NYNP and National Disability Insurance Agency

[2023] AATA 1

NYNP and National Disability Insurance Agency [2023] AATA 1 (5 January 2023)

Division:National Disability Insurance Scheme Division  

File Number:2022/10624          

Re:NYNP  

APPLICANT

National Disability Insurance AgencyAnd  

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K. Parker

Date:5 January 2023

Place:Melbourne

The Tribunal extends the time for lodgement by the Applicant of an application for review numbered 2022/10624 to 25 January 2023.

................[sgd].......................................................

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – request for extension of time for lodgement of application for review – substantive decision is a decision to affirm an earlier decision to approve a statement of participant supports (SOPS) forming part of the Applicant’s National Disability Insurance Scheme (NDIS) plan – beneficial legislation – child participant – 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

1. The Applicant, NYNP, is a child participant in the National Disability Insurance Scheme (NDIS).

2. On 12 December 2022, NYNP’s mother lodged a completed “Application for Extension of Time for Making an Application for Review of Decision” (EOT Application) with the Tribunal, together with a decision made by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 23 November 2022 (Decision Under Review). Under s 103 of the NDIS Act the Applicant may seek review of the Decision Under Review by the Tribunal subject to the provision of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

3. Section 29(2) of the AAT Act provides that an application for review must be made within 28 days from the day the Decision Under Review was given to them. NYNP’s mother states on the EOT Application that she received the Decision Under Review on 25 October 2022. This must be a typographical error, as the Decision Under Review was not made until 23 November 2022. The Tribunal notes that the Decision Under Review was emailed to NYNP’s mother on 23 November 2022. The Tribunal will take the date of receipt by NYNP’s mother, on behalf of NYNP, of the Decision Under Review as being 24 November 2022. The 28-day statutory time limit fell on 22 December 2022.

4. About two weeks have passed since the expiry of this statutory time limit. NYNP’s mother has indicated that she would like the Tribunal to grant an extension of time to NYNP to lodge her application for review on 25 January 2023. By this date, NYNP’s application will be about five weeks “out of time”. 

5. 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.

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

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

   (b)NYNP’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.

7. Firstly, the Tribunal must consider the length of the delay. In this case, the delay will be about five weeks at the most and the Tribunal considers this to be a relatively short delay. This weighs in favour of granting the requested extension of time.

8. Secondly, the Tribunal must consider NYNP’s mother’s explanation for the delay. NYNP’s mother explained on the EOT Application that:

   (a)she “has to take” NYNP “for surgery”; and that

   (b)with the Christmas/New Year approaching (as it was at the time NYNP’s mother completed the EOT Application) NYNP’s mother said she needed more time to get NYNP’s supporting evidence in respect of NYNP’s request for more capacity building supports.

9. The Tribunal considers that the second reason set out in paragraph [8(b)] does not constitute a reasonable explanation for the delay in lodgement, because the collation of evidence in a proceeding like this may be attended to after the application has been lodged, and before the hearing takes place. The Tribunal would ask NYNP’s mother to note that the only requirement for her to lodge NYNP’s AAT application for review form, is to complete and lodge the form and to attach/upload the Decision Under Review (which has already been given to the Tribunal). However, the Tribunal considers that the first reason, in paragraph [8(a)], being that surgery is imminent for NYNP, or may have recently taken place, is a reasonable explanation for NYNP’s mother’s delay in lodging the application for review form. Given the short period of delay and this explanation for the delay, the Tribunal considers, on balance, that this factor weighs in favour of granting the request for an extension of time.

10. 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 about whether to fund additional or an increased level of capacity building supports under the NDIS. There is no suggestion by the NDIA that this application is unmeritorious. At this preliminary stage, this is sufficient to satisfy the Tribunal that the substantive application is not without merit. This factor weighs in favour of granting the extension of time.

11. Fourthly, the Tribunal will consider whether there was any prejudice suffered by the delay in lodgement of the application for review. The NDIA informed the Tribunal on 3 January 2023 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 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 in the delay. This factor weighs in favour of granting an extension of time.

12. 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, being the imminent surgery to be carried out on NYNP. For this reason, the Tribunal does not consider that granting an extension of time, in the circumstances of this case, would be against public interest. This factor does not weigh against granting an extension of time.

13. Sixthly, the NDIS Act is beneficial legislation. In this case, the Applicant is a child participant with a disability that has caused functional impacts upon NYNP. These are two further factors weighing in favour of the Tribunal granting the requested extension of time.

14. 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 NYNP to lodge this application for review on 25 January 2023.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

...................[sgd].....................................................

Associate

Dated:  5 January 2023

Date(s) of hearing:	On the papers
Applicant:	NYNP’s mother as child representative of NYNP
Respondent:	NDIA