Murray and National Disability Insurance Scheme Division

[2023] AATA 6

Murray and National Disability Insurance Scheme Division [2023] AATA 6 (4 January 2023)

Division:National Disability Insurance Scheme Division

File Number:2022/10611          

Re:Susan Murray  

APPLICANT

And National Disability Insurance Agency

RESPONDENT

Tribunal:                  Senior Member K. Parker

Date:4 January 2023

Place:Melbourne

INTERLOCUTORY DECISION

The Tribunal extends the time for lodgement by the Applicant of an application for review numbered 2022/10611 to 22 December 2023.

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Senior Member

Catchwords

PRACTICE AND PROCEDURE – request for extension of time for lodgement of application for review – substantive decision is a decision not to grant access to the Applicant as a participant in the National Disability Insurance Scheme – beneficial legislation – reasonable explanation for the delay – length of delay relatively short – request not opposed – no prejudice to NDIA – not against the public interest to grant request – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of application for review – extension of time request granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2) and 29(7)

National Disability Insurance Scheme Act 2013 (Cth), ss 103 and 100(6)

REASONS FOR Interlocutory DECISION

Senior Member K. Parker

4 January 2023

1. On 22 December 2022, pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) the Applicant, Ms Susan Murray, lodged an application for review of a decision made by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100(6) of the NDIS Act on 11 November 2022.

2. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review must be made within 28 days from the day the reviewable decision was given to the Applicant. The 28^th day after the date of the reviewable decision given to the Applicant is 9 December 2022. This means Ms Murray lodged her application for review 13 days out of time. Ms Murray has requested an extension of time for lodgement of the application for review pursuant to s 29(7) of the AAT Act.

3. Section 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement if it is satisfied that it is reasonable in the circumstances to do so.

4. The factors the Tribunal will consider in making this assessment are:

   (a)the length of the delay in lodging the application;

   (b)Mr Murray’s explanation for the delay in lodging the application;

   (c)the Tribunal’s general impression as to the merits of the substantive application;

   (d)whether the NDIA has suffered any prejudice on account of the delay;

   (e)public interest in granting the extension; and

   (f)any other matter the Tribunal considers appropriate such as any other alternative avenues of relief.

5. Firstly, the Tribunal must consider the length of the delay. In this case, it was short (only 13 days). This weighs in favour of granting the requested extension of time.

6. Secondly, the Tribunal must consider the Applicant’s explanation for the delay. This was not submitted with the application. The Tribunal arranged for Registry staff to find out the cause of the delay in lodgement. The Applicant informed Registry staff as follows:

   (a)she has a lung disease and is currently on oxygen to assist her to breathe;

   (b)she was finding it hard to speak on the phone;

   (c)her case manager from the NDIA and her nurse from the respiratory team had told her that they were assisting the Applicant in lodging her application for review with the Tribunal;

   (d)she thought they had lodged the application but later realised that they had not done it on her behalf;

   (e)she has memory loss and does not know why her claim keeps getting rejected when her situation is not going to change, and her health is deteriorating; and

   (f)she may pass away if she is not given help.

7. The Tribunal considers the explanation provided by the Applicant to constitute a reasonable explanation for the delay in lodgement in this instance. Given the short period of delay and the explanation for the delay, the Tribunal considers that this factor weighs in favour of granting the request for an extension of time.

8. Thirdly, the Tribunal will seek to form a preliminary impression about the merits of the substantive application. The decision sought to be reviewed is a decision by the NDIA not to grant access to Ms Murray to the NDIS. There were two medical reports lodged with the application. They are sufficient at this preliminary stage to satisfy the Tribunal that the substantive application is not without merit. This factor weighs in favour of granting the extension of time.

9. Fourthly, the Tribunal will consider whether there was any prejudice suffered by the delay in the lodgement of the application for review. The NDIA informed the Tribunal that it does not oppose the request for an extension of time. For this reason, the Tribunal considers it appropriate to make this decision without the need to conduct an interlocutory hearing before the parties. The Tribunal also infers, from the absence of any opposition by the NDIA to the request for an extension of time, that the NDIA has not suffered any prejudice as a result of the delay. This factor weighs in favour of granting an extension of time.

10. Fifthly, while the public interest gives rise to an expectation that parties will observe statutory time frames when seeking review before this Tribunal, the delay in lodgement was short, and there was a reasonable explanation for it. For this reason, the Tribunal does not consider that granting an extension of time, in the circumstances of this case, would be against the public interest. This factor does not weigh against granting an extension of time.

11. Sixthly, the NDIS Act is beneficial legislation. In this case, the Applicant is reported to have a medical condition that caused functional impacts. These are two further factors weighing in favour of the Tribunal granting the requested extension of time.

12. On balance, taking into account the various factors outlined above, which either weigh in favour of granting an extension of time or do not weigh against granting such extension, the Tribunal has reached a state of satisfaction that it is reasonable in all the circumstances to grant an extension of time under s 29(7) of the AAT Act to Ms Murray to lodge this application for review on 22 December 2022.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.

...................SGD.....................................................

Associate

Dated:  4 January 2023

Date of hearing:	On the papers
Applicant:	Ms Susan Murray
Respondent:	National Disability Insurance Scheme