PNCB and The CEO, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 66

PNCB and The CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 66 (6 February 2025)
Applicant/s:  PNCB
Respondent:  The CEO, National Disability Insurance Agency
Tribunal Number:                2023/2322

Tribunal:General Member N Purcell
Place:Sydney
Date:6 February 2025

Decision:The Tribunal dismisses the application pursuant to section 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) because it has no reasonable prospects of success.

...............................[SGD].........................................
General Member N Purcell
Catchwords
PRACTICE and PROCEDURE – no reasonable prospects – Aged Care package – question of delay – question of frustration of process – application dismissed.
Legislation
Administrative Review Tribunal Act 2024 (Cth) ss 56, 99, 100, 101
Administrative Appeals Tribunal Act 1975 (Cth) (now repealed) s 42B
National Disability Insurance Scheme Act 1993 (Cth) ss 24, 25, 29
Aged Care Act 1997 (Cth) s45
Cases
NRNK and National Disability Insurance Agency [2024] AATA 110
National Disability Insurance Agency v Foster [2023] FCAFC 11
Allied BioServices and Minister for Health and Aged Care [2024] ARTA 50
Re DZXP, KRQD and QJJS and Innovation and Science Australia [2017] AATA 576
Statement of Reasons
INTERLOCUTORY ISSUE

The National Disability Insurance Agency (the Agency) contends that the Tribunal should dismiss the application of PNCB (the Applicant) pursuant to section 101(1)(b) of the Administrative Review Tribunal Act (Cth) (ART Act). In essence, the Agency contends that the application has no reasonable prospects of success within the meaning of section 101(1)(b) for two reasons:
(a)the Applicant cannot satisfy section 24(1)(e) or section 25(1)(d) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) by reason of her Aged Care funding; and
(b)even if the Tribunal were to find that the Applicant should be granted access to the NDIS, she would immediately cease to be a participant pursuant to the operation of section 29(1)(b) of the NDIS Act by reason of her Aged Care funding, such that continuing with the proceeding is futile and would achieve no practical purpose for the Applicant.[1]
[1] Respondent’s written submissions dated 28 January 2025 at [2].
The Applicant contends that the Agency has essentially delayed proceedings since filing her application on 29 March 2023 and frustrated her right to review by raising a new legal issue at the dismissal hearing on 24 January 2025. She further contends that she should have the opportunity to have the matter heard and determined by the Tribunal, irrespective of the outcome. The Tribunal understands from the Applicant’s oral and written submissions that she has found the Tribunal process distressing and triggering. During the proceedings and in her submissions, the Applicant has shared deeply personal information about highly traumatic life experiences.[2] The Tribunal wishes to acknowledge that these experiences, which can only be described as horrendous, have undoubtedly impacted the Applicant’s life in numerous and indelible ways.
[2] Applicant’s written submissions dated 21 January 2025 and 29 January 2025.
BACKGROUND
The Applicant filed her application with the Administrative Appeal Tribunal (AAT) on 29 March 2023, seeking review of the Agency’s decision not to grant her access to the National Disability Insurance Scheme (NDIS) on 7 March 2023, made pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (NDIS Act). The AAT was replaced by the Administrative Review Tribunal (ART) on 14 October 2024 and the Applicant’s matter was automatically transferred to the ART by virtue of the transitional arrangements.
Due to some of the issues raised in this interlocutory matter, the Tribunal considers it useful to outline the progress of the matter over the almost two years since the application was first filed.
Timeline of events
The first case conference in the matter was scheduled to proceed on 19 May 2023. The Agency requested the conference be adjourned and rescheduled to a later date.
On 30 May 2023, the Respondent filed its first statement of issues.
On 1 June 2023, the first case conference was held.
On 12 June 2023, the Applicant received free legal advice from Legal Aid QLD in relation to her application.
On the 19 June 2023, the Applicant advised she had arranged a telehealth appointment with a psychologist Ms Terry Hannon on 21 June 2023.[3]
[3] Respondent’s timeline of procedural events as at 24 January 2025.
On 20 June 2023, the Agency provided targeted questions to the psychologist Ms Hannon with responses due by 10 August 2023.[4]
[4] Respondent’s timeline of procedural events as at 24 January 2025.
On 11 August 2023, the Applicated advised she had been unable to arrange an appointment with Ms Hannon until 18 August 2023. The Tribunal extended the due date for Ms Hannon to respond to targeted questions until 28 August 2023.[5] A response from Ms Hannon was not provided in accordance with this direction.
[5] Respondent’s timeline of procedural events as at 24 January 2025.
The Tribunal vacated the second case conference, due to be held on 4 September 2023, possibly because the Applicant had been unable to provide additional information or evidence from Ms Hannon.
On 13 September 2023, the Tribunal directed the Applicant to confirm by 22 September 2023 whether she would be submitting any further evidence. The Applicant did not provide any further correspondence to the Tribunal within this time-period and therefore did not comply with the Tribunal’s direction.
On 5 October 2023, the Tribunal further vacated the scheduled second case conference.
On 13 October 2023, the Agency filed a second statement of issues. In its timeline, the Agency indicated it had suggested obtaining responses to targeted questions on the Applicant’s behalf.[6]
[6] Respondent’s timeline of procedural events as at 24 January 2025.
On 6 November 2023, the second case conference was held. The Tribunal directed the Applicant to confirm the conditions on which she was seeking access and to provide a list of treating practitioners over the past five years by 27 November 2023. The Respondent was directed to provide a list of targeted questions that the Applicant could give to relevant treating practitioners by 18 December 2023. The Applicant was directed to provide responses to targeted questions from her treating practitioners, along with a statement of lived experience or any other evidence she intended to rely on by 29 January 2024.
On 26 November 2023, the Applicant filed a statement of lived experience and provided information about her conditions and treating practitioners.
On 30 January 2024, the Agency’s solicitor emailed the Tribunal to advise that the Applicant was travelling overseas for one month from 20 February 2024 and would be unavailable for the third case conference scheduled on 1 March 2024. This Tribunal was also informed that:
(a)neither party could contact Ms Hannon;
(b)the Agency had paid an invoice for targeted questions from the Applicant’s GP Dr Vaezipour; and
(c)the Agency had approved a quote from the Applicant’s cardiologist Dr Wahi to provide a response to targeted questions.
On 25 March 2024, the Agency filed its third statement of issues.
On 16 April 2024, a third case conference was held. The Applicant advised she would be consulting a new psychologist and psychiatrist. She was directed to provide their details by 30 April 2024. The Agency suggested the Applicant provide evidence of her past treatment for Complex Post Traumatic Stress Disorder (C-PTSD)[7], as permanency of impairment is a consideration under the NDIS access requirements including whether all available and appropriate treatment options have been pursued.[8]
[7] Respondent’s timeline of procedural events as at 24 January 2025.
[8] See section 24(1)(b) and section 25(1)(a) of the NDIS Act. See also Rule 5.4 of the Access Rules.
On 2 May 2024, the Applicant provided details of her new psychologist Ms Margoth Alvarado and her new psychiatrist, Dr Niroshi. The Tribunal understands the Applicant had not commenced appointments with them at this time.[9]
[9]Respondent’s timeline of procedural events as at 24 January 2025.
On 29 May 2024, the Respondent made its first request to issue summons and made subsequent requests on 2 August 2024 and 10 October 2024. The summons were issued and the material was returned to the Tribunal on 25 June 2024, 28 August 2024 and 30 October 2024. The first two summons were issued to treating practitioners and hospitals. The third and final summons was issued to Trilogy Care – an aged care provider, discussed below.
On 5 June 2024, the Applicant was approved for a level 2 home care package by My Aged Care. At that time, she was aged 65 and 7 months.[10]
[10] Respondent’s written submissions dated 28 January 2025 at [3].
On 22 July 2024, the Applicant informed the Agency’s solicitors by telephone that she had not seen Ms Alvarado (psychologist) or Dr Niroshi (psychiatrist) and did not have plans to see them. Accordingly, targeted questions could not be issued by the Agency.[11]
[11] Respondent’s timeline of procedural events as at 24 January 2025.
The Tribunal vacated a fourth case conference scheduled to occur on 2 September 2024.
A functional capacity assessment (FCA) with an independent Occupational Therapist (OT) was scheduled by the Agency to occur on 2 October 2024, with the Applicant’s consent. In an email to the Tribunal dated 21 August 2024, the Agency advised that appointment was “not workable” and was rescheduled to 14 October 2024. Shortly before the appointment on 14 October 2024, the OT cancelled due to health issues.[12] The appointment was rescheduled to occur on 4 November 2024.
[12] Respondent’s timeline of procedural events as at 24 January 2025.
On 24 October 2024, the Applicant informed the Agency’s solicitors via telephone that her PTSD has been flaring up and she was not well. It appears the Applicant indicated some hesitancy to participate in the FCA on 4 November 2024. The Agency’s solicitor indicated they would check with her the following week whether she wished to participate.[13]
[13] Respondent’s timeline of procedural events as at 24 January 2025.
On 30 October 2024, material produced under summons from Trilogy Care was provided to the Tribunal.
On 1 November 2024, the Agency’s solicitor cancelled the FCA after being unable to contact the Applicant to confirm her consent to participate.[14]
[14] Respondent’s timeline of procedural events as at 24 January 2025.
On 23 November 2024, the Tribunal understands that the Respondent obtained access to documents produced under summons from Trilogy Care.[15] The Applicant contends the Respondent knew about her My Aged Care package from around June 2024 and therefore should have raised the issue of section 29(1)(b) earlier in the proceedings.
[15] See footnote 1 of the Respondent’s written submission dated 28 January 2025.
On 2 December 2024, the Agency filed a fourth statement of issues with the Tribunal and served it on the Applicant by email and Express Post, reminding her of the case conference on 9 December 2024. The Agency also advised a further functional capacity assessment has been ‘pencilled in’ for 13 December 2024.[16]
[16] Respondent’s time of procedural events as at 24 January 2025.
Noting the Respondent’s second summons request was made in August 2024, the Tribunal is unable to make a finding based on the available information whether the Respondent knew about the Applicant’s aged care package on or around June 2024. It is clear the Respondent became aware of the issue sometime before requesting the final summons in early October 2024 and put the Applicant on notice that it would be an issue in the proceedings.
On 4 December 2024, the Applicant participated in a face-to-face assessment with OT Ms Lorrain Dzvimbo for the purposes of reviewing her existing aged care package.
On 9 December 2024, the Applicant failed to attend a fourth case conference and did not provide any reason.
On 12 December 2024, the Agency cancelled the FCA for 13 December 2024 as it had not received a response from the Applicant despite voicemails, an email and text message.[17]
[17] Respondent’s timeline of procedural events as at 24 January 2025.
On 16 December 2024, the Agency emailed the Tribunal requesting a direction hearing and indicated its intention to apply to have the proceedings dismissed if the Applicant did not respond. A copy of the email was sent by Express Post to the Applicant.[18]
[18] Respondent’s timeline of procedural events as at 24 January 2025.
On 19 December 2024, the Agency sent the Applicant the Tribunal’s listing notice for a direction hearing on 8 January 2024 by Express Post. It noted its intention to apply for the proceedings to be dismissed pursuant to ss 99 and/or 100 of the ART Act if the Applicant did not respond.
Section 99 of the ART Act provides that the Tribunal may dismiss an application if the applicant does not appear at a Tribunal Case event and the Tribunal is satisfied the applicant received appropriate notice of the date, time and place. Section 100 provides that the Tribunal may dismiss an application if the applicant fails within a reasonable time to proceed with the application or comply with an order of the Tribunal.[19]
[19] Respondent’s timeline of procedural events as at 24 January 2025.
On 8 January 2025, a telephone directions hearing was held. The Applicant confirmed she had received an Aged Care package in June 2024 and that she was over 65 at the time. She explained she had had trouble finding aged care workers and was yet to receive actual aged care services. The Applicant also advised that she had undertaken an OT assessment in late 2024 as part of a review of her Aged Care package but could not remember the date. She indicated she had been too unwell due to mental health issues to participate in the OT assessment arranged by the Agency or attend the case conference. She informed the Tribunal that when she is unwell, she is at risk of being admitted to a mental health ward and experiences suicidal ideation. The Agency was unaware of the Aged Care OT assessment in late 2024 and did not have a copy of the report.
The Tribunal directed the Applicant to provide certain information by 22 January 2025 including the date of her Aged Care OT assessment, a copy of the Aged Care assessment report and evidence of attendance upon mental health practitioners or other evidence regarding her mental health (such as hospital admission or discharge summaries) over the previous 6 months. The matter was listed for a dismissal hearing on 24 January 2025.
In compliance with the directions, the Applicant provided a copy of the Aged Care assessment report dated 19 December 2024 which showed the assessment took place on 4 December 2024. She also provided written submissions dated 21 January 2025 explaining why her application should not be dismissed including details of very traumatic experiences. She referred to a consult with her GP for blood and stool tests and a naturopath in relation to diarrhea. The Applicant said she was “still chronically unwell” on 9 December 2025 when she failed to attend the fourth case conference. It was unclear from her submissions why the Applicant was able to participate in the aged care OT assessment 5 days earlier. She did not provide any independent evidence of recent medical consults, engagement with mental health practitioners or admissions to hospital.
On 24 January 2025, the Agency filed brief submissions by email shortly before the dismissal hearing regarding the operation of section 29(1)(b) of the NDIS Act and therefore the Applicant’s prospects of success at hearing under section 101 of the ART Act, mentioned above. Due to difficulties accessing email in her regional location and the late timing of the email, the Applicant had not received a copy of the email prior to the commencement of the hearing.
At the outset of the dismissal hearing, the Tribunal acknowledged that the Applicant had shared very personal information in her submissions. The Tribunal also indicated that whilst the Applicant had not provided all the information requested, it was satisfied that she had made reasonable efforts to comply with the directions set down by the Tribunal on 8 January 2025. On that basis, the Tribunal was satisfied the Applicant was proceeding with her application, albeit with some delay. The Tribunal indicated but for the new legal issue, the Tribunal’s preliminary view was not to dismiss the matter under sections 99 or 100 of the ART Act and to timetable the matter to hearing.
The Tribunal explained to the Applicant that the Agency had raised a new legal question about whether the matter could or should proceed to hearing. The Respondent was invited to explain the issue for the benefit of the Applicant and to make oral submissions. The Applicant was understandably frustrated but also expressed her views on the matter and made submissions as to why her application should proceed to hearing.
To ensure the Applicant had sufficient time to consider the interlocutory question before the Tribunal, the Agency was directed to provide brief written submissions by close of business on the 28 January 2025 and to send text message copies of those submissions and the relevant legislative sections to the Applicant. The Applicant was invited to provide further written submissions by close of business on the 29 January 2025. The Tribunal indicated it would attempt to deal with the issue as expeditiously as possible noting the importance of the decision to the Applicant.
The Agency filed 4.5 pages of submissions in accordance with the direction. The Applicant filed 25 pages of handwritten submissions in accordance with the direction. She also filed additional submissions on the 31 January 2025.
AGENCY’S SUBMISSIONS
Section 24(1)(e) of the NDIS Act – lifetime support
The Respondent submits that the Applicant cannot satisfy sections 24(1)(e) and 25(1)(d) of the NDIS Act because she has been approved for a level 3 home care package by My Aged Care. The Respondent referred to the decision of NRNK and National Disability Insurance Agency [2024] AATA 110 (NRNK) where the Tribunal held that the supports sought by the applicant were most appropriately met by the aged care system and not the NDIS. In reaching its decision, the Tribunal referred to National Disability Insurance Agency v Foster [2023] FCAFC 11 where the court contemplated the factors to consider when deciding whether a person is likely to require support under the NDIS for their lifetime. The Tribunal summarised the considerations as follows:
-    The focus is on whether a person is likely to require support under the NDIS for their lifetime or whether those supports needs are most appropriately met by other systems;
-    It would be wrong to ask whether the supports under other systems would be comparable to what would be available under the NDIS.
-    A person cannot be funded for a support under two schemes. There is no scope for a support to be partially funded under the NDIS.[20]
[20] NRNK at [143].
Section 29(1)(b) of the NDIS Act – ceasing to be a participant
The Respondent also submits that even if the Tribunal were to be satisfied that the Applicant meets the Access requirements for the NDIS, she would immediately cease to be a participant by reason of section 29(1)(b) of the NDIS Act.
Section 29 of the NDIS Act sets out the circumstances when a person ceases to be a participant. Relevantly, section 29(1) states:
A person ceases to be a participant in the National Disability Insurance Scheme when:
(a) the person dies; or
(b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c) the person’s status as a participant is revoked under subsection 30(1) or (5), paragraph 30A(1)(c) or subsection 30A(7); or
(d) the person notifies the CEO in writing that he or she no longer wishes to be a participant.
Note: Residential Care Service and home care have the same meaning as in the Aged Care Act 1997 (Cth).

Section 45.3 of the Aged Care Act 1997 (Cth) provides:
Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.
It is not in dispute that the Applicant was 65 years and 7 months when she was approved for her My Aged Care package.
The Respondent contends that it is the package of personal care services that is approved and therefore starts being provided; not whether the actual provision of particular care services has started or been provided. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 provide relevant guidance on this point:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013..
While it is unfortunate that there may be delays between when a person is approved for a home care package and the actual delivery of services under that package, that is a matter for the Aged Care system to address. The NDIS doesn’t make up for other organisations and systems that don’t provide the supports they should.[21] For these reasons I consider home care ‘starts being provided’ when a home-care package is approved; not when the services are provided.
[21] For example, see
Section 101(1)(b) of the ART Act – no reasonable prospects of success
The Respondent further contends that because of the operation of section 29(1)(b) of the NDIS Act, there is no utility in the matter proceeding to hearing because the Applicant has no reasonable prospects of success under section 101(1)(b) of the ART Act. The Respondent noted in its submissions that the ART Act recently came into effect in October 2024 and there is limited case law on this provision. However, it submits the provision is expressed in substantially the same terms as the now repealed section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Respondent referred to the recent decision of Allied BioServices and Minister for Health and Aged Care [2024] ARTA 50, where the Tribunal considered its power to dismiss an application where it is satisfied that an application has no reasonable prospect of success. The Tribunal considered case law applying s 42B(1)(b) of the AAT Act and set out the applicable principles.[22] The Respondent contends:
Importantly, at [31], the Tribunal noted the following principles from the case law:
(a) The Tribunal has made it clear that the dismissal power in s 42B is to be used cautiously and sparingly. That is, if a legitimate purpose could be achieved by allowing the application to continue, it should not be prevented. However, if the application can serve no purpose for the applicant, it should not continue to use Tribunal time and resources.
(b) It is open to the Tribunal to dismiss an application which only concerns a question of law.
(c) The concept of whether an application has “no reasonable prospect of success extends to whether, as a matter of substance, the review by the Tribunal will have any utility or useful outcome. The Federal Court and Tribunal have found on a number of occasions that if an application cannot serve a purpose for an applicant, it should not continue.”
(d) The cost that a respondent will incur in defending a claim which lacks a practical outcome is also a relevant consideration.
[22] See paragraphs [25 – 31].
The Respondent submits that it would be a waste of the Respondent’s and the Tribunal’s resources to progress the application to a hearing when the application is futile by reason of section 29(1)(b) of the NDIS Act.
APPLICANT’S SUBMISSIONS
The Applicant told the Tribunal she had applied to the NDIS for access on at least two occasions, in 2019 and 2022. The Tribunal understands that the Agency’s decision to decline the Applicant’s application for access on 22 November 2022, and affirmed on 7 March 2023, is the only reviewable decision that has been pursued before the Tribunal.
The Applicant submits that the matter should go to hearing, irrespective of the practical outcome and she wants the Tribunal to determine whether she meets access as a matter of principle. She wants, as it were, to have her ‘day in court’. The Applicant provided persuasive reasons why this should occur including the length of time the matter has been before the Tribunal, the stress she has undergone to pursue the matter and essentially, the right to have an independent body check whether the Agency’s decision to decline her access to the NDIS was correct or not.
The Applicant was understandably frustrated that the ‘prospects of success’ issue was raised at a time when she had re-engaged in the process and thought the matter would likely progress to hearing. She submitted that the issue of section 29 of the NDIS Act had never been raised with her prior to the 24 January 2025. I accept this was the case.
The Applicant acknowledged that she was over the age of 65 when she received her home care package through My Aged Care. However, she submitted that while she had been approved for a level 2 package, she was unable to access those services on the island where she lives. She explained there were no aged care workers where she lived, but indicated there was a good NDIS provider who could provide services. In her view, she had fallen between the cracks of the two systems. The Applicant said she had interviewed some prospective workers, but they were still going through the process to obtain police checks etc before being able to commence aged care work. She was in the process of applying for a higher level of care through My Aged Care.
QUESTION OF DELAY
The Tribunal accepts that the process has felt long and stressful for the Applicant. While it is almost 2 years since the Applicant applied to the Tribunal, the Applicant has been engaging with the Agency since 2019 and strongly disagrees with their decisions to decline her access to the NDIS.
However, having spent some time reviewing the conduct of these proceedings, the Tribunal is not satisfied that the Agency has caused any significant delay to the progress of this matter. It was clear from correspondence that the Agency took a proactive approach in terms of making suggestions and arrangements for the Applicant to provide relevant evidence as part of her application for review. It also appears the solicitors were appropriately flexible and made genuine efforts to communicate with the Applicant in a manner which was suitable to her regional location and the associated difficulties accessing email.
The Tribunal adjourned three case conferences. It appears two adjournments may have been to accommodate some of the difficulties the Applicant was experiencing obtaining evidence in support of her application, including responses to targeted questions from treating medical or allied health practitioners.
The Tribunal notes section 9 of the new ART Act requires the Tribunal to pursue the objective of providing an independent mechanism of review that is, amongst other things, fair and just and that ensures applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
The Tribunal observes that in this case, the Applicant was afforded considerable opportunity and flexibility to provide evidence that could demonstrate that the decision under review was not correct. This is important, as it provides applicants with an opportunity to provide additional evidence that may provide clarification or resolve a gap in the evidence provided to the Agency at first instance. Sometimes this will result in the Agency changing its position and may enable the matter to resolve before proceeding to hearing or at least narrow the issues in dispute.
The Tribunal also acknowledges the legislative provisions are complex, particularly for Applicants who are not legally represented. There is confusion amongst some applicants about the meaning of, for example, the permanency of impairments (rather than the permanency of a condition or diagnosis) under section 24(1)(b). Without a further opportunity to obtain relevant evidence about a fact in issue, an Applicant may have difficulty satisfying the Tribunal that all the criteria under section 24 or 25 of the NDIS Act are met.
However, the Tribunal also recognises that affording too much time or attention to the question of evidence can prolong the process to hearing. Noting the objectives of section 9, this Tribunal is particularly conscious of the importance of balancing the opportunity to obtain relevant additional evidence with the need to ensure applications proceed in an efficient matter to final resolution, either by agreement between the parties or by decision of a Member. Ultimately, the Tribunal has a range of powers under Divisions 5 and 6 of the ART Act to direct how that process unfolds.
It would appear there were a confluence of factors that contributed to some delays in this matter. The Tribunal does not seek to minimise the challenges that the Applicant may experience in her life, but it does appear that her failure to adhere to certain directions or communicate with the Respondent at critical stages of the process caused some of the delay, particularly in the latter stages.
CONSIDERATION
Regarding the question of whether the Applicant could satisfy the Access requirements, namely section 24(1)(e), the Tribunal notes that this would be a matter that would ordinarily be considered at substantive hearing. However, in circumstances where there appears to be no factual dispute between the parties, I’m inclined to agree it is a relevant but not determinative factor in these interlocutory proceedings.
I am satisfied that the Applicant has a level 2 home care package from My Aged Care and is in the process of applying for a higher level 3 package. I am satisfied there are a range of supports that can be paid for using the annual budget of $18,622.30 in a level 2 home care package.[23] I accept that the Applicant has had difficulty accessing supports due to her regional location. Whilst there have been delays in the utilisation of her package, it appears that workers are now going through the process to obtain the relevant checks and clearances required by the aged care system.
[23] Respondent’s written submissions dated 28 January 2025 at [5].
In NRNK the Tribunal also stated:
I am of the view, given the Applicant now qualified for My Aged Care, and can receive the support she seeks under her My Aged Care package, the supports she seeks are most appropriately met by that system, and not the NDIS.
I am not reviewing a statement of participant supports; I am only considering whether the Applicant meets the Access requirements. As directed by the Court it is not for me to consider whether the supports under the My Aged Care package would be comparable to what would be available under the NDIS.[24]
[24] NRNK at [144 – 145]
I agree with the reasoning set out in NRNK, citing Foster that it is not for the Tribunal to consider which service system may or may not provide the more comprehensive level of support to a particular individual. I am also satisfied that it is not the role of the NDIS to fill any potential gaps in supports provided by other service systems. For reasons which are discussed below, it is not necessary for me to make a formal finding on this issue, but I accept that had the matter proceeded to hearing, this could have posed a significant difficulty for the Applicant in terms of satisfying the Tribunal that she meets all the criteria under section 24(1) of the NDIS Act.
The Tribunal accepts it was frustrating for the Applicant that the ‘prospects of success’ argument was raised late in the proceedings. However, it appears from the records that the relevance of the aged care package did not crystalise as a significant issue from the Agency’s perspective until late 2024 when the Trilogy Care summons material was reviewed. The Tribunal notes that the Agency was still pursing possible arrangements for an FCA to be conducted with the Applicant in mid-December 2024, suggesting continued efforts to progress the matter.
The Tribunal does not accept that the Agency, via its lawyers, deliberately withheld information or explanation of the implications arising from section 29 of the NDIS Act to frustrate the process. Undoubtedly, it would have been preferable for the matter to have been identified and raised on 8 January 2025 when the matter was first listed for a directions hearing, and it was unfortunate that the Applicant and the Tribunal were only made aware of the issue at the last minute. However, the Agency was proactive in having the matter brought before a Member and had clearly indicated its intention to seek dismissal pursuant to either section 99 or section 100 of the NDIS Act. I do not accept that the 2-week delay between the first directions hearing and second dismissal hearing has had any material impact beyond causing an understandable sense of frustration to the Applicant. Noting the Agency is required under section 56 of the ART Act to assist the Tribunal to make the correct or preferable decision in relation to the proceedings and to achieve the objectives in section 9, it was appropriate for the Respondent to raise the issue now before the matter proceeded to substantive hearing.
The Tribunal was moved by the Applicant’s oral submission that she wants the opportunity to be heard, for all the evidence in her matter to be considered and for a Tribunal Member to decide whether the Agency’s decision to refuse access was correct or not. The Applicant clearly feels aggrieved and distressed by the Agency’s decision to decline her access to the scheme and has felt the process, both in applying to the Agency and the Tribunal, has involved others questioning her diagnosis, conditions, experiences and reality. While I cannot make any findings in that respect, I accept that those feelings are genuinely held by the Applicant. I also accept that she believes she would derive some benefit from the Tribunal making an independent decision, even if it were the case that the decision did not go in her favour.
As the decision in Re DZXP, KRQD and QJJS and Innovation and Science Australia [2017] AATA 576 stated:
The Tribunal has made it clear that the dismissal power in s 42B is to be used cautiously and sparingly. That is, if a legitimate purpose could be achieved by allowing the application to continue, it should not be prevented: Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 326; (2004) 82 ALD 514; Re Hinds and Australian National University [2012] AATA 495; (2012) 129 ALD 476. However, if the application can serve no purpose for the applicant, it should not continue to use Tribunal time and resources: Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 (Williams); Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963; (2007) 99 ALD 106 (Currey).
One of the most frequently cited discussions on the approach that should be taken to s 42B applications is that contained in Williams, wherein the Tribunal stated that the genuineness of the applicant's belief may be relevant, perhaps decisive, where the subject matter of that belief is factual rather than legal in nature. But where the issue in dispute relates to the legal consequences of an application, the genuineness of the applicant's belief as to the legitimacy of the application must yield to a conclusion that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding: see also Re Christ Church Circle Oriona Community Inc and Deputy Commissioner of Taxation (1995) 31 ATR 1001; 95 ATC 2040; [1995] Admin Review 48. (My emphasis)
Access matters routinely involve at least 2 days of hearing time along with significant preparation time to read and consider the evidence filed in the hearing bundle. Depending on the complexity of evidence and questions of law raised at the hearing, it usually then takes a Member multiple days to weigh up the evidence and write a decision. This does not account for additional associate and registry support throughout this process.
Due to the significant time and resources that the Tribunal must allocate for the preparation and conduct of a NDIS hearing, I am persuaded by the Respondent’s submissions set out in paragraph 55 of this decision and the approach taken by the Tribunal in other decisions that I must exercise my discretion pursuant to section 101(1)(b) of the ART Act. For the avoidance of doubt, I accept that the Applicant might have experienced a sense of fairness and justice by proceeding to hearing, also an important objective under section 9 of the ART. I note that for this reason the outcome may have been different in circumstances where a hearing required significantly less time.
I am satisfied that there would be no practical outcome for the Applicant, even if she were to satisfy the Tribunal that she meets the NDIS access requirements. By reason of section 29(1) of the NDIS Act, the Applicant could not receive NDIS funding because she has been provided with a home care package on a permanent basis and this occurred after she turned 65 years of age.
In these circumstances, the Tribunal cannot allow the matter to continue despite it being regrettable for the Applicant.
DECISION
The Tribunal dismisses the application pursuant to section 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) because it has no reasonable prospects of success.