Re FJKH and National Disability Insurance Agency

This matter concerned an application to the Administrative Appeals Tribunal (AAT) by a seven-year-old boy, represented by his mother, against the National Disability Insurance Agency (NDIA). The applicant sought additional disability support services not included in his initial plan, lodging an internal review request on 25 May 2017. By December 2017, over six months later, the NDIA had not made an internal review decision. Consequently, the applicant filed an application with the AAT on 7 December 2017, contending that the NDIA's failure to make a decision within a reasonable timeframe constituted a deemed decision to affirm the original decision, thereby invoking the Tribunal's jurisdiction.

The central legal issue before the Tribunal was whether the NDIA's obligation to make an internal review decision "as soon as reasonably practicable" constituted a "period prescribed" for the purposes of deeming a decision to have been made. This also raised the question of whether the NDIA loses its power to make an internal review decision after a reasonably practicable period has elapsed and an application has been made to the Tribunal. The applicant argued that the delay caused him to suffer increased anxiety, problematic behaviours, and a decreased ability to concentrate, impacting his social skills development.

Deputy President K Bean P determined that the applicant's argument, which relied on sections 25(5) and 26 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to suggest that the NDIA's power to make an internal review decision was extinguished upon the deemed decision and subsequent application to the Tribunal, was not persuasive. The Tribunal reasoned that the making of an actual internal review decision would not constitute an "alteration" of a deemed decision as defined in section 26(2) of the AAT Act. Instead, both the deemed decision and any subsequent actual decision would be reviewable by the Tribunal. The Tribunal drew an analogy to provisions in the Freedom of Information Act 1982, where a later actual decision could be considered by the Tribunal in proceedings concerning a deemed decision, without requiring a new application.

Although an internal review decision was made after the application to the Tribunal and a further review application was lodged, the parties agreed that the Tribunal should determine the jurisdictional question. The Tribunal concluded that at the time of the application for review on 7 December 2017, the NDIA was deemed to have made a reviewable decision, and the Tribunal's jurisdiction was invoked. The Tribunal noted that while an actual decision might render the review of the deemed decision moot, the initial application to the Tribunal was validly made.