RRSJ and National Disability Insurance Agency

[2024] AATA 2944

RRSJ and National Disability Insurance Agency [2024] AATA 2944 (16 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2024/4909      

Re:RRSJ  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member D Connolly

Date:16 August 2024

Place:Sydney

The Tribunal has jurisdiction to review the Respondent’s decision dated 27 May 2024.

The Tribunal grants an extension of time for the Applicant to proceed with her application for review.

.............[Sgd].........................

Senior Member D Connolly

CATCHWORDS

PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – request for an internal review decision withdrawn in error – no reassessment of the plan – original decision deemed to be affirmed – the Tribunal has jurisdiction – in the circumstances an extension of time to apply for review is granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member D Connolly

BACKGROUND

1. The Applicant is a participant of the National Disability Insurance Scheme (the NDIS).

2. On 14 February 2024, the National Disability Insurance Agency (the Respondent) approved a plan for the Applicant, with a reassessment date of 14 February 2025 (the original decision).

3. On 26 February 2024, the Applicant requested an internal review of the original decision.

4. On 5 April 2024, a letter titled “Withdrawal of your request for review” was sent to the Applicant. The letter referred to a telephone conversation between an Agency employee and the Applicant, purportedly concerning a discussion regarding withdrawal of the Applicant’s internal review request. The letter stated “[a]s discussed you have decided that a full reassessment is more suitable for you at this time.” The Respondent advised that an its systems indicated the Applicant withdrew the internal review request and opted for a plan reassessment pathway under section 48 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct).

5. The Applicant has provided her email correspondence with an Agency employee. According to the Applicant, she did not wish to withdraw her request for an internal review decision but was told by the Agency employee that she had no other options.

6. The Respondent did not conduct any plan reassessment or internal review of the original decision.

7. On 12 July 2024, the Applicant applied to the Tribunal for review. She also requested for an extension of time to lodge her review application.

8. At the interlocutory hearing held on 16 August 2024, I found that the Applicant’s request for an internal review had been withdrawn in error. I also found that the Respondent’s original decision was deemed to have been affirmed on 27 May 2024 (the affirmed decision). I made an oral decision that the Tribunal has jurisdiction to review the Respondent’s affirmed decision under provisions of the NDIS Act and the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). I also granted the Applicant an extension of time to lodge her present review with the Tribunal. I agreed to provide my reasons in writing.

   RELEVANT LEGISLATION

9. The Tribunal’s powers to review a decision to approve the statements of participant supports is provided for by paragraph 25(1)(a) of the AAT Act. It provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. The NDIS Act is such an enactment, as it provides in section 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6) of the NDIS Act.

10. Subsections 100(6) and (6A) of the NDIS Act state:

    (6) The reviewer must 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.

    (6A) The reviewer must make the decision under subsection (6):

    (a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or

    (b) if there are no such rules—within the periodof 90 days beginning on:

    (i) if paragraph (5)(a) applies—the day the request is received; or

    (ii) if paragraph (5)(b) applies—the day after the end of the period applicable under paragraph 21(3)(a) or (b) or subsection 47A(5) or 48(4) (as appropriate).

11. Subsection 25(5) of the AAT Act states:

    (5) 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.

    INTERLOCUTORY HEARING

12. The Tribunal held an interlocutory hearing by telephone on 16 August 2024. The Applicant was represented by her advocate, Miss Anderson. The Respondent was represented by Mr Woolley. Both parties made oral submissions.

13. Prior to the interlocutory hearing the parties filed their respective submissions. They include:

    (a)The Applicant’s submissions, filed on 18 July 2024;

    (b)The Applicant’s medical evidence, filed on 22 July 2024;

    (c)The Respondent’s submissions, filed on 2 August 2024; and

    (d)The Respondent’s further submissions, filed on 15 August 2024.

14. In the Applicant’s submissions she confirmed she did not wish to withdraw her request for an internal review. She stated that she had not decided to withdraw her request for a review, rather she was advised by an Agency employee that the only option in her circumstances was a plan reassessment.

15. The Respondent submitted in its further submissions, that it would not oppose any finding that the Applicant’s request for an internal review was withdrawn in error, and if the Tribunal were to find that the withdrawal was an error, the 90-day prescribed time limit for the Agency to make a decision would have expired under subsection 100(6A) of the Act on 26 May 2024. In other words, the original decision could be deemed by the Tribunal to have been affirmed under subsection 25(5) of the AAT Act on 27 May 2024.

16. The Respondent further submitted that, since the Applicant cannot be said to have rested on her rights, the Respondent does not oppose to the Applicant’s request for an extension of time for her review application to proceed.

17. At the hearing the Respondent confirmed that it maintained the position as stated in its further submissions. The Applicant’s representative confirmed the Applicant was content with the Respondent’s latest position.

    CONSIDERATION

18. The Tribunal is satisfied that on 26 February 2024, the Applicant made a request for an internal review of the original decision, that is, a decision to approve the statement of participant supports in her plan.

19. The Tribunal is satisfied that the withdrawal of the Applicant’s request for an internal review was made in error on 5 April 2024. The Applicant did not intend to withdraw her request for internal review but was advised by an Agency employee that the only option open to her was a section 48 plan reassessment.

20. As a reviewer did not make a decision by 26 May 2024, that is within 90 days of receiving the Applicant’s request for internal review, the original decision was deemed to have been affirmed on 27 May 2024.

21. The Tribunal is satisfied that the affirmed decision dated 27 May 2024, made under subsection 33(2) of the NDIS Act, is a reviewable decision as set out in section 99 of the NDIS Act. By virtue of sections 99 and 103 of the NDIS Act, as well as paragraph 25(1)(a) of the AAT Act, the Tribunal has jurisdiction to review the affirmed decision.

22. The Tribunal is further satisfied that the Applicant has not rested on her rights, and it is appropriate in the circumstances to grant an extension of time to allow the Applicant to proceed with her review.

    INTERLOCUTORY DECISION

23. The Tribunal has jurisdiction to review the Respondent’s decision dated 27 May 2024.

24. The Tribunal grants an extension of time for the Applicant to proceed with her application for review.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

.....................[Sgd]..........................

Associate

Dated: 20 August 2024

Date(s) of hearing:	16 August 2024
Date final submissions received:	15 August 2024
Advocate for the Applicant:	Ms N Anderson, Villamanta Disability Rights Legal Centre
Solicitors for the Respondent:	Ms L Woolley