Morris and National Disability Insurance Agency (NDIS)
[2024] ARTA 451
•18 November 2024
Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 451 (18 November 2024)
Applicant/s: James Anthony Morris
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/3410
Tribunal:General Member J Papalia
Place:Perth
Date:18 November 2024
Decision:The Tribunal dismisses the application for review for non-appearance at a Directions Hearing in relation to the proceeding.
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General Member J Papalia
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Access Requirements – Traumatic brain injury – Organic Mood Disorder – Organic Personality Disorder – Previously represented by the State - Non-appearance at Tribunal case events – Application Dismissed.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 81, 99 and 100
Statement of Reasons
The Applicant suffered a head injury after falling from a balcony in Thailand in 2016. This traumatic brain injury confers an enduring disability with regards to the Applicant’s mental health and social/occupational functioning. He was subsequently diagnosed with Organic Mood Disorder and an Organic Personality Disorder, making him vulnerable to episodes of psychosis. He seeks access to the National Disability Insurance Scheme (NDIS).
For the reasons set out below, the Tribunal has decided to dismiss the application for non-appearance at a series of Tribunal case events. This decision is not a reflection on the merits of the Applicant’s claim, and he can re-apply for access to the Chief Executive Officer of the Respondent or apply for re-instatement of his application.
Background
In October 2023, the North Metropolitan Health Service (the State Health Service) requested, on the Applicant’s behalf, that he become a participant of the NDIS.
On 5 January 2024, a delegate of the Chief Executive Officer of the Respondent decided that the Applicant did not meet the access criteria. The delegate had concerns that the applicant’s impairments had not been considered in terms of their permanency.
Unsurprisingly, the State Health Service sought internal review of the delegate’s decision.
However, on 22 May 2024, the internal reviewer again refused to grant the Applicant access to the Scheme based on a deficiency of evidence relating to all available and appropriate treatment options having been taken to address the Applicant’s impairments arising from his organic condition(s).
On 27 May 2024, the State Health Service sought review of the internal review decision in the Administrative Appeals Tribunal (AAT).
The matter was listed for alternative dispute resolution before a registrar on 5 August 2024. However, that conference was vacated at the request of the Applicant, made through the State Health Service and for “personal reasons”.
The matter was re-listed before a registrar on 7 October 2024 and 17 October 2024, where the Applicant did not appear.
The State Health Service subsequently advised by telephone and in writing that the Applicant was no longer with their service. This was confirmed by a social worker, Mr Cock, who appeared before the Tribunal today at the request of the Tribunal.
The Tribunal wrote to the Applicant on 21 October 2024 by ordinary mail, seeking confirmation that he intended to proceed with his application. No response was received.
This Tribunal is required to finalise the review in a manner that it considers to be efficient and fair. The matter was listed for directions this morning. The Applicant was notified of that listing by email to his personal email address recorded on the application for review. The Tribunal also attempted to call the applicant on three occasions this morning. Unfortunately, the Tribunal was unable to get a hold of the Applicant and he did not appear at the Directions Hearing.
In all of the circumstances, I determined that it was appropriate for the Directions Hearing to proceed in the Applicant’s absence under s 81 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
The Respondent appeared through counsel at the Directions Hearing and sought that the Tribunal dismiss the application for non-appearance under s 99 of the ART Act or for failure to proceed with the application within a reasonable time under s 100 of the ART Act.
Consideration
The Tribunal considered that dismissal under s 99 of the ART Act was appropriate, having regard to nature of the application and the Tribunal’s statutory objectives. The medical information before the Tribunal demonstrates that the Applicant suffers from permanent disability, which impacts his functioning – including difficulties regulating his moods and with depression. In those circumstances, dismissal under s 100 of the ART Act would not seem to be appropriate. However, the Applicant did not appear before the Tribunal after being given appropriate notice of the date, time and place of the listing. He has previously failed to appear at two case conferences. Adjourning the matter would have been contrary to the Tribunal’s statutory objectives and the rights of other applicants to have their cases decided expeditiously. The Applicant can apply for re-instatement of his application within 28 days. I made orders dismissing the application accordingly.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
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Associate
Dated: 18 November 2024
Date of hearing: 18 November 2024 Applicant: No appearance Solicitors for the Respondent: Ms A Rezae, Sparke Helmore Lawyers Respondent: Ms Herbert, National Disability Insurance Agency
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