Lopez and National Disability Insurance Agency

[2023] AATA 997

Lopez and National Disability Insurance Agency [2023] AATA 997 (3 May 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/2053

Re:Ana Lopez

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Hunter  

Date:3 May 2023

Place:Sydney

The application for an extension of time to file the review application, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

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Member P Hunter

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – application for review filed out of time – whether reasonable in all circumstances to grant extension of time – length of delay in making the application – explanation for delay – prejudice – alternative avenues for relief – importance of enforcing statutory timeframes – interests of justice – utility in granting extension – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Deyes and Child Support Registrar [2022] AATA 4103

REASONS FOR DECISION

Member P Hunter

1 May 2023

INTRODUCTION

1. The Applicant, Ms Lopez, aged 43 years old, made a request to become a participant in the National Disability Insurance Scheme (the NDIS) administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). A delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) decided on 8 August 2022, that Ms Lopez did not meet the access criteria. Ms Lopez sought an internal review and on 12 October 2022, a decision was made under section 100 of the NDIS Act, confirming the decision to refuse her access request.

2. On 30 March 2023, Ms Lopez made an application to the Tribunal for the review of the Respondent’s decision. An application to the Tribunal for review of a decision is made under section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). There is a prescribed time, 28 days, for making applications (subsection 29(2)). Before her review application can proceed, Ms Lopez requires an extension of the 28-day time limit to lodge her review application. The Tribunal may extend the time if it is satisfied that it is reasonable in all the circumstances to do so (subsection 29(7)), however the time limit for review will ordinarily apply. The Respondent opposes the application for an extension of time.

3. The application was originally listed on 24 April 2023, and then postponed to 28 April 2023 at the request of the Applicant. The hearing proceeded on that date.

   GUIDING PRINCIPLES

4. In determining whether acceptable circumstances exist to extend the time, the Tribunal has considered the guiding principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, by Wilcox J at pages 348 and 349 in part:

   1.    Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of twenty-eight days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time…

   2.    Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem…

   3.    Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension…

   4.    However, the mere absence of prejudice is not enough to justify the grant an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application…

   5.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted…

   6.    Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion…

5. Having regard to the relevant legislation and case law, the Tribunal is of the view that factors such as the length of the delay, any explanation for it, possible prejudice to the other party, the importance of enforcing statutory timeframes, interests of justice, and the utility in granting the extension are all relevant in determining reasonableness.

   THE SUBMISSIONS

6. The internal review decision was made on 12 October 2022 and despatched by post. The application for review was not made until 30 March 2023, 169 days later. Allowing for postal delays, Ms Lopez is seeking an extension of over four months for her application to proceed.

7. The Applicant’s advocate, Mr Cammarano, has assisted her with the review application and during the Tribunal hearing. The review application had set out several explanations for the delay, including that Ms Lopez underwent multiple surgeries, had difficulty sourcing an advocate and did not have the appropriate advice. Ms Lopez told the Tribunal that she was hospitalised with asthma and emphysema in April 2022, had a gall bladder operation in October 2022, a hernia operation approximately two months before the Tribunal hearing and since she had filed her review application, undergone several cortisone injections.

8. Mr Cammarano also argued at the hearing that Ms Lopez lived alone and her health was declining. He argued that she had not rested on her rights, and submitted that it was in the interest of fairness for time to be extended. Mr Cammarano submitted that he was aware of other instances where the Respondent had not opposed extensions of time and that Ms Lopez had no additional evidence to submit to support a fresh application to become a participant in the NDIS.

9. The Respondent provided a submission to the Tribunal in writing and orally at the hearing. It was argued that the delay in filing the application was significant, the internal review letter to Ms Lopez dated 22 October 2022 contained information regarding her review rights, and she had rested on her review rights. Thus, the Respondent was entitled to believe that she had accepted the internal review. It was submitted that Ms Lopez had not provided any evidence to corroborate her claimed medical treatment, and many treatments she told the Tribunal about were outside the relevant time limit for the review application.

10. The Respondent claimed that the seeking of an advocate was not an adequate reason for the delay, and it was argued it was still not clear why Ms Lopez did not lodge the application with the Tribunal within time. It was further submitted that there was an alternative avenue for Ms Lopez to pursue and it was open to her to lodge a new access request with any other relevant evidence. Further, it was claimed that the application is related to access to participate in the NDIS and this may have been a different circumstance to other situations where the extension of time had not been opposed referred to by Mr Cammarano.

    CONSIDERATION

11. The Tribunal is satisfied that the Respondent’s internal review decision was sent to Ms Lopez’s postal address on 12 October 2022. Although Ms Lopez expressed confusion regarding the review process and whether she had even sought an internal review, the Tribunal is not satisfied that Ms Lopez has demonstrated or even argued that she was not notified of the decision. Although Mr Cammarano submitted that Ms Lopez did not rest on her rights, there is no evidence that she had approached the Tribunal or the Respondent to identify that she would be seeking a review. In considering Ms Lopez’s request, the Tribunal is mindful of the importance of complying with statutory timeframes which are in place so that, among other things, the Tribunal can meet its objectives set out in section 2A of the AAT Act. The Tribunal is of the view the length of the delay in this case is not insignificant.

12. As to the reasons for the delay, the Tribunal is not satisfied that Ms Lopez has demonstrated that her medical conditions or any surgeries impacted on her ability to seek a review within the relevant timeframe. Although Mr Cammarano claims he first saw Ms Lopez in March 2023, there is evidence that she was being assisted by others and difficulties arose due to problems contacting Ms Lopez. It is not demonstrated that Ms Lopez was without assistance or was misled in relation to her review rights.

13. Ms Lopez has depression, anxiety, asthma, chronic obstructive pulmonary disease, emphysema, chronic pain, hyperthyroidism, hypertension, lumbar disc disease/prolapse osteoarthritis and morbid obesity. The Respondent accepted that Ms Lopez had a disability attributable to all of her conditions, with the exception of her morbid obesity. It was not accepted that her disability resulted in a permanent impairment or that there was an impairment resulting in a substantially reduced functional capacity, or that she was likely to require lifetime support under the NDIS Act. It found she did not meet the disability requirements set out in section 24 of the NDIS Act.[1] In addition, the Respondent was not satisfied that she met the early intervention requirements set out in section 25 of the NDIS Act.[2]  Mr Cammarano claimed  that Ms Lopez had no additional medical evidence to submit. Having considered Ms Lopez’s condition and claims, while not forming a view about the outcome, the Tribunal is satisfied there may be utility in Ms Lopez further arguing her case.

    [1] Internal Review Decision, 12 October 2022 at 5–10.

    [2] Ibid at 10 –13.

14. The Tribunal is also satisfied it is open to Ms Lopez to ask the Respondent to consider a fresh application based on any updated information she wishes to have taken into account. As Ms Lopez is under the age of 65, it is open to her to make another access request at any time (see subsection 19(2) of the NDIS Act). The Tribunal notes that the NDIS Request for Access Form was completed in early June 2022, and almost a year has passed. The Tribunal had also considered the evidence that Ms Lopez had since then undergone several treatments and surgeries which were claimed to be related to her conditions. Ms Lopez told the Tribunal that she also had current arrangements to attend a pain clinic in May 2023. While acknowledging Ms Lopez raised with the Tribunal the costs of exploring further treatment, it is open to her to make another access request to provide the Respondent with an opportunity to consider her current impairment and functional capacity, supported by any new information she may have obtained. There are, in many circumstances, costs and delays in the process of proceeding to a review by the Tribunal. The Tribunal is not satisfied that there is demonstrable prejudice if time is not extended, as her right to re-apply for access to the NDIS remains intact.

15. An extension of time is not to be granted automatically. The Tribunal has considered the authorities argued by Mr Cammarano,[3] however, finds that they can be distinguished on their particular circumstances, the type of reviewable decision and consequences of refusal to grant the extension of time. Prescribed timeframes are in place so that, among other things, the Tribunal can meet its statutory objectives. It is also in the interest of both the Respondent and the general public that prescribed time limits are adhered to so as to ensure that there is a predictable and orderly conclusion of the appeal process.  In this case, the prescribed timeframe was not observed.

    [3] Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Deyes and Child Support Registrar [2022] AATA 4103.

    CONCLUSION

16. For these reasons, the Tribunal is not satisfied in Ms Lopez’s circumstances that it is reasonable to extend the time for making the review application of the Respondent’s decision.

    DECISION

17. The application for an extension of time to file the review application, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Member P Hunter

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Associate

Dated: 3 May 2023

Date of hearing:	28 April 2023
Representative for the Advocate:	Mr S Cammarano, Multicultural Disability Advocacy Association
Representative for the Respondent:	Ms M Zdilar, National Disability Insurance Agency