Macdonald and National Disability Insurance Agency - [2021] AATA 2459

Macdonald and National Disability Insurance Agency [2021] AATA 2459 (23 July 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/3439 and 2020/7530
Re:Diane Macdonald
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President F Meagher
Date:23 July 2021
Place:Brisbane

The application for an extension of time to file the review application in file number 2020/3439 is refused, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal dismisses the application for review in file number 2020/7530 pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
………………[SGD]………………..
Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – application for extension of time – application for review filed out of time – whether reasonable in circumstances to grant extension of time – length of delay in making the application – explanation for delay and awareness of appeal rights – prospects of success – alternative avenues for relief – extension of time application refused
PRACTICE AND PROCEDURE – National Disability Insurance Agency declined to conduct a review pursuant to section 48 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – participant may seek internal review of the decision not to conduct a section 48 review pursuant to section 100 of the NDIS Act – internal review decision limited to question of whether unscheduled plan review should have been conducted – reasonable and necessary supports not in question – no prospects of success – matter dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29, 42B
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 48, 99, 100, 103
Cases
FDFF and National Disability Insurance Agency [2020] AATA 3385
Hunter Valley Developments v Minister for Home Affairs and Environment [1984] 3 FCA 344
Reilly and Secretary, Department of Social Services (Social services second review) [2019] AATA 1182
Williamson and National Disability Insurance Agency [2019] AATA 2944
REASONS FOR DECISION
Deputy President F Meagher
BACKGROUND
These applications for review seek reimbursement from the National Disability Insurance Agency (the NDIA) of funds expended by Mr Malcolm Macdonald (taken from his superannuation) to provide care for Ms Diane Macdonald (the Applicant).
The Applicant experienced a severe cerebrovascular incident (stroke) in 1999 and as a result uses a wheelchair and is unable to speak. She is a participant in the National Disability Insurance Scheme (the NDIS).
The Applicant’s carer, informal support and husband, Mr Malcolm Macdonald (the Applicant’s husband) made these applications for review on her behalf. He was assisted by a legal representative. The applications are with respect to the reimbursement of funds expended by the Applicant’s husband to pay for carers for his wife. The contentions made on behalf of the Applicant were that the Respondent was aware, or should have been aware, of the claimed shortfall in funding for carers, that the Applicant’s husband should not have had to pay for carers out of funds released from his superannuation fund, that the Tribunal had jurisdiction with respect to the claimed reimbursements and, in respect of one of the applications for review, that the Tribunal should grant an extension of time for the Applicant to file the application for review.
History of the matters before the Tribunal
The first application (file number 2020/3439) was made on 4 June 2020, in relation to the decision made by the Respondent on 4 June 2020 that it would not process a reimbursement. In response to the question on the application form ‘why do you claim the decision is wrong’, the Applicant’s husband on behalf of the Applicant stated:
Dianne’s first plan was underfunded and it took the NDIS three months to do a review and we needed to keep paying the carers wages during this time
This claim is about the reimbursement to the outstanding amount of ($66127.61) that was previously rejected under Dianne’s old NDIS plan due underfunding.
Could you please look into this ASAP?
At the time I did withdraw money from my super to cover the carers salaries and require it to be repaid.
This issue has been ongoing for seven months’ now
[sic]
The application for review was accompanied by a letter advising that the NDIA was ‘unable to facilitate payment for the services listed on the two My Plan Payment Forms’ (the reimbursement).
On 11 June 2020, the Respondent wrote to the Tribunal advising that it was unclear whether an internal review had been conducted for the Applicant and requested that the Tribunal conduct a hearing to determine whether it had jurisdiction to hear the matter.
On 1 July 2020, the Respondent provided written submissions with respect to the jurisdiction hearing.
At a hearing on 15 July 2020, the Tribunal concluded that it had jurisdiction to consider an internal review decision made by the NDIA on 19 December 2019 subject to an extension of time being granted by the Tribunal to the Applicant to make that application for review, noting that more than 28 days had elapsed between the Applicant receiving that internal review decision and making the application for review to the Tribunal. At that stage of the proceedings, the Respondent submitted that it would not oppose any application for an extension of time. The Tribunal made a direction that the Respondent provide any information held by the Respondent regarding reimbursements within four weeks.
On 17 August 2020, the Applicant filed an application to the Tribunal seeking an extension of time to make the application for review with respect to the decision made by the NDIA on 19 December 2019 (in file number 2020/3439). In the application for the extension of time the Applicant explained that the reason for the application was as follows:
The Applicant by her Attorney had understood prior to his filing of the Application for Review that his Application for reimbursement of funds would be approved and paid, concerning the period 19 August 2019 to 9 December 2019. As such the Applicant did not appreciate that an Application needed to be made to the Tribunal for a review of the decision dated 19 December 2019, prior to the relevant time period expiring. The extension is sought to bring the merits of the decision of 19 December before the Tribunal.
On 24 September 2020, the Respondent’s representative provided written submissions with respect to the Applicant’s request for an extension of time.
On 22 October 2020, a further hearing regarding the application for an extension of time was held. The submissions advanced by the parties during this hearing will be discussed in further detail below, however it is sufficient for present purposes to note that the Applicant’s legal representative advanced arguments exhorting the Tribunal to consider the question of reimbursement of funds expended by the Applicant’s husband.[1] The Applicant’s legal representative also raised that neither he nor his client had received the documents the subject of the directions made at the earlier hearing (being documents relevant to reimbursement)[2] and accordingly sought an adjournment to enable him to consider those documents.[3] The Tribunal therefore made further directions regarding the provision of the relevant documents and written submissions from each of the parties with respect to the Applicant’s request for an extension of time.
[1] Transcript (22 October 2020) page 2 lines 29 – 34.
[2] Ibid page 5 lines 13 – 14.
[3] Ibid page 7 line 14.
On 12 November 2020, the Applicant made a further application for review to the Tribunal (file number 2020/7530). In response to the question ‘why do you claim the decision is wrong’ the Applicant stated wrote:
There is power to conduct an unscheduled plan review of a plan under section 48 of the NDIS Act after the period for the plan has expired. As such, the request for the further unscheduled plan review made in writing on 31 July 2020 should have been accepted by the NDIA, with the [Respondent] then conducting a merits review of the issues; the main issue under consideration being the level of funding provided for under Plan one, over the period of 27 March 2019 – 11 December 2019. No reasonable decision maker could have arrived at the decision to refuse this further unscheduled plan review for Plan 1. The [Respondent] is in error in refusing the further request for review, and is in error in arguing that the review could only be made within 3 months of the issuance of the original plan. The applicant's request for the review of this decision (s99, item 6) was refused on 26 October 2020. This is the decision subject to the current referral to the Tribunal.
On 27 November 2020, the Applicant provided written submissions in file number 2020/7530, seemingly going to the issues in both the Applicant’s applications for review.
On 16 December 2020, the Respondent provided further written submissions which concluded with submissions that both the Applicant’s applications for review be dismissed.
Another hearing took place on 17 December 2020. At the conclusion of the hearing the Applicant’s representative requested time to make further written submissions with respect to the application for review made on 12 November 2020 (file number 2020/7530) and directions were made in that regard; namely that the Applicant’s representative provide any further submissions upon which the Applicant wished to rely by 12 February 2021 and the Respondent in reply by 26 February 2021.
On 21 December 2021, the Tribunal made a direction that the matters of 2020/3439 and 2020/7530 be heard together and that ‘evidence filed in one matter is taken as evidence filed in the other matters’.
On 12 February 2021, the Tribunal received, as submissions, an affidavit of the Applicant’s husband.
On 26 February 2021, Respondent provided further brief written submissions relating to this matter.
Chronology
A chronology regarding the statements of participant supports is set out in the submissions filed by the Respondent dated 11 December 2020. The Tribunal relevantly adopts them as follows:
3.On 27 March 2019, the Respondent approved the statement of participant supports in the Applicant’s NDIS plan under s33(2) (Plan 1).
4.On or around 30 May 2019, the Applicant first raised with their Local Area Coordinator (LAC) that they may require a review in relation to Plan 1. At that time, the Applicant stated that “…it would be a good idea to wait until the end of June for next month report before requesting a review…”.
5.There is no evidence that a review was subsequently requested at the end of June 2019, and the next interaction [between the Applicant and the Respondent] is on 24 July 2019.
6.On or around 10 September 2019, the Applicant requested review of Plan 1. Given that this request was outside the 3 month period in s100(2) [of the NDIS Act] for requesting internal review of Plan 1, the [Respondent] took the request as a request for an unscheduled plan review under s48(1).
7.On 18 October 2019, the [Respondent] agreed to conduct a plan review under s48(2)… the Respondent notes that the outcome was that the Agency would conduct a plan review and approve a new plan under s33(2) [of the NDIS Act].
8.On 12 December 2019, the [Respondent] approved the statement of participant supports in the Applicant’s NDIS plan under s33(2) [of the NDIS Act] (Plan 2).
9.On the same day, the Applicant requested internal review of Plan 2 under s100(2) [of the NDIS Act].
10.On 19 December 2019, the Respondent made a decision under s100(6) [of the NDIS Act] to set aside the decision to approve the statement of participant supports in Plan 2 and substitute a new decision in its place. In order to implement this decision, the Agency issued a new plan for the Applicant (Plan 3).
11.…
12.…
13.On 20 July 2020, the [Respondent] approved the statement of participant supports in the Applicant’s NDIS plan under s33(2) [of the NDIS Act] (Plan 4).
14.On 31 July 2020, the Applicant made a request under s48(1) [of the NDIS Act] for an unscheduled plan review in relation to Plan 1.
15.On 4 August 2020, the [Respondent] informed the Applicant that a plan review of Plan 1 could not occur.
16.On 26 October 2020, the Applicant requested internal review of [the response by the Respondent dated 4 August 2020, refer to above], under s100(2) [of the NDIS Act].
17.On 26 October 2020, the [Respondent] responded to the Applicant’s request.
18.On 2 November 2020, the Applicant requested an unscheduled review of Plan 4 under [s48(1) of the NDIS Act].
19.…
20.On 13 November 2020, the [Respondent] agreed to conduct an unscheduled plan review in relation to Plan 4 under s48(2) [of the NDIS Act].
(Emphasis added)
Further to the chronology the Tribunal has also reviewed the interaction records provided to it by the Respondent on 2 November 2020 and makes the following observations – they reflect repeated ongoing communication with the LAC regarding the Applicant’s husband’s concerns with respect to the Applicant’s plan being underfunded, as well as the need to engage in extensive follow up regarding other supports. They also recognise a number of risks to the Applicant, both physical and financial and that the Applicant’s husband is likely to be suffering from carer fatigue.[4] In addition they disclose repeated errors in relation to the interaction with the Applicant and the Applicant’s husband – for example with respect to miscommunication regarding emails, the use of an incorrect “severity status” and ongoing lack of clarity about the status of the Applicant’s husband as the Plan Nominee and/or the “Payment Nominee”.
[4] Interaction records filed by Respondent on 2 November 2020, ‘Request Escalated Internal Note’ dated 16 October 2019.
The Applicant’s husband was understandably concerned regarding the ongoing sufficiency of care for the Applicant and the not insignificant sum of money he expended from his superannuation fund to cover the costs of carers for the Applicant, in circumstances where he considered there were insufficient funds provided in the Applicant’s plan.
The chronology of participant supports which have been provided to the Applicant, the review of the interaction records and the history of the applications for review made before the Tribunal in this case highlight the complexity of the process for participants (and their representatives) of seeking review of decisions regarding the NDIS.
Legislation
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) deals with applications for review of decisions and relevantly includes:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
Delegations, acting appointments and authorisations
(3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a) by any person to whom that power has been delegated;
(b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c) by any other person lawfully authorized to exercise that power.
Section 29 of the AAT Act deals with the manner of applying for review before the Tribunal and relevantly subsection 29(2) provides that generally an application for review must be lodged within 28 days of an applicant receiving notice of the decision. There is provision, pursuant to subsection 29(7), for the Tribunal to extend the time for the making of an application for review to the Tribunal if it satisfied that in all the circumstances it is reasonable to do so.
Subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) provides that ‘A participant’s plan must include a statement (the statement of participant’s supports), prepared with the participant and approved by the CEO’ and sets out the matters which must be specified in a participant’s plan.
Section 48 of the NDIS Act relevantly sets out:
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
Section 99 of the NDIS Act sets out in table form the reviewable decisions under the NDIS Act, the provisions under which the decision is made and the respective decision maker in relation to each of those decisions.
Relevantly, item 4 of the table refers to ‘a decision to approve the statement of participant supports in a participant’s plan’ and states that such a decision is made under subsection 33(2) of the NDIS Act by the Chief Executive Officer of the National Disability Insurance Agency (the CEO).
Item 6 of the table refers to ‘a decision not to reassess a participant’s plan’ and states that such decision is a decision made under subsection 48(2) of the NDIS Act by the CEO.
Section 100 of the NDIS Act deals with ‘review of reviewable decisions’ and in particular subsection 100(2) provides:
A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice. Subsection 100(6) states:
Section 103 of the NDIS Act provides that:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Submissions
At the hearing on 15 July 2020 the Applicant’s legal representative made the following submissions:
·the substance of the application for review involved reimbursement of significant outstanding amounts of around $66,100 to the Applicant’s husband;[5]
·the reimbursement sought is for money the Applicant’s husband had paid to cover carer expenses which were in excess of the budget under the Applicant’s plan; [6]
·that the Applicant’s husband (as her husband and attorney, as the Applicant’s legal representative expressed it) was under the impression, based on various discussions he had with the LAC that he should keep records of the expenditure, claim for reimbursement and that he would in fact be so reimbursed. [7]
[5] Transcript (15 July 2020) page 3 lines 20 – 23.
[6] Ibid page 3 lines 20 – 23.
[7] Ibid page 3 lines 25 – 27; application for extension of time dated 12 August 2020 (in file number 2020/3439).

The Applicant’s husband submitted that he requested a review (via the LAC) ‘way before September’ when he realised the funding was going to run out.[8] He also submitted that from his point of view the LAC was the contact person he had at the NDIA, and that it was ‘a real issue that [he was] relying on one person who does not actually work for the NDIA’.
[8] Transcript (22 October 2020) page 4 lines 15 – 16.
At the hearing on 22 October 2020 the Applicant’s legal representative made the following relevant submissions:
·‘…on the broad issue of jurisdiction…the applicant’s case is that the period of Plan 1 is the period for which the reimbursement is sought, and what is effectively before the tribunal as a merits review on the applicant’s case is whether Plan 1 should be varied to include the additional funding for which the reimbursement is now sought’;[9] and
·‘…we are only before the tribunal because of the issue of Plan 3 and Plan 2 on the relevant dates in December 2019, and those further plans wouldn’t have been issued had it not been for the original review of Plan 1 by the applicant, which even the respondent concedes was made during the currency of Plan 1. But effectively the applicant says that all of these decisions are inextricably linked and the merits review really ought to be for the period of Plan 1’.[10]
[9] Transcript (22 October 2020) page 2 lines 29 – 34.
[10] Ibid page 2 lines 35 – 41.
The Applicant’s legal representative reiterated that the Applicant’s husband made verbal requests for the review of Plan 1 as early as June 2019 within the three month time period for a section 100 review and that what happened instead was a section 48 review. He further submitted that the: [11]
…determination of that section 48 review the applicant says was itself the reviewable decision under section 99 and section 100 of the [NDIS] Act. So in effect, the applicant said he did not need as a matter of law to seek a review of Plan 1 within three months from the issuance of Plan 1. He says in his case that it was sufficient that there was an unscheduled plan review, the determination of which itself was the reviewable decision.
[11] Ibid page 3 lines 12 – 17.
The Applicant’s legal representative extrapolated on that argument to submit ‘the determination of the section 48 review occurred on 12 December 2019, and that day of course saw the issue of Plan 2 and what the applicant submits was an effective refusal of the earlier review of Plan 1’.[12]
[12] Ibid page 3 lines 18 – 21.
The Applicant’s legal representative submitted that the issue ‘of a new plan does not remove the need [f]or there to be a merits consideration of the earlier plan’.[13] In that regard he referred the Tribunal to the decision of the Tribunal (differently constituted) of FDFF and National Disability Insurance Agency [2020] AATA 3385, which referred to the remarks of Deputy President Forgie in Williamson and National Disability Insurance Agency [2019] AATA 2944 (Williamson), as follows:[14]
In practical terms, replacement of the plan means that the CEO has approved a new participant’s plan and not a variation of the previously existing plan. Replacement of the plan does not mean that the replaced plan is of no relevance. If the CEO’s decision under s 33(2) to approve the statement of participant supports has been reviewed under s 100(6) of the NDIS Act and an application made to the Tribunal for review of the decision under s 100(6), that application remains on foot. The fact that a new plan with a new statement of supports has been made does not replace the decision under s 100(6) that is the subject of the review...
[13] Ibid page 3 lines 24 – 25.
[14] FDFF and National Disability Insurance Agency [2020] AATA 3385, [26]; Williamson, [25].
Also at the hearing on 22 October 2020 the Applicant’s legal representative foreshadowed that the Applicant had sought review of Plan 1 under section 48 of the NDIS Act, which had been refused, and that the Applicant would likely seek a review of this refusal to conduct a further unscheduled plan review under section 100 of the NDIS Act.[15]
[15] Transcript (22 October 2020) page 7 line 43 – page 8 line 3.
The Applicant’s legal representative concluded his submissions at the listing on 22 October 2020 by asking for an adjournment on the basis that he wished to consider the documents which were produced in contravention of the directions made at the earlier hearing (being documents relevant to reimbursement).[16]
[16] Ibid page 4 lines 31 – 36.
In written submissions provided by the Applicant on 27 November 2020 many of the same issues were canvassed. The additional submissions included:
·that the Respondent’s ‘decision of 19 December 2019 was not limited to a confirmation or affirmation of the earlier decision of 12 December 2019’;[17]
[17] Applicant’s submissions dated 27 November 2020, 1.
·‘that the Applicant had requested that the [Respondent] review Plan [1] (which operated between 27 March 2019 and 11 December 2019), and provide further funding for the carers [sic] wages and other expenses for the period of Plan [1]’;[18]
[18] Ibid 2.
·‘that the confinement of issues under review by the Tribunal to simply be the Respondent’s decision of 19 December 2019 to ratify or partly ratify the decision of 12 December 2019 would artificially narrow the issues in dispute and unduly confine the review to only one part of the case which the Applicant was endeavouring to raise with the Respondent from as early as 30 May 2019’;[19]
[19] Ibid.
·that ‘an extension of time should be granted as there is a satisfactory explanation for delay’ in lodging the application for review with the Tribunal and there are reasonable prospects of success;[20]
[20] Applicant’s submissions dated 27 November 2020, 2.
·that the discretion to grant an extension of time for the making of an application for review for review is very wide. In support of that proposition the Applicant’s legal representative referred the Tribunal to the decisions of Reilly and Secretary, Department of Social Services (Social services second review) [2019] AATA 1182 (Reilly) and Hunter Valley Developments v Minister for Home Affairs and Environment [1984] 3 FCA 344 (Hunter Valley Developments). The Applicant legal representative went on to summarise Reilly. In particular, the Applicant’s legal representative noted that the Applicant’s reason for delay in applying to the Tribunal in Reilly was that the Applicant had been attempting to effectively lodge the same application for about 8 months when it was ultimately lodged with the assistance of a Tribunal officer. The Applicant further summarised that in Reilly the Member found that the Tribunal would not find that there were no prospects of success at a substantive hearing and therefore the matter should be heard on its merits. Finally, the Applicant’s legal representative provided a summary of what he considered comprised the member’s consideration of the other relevant factors raised in Hunter Valley Developments, namely:
oprejudice to the Respondent
oupsetting of established practices
ofairness in relation to other Applicants.
He submitted that none of those factors were relevant in this case, and indeed that to grant the extension of time in this case would increase fairness to other Applicants on the premise that many instances may arise where there is a shortfall of funding under a plan and an unpaid carer may draw on their personal assets to overcome the shortfall pending an agency review;[21]
·that the Respondent has been aware that the Applicant wished for the Applicant’s husband to be reimbursed for the money withdrawn from his superannuation fund to pay carers since as early as 30 May 2019, two months into the operation of Plan 1;[22]
·‘the Respondent cannot demonstrate any prejudice in allowing the Application to proceed to merits review’;[23]
·the increase in funding for core supports between Plan 1 ($84,699.98) and Plan 2 ($177,857.38) demonstrates the insufficiency of the budget under Plan 1;[24] and
·the Applicant’s legal representative also made written submissions regarding the documents provided by the Respondent pursuant to the direction referred to above at paragraph [8]. The submissions included that the Applicant’s husband brought to the attention of the LAC his concerns regarding the adequacy of funding, that the LAC advised the Applicant’s husband that a review could be submitted but that the LAC was uncertain as to how that would go, and that further evidence regarding the funding would assist.[25]
[21] Ibid 2 – 3.
[22] Applicant’s submissions dated 27 November 2020, 3.
[23] Ibid.
[24] Ibid 4.
[25] Ibid 4 and 6.
Further, the Applicant’s legal representative submitted:
·that the Applicant’s husband responded to the LAC by providing figures indicative of that month’s expenditure and stating, ‘that at this rate the years [sic] carers cost would be over $200,000. It would be a good idea to wait until the end of June for next month [sic] report before requesting a review because I have reduced the casual hours’;[26]
·that the Applicant’s husband was advised by the LAC that he could wait to submit a review until the end of June and reiterated his earlier submission that he was entitled to rely upon that advice on the basis that the LAC was for all intents and purposes the agent of the Respondent;[27]
·that an application for review can be made in writing or orally to the Respondent or a representative of the Respondent including a LAC;[28]
·extracts of the interaction records provided by the Respondent supported the submission that the Applicant’s husband raised his concerns about the adequacy of funding from May 2019, thus bringing that issue to the attention of the LAC;[29] and
·the interaction records provided by the Respondent also relevantly show that on 23 September 2019 the Applicant’s husband was advised that ‘until the review is approved and funds are allocated you will have to fund for any services out of pocket as there are insufficient funds available’.[30]
[26] Ibid 4.
[27] Ibid.
[28] Ibid.
[29] Applicant’s submissions dated 27 November 2020, 5.
[30] Ibid.
The Applicant’s legal representative summarised the Applicant’s position as follows: [31]
a.the funding for carers wages under plan one effective from 27 March 2019 was completely inadequate.
b.the inadequacy of funding under plan one was made known to the LAC and the agency in writing no later in writing on 30 May 2019.
c.the LAC who was conversant with the [Respondent’s] policies and procedures ought to have put in train a review of plan one from the date that the funding appeared was inadequate for the complete twelve month period.
d.rather than initiating a review the LAC allow [sic] the Applicant to continue to fund carers wages from withdrawals from his personal superannuation fund under the clear impression that those costs provided they are documented accurately, would be reimbursed as reasonable costs of care.
e.the agency has failed to reimburse the Applicant for these costs of care.
(mistakes in the original)
[31] Ibid 6
In addition, the Applicant’s legal representative submitted that section 48 of the NDIS Act ‘provides that a participant may request that the CEO conduct a review of the participants plan at any time’ and referred the Tribunal to the following remarks of Deputy President Forgie in Williamson:[32]
The Tribunal would continue to hear any Application made to it review of the earlier plan for it may have an effect on the supports to which a participant was entitled at an earlier time.
[32] Ibid 6 – 7.
Finally, the Applicant’s legal representative requested that both the Applicant’s applications for review – 2020/3439 and 2020/7530 – be consolidated and heard together.
The Applicant’s case as at 27 November 2020 seemed to rest on the following premises:
·that the Respondent knew that there was insufficient funding in the Applicant’s plan within three months of Plan 1 being issued;[33]
·that the Applicant’s plans are all linked and accordingly review of the later plan automatically gives rise to a review of an earlier plan;[34]
·that the Applicant can request a review pursuant to section 48 of the NDIS Act at any time, including after the time period of the plan has passed;[35] and
·a review conducted pursuant to section 48 of the NDIS Act can give rise to a review of participant supports.[36]
[33] Transcript (22 October 2020) page 3 lines 8 – 15.
[34] Ibid page 2 lines 39 – 41.
[35] Applicant’s submissions dated 27 November 2020, 6 – 7.
[36] Transcript (22 October 2020) page 2 lines 29 – 34.
On those bases, the Applicant’s legal representative submitted that there were reasonable prospects of success in the applications for review, and that the extension of time should be granted given the reasons for delay.
The Applicant’s legal representative made further submissions on 17 December 2020, reiterating many of his earlier submissions and emphasising that at no time during the unscheduled review of Plan 1 was consideration given to the expenditure of the Applicant’s husband’s superannuation funds[37], namely for the Respondent to consider retrospective payments.[38] Further the Applicant’s legal representative emphasised that an [unscheduled] plan review should ‘be able to look into what has happened and address injustices or address the statements of participant support for the plan that was current at the time of the review…’.[39] The Applicant’s legal representative submitted that the Respondent’s approach was to frustrate the aims and objectives of the legislation.[40] Finally, at the hearing on 17 December 2020 the Applicant’s legal representative suggested that the unscheduled plan review sought pursuant to section 48 of the NDIS Act in file number 2020/7530 should be able to occur notwithstanding it ‘was well after the period for plan one had expired.’[41]
[37] Transcript (17 December 2020) page 5 lines 1 – 6.
[38] Ibid page 5 lines 8 – 9.
[39] Ibid page 5 lines 24 – 27.
[40] Ibid page 6 lines 19 – 20.
[41] Ibid page 6 lines 33 – 34.
The Respondent made oral submissions at the hearings referred to above, and written submissions dated 1 July 2020, 24 September 2020, 11 December 2020, 16 December 2020 and 26 February 2021 across both files. The Respondent’s submissions included:
·that notwithstanding that the Tribunal had jurisdiction to hear the application in file number 2020/3439, it initially indicated it would not oppose an extension of time for the Applicant to file the application for review;
·that there was no utility in the application for review made in file 2020/3439 as there were no supports in dispute with respect to the 19 December 2019 plan;
·as the applications for review progressed the Respondent opposed the granting of the extension of time as it considered there were ‘no reasonable prospects of success and as such there would be little utility in granting the extension of time’;[42] and
·there were no prospects of success with respect to the application for review made in file number 2020/7530 as review by the Tribunal of the Respondent’s refusal to review a statement of participant supports pursuant to section 48 of the NDIS Act could not result in the outcome sought by the Applicant.
[42] Respondent’s submissions filed 11 December 2020, 4 [38].
CONSIDERATION
The Tribunal has carefully considered the information and submissions put before the Tribunal by the parties.
File number 2020/3439 – Extension of time
As has already been decided the Tribunal’s jurisdiction in file number 2020/3439 would be confined to review of the Respondent’s decision dated 19 December 2019 under paragraph 100(6)(a) of the NDIS Act subject to an extension of time being granted for the making of the application.[43] Accordingly, it is necessary for the Tribunal to consider whether an extension of time should be granted.
[43] At [8].
As is set out above, the Tribunal may extend the time for the making of an application for review if it is reasonable to do so in all the circumstances. As was referred to in the Applicant’s submissions, the principles to which the Tribunal will have regard, in considering whether to grant an extension of time are set out in the Federal Court decision of Hunter Valley Developments. The principles, partially set out in Reilly and summarised by the Applicant’s representative, include the length of delay in making the application, the explanation for the delay and the awareness of the review rights, the prospects of success and the alternative avenues for relief.
Length of delay in making the application
The reviewable decision in this matter was made on 19 December 2019 and the application for review to the Tribunal was made on 4 June 2020. The delay in making the application for review was a period of almost five months. The Tribunal considers this to be a lengthy period of delay and accordingly it weighs against the grant of an extension of time.
Explanation for delay and awareness of appeal rights
The Applicant’s legal representative submitted that an extension of time should be granted as there is a satisfactory explanation for delay in lodging the application with the Tribunal.
The explanation included that the Applicant’s husband had relied on advice by the LAC that if he kept receipts, he would be reimbursed by the Respondent, and accordingly that he had not thought that an application to the Tribunal would be necessary.[44] The Tribunal has considered the interaction records referred to in the Applicant’s submissions and finds that they make no commitment, rather they explicitly state that ‘Until the review is approved and the funds are allocated you will have to pay for any services out of pocket as there are insufficient funds available’.[45]
[44] At [32].
[45] As reproduced in the Applicant’s submissions dated 27 November 2020, 5.
The Applicant’s husband submitted that he wished to have better evidence of the costs of his wife’s care before making an application for internal review of the participant supports. However, that was in the context of interactions with the LAC indicating to him the significance of the end of June 2019 for making an application for internal review.[46] In any case that does not explain the delay in the making of the application to the Tribunal.
[46] Applicant’s submissions dated 27 November 2020, 4.
The Applicant’s legal representative did not make any submissions regarding the Applicant’s husband being unaware of his appeal rights to the Tribunal.
The Tribunal places little weight on the submissions relating to these factors.
Prospects of success
As set out above, the Applicant is seeking reimbursement of money paid by the Applicant’s husband (taken from his superannuation fund) to her carers. The Applicant’s legal representative submits that the Respondent was aware that it had provided insufficient funding in Plan 1 to cover the Applicant’s needs.
However, no request for an internal review pursuant to section 100 of the NDIS Act was made by the Applicant with respect to Plan 1. The emails between the Applicant’s husband and the Applicant’s LAC dated 30 and 31 May 2019[47] do not amount to a request for internal review of Plan 1.
[47] As reproduced in the Applicant’s submissions dated 27 November 2020, 4.
In fact, according to the submissions filed by the Applicant’s legal representative, the emails state:[48]
In that initial email sent on Thursday, 30 May 2019 [the LAC] said this:
“we can put in a review for the further $50,000.00 for supports however I am not sure how we will go with this. Any evidence that you could provide to help us to say there is not enough funding would help.”
(Emphasis in original)
[48] Applicant’s submissions dated 27 November 2020, 4.

The Applicant’s legal representative submitted that the Applicant’s husband responded to the email of 30 May 2019 by ‘attaching month-end payroll summary, noting a total cost for that month of wages at $20,595’[49]. The Applicant’s husband submits that ‘at this rate the years carer cost would be over $200,000. It would be a good idea to wait until the end of June the next month [sic] report before requesting a review because I have reduced the casual hours’.[50]
[49] Applicant’s submissions dated 27 November 2020, 4.
[50] Applicant’s submissions dated 27 November 2020, 4.
Correspondence with the LAC does not amount to a request for an internal review pursuant to subsection 100(2) of the NDIS Act.
Accordingly, the only review capable of being undertaken with respect to Plan 1 was a review pursuant to section 48 of the NDIS Act. In respect of such a request there are two possible outcomes – either the Respondent declines to conduct a review (or is deemed to have decided not to conduct a review), or the Respondent agrees to conduct a review and creates a new statement of participant supports.
Given that the Applicant wishes to ventilate the participant supports in Plan 1 and the only participant supports that may be reviewed, given the facts in this matter, are those provided under the plan dated 19 December 2019 (Plan 3), in respect of which there do not appear to be any matters in dispute, the application appears to be both misconceived and to have little prospect of success. In this regard the Tribunal refers to its remarks regarding the relevance of Williamson as set out below at [73].
At the hearing on 17 December 2020 the Respondent (adopting the position outlined by Forgie DP in Williamson)[51] clarified its submission, namely that the Tribunal could consider retrospective reimbursement with respect to a support considered to be reasonable and necessary in the event an Applicant is out of pocket, providing the Tribunal has jurisdiction. The Tribunal agrees with that approach.[52]
[51] The retranscript (17 December 2020) page 8 line 1 incorrectly refers to ‘Williams’ rather than Williamson.
[52] Transcript (17 December 2020) page 7 line 46 – page 8 line 10.
In light of the above, the Tribunal places no weight upon the Applicant’s prospects of success in this matter.
Alternative avenues for relief
The written submissions of the Respondent dated 11 December 2020[53] and the oral submissions made on 17 December 2020[54] indicate that the Respondent is willing to further consider the Applicant’s reimbursement request outside the Tribunal process. Accordingly, the Tribunal is satisfied that there are other avenues of relief open to the Applicant, and this weighs against the granting of an extension of time to make the application for review.
[53] At 5, [40].
[54] Transcript (17 December 2020) page 8 line 10 – 13.
In weighing up the principles set out in Hunter Valley Development, the Tribunal considers that they do not favour the granting of an extension of time.
Therefore, pursuant to subsection 29(7) of the AAT Act, the application for an extension of time for the making of an application for review is refused.
File number 2020/7530
In the event the Respondent declines to conduct a review pursuant to section 48 of the NDIS Act, as is the case in this application, a participant may seek a review of that decision pursuant to section 100 of the NDIS Act. However, the internal review may only consider whether the Respondent should conduct an unscheduled plan review. The question of reasonable and necessary supports is not before the internal reviewer in this situation.
If the Respondent does conduct a review pursuant to section 48 of the NDIS Act the resulting new statement of participant supports may be the subject of a request for review under section 100 of the NDIS Act.
There is no utility in the Applicant pressing for a review of the decision of the Respondent not to conduct a review of Plan 1 pursuant to section 48 of the NDIS Act, on the basis that that will enliven a review of the participant supports. In that regard the Tribunal agrees with and adopts the Respondent’s submissions that, when read within the statutory context,[55] it would be inconsistent with the legislation as a whole to infer an additional review stream of supports through subsection 48(2) of the NDIS Act, where the legislation otherwise explicitly provides such a framework.[56] This reasoning is supported by the outcomes which can flow from a review undertaken pursuant to section 48 of the NDIS Act – namely that either a review is not undertaken, or a new plan issues.
[55] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
[56] Respondent's submissions dated 11 December 2020, 4 [32].
With respect to the Applicant’s submissions set out above in [37] and [43] above, the Tribunal does not consider the references of the Applicant’s legal representative to the remarks of Deputy President Forgie in Williamson to be helpful or relevant to the issues before it, as in Williamson what was being considered was a plan encompassing a statement of participant supports properly before the Tribunal as a decision pursuant to section 100 of the NDIS Act had been made.
Accordingly, application 2020/7530 should be dismissed pursuant to paragraph 42B(1)(b) of the AAT Act on the basis that it has no prospects of success.
DECISION
The application for an extension of time to file the review application in file number 2020/3439 is refused, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal dismisses the application for review in file number 2020/7530 pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 76
(seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher

………………[SGD]………………..
Associate
Dated: 23 July 2021

Date of Hearings:
15 July 2020
22 October 2020
17 December 2020

Final Submissions Received:

Representative for the Applicant:

26 February 2021

Mr L Hall, Files Stibbe Lawyers

Representative for the Respondent: Ms Z Harwood, National Disability Insurance Agency