Re Simpson and National Disability Insurance Agency
[2018] AATA 1326
•22 May 2018
Simpson and National Disability Insurance Agency [2018] AATA 1326 (22 May 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/0455
Re:Lyn Simpson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:22 May 2018
Place:Canberra
The Tribunal has jurisdiction to consider the application lodged on 31 January 2018.
........................................................................
Deputy President Gary Humphries
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – whether there has been an internal review decision – application to review by telephone – whether the National Disability Insurance Agency met its requirement to review the access decision as soon as reasonably practicable – whether telephone call constitutes a decision or evidence of a decision – operation of s 25(5) of the Administrative Appeals Tribunal Act 1975 – Tribunal has jurisdiction.
Legislation
National Disability Insurance Scheme Act 2013 ss 18, 20, 21, 24, 24, 99, 100, 103
Administrative Appeals Tribunal Act 1975 s 25Cases
FJKH and NDIA [2018] AATA 1294
ZKTN and National Disability Insurance Agency [2017] AATA 744REASONS FOR DECISION
Deputy President Gary Humphries
22 May 2018
BACKGROUND
Mrs Lyn Simpson, the Applicant in these proceedings, made an application to become a participant in the National Disability Insurance Scheme (NDIS). Her application was rejected in January 2017, and a request was then made on her behalf to review this decision. In a phone call in January 2018 the National Disability Insurance Agency (NDIA) advised Mrs Simpson’s representative that it could not consider her application for review any further as it had been made out of time. Mrs Simpson then lodged an application for merits review with the Tribunal.
The issue before the Tribunal in this interlocutory proceeding is whether it has jurisdiction to consider Mrs Simpson’s application for merits review. The answer to that question turns on whether the NDIA has made a decision pursuant to s 100(6) of the National Disability Insurance Scheme Act 2013 (the Act). The Tribunal may only review a decision which has been made pursuant to that subsection. For the reasons given below, I consider that the NDIA has made such a decision under s 100(6), and the Tribunal therefore has jurisdiction to consider Mrs Simpson’s application.
RELEVANT LEGISLATION
Section 18 of the Act permits a person to request to become a participant in the NDIS. Section 20 requires the CEO of the NDIA to decide within 21 days of receiving this request to make a decision on it, or seek more information. Section 21 sets out the access criteria an applicant must meet to become a participant. These include the requirement to meet either the disability requirements[1] in s 24 or the early intervention requirements in s 25.
[1] In this decision, italicised text is generally used to indicate direct quotations.
Section 99 states:
Reviewable decisions
Each of the following decisions of the CEO is a reviewable decision:
(a)a decision under paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) that a person does not meet the access criteria…
Section 100 provides:
Review of reviewable decisions
(1)The CEO must give written notice of a reviewable decision to each person directly affected by the reviewable decision. The notice must include a statement:
(a)that:
(i) the person may request the CEO to review the reviewable decision; or
(ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b)that the person may seek further review under section 103.
(2)A person who is directly affected by a reviewable decision may request the CEO to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3)A request may be made by:
(a)sending or delivering a written request to the CEO; or
(b)making an oral request, in person or by telephone or other means, to the CEO.
(4)If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a)make a written record of the details of the request; and
(b)note on the record the day the request is made.
(5)If:
(a)the CEO receives a request for review of a reviewable decision; or
(b)the CEO is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the CEO must cause the reviewable decision to be reviewed by a person (the reviewer):
(a)to whom the CEO’s powers and functions under this section are delegated; and
(b)who was not involved in making the reviewable decision.
(6)The reviewer must, as soon as reasonably practicable, make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision…
Section 103 in turn provides for the jurisdiction of the Tribunal:
Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6)…
AGREED FACTS
The parties agreed on the factual circumstances surrounding Mrs Simpson’s application to become a participant in the NDIS. The facts outlined below are based on the NDIA’s submission.
It is not clear when Mrs Simpson made her request to be a participant in the NDIS, but in a letter addressed to her and dated 11 January 2017 her request was rejected. The letter indicated that she did not meet the access criteria in s 21, in that she did not meet the disability or early intervention requirements in ss 24 or 25 (the access decision). The letter appears to be a decision pursuant to s 20(a), and was so characterised by the NDIA in its submission.
On 11 April 2017, NDIA’s records indicate that it received a phone call from Lorraine Wadley of Alzheimer’s Australia ACT, who stated that she was providing support to Mrs Simpson. NDIA’s records indicate that Ms Wadley informed NDIA that Mrs Simpson wanted to lodge an oral request appealing the access decision.
Over the following months various email and telephone communications occurred between the NDIA, Ms Wadley, other representatives of Alzheimer’s Australia and Mrs Simpson’s husband. A document entitled Application for a review of a reviewable decision was forwarded by email to NDIA on Mrs Simpson’s behalf on 29 November 2017.
On 4 January 2018, NDIA’s records indicate that an officer of NDIA telephoned an officer of Dementia Australia at 10.22am. The record of that call indicates, inter alia:
I advised the access decision was made in January 2017 and therefore they are out of review timeframemas she is over 65 she cannot reapply as she wouldn’t meet the age criteria. Suggested to apply for My Aged Care.[sic]
On 31 January 2018, Mrs Simpson lodged an application for review of decision with the Tribunal, referring to a decision dated 4 December 2017. NDIA’s records do not indicate that it made any decisions in respect of Mrs Simpson on 4 December 2017.
CONSIDERATION
According to the terms of s 103 of the Act, the Tribunal has jurisdiction to review certain decisions of the NDIA only if there has first been an internal review decision pursuant to s 100(6) of the Act. In this case, the Tribunal considers that there are two, alternate bases on which it can be said that an internal review decision under s 100(6) has been made.
Phone call of 4 January 2018 is an internal review decision
The access decision of 11 January 2017 refusing Mrs Simpson the status of a participant in the NDIS was a decision falling within the definition of a reviewable decision in s 99 – specifically under paragraph (a): a decision under paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) that a person does not meet the access criteria…
Mrs Simpson was aggrieved by this rejection and lodged an application to have it reviewed. It is not material that this was not done by her personally but by her representative at Alzheimer’s Australia ACT, nor that it was done by telephone rather than in writing: see s 100(3). The access decision was made on 11 January 2017 and Mrs Simpson’s request to have it reviewed was made on 11 April 2017; the latter therefore meets the requirement of s 100(2) that the request for review be made within three months after receiving the access decision.
By the terms of s 100 the NDIA was then required to cause the access decision to be reviewed and to make a decision to either confirm, vary or set it aside. The section requires that it do so as soon as reasonably practicable: subsection (6).
It cannot be said to be abundantly clear that the NDIA met its requirement to review the access decision, much less that it did so as soon as reasonably practicable. Nonetheless, I consider that the most appropriate construction that can be placed on the telephone call to Alzheimer’s Australia ACT on 4 January 2018 was that the NDIA affirmed its decision to refuse Mrs Simpson access. One may reasonably view the telephone call itself as the decision; it was, at the very least, evidence that the decision had been made. The content of the call dealt with finality with her request for review, even though – as summarised very briefly in the agency’s internal note – it appeared to be saying that it could not consider that request for review because it was out of time. Of course, the request for review was not out of time, but whatever the assumptions underpinning the decision communicated to Mrs Simpson’s representative, the import of that decision was clear: her request for review of the access decision was unsuccessful. It is the substance, and not the form, of the decision which characterises it: see ZKTN and National Disability Insurance Agency [2017] AATA 744 at [23]-[25].
There is no requirement in the Act for a decision confirming a reviewable decision under s 100(6) to be in writing. There is, however, the requirement in s 100(5) for the person confirming the reviewable decision (the reviewer) to be a person to whom the CEO’s powers and functions under that section have been delegated and who was not involved in making the reviewable decision. There was no explicit evidence before the Tribunal on this question, though I infer from the agency’s submission that it considered that the reviewer in this case did meet the requirements of subsection (5).
I consider in all the circumstances that the telephone call of 4 January 2018 constitutes a decision, or evidence of a decision, pursuant to that subsection. Accordingly, under s 103, the Tribunal has jurisdiction to review that decision. I note that the NDIA’s submissions to the Tribunal accord with this characterisation of the phone call.
NDIA’s failure to make a decision is a deemed decision under s 25(5) of the AAT Act
If I am mistaken in my construction of the telephone call of 4 January 2018, and there has in fact been no decision made by NDIA with respect to Mrs Simpson’s request for review of 11 April 2017 (or if the decision maker was not authorised under s 100(5) to make this decision), then I consider it is open to determine that such a decision has in fact been made by virtue of the operation of s 25(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Section 25(5) of the AAT Act provides:
Failure of decision-maker to meet deadline
For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
The interaction between s 100(6) of the Act and s 25(5) of the AAT Act was considered recently by the Tribunal in FJKH and NDIA [2018] AATA 1294. There, Deputy President Katherine Bean concluded that the period referred to in s 100(6) is a period prescribed for the purposes of s 25(5) of the AAT Act. In that case the period between the applicant seeking internal review under s 99 and the filing of an application for the Tribunal to conduct merits review was a little over six months; having determined that s 25(5), in principle, gave the Tribunal jurisdiction, the proceedings there were then adjourned to allow the parties to make submissions on the question of whether a failure by the NDIA to make a decision within six months amounted to a failure to decide as soon as reasonably practicable.
Deputy President Bean observed at [44]-[46]:
44. I should also observe that I do not regard it as entirely surprising given the nature of some of the decisions involved, that no specific timeframe has been imposed by the NDIS Act for the making of many decisions. Section 48 provides an instructive example in this regard. The decision whether or not to conduct a review of a participant’s plan must be made within 14 days of receiving the request. However, if the CEO decides to conduct a review, that review must be completed “as soon as reasonably practicable”. In my view, this approach reflects an acknowledgment of the multitude of facts and circumstances which will affect the speed with which a plan review can occur.
45. The plan involved could be a relatively straightforward one involving minimal expenditure, where the participant is seeking one additional support. At the other end of the spectrum, a participant with high and complex needs may have a plan which involves many different supports and a budget in the hundreds of thousands of dollars. Such a participant may be seeking multiple changes to the current plan for many different reasons, some based on expert opinion. I do not find it surprising that the Act does not impose a rigid timeframe in such circumstances, and that there is no provision for automatic escalation of such decisions to the next tier of merits reviews upon expiration of a specified timeframe. Rather, the requirement is that the review be conducted “as soon as reasonably practicable” having regard to the nature of the decision and all of the surrounding circumstances.
46. Viewed in this light, noting the multitude of different decisions which are reviewable decisions under the NDIS Act, and the multitude of different circumstances in which those decisions are required to be made, it is also not entirely surprising that s 100(6) does not impose a rigid timeframe, or a series of different timeframes, within which internal review decisions must be made. Rather, it requires internal review decisions to be made “as soon as reasonably practicable”. To my mind, however, that does not necessarily have the consequence that there is no applicable timeframe which can ever give rise to a deemed affirmation pursuant to s 25 of the AAT Act.
The logic used by the Tribunal in that case, in finding that the period referred to in s 100(6) is a period prescribed for the purposes of s 25(5), is persuasive, and I propose to follow it. Accordingly, in the circumstances of the present proceedings, I must now determine whether the NDIA’s failure to make a decision on Mrs Simpson’s request for review within a period of 9½ months constitutes a deemed decision under s 25(5).
I have the advantage in this case that the NDIA concedes that it did not make a decision as soon as reasonably practicable pursuant to s 100(6). Both parties have contended that its failure to do so means that the agency is deemed to have refused Mrs Simpson’s request for review. Notwithstanding that agreement, of course, the Tribunal must satisfy itself that the legislative requirements establishing jurisdiction have been met.
I am inclined to agree with the parties, however. There is nothing before the Tribunal to suggest that the issues given rise to by Mrs Simpson’s application to become a participant in the NDIS were particularly complex or unusual, such as to warrant an extensive period in which to decide. The letter of 11 January 2017 conveying the agency’s original decision to refuse her access summarises the reasons for doing so in just three short paragraphs. There is nothing before the Tribunal to suggest that other issues or evidence arose over the ensuing months which might have rendered the making of a decision on review of those reasons a challenging or difficult task for the agency. In reality, what was before the Tribunal was indicative simply of Mrs Simpson’s application falling between the cracks, and being overlooked. Sadly, the Tribunal is familiar with far too many cases where the statutory pathway for internal review has not been observed in a timely way, for reasons which appear related to pressures on the agency arising from the volume of applications it is dealing with. Those issues are addressed in the recent report of the Commonwealth Ombudsman on the NDIA’s handling of administrative reviews.[2]
[2] Commonwealth Ombudsman, Report No. 3, May 2018.
Against that background, I am persuaded that the decision was not made as soon as reasonably practicable, and as such Mrs Simpson’s application is deemed to have been refused. The Tribunal has jurisdiction to conduct merits review of that deemed refusal.
CONCLUSION
The Tribunal has jurisdiction to consider the application lodged on 31 January 2018.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
........................................................................
Associate
Dated: 22 May 2018
Date(s) of hearing: 21 March 2018 Date final submissions received: 6 April 2018 Solicitors for the Applicant: Ms L Wadley, Dementia Australia ACT Division Solicitors for the Respondent: Ms W Gibbons, National Disability Insurance Agency
3
2
0