Pike and National Disability Insurance Agency

[2023] AATA 366

Pike and National Disability Insurance Agency [2023] AATA 366 (8 March 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/0571

Re:Nicholas Pike  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Deputy President Mischin

Date:8 March 2023

Place:Perth

The Tribunal DETERMINES that:

The Applicant’s application dated 21 February 2023 for an extension of time to lodge an application for review is refused.

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Deputy President Mischin

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Application for review of decision – application lodged out of time – application for extension of time to lodge application for review – whether ‘reasonable in all the circumstances’ to extend time – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), sec. 29
National Disability Insurance Scheme Act 2013 (Cth), sec. 33

Cases

Nil

Secondary Materials

Nil

REASONS FOR DECISION

Deputy President Mischin

8 March 2023

1. This is an application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for lodging an application for review.

2. The Applicant is 29 years old and a participant in the National Disability Insurance Scheme.

3. On 12 September 2022, the National Disability Insurance Agency (the Respondent) issued a plan for the Applicant containing a variety of funded supports approved under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Applicant sought an internal review of that decision under section 100 of the NDIS Act seeking, it appears, to have included into his statement of participant supports several additional supports and the increase of others.

4. The internal review decision was made on 17 October 2022. His requests were refused, and the original decision was confirmed.

5. The letter from the Respondent of 17 October 2022 advising the result of the review gave reasons for the rejection of the Applicant’s requests.

6. It also, on page 2, advised the Applicant ‘If you don’t agree with our decision, you have a number of options’ and listed those options as follows:

   ·Obtain further evidence between now and your next plan review.

   ·Contact your Support Coordinator to consider other ways of using the supports in your plan.

   ·Ask for a plan review at any time if your circumstances change, including if you have new information to suggest there is a need for a change to your plan.

   ·Apply to the Administrative Appeals Tribunal (AAT) for an external review within 28 days. Information about how to apply is available on the AAT website (aat.gov.au), or by calling 1800 228 333.

7. Bullet point four reflects what is required by section 29(1)(d) and (2) of the AAT Act for lodging an application for review.

8. The application to the Tribunal for a review was lodged online on the late morning of Friday 30 January 2023. The application for review says that the Applicant received the decision on 28 October 2022. If that is so, the prescribed 28-day time limit expired on 25 November 2022, and the application for review was lodged 66 days out of time. The application nominates one Tamara Collins of the organisation Define Normal Life Style Supports as the Applicant’s representative, and an email address as the preferred method for receiving correspondence.

9. The application for a review form has a section headed ‘Extension of time’. After advising that if the application is outside the 28-day time limit an extension of time would be required to lodge it, the form asks, ‘Do you wish to apply for an extension of time?’ The answer was ‘Not at this time’.

10. A separate ‘Application for Extension of Time for Making and Application for Review of Decision’ form was lodged 21 February 2023, seeking an extension of time to that date to lodge the application for review. Ms Collins was, again, identified as the Applicant’s representative. This was 22 days after the application for review was lodged. The application for review was now 88 days out of time.

11. In the section of the form asking the applicant to ‘Outline your reasons for applying for an extension of time to make your application for review of the decision’ the answer given is ‘Applicant health & hospital admission over the Christmas period. Delay in application’.

12. Advice of the application and of the request for an extension of time within which to lodge it was provided to the Respondent Agency. On 9 February 2023, the Respondent advised that it ‘does not oppose’ the application for an extension of time.

13. That the Respondent does not oppose an application to extend time is, of course, a factor to be considered and weighed when the Tribunal is deciding whether to grant such a request. However, the Respondent’s position is not determinative of the question.

14. The AAT Act prescribes a time within which an application for review must be lodged. It confers upon the Tribunal, in section 29(7), a power that it may exercise at its discretion to extend the time for making an application to the Tribunal for review.

15. That discretion is to be exercised in favour of an extension ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.’

16. The reasons provided by the Applicant’s representative called for further explanation.

17. The information before the Tribunal said nothing about the Applicant’s health, its relevance to the delay in his being able to lodge an application for review before the 28-day time limit expired on 25 November, or the reasons for and period of claimed hospitalisation ‘over [the] Christmas period’.

18. Nor was there any explanation

    ·why an application for review with the Tribunal was not lodged between 25 November and before he was hospitalised, or after the Christmas period hospitalisation and earlier than 30 January 2023; or

    ·why no application for an extension of time was lodged on 30 January with the application for review, and before 21 February.

19. The Tribunal was not satisfied that it was reasonable to extend time in the circumstances that were before it.

20. Nevertheless, on 27 February 2023 the Tribunal wrote to the representative pointing out its concerns regarding these issues and asking if there were ‘any further circumstances [the Applicant] wishes to put before the Tribunal to explain why the application was not lodged within time and why it is reasonable to extend the time to enable it to be received?’

21. Later that day, the Tribunal received a reply advising:

    Please the extra information provided,

    There’s nil further reports.

    Nicholous has been struggling and continues to struggle. [sic passim]

22. The ‘extra information provided’ was a copy of a Discharge Letter from Innisfail Hospital Emergency Department to (it appears) the Applicant’s general practitioner dated 23 April 2022. It recorded the Applicant having presented to the Emergency Department at 12.32 pm that day with ‘worsening anxiety/panic attack symptoms’, including feeling unsafe, sleep deprivation, and worsening suicidal thoughts. It noted a history of autism ‘with noise aggrevating [sic] symptoms’. The letter also referred to the Applicant as having ‘been struggling for some time and his triggering factor today is likley [sic] the repeat rejection of disability service pension’. It mentions his being prescribed medications and makes some comments on his future management.

23. If the Applicant continues to suffer under the same burden that resulted in his presenting to the Innisfail Hospital Emergency Department in April 2022, one can only have sympathy for him.

24. However, the Tribunal’s power to extend time for the lodgement of an application for review beyond that prescribed by the AAT Act must be exercised only ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so’, and that satisfaction must be based on and have regard to the information before it.

25. The deficiencies in information identified in paragraphs 17 and 18 above remain.

26. The Tribunal appears to be asked to infer, without it being explicitly stated, that the Applicant continues to be suffering ‘anxiety’ and ‘panic attack symptoms’ and that his hospitalisation for some unstated interval over the Christmas period was related to that and akin to his admission to and discharge from Innisfail Hospital on 23 April 2022.

27. The Tribunal appears to be asked to conclude that, although the Applicant could initiate an internal review by the Respondent of his plan of 12 September 2022, those health problems prevented him from lodging an application for review between 28 October 2022 and 30 January 2023.

28. The Tribunal has not had explained to it why an application for an extension of time was not lodged with the application for review on 30 January, or sooner than 22 days later.

29. Notwithstanding that the Respondent does not oppose an extension of time, I am not satisfied that it is reasonable to do so.

30. I note other courses of action remain available to the Applicant, as set out in the letter of advice from the Respondent dated 17 October 2022.

    However, the application for an extension of time to lodge an application for review is refused.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

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Associate

Dated: 8 March 2023