Ryan and National Disability Insurance Agency

[2022] AATA 4186

Ryan and National Disability Insurance Agency [2022] AATA 4186 (17 November 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/7061

Re:Maxwell John Ryan

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member D. Connolly

Date:17 November 2022

Place:Sydney

The application made by Mr Maxwell John Ryan is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD]...................................
Senior Member D. Connolly

CATCHWORDS 

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – application for review of a decision that applicant does not meet the access requirements of the National Disability Insurance Scheme Act 2013 (Cth) – whether applicant was aged under 65 years when access request made – no reasonable prospect of success – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

National Disability Insurance Scheme Act 2013 (Cth) ss 21-25

REASONS FOR DECISION

Senior Member D. Connolly

28 November 2022

BACKGROUND

1. The Applicant, Mr Maxwell John Ryan (Mr Ryan), was born on 30 September 1947.[1]

   [1] T Documents, T1, p 2

2. Mr Ryan’s son and representative, Mr Kishore Ryan, completed on Mr Ryan’s behalf, an access request form to become a participant in the National Disability Insurance Scheme (the NDIS) on 26 July 2022.[2]

   [2] T Documents, T10, p 107.

3. On 5 August 2022, the National Disability Insurance Agency (the NDIA) decided that Mr Ryan did not meet the access criterion specified in paragraph 22(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) because he was not aged under 65 when the access request was made. The decision was confirmed on internal review on 23 August 2022.[3]

   [3] T Documents, T1E, p 46.

4. On 30 August 2022, Mr Ryan made an application for review to the Administrative Appeals Tribunal (the Tribunal).[4]

   [4] T Documents, T1, p 1.

5. The Respondent wrote to the Tribunal on 5 October 2022 seeking dismissal under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that the application for review has no reasonable prospects of success, as Mr Ryan cannot meet the age requirement.

6. The parties and the Tribunal agreed on 6 October 2022 to postpone the interlocutory hearing to allow Mr Ryan to seek legal advice at an appointment with Legal Aid on 9 November 2022.

   RELEVANT LEGISLATION

7. The access criteria to become a participant in the NDIS includes the following requirement set out in subsection 21(1) of the NDIS Act:

   A person meets the access criteria if:

   (a)  the CEO is satisfied that the person meets the age requirements (see section 22); and

   …

8. Section 22 of the NDIS Act sets out the age requirements as follows:

   (1)  A person meets the age requirements if:

   (a)  the person was aged under 65 when the access request in relation to the person was made; and

   (b)  the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules. 

9. Subsection 42B(1) of the AAT Act states:

   The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)   is otherwise an abuse of the process of the Tribunal.

   INTERLOCUTORY HEARING

10. The Tribunal held an interlocutory hearing by telephone on 17 November 2022. Mr Ryan was represented by his adult children, Mr Cordell Ryan and Mr Kishore Ryan. The Respondent’s legal representative attended the hearing and made oral submissions.

11. At the hearing Mr Cordell Ryan confirmed that Mr Ryan was born on 30 September 1947 and was aged 74 at the time the access request was made. He confirmed that he understood that section 22 of the NDIS Act required that Mr Ryan was aged under 65 when the access request was made.

12. The Tribunal explained to Mr Ryan’s children that its statutory obligation was to apply the relevant law. Mr Cordell Ryan claimed that he is aware that some people are granted access to the NDIS after turning 65, due to the discrepancy between aged care packages and NDIS packages. He also argued that the law is discriminatory. He acknowledged that the Tribunal is required to apply the legislation but wanted to put on record that the “Anti-Discrimination Act” was changed to address the ageism inherent in the NDIS legislation. He referred to the Royal Commission into Aged Care Quality and Safety’s recommendations 72 and 73 which address the discrepancy between aged care programs and supports under the NDIS. It was also raised that the NDIS was not available when Mr Ryan was 65 so he did not have an opportunity to access the Scheme.

13. The Respondent’s representative submitted in summary that the current legislation, which applies to Mr Ryan’s application, limits the Agency’s decision-making and it has no discretion with respect to the age requirements.

14. With respect to Mr Cordell Ryan’s submission that people are being granted access to the NDIS after turning 65, the Tribunal explained that it may be that they made their access request before turning 65, but the application was not processed and decided until after they turned 65. The Tribunal explained that it was not aware of any legislative provision which would allow a decision-maker to waive the mandatory age requirement when an access request is made. There was some discussion about whether the Minister had any power to intervene in NDIS matters. The Respondent’s representative confirmed that she was not aware of any such power.

15. The Tribunal explained that, while it accepted there may be support for the view that the age requirement is unfair, it has a statutory obligation to apply the current law which requires that the age requirement is met. It explained that it was not aware of any discretion and so the age requirement is mandatory.

    CONSIDERATION

16. The Tribunal is satisfied that the age requirement in sections 21 and 22 of the NDIS Act – that the person is aged under 65 when they make their access request – is a mandatory requirement for a person to access the NDIS. There is no discretion in the NDIS Act that would allow the age requirement to be disregarded because of Mr Ryan’s circumstances.

17. As Mr Ryan was not aged under 65 on 26 July 2022, when his access request was made, the Tribunal is satisfied that his application for review cannot succeed.

18. For these reasons the Tribunal finds Mr Ryan’s application has no reasonable prospect of success and is dismissed pursuant to paragraph 42B(1)(b) of the AAT Act.

19. At the hearing the Tribunal informed Mr Ryan’s sons that it would be dismissing the application for review on the basis that it has no reasonable prospect of success. The Tribunal was asked – and agreed – to provide written reasons because Mr Ryan is involved in a class action that is arguing that the age requirement is discrimination according to international law.

    DECISION

20. The application made by Mr Maxwell John Ryan is dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of SM Denise Connolly

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

Associate

Dated: 28 November 2022

Date(s) of hearing:	17 November 2022
Applicant:	Mr M J Ryan
Advocates for the Applicant:	Mr C Ryan and Mr K Ryan
Solicitor for the Respondent:	Ms S Quang, HWL Ebsworth Lawyers