Re Simpson and National Disability Insurance Agency

This matter concerned an application to the Administrative Appeals Tribunal (AAT) for review of a decision made by the National Disability Insurance Agency (NDIA). The applicant, Mrs Simpson, sought to challenge an earlier decision of the NDIA that refused her access to the National Disability Insurance Scheme (NDIS). The central dispute revolved around whether the AAT had jurisdiction to hear the application, which depended on whether an internal review decision had been made by the NDIA as required by the relevant legislation.

The primary legal issue before Deputy President Gary Humphries was whether an internal review decision under section 100(6) of the relevant Act had been made by the NDIA. This was crucial because the AAT's jurisdiction to review certain NDIA decisions, as stipulated by section 103 of the Act, is contingent upon a prior internal review decision. The Tribunal was required to determine if a telephone call made by the NDIA to Mrs Simpson's representative constituted such a decision, or at least evidence of one, and whether the NDIA had fulfilled its obligation to conduct the review as soon as reasonably practicable.

The Tribunal reasoned that an internal review decision could be established on at least two alternative bases. Firstly, the initial access decision of 11 January 2017, which refused Mrs Simpson NDIS participant status, was a reviewable decision under section 99. Mrs Simpson's request for review, lodged by her representative on 11 April 2017, was within the three-month time limit prescribed by section 100(2). The NDIA was then obliged under section 100(6) to review this decision as soon as reasonably practicable. The Tribunal found that a telephone call on 4 January 2018 to Mrs Simpson's representative, which communicated that her request for review was unsuccessful, was the most appropriate construction of an internal review decision. The Tribunal emphasised that the substance, rather than the form, of the communication determined its character, and the call clearly indicated the finality of her review request, even if based on a mistaken assumption about the timeliness of the request. The Tribunal also noted that there was no statutory requirement for such a decision to be in writing.

The Tribunal concluded that it had jurisdiction to review the NDIA's decision. The telephone call on 4 January 2018 was considered to be an internal review decision, or at least evidence of one, satisfying the jurisdictional prerequisite under section 103 of the Act.