NNXF and National Disability Insurance Agency

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.