McGuinty and National Disability Insurance Agency

[2023] AATA 756

McGuinty and National Disability Insurance Agency [2023] AATA 756 (30 March 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/0075

Re:Lyndall McGuinty

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Mischin

Date:30 March 2023

Place:Perth

The Tribunal DIRECTS that:

The Applicant’s application dated 27 January 2023 for an extension of time to lodge an application for review is refused.

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Deputy President Mischin

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Application for review of decision – application lodged out of time – application for extension of time to lodge application for review – whether ‘reasonable in all the circumstances’ to extend time – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), sec. 29
National Disability Insurance Scheme Act 2013 (Cth), sec. 33

Cases

Nil

Secondary Materials

Nil

REASONS FOR DECISION

Deputy President Mischin

30 March 2023

1. This is an application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for lodging an application for review. These reasons are an expansion of the brief reasons delivered ex tempore earlier today.

2. The Applicant is 31 years old and a participant in the National Disability Insurance Scheme. She is represented by her support coordinator, who I shall refer to as ‘Ms W’. The Applicant’s mother listened in to the hearing.

3. On 30 May 2022, the National Disability Insurance Agency issued a plan for the Applicant containing a variety of funded supports approved under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Applicant sought an internal review of that decision under section 100 of the NDIS Act, seeking funding for a recumbent bike to be included in her statement of participant supports.

4. The internal review decision was made on 27 June 2022. The request for a recumbent bike was refused and the original decision confirmed. The reasons for refusal were, in substance, that there was insufficient or no information to satisfy the Respondent that a recumbent bike satisfied a range of criteria necessary to found the provision of supports under the NDIS Act.

5. The Respondent’s letter to the Applicant advising the result of the review and providing its reasons is dated 27 June 2022.

6. The letter also mentioned, from the top of page 2:

   ‘If you don’t agree with our decision, you have a number of options.

   You can:

   ·Obtain further evidence between now and your next plan review.

   ·Contact your Support Coordinator to consider other ways of using the supports in your plan.

   ·Ask for a plan review at any time if your circumstances change, including if you have new information to suggest there is a need for a change to your plan.

   ·Apply to the Administrative Appeals Tribunal (AAT) for an external review within 28 days. Information about how to apply is available on the AAT website (aat.gov.au), or by calling 1800 228 333.

   The NDIS website (ndis.gov.au) provides more information about requesting an external review ...’

7. Bullet point four reflects what is required by section 29(1)(d) and (2) of the AAT Act for lodging an application for review.

8. The application to the Tribunal for a review was lodged online on 5 January 2023. It says that the Applicant received the internal review decision on 3 October 2022. It also says that the decision had been made on 27 September 2022. (This was incorrect. It appears that the author of the document confused the effect of an email from the Respondent of 27 September with having been a decision capable of review.) 

9. No application for an extension of time accompanied the application. The Tribunal wrote to the Applicant on 6 January 2023 pointing out that the application for review was lodged outside the 28-day time limit and provided advice as to how an application for an extension of time could be made.  

10. On 27 January 2023, the Tribunal received an application for an extension of time attached to an email from Ms W of that date and signed by her on behalf of the Applicant.

11. Contrary to what was asserted in the application for review, the application for an extension of time said that the internal review decision sought to be reviewed was made on 27 June 2022, but only received on 14 July 2022, over two weeks later.  

12. Be that as it may, if the decision was received on 14 July 2022, the prescribed 28-day time limit for lodging an application to review it expired on 11 August 2022, making the lodged application 147 days out of time.

13. The application to extend time form asks an applicant to ‘Outline your reasons for applying for an extension of time to make your application for review of the decision’. The reasons provided were  

    ‘The family required an extension to be able to gather additional evidence from supporting therapy providers. This has now been completed and paperwork is on file to justify the requirement for this recumbent tricycle.’

14. Advice of the application and of the request for an extension of time within which to lodge it was provided to the Respondent Agency. On 13 February 2023 the Respondent filed a Notice opposing the application for an extension of time and setting out its grounds for doing so. Accordingly, pursuant to section 29(10) of the AAT Act, the Tribunal could not determine the application without a hearing at which each party was given a reasonable opportunity to present their respective cases. This was that hearing.

15. The AAT Act prescribes a time within which an application for review must be lodged. It confers upon the Tribunal, in section 29(7), a power that it may exercise at its discretion to extend the time for making an application to the Tribunal for review.

16. That discretion is to be exercised in favour of an extension ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.’

17. The Tribunal’s satisfaction must be based on and have regard to the information before it.

18. The reasons provided by the Applicant’s representative called for further explanation.

19. The length of the delay is significant. It is over five times the length of time prescribed as the period within which an application should be brought, and the Applicant’s reasons do not sufficiently account for the length of that delay or how the gathering of evidence prevented an application being lodged sooner.

20. The Applicant and her family are said to have received the advice of the internal review decision by 14 July 2022. They would have known of the available options, the time limit for bringing an application for review, and the reasons for the refusal of the request for a recumbent bike. There is no explanation as to what action, if any, they took to protect or advance the Applicant’s interests between then and the expiration of the time limit.

21. In the course of submissions during the hearing, the Respondent revealed that its records contained reference to an inquiry on the Applicant’s behalf, and email advice being sent to a support coordinator, on 14 July regarding the recumbent bike. The advice was to the effect that a decision had been made refusing it, and the Applicant’s options were ‘going to the AAT or gather extra evidence and request a section 48’. The reference to the ‘section 48’ was one for a review/reassessment of the Applicant’s plan pursuant to section 48 of the NDIS Act, as suggested in bullet point three of the Respondent’s letter of 27 June. More will be said of this later.

22. At the hearing earlier today, the Applicant’s representative was asked about the delay in lodging the application for review.

23. Ms W explained that at the time of the internal review decision the Applicant, who resides in Manjimup, a town some 4 hours drive from Perth, had another support coordinator from a different service provider. Ms W only became involved with the Applicant sometime after the issue of the plan in May, although it is not clear when: during the hearing, she first said that she ‘came on as the Applicant’s support coordinator in June 2022’, but later said she ‘came on in August’, and in a letter to the Tribunal dated 9 March 2023 she says she ‘came onboard as Lyndall’s Support Coordinator in July’ 2022. Nevertheless, she said that there was no hand-over to her, and that it took her some time to meet with the Applicant and her family and to understand their situation. Ms W said she was not aware of the ‘tight turnaround’ – the 28-day time limit for lodging an application for review.

24. It seems that Ms W did not at any time seek or see the Respondent’s letter of 27 June explaining the reasons for its refusal of the recumbent bike. Accordingly, she did not read the advice as to options in that letter and the specified time period within which an application to the Tribunal for review needed to be lodged. However, she had seen letters like that from the Respondent advising of the outcome of internal review decisions in respect of other participants. The fact of there being several options available to participants dissatisfied with internal review decisions, and of some time limit for pursuing a review with the Tribunal, should not have been unknown to her.

25. Further, consideration of the internal review decision would have revealed why the Respondent had refused the sought-after recumbent bike. It would have facilitated the gathering of information to address what the Respondent had identified as the reasons for refusing the requested support. It seems no such consideration took place.

26. The Applicant, in her application to extend time, categorises the decision being challenged simply as ‘The decision to decline the request for a recumbent bike was due to cost/funding.’

27. That greatly understates the reasoning disclosed by the Respondent in its internal review decision of 27 June 2022. The internal review decision that is being challenged as having been wrong avers that there was a lack of evidence

    ·demonstrating the benefits sought by a recumbent bike;

    ·that a recumbent bike would be efficacious and would achieve the benefits hoped for; and

    ·that it would represent value for money.

28. Nevertheless, the Applicant seemed to accept that that evidence was lacking and took steps to acquire it.

29. As noted in paragraph 13 above, it is contended that the Applicant’s family required that time to gather additional evidence to support her case that the Respondent’s decision was in error. It suggests a deliberate choice to gather evidence rather than to lodge an application with the Tribunal for a review within the prescribed time.

30. However, it appears that it was not until exchanges of emails between the Respondent and the Applicant’s occupational therapist on 27 September 2022 that any elucidation was sought of the reasons why the Respondent declined a recumbent bike.

31. It appears that only after that were steps taken to assemble evidence to support the argument for a recumbent bike. It was not until 22 November that the gathering of the desired evidence was completed, and then there was further delay before the application for review was lodged with the Tribunal in January.  

32. Ms W offered several, albeit unclear, explanations for that delay, from ‘I was still dealing with [the bicycle shop proprietor], he sent a letter, when that came through it was towards the NDIS and how he didn’t approve the decision. We wanted the evidence specific to the recumbent bike’ to ‘we sent it [the application] through to another email address, then there was Christmas and New Year and then we hit the ground running in January.’

33. Even so, after being informed that an extension of time was necessary to lodge the application for review, it took three weeks to make the necessary application.

34. In the meantime, it is plain that a viable alternative to seeking an out-of-time review by the Tribunal was not explored: that of seeking a review/reassessment of the plan pursuant to section 48 of the NDIS Act.

35. The first and third options identified in the internal review decision advice letter of 27 June 2022, had they been read, suggested obtaining further evidence before the next plan review and, materially, advised that the Applicant could ask for a plan review[1] ‘at any time’ [emphasis added] if her circumstances changed, ‘including if you have new information to suggest there is a need for a change to your plan.’

    [1] Strictly, following amendments to the NDIS Act effective from 1 July 2022, a ‘reassessment’.

36. Ms W, in seeking to explain why this course was not taken, asserted that she did not consider the evidence gathered concerning the benefit to the Applicant of a recumbent bike to be ‘new’ information, but ‘just fills in the gaps.’ Plainly, however, it was information that was not presented to the Respondent at the time it conducted its internal review, and information that was thought not only to be worth obtaining to support a review by the Tribunal but information that the Applicant considers of such weight as will result in a successful outcome upon such a review. Furthermore, the Tribunal has been told that the bike now being sought is a more specialised item than that originally contemplated. In my assessment, what we have been told has now been secured is obviously ‘new’ information, information not previously available to either the Applicant or the Respondent at the time of the internal review.

37. A request for a review/reassessment of a plan under section 48 must be dealt with by the Respondent’s Chief Executive Officer (CEO) in one of several ways within 21 days of that request. An outcome that an applicant considers to be unsatisfactory is reviewable and, ultimately, capable of founding an application for review by the Tribunal.

38. During that review/reassessment, the CEO might require further evidence, and the Applicant would have the opportunity to provide it. Given the circumstances, it would appear to have been an option worth exhausting before seeking review of the 27 June decision by the Tribunal, particularly in the light of the expiration of the time limit for lodging an application for review.

39. The Respondent’s opposition to the extension of time rests on four grounds:

    a)    the length of the delay in bringing the application;

    b)    there being no satisfactory explanation for the delay;

    c)    the Applicant’s having rested on her review rights; and

    d)    there being alternative avenues for relief.

40. The Tribunal, when it ultimately reviews the merits of the decision, will take into consideration the evidence before it at the time of the review. But it must be acknowledged that to allege that a decision rejecting a request for a recumbent bike was ‘wrong’, while also accepting there was insufficient evidence to support the provision of one, does not make for a strong argument.

41. Nevertheless, the question is whether an application for an extension of time should be granted.

42. I am not satisfied that it is reasonable in the circumstances to extend time. In summary, the delay in lodging an application for review is excessive, is not adequately accounted for, and supports the proposition that the Applicant – whether personally or through those representing her interests – has rested on her review rights.

43. Furthermore, I note that other courses of action remain available to the Applicant, as set out in the letter from the Respondent dated 27 June 2022. In the circumstances, the course of requesting a review/reassessment of the plan under section 48 of the NDIS Act appears to be a preferable option before resorting to commencing an external review of the decision of 27 June 2022 in the Tribunal.

44. Accordingly, having regard to the circumstances, I conclude that the application for an extension of time to lodge an application for review should be refused.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

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Associate

Dated: 30 March 2023