RVNL and National Disability Insurance Agency

[2021] AATA 588

RVNL and National Disability Insurance Agency [2021] AATA 588 (18 March 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/0495

Re:RVNL

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:18 March 2021

Place:Sydney

The Tribunal decides to dismiss the application for lack of jurisdiction.

...........................[SGD].............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – whether internal review conducted – internal review not completed at the time of application for review – Tribunal does not have jurisdiction – application dismissed.

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 33, 100, 103

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

18 March 2021

BACKGROUND

1. A brief history of this matter is as follows.

2. On 7 August 2020, the respondent made a decision under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) to approve the statement of participant supports in the applicant’s plan.

3. On 15 October 2020, the applicant’s stepfather lodged a request for internal review of the statement of supports contained within the plan dated 7 August 2020 under section 100(6) of the Act. At this time, the applicant’s stepfather was not an authorised representative, and so the request was considered an unauthorised request and not processed by the respondent.

4. On 17 November 2020, the applicant, by email from his mother and stepfather, provided further information in support of this request.

5. On 8 December 2020, the applicant’s mother provided consent to the review request being progressed.

6. On 11 January 2021, the applicant’s stepfather was authorised as a representative.

7. On 1 February 2021, the applicant lodged a request for external review by the Administrative Appeals Tribunal (the Tribunal).

   THE ISSUE

8. The issue is whether the Tribunal has jurisdiction to review the application filed on 1 February 2021 in view of the fact that no internal reviewable decision has been made by the respondent.

   DISCUSSION

9. The first matter for consideration is whether the requirements of section 100(2) of the Act have been met. The applicant made a request within the three-month period of receiving notice of the decision as required by section 100(2) of the Act. However, at the time the request was first made by the applicant’s stepfather on 15 October 2020, he was not an authorised representative and so the request was not progressed at that time.

10. The applicant’s stepfather was authorised as a representative on 11 January 2021. On 1 February 2021, the applicant lodged a request for internal review by the Tribunal. At that time, no internal review decision had been completed. Accordingly, there was no decision to review.

11. In this case, the question as to whether the respondent made a decision as soon as reasonably practicable does not arise. I agree with the respondent’s submission that the prescribed period of time did not commence until proper authorisation and confirmation in relation to the internal review request was received on behalf of the applicant.

12. I note that the respondent has already begun to progress a fast-tracked section 100 review of the supports requested by the applicant. At the hearing, the respondent’s representatives advised that they anticipated that this review would be completed by the end of the month, subject to any further submissions by the applicant and the necessary time that would be needed to consider those submissions. I note further that the applicant’s representatives said that all additional material requested by the agency had been provided.

13. As an internal review of the decision of the applicant’s plan has not yet been completed, unfortunately at the moment there is no decision made by a “reviewer” under section 100 which can be reviewed by the Tribunal under section 103 of the Act. The Tribunal therefore does not have jurisdiction in these circumstances.

    DECISION

14. In the circumstances of this case, I am satisified that the correct or preferable decision is for the Tribunal to dismiss the application for lack of jurisdiction.

15. The applicant can make a fresh application to the Tribunal if not satisified of the outcome of the fast-tracked internal review conducted by the respondent.

16. I note that, although outside the Tribunal’s authority, the applicant noted at the hearing that they are currently without support provided by the respondent and this is causing severe problems for the applicant and their family. The respondent’s representative advised that she would relay the family’s concerns to the Agency so that they are aware of the difficult position in which the applicant’s family have been placed. No doubt this will be taken into account by the agency.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..................................[sgd]......................................

Associate

Dated: 18 March 2021

Dates of hearing:	10 March 2021
Applicant’s representative:	Father (by telephone)
Respondent’s representative:	Ms C Broad, National Disability Insurance Agency