date(s) of hearing:	21 August 2024 – by Telephone
Applicant:	Self-represented
Solicitors for the Respondent:	Mr L Nguyen & Mr J Burston, National Disability Insurance Agency