NATIONAL DISABILITY INSURANCE SCHEME – where agency experiences delay in making internal review decision – whether “as soon as reasonably practicable” is a “prescribed period” – whether a decision may be deemed to have been made due to the agency’s failure to make a decision “as soon as reasonably practicable” – “as soon as reasonably practicable” is an ascertainable timeframe and a “period prescribed” – “as soon as reasonably practicable” is an ascertainable timeframe and a “period prescribed”
PRACTICE AND PROCEDURE – jurisdiction – tribunal has jurisdiction to hear the application – reviewable decision deemed to have been made
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
NNXF and National Disability Insurance Agency [2019] AATA 5552
Case
[2019] AATA 5552
Decision Date
CaseChat Overview and Summary
This matter concerned an application by NNXF, a participant in the National Disability Insurance Scheme, for review by the Administrative Appeals Tribunal (AAT). The applicant sought review of a decision made by the respondent, the National Disability Insurance Agency (NDIA), regarding her participant plan. The core dispute arose because the applicant’s representative lodged an application with the AAT on 8 March 2019, after the NDIA failed to provide a decision on an internal review request lodged on 10 September 2018. The NDIA eventually made the internal review decision on 9 April 2019, after the AAT application was filed.
The primary legal issue before the Tribunal was whether it had jurisdiction to hear the application lodged on 8 March 2019. This question turned on whether the NDIA’s failure to make an internal review decision "as soon as reasonably practicable," as required by section 100(6) of the *National Disability Insurance Scheme Act 2013* (Cth), constituted a "deemed decision" under section 25(5) of the *Administrative Appeals Tribunal Act 1975* (Cth), thereby conferring jurisdiction on the Tribunal. The Tribunal noted conflicting previous decisions on this point.
The Tribunal reasoned that the phrase "as soon as reasonably practicable" in section 100(6) of the NDIS Act constitutes an ascertainable timeframe and therefore a "period prescribed" for the purposes of section 25(5) of the AAT Act. The Tribunal drew a distinction between enactments that prescribe a specific number of days and those that prescribe a more flexible period, such as "reasonably practicable," concluding that both types of periods are encompassed by section 25(5). Consequently, a failure to act within such a period is deemed to be the making of a decision.
The Tribunal found that it had jurisdiction to hear the application lodged on 8 March 2019, as the NDIA's failure to make an internal review decision within a reasonable timeframe resulted in a deemed decision under section 25(5) of the AAT Act. The Tribunal ordered that the application be heard.
Orders
Orders of the court
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Background
Background to the litigation
[2] [2018] AATA 1326.A three member Tribunal heard this application because there are conflicting authorities from the Tribunal with respect to this issue. Deputy President Bean in Re FJKH and National Disability Insurance Agency[1] (“FJKH”) and Deputy President Humphries inRe Simpson and National Disability Insurance Agency[2] found that there was jurisdiction. Deputy President Forgie took an opposing view in Re KRBG and National Disability Insurance Agency.[3][3] [2019] AATA 144.[1] [2018] AATA 1294.BACKGROUND FACTS NNXF (“the applicant”) is a fifty year old woman who has a diagnosis of Down syndrome with a severe intellectual disability. The applicant resides with her two older sisters, one of whom acts as her guardian. The applicant has minimal expressive communication and requires substantial support for all activities of daily living and 24-hour supervision. The applicant was receiving support prior to the implementation of the National Disability Insurance Scheme (“the NDI Scheme”) through Disability SA. On 18 September 2017, the respondent advised the applicant that her NDIS Access Request had been successful. On 28 June 2018, a delegate of the Chief Executive Officer of the respondent (“the CEO”) advised the applicant that a decision had been made under s 33(2) of the NDIS Act to approve the statement of participant supports. The applicant’s plan came into effect on 27 June 2018. The applicant’s sister was not satisfied with the supports approved under the plan. On 10 September 2018, the applicant’s sister completed a Plan Review Request Form. The applicant’s sister stated in the form that the budget for the core supports would not cover all the supports that the applicant had been receiving from Disability SA. It is not in dispute that the purpose of lodging this form was to request an internal review of the decision dated 28 June 2018 to approve the applicant’s plan, because, the applicant’s sister (on behalf of the applicant) disagreed with the decision. On 8 March 2019 (nearly six months later), having not received an internal review decision, the applicant’s representative from Disability SA lodged an application with the Tribunal. The internal review decision was eventually made on 9 April 2019, after the review application was lodged but before the hearing of the application. In one sense the making of that decision which is reviewable by the Tribunal resolves the complaint made by the applicant. Nevertheless, there remains an important issue to be resolved, namely whether the Tribunal has jurisdiction to determine the application lodged on 8 March 2019. This remains a live issue between the parties about which the parties have sought a decision and its resolution has significant implications for disabled applicants whose requests for an internal review of an adverse decision have not been dealt with in a time that they consider is as soon as is reasonably practicable. KEY LEGISLATIVE PROVISIONS The key legislative provisions are ss 100(6) and 103 found in Part 6–Review of decisions of the NDIS Act and s 25(5) of the Administrative Appeal Tribunal Act 1975 (Cth) (“the AAT Act”). We will refer to these as s 100(6), s 103 and s 25(5) without including the name of the Act.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The third obligation imposed on the CEO is to complete the review “as soon as reasonably practicable”. If the CEO fails to complete the review “as soon as reasonably practicable” there is no consequence under the NDIS Act. Stage 3–Review of decisions The decisions that may be reviewed are listed in s 99. Of greatest relevance to the Tribunal are the decisions listed in items one through to six, particularly items one, four and six. These are the decisions that relate to current and prospective participants of the NDI Scheme. Where one of the decisions referred to in s 99 has been made, s 100 will apply. Section 100(1) facilitates the internal review process by requiring the respondent to give written notice that a decision has been made to each person who is directly affected by the decision. A person who is directly affected by the decision may then request the decision-maker to review that decision. Such a request needs to be made within three months after receiving the s 100(1) notice.[27] [27] Section 100(2). Section 100(5) deals with the CEO’s obligations once a request is received. The CEO “must cause the reviewable decision to be reviewed by a person (the reviewer)”. The reviewer is someone to whom the CEO can delegate the CEO’s powers and functions and who was not involved in making the reviewable decision. There is no time limit provided in which the CEO must allocate the decision to the reviewer. There appears to be no statutory consequence if the CEO does not carry out this obligation. Pursuant to s 100(6) the reviewer is obliged to make a decision. The reviewer can confirm the reviewable decision, vary the reviewable decision, or set aside the reviewable decision and substitute a new decision. The reviewer “must” do one of these three actions “as soon as reasonably practicable”. Finally, s 103 allows for a participant who has received a decision under s 100(6) to make an application to the Tribunal for merits review. The Tribunal only has jurisdiction to deal with an application under the NDIS Act if there has been a decision under s 100(6). SECTION 25 OF THE AAT ACT Under s 25(1) other enactments can provide that applications can be made to the AAT for the review of decisions made in the exercise of powers made under the other enactment. For the Tribunal to have jurisdiction to carry out a review, there must be a decision made under another enactment that is capable of being reviewed under the AAT Act. One such enactment is the NDIS Act which, as mentioned earlier, provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6). It is convenient to consider separately the purpose of s 25(5) and its elements, namely:·for the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions; ·a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing; ·shall be deemed to constitute the making of the decision by that person at the expiration of that period; ·not to do that act or thing.
Ratio Decidendi
Legal Principle Established
Consistent with the principles outlined, in this case the time frame specified is therefore sufficient to enable determination of the time within which the reviewer must make a decision under s 100(6). It is a period prescribed by an enactment as referred to in s 25(5).For the reasons outlined we conclude that, based on the facts of individual cases it will be possible to identify these dates.Does the wording of s 29 assist in understanding the operation of s 25(5)? Section 25(5) is referred to in s 29(3) when dealing with the prescribed time for making applications. Section 29(3) provides:Prescribed time for making applications—decision‑maker’s failure to meet deadline(3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:(a) in a case to which paragraph (b) does not apply—on the twenty‑eighth day after that day; or(b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—on the twenty‑eighth day after:(i)if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or(ii)if the decision does not set out those findings and reasons—the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision. Section 29(3)(b) deals with the position where a deemed decision arises from a failure to do an act or thing within a particular period and an actual decision is later made. Section 29(3)(a) applies to a case to which s 29(3)(b) does not apply. The reference to a failure to act “within a particular period” is clearly different language from that used in s 25(5), namely “within the period prescribed by the enactment”. This suggests that the period prescribed for the purposes of s 25(5) can be a particular period (e.g. within 14 days), in which case s 29(3)(b) applies or some other prescribed period (e.g. as soon as reasonably practicable), in which case s 29(3)(a) applies. We agree with what was said by Mayo J in O’Sullivan v Barton[44]:It is a rule of construction that where in the same statute, in relation to the same subject matter, different words are used, the court must see whether the legislature has not made the alteration intentionally, and with some definite purpose. Prima facie such alteration would be considered intentional.[References omitted][44] [1947] SASR 4 at 8-9. By using different words,[45] the legislation distinguishes between where an enactment prescribes a particular period, for example a specific number of days, and where an enactment prescribes some other period, for example a “reasonably practicable” period. Either way, there is a prescribed period for the purposes of s 25(5). The structure of s 29(3) suggests that a prescribed period is not confined to a particular period of days.[45] See Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30 (Irvine CJ).