Sharp and National Disability Insurance Agency - [2023] AATA 1323

Sharp and National Disability Insurance Agency [2023] AATA 1323 (25 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/1406
Re:Kirsty Sharp
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:25 May 2023
Place:Canberra

The Tribunal has jurisdiction to review the internal review decision on 30 January 2023. The time for lodging Ms Sharp’s application for review is extended to 28 February 2023.
……………………[SGD]……………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for extension of time in which to make an application for review – short delay – reasonable explanation for delay – no prejudice – prospect of success – availability of alternative remedy – reasonable in all the circumstances to exercise discretion – application granted
NATIONAL DISABILITY INSURANCE SCHEME – jurisdiction – decision to refuse inclusion of additional disability in the context of decision approving statement of supports – no provision for reapplication of access criteria – progressive decision-making – request for internal review of decision – alleged error – alleged invalidity – inadequate statement of reasons for the original decision – scope of internal review power – internal review decision not invalid – rectifiable error – scope of Tribunal review jurisdiction – Tribunal has jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 29
National Disability Insurance Scheme Act 2013 (Cth), ss 21, 24, 33, 34, 37, 99, 100, 103
CasesCollector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Goodliff and National Disability Insurance Agency [2021] AATA 5022
HRZI and National Disability Insurance Agency [2023] AATA 481
LQTF and National Disability Insurance Agency [2019] AATA 631
McLaughlin and National Disability Insurance Agency [2021] AATA 496
Public Service Board of NSW v Osmond [1986] HCA 7
Rogers and National Disability Insurance Agency [2022] 2809
QDKH v National Disability Insurance Agency [2021] FCAFC 189
REASONS FOR DECISION
Mr S. Webb, Member
25 May 2023

Kirsty Sharp is a participant in the National Disability Insurance Scheme (Scheme). A delegate of the CEO of the National Disability Insurance Agency (Agency) approved a Statement of Participant Supports (SOPS) for her. Ms Sharp was not satisfied with the SOPS decision and requested internal review under s 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act). The Agency reviewer affirmed the SOPS decision and decided Ms Sharp suffered from a “secondary disability” which did not meet the access criteria set out in s 24 of the NDIS Act (internal review decision). Unhappy with this decision, Ms Sharp applied to the Tribunal for review.
As her application was lodged outside the time prescribed in under s 29(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act), she asked the Tribunal to grant an extension of time to enable her application to proceed.
The Agency asserts the Tribunal lacks jurisdiction to review the application as the internal review decision was made in error and it is not a decision reviewable by the Tribunal. For this reason, the NDIA contends the Tribunal should dismiss Ms Sharp’s application under s 42A(4) of the AAT Act. Despite initially opposing Ms Sharp’s application for an extension of time, after the interlocutory hearing the Agency’s legal representative informed me, if the Tribunal finds it has jurisdiction to review the application, the Agency does not oppose the grant of an extension of time to allow Ms Sharp’s application to proceed.
Consequently, there are 2 interlocutory issues to be decided in respect of jurisdiction and time. Before dealing with these issues, it is helpful to set out relevant facts.
Facts
Ms Sharp has disability attributable to mental and physical impairments. She suffers from physical and mental health conditions, namely Chronic Obstructive Pulmonary Disease (COPD); depression or Bipolar Schizophrenia; and Pulmonary HT.[1]
[1] Finley Hospital Discharge notes, 27 February 2023 and 13 March 2023.
Ms Sharp is a participant in the NDIS. The Agency’s decision to grant her access to the NDIS, including in respect of meeting the access criteria in s 21 of the NDIS Act and the disability requirements in s 24, has not been provided to the Tribunal.
On 26 September 2022, Dr Chazan, a physician, made the following report following spirometry testing of Ms Sharp:
Spirometry demonstrated severe airflow obstruction and there was no bronchodilator response on this occasion. FVC was reduced in keeping with coexistent pulmonary restriction or gas trapping.
The gas transfer factor was mildly reduced.[2]
[2] Shepparton Lung Function Laboratory, 26 September 2022.
On 16 October 2022, Alistair Clark, a physiotherapist, produced a report. The purposes of the report were stated to be:
1. To provide Kirsty and the NDIS a Physiotherapy assessment.
2. To provide Kirsty and the NDIS a proposed Physiotherapy therapy for ongoing care.
3. To gain NDIS funding for Physiotherapy to ensure optimal outcomes for Kirsty.
4. To assist Kirsty in achieving her NDIS goals.
Mr Clark made the following recommendations:
● A minimum of 88hrs be allocated to a career for Physiotherapy appointments.
oIt is my clinical opinion that a carer be present for all appointments with Kirsty. This is for the safety of the clinician and to help Kirsty achieve her NDIS goals.
● An additional 10hrs be set aside for occupational therapy assessment and
recommended advice.
● In the event Kirsty is approved for physical disability with the NDIA. I
recommend the provision of funding for a mobility scooter for Kirsty. This is to
enable increased mobility, enabling Kirsty to perform daily tasks
independently and increased social participation
oFor instance: Light shopping and catching up with friends down the
street with independent modes of transportation.
On 16 November 2022, Ms Sharp or her Support Coordinator interacted with the Agency. The Agency’s notes of this interaction set out the following information:
Notes: Documents provided to support additional disability of Chronic Lung
Disease. Documents uploaded on 16/11/2022 are:
1) KIRSTY SHARP dr report 30sept22 page1
2) KIRSTY SHARP dr report 30sept22 page2
3)KIRSTY SHARP spirometry report 26sept22 page1
4) KIRSTY SHARP spirometry report 26sept page2
5) Email from Support coordinator: Re Kirsty Sharp SECOFFICIAL
It has been accepted that the participant has been diagnosed with a Chronic
Lung Disease which is likely to be permanent and primarily results in a
permanent impairment such as breathlessness and fatigue. Her symptoms
result in preclusion to participate in functional activities. Kirsty is sedentary for
a great part of the day as she is severely restricted by her chronic lung
function and finds it difficult to perform functional activities due to shortness of
breath.
Secondary Disability of Chronic Lung Disease added to participant record on
16/11/2022.
On 22 November 2022, following discussion with the Agency’s Technical Advice Branch on 17 November 2022, the Agency’s interaction notes were updated with the following information:
After discussion with TAB on 17.11.2022. The Secondary Disability of Chronic
Lung Disease has been removed from the participant record.
The participant may meet eligibility in the future, after further evidence is
provided.
On 23 November 2022, Mr Clark produced a further report in response to your decision to decline Ms Kirsty Sharp’s application to the NDIS based on the pretense that she does not meet Section 24 (1-b) of the NDIS Act 2013.
On 24 November 2022, a delegate of the NDIA CEO approved a SOPS for Ms Sharp under s 33(2) of the NDIS Act. This was instrumental in the coming into effect of a participant’s plan for Ms Sharp under s 37(1) of the NDIS Act on that day (Plan).
The Plan does not specify Ms Sharp’s disability or disabilities, or any impairments to which it relates. It contains sections headed My Profile and My Goals, which amount to a Statement of Goals and Aspirations for the purposes of s 33(1) and 37(1) of the NDIS Act. The My Profile section sets out personal information of Ms Sharp, in which express reference is made to her physical and mental disabilities,[3] and information in respect of My Services and community involvement:
-GP – Finlay Medical Centre
-Psychiatrist – Cobram
-Physiotherapist – Berrigan
[3] Plan, page 4.
The Plan sets out information about Core Supports and Capacity Building Supports which are funded under the SOPS and the Plan.
Notice of the Plan was sent to Ms Sharp on 24 November 2022. The notice states:
You can request an internal review of a decision about this plan within three months of receiving this notice…
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for external review by the Administrative Appeals Tribunal (AAT).
On 5 December 2022, Ms Sharp (or her Support Coordinator) requested internal review. The Agency’s interaction notes suggest the request was not responded to until 13 January 2023 and include the following information:
13.01.2023 15:20:46 AMK458
IRT Intake completed by: AMK458
Date received by Agency: 05/12/2022
Authorised Representative:
Acknowledgement letter sent: 13/01/23
Core issues associated with review request:
TAB advice requested additional evidence.
Requesting additional disability of COPD be included in plan.
- Declined by TAB and planner
Risk : low
Plan Date: 24.11.2022-23.11.2024
Work ID 8007078364
Type of s100: Statement of Support
S100 Internal Review 05/12/2022
The request was referred to a reviewer for internal review under s 100 of the NDIS Act. The Agency asserts the reviewer consulted the Agency’s Technical Advisory Branch and Ms Sharp (or her Support Coordinator) on 17 and 24 January 2023, and Ms Sharp confirmed the request to have COPD added as a secondary disability on her record was “her only request at this stage”. The Agency’s interaction notes on 24 January 2023 set out the following information:
Date: 24.01.2023
Pre-Contact SMS Sent: Noi
Contact with: Kirsty Sharp
Phone no: 0358147722
Consent confirmed: yes - as per third party consent and Kirsty Sharp provided verbal consent to send a copy of decision letter to her SC (Julie Carrington)
POI Confirmed: Yes- 3-point security check PTT's full name, address, DOB, and SC full name, organisation name, work email.
Review requests as confirmed: yes.
Request/s: to have Chronic Obstructive Pulmonary Disease (COPD) added as a secondary disability on her record.
Kirsty has advised that new physio report has also been provided. This is her only request at this stage.
PPT also advised that no other evidence needs to be provided and has provided verbal consent to proceed with the review request.
Further evidence requested: No
Agreed timeframe: N/A
Preferred Plan Duration discussed: No changes.
Preferred Plan Management: No changes
Next steps informed: Outcomes letter will be emailed to the PPT and the SC and if PPT or the SC needs to discuss the review outcome, then I can be contacted vis a reply email for a phone conversation.
On 30 January 2023, the reviewer issued notice of an internal review decision under s 100 of the NDIS Act in which the reviewer confirmed the original decision is correct. The reviewer expressly referred to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules) and s 34 of the NDIS Act and included the following reasons for the decision:
1. Chronic Obstructive Pulmonary Disease (COPD) to be considered as a secondary disability
NDIS Act Section 34(1)(f) criteria: Responsibility of the NDIS to fund.
All NDIS supports must be most appropriately provided through the NDIS and not other general service or support systems, such as the employment, education, health and family support services. These services are available to all Australians. We can’t fund a support if it’s the responsibility of another service system. I am not satisfied this support is the responsibility of the NDIS to fund. This is more appropriately provided by the Department of Health.
I have considered the evidence provided to have your request for chronic obstructive pulmonary disease (COPD) to be listed as a secondary disability. Based on current available evidence, I have deemed that your physical impairment as a result of COPD do not meet all the NDIS Access Criteria.
…
… As there is insufficient evidence to suggest the condition has been fully treated, it is therefore not our responsibility as the Health System should provide treatment. We are unable to confirm it is permanent and therefore not our responsibility to fund supports. Based on the above information, your diagnosis of COPD do not meet all Section 24 criteria of the NDIS Act 2013 for Access to the NDIS.
The Agency’s interaction notes from 30 January 2023 include the following:
Date: 30.01.2023
Decision Outcome -Confirm
An s100 review was completed on 30.01.2023.
Supports reviewed were:
Chronic Obstructive Pulmonary Disease (COPD) to be added as a secondary disability.
A decision was made based on the evidence available at the time of review.
All documents relevant to the decision, including the decision letter are uploaded to CRM inbound documents, ‘s100 internal review request 05.12.2022’ or attached to the s100 form. A copy of the decision letter has been emailed to participant … on30.01.2023.
If not satisfied with the decision, they may also apply to the Administrative Appeals Tribunal (AAT) for a further external review within 28 days of receiving the letter.
More details about AAT are included in the letter.
Ms Sharp received the internal review decision on 30 January 2023.
On 28 February 2023, Ms Sharp’s Support Coordinator lodged an application for review of the internal review decision by the Tribunal. The application was 1 day outside the prescribed 28 day time limit prescribed in s 29(3) of the AAT Act. The reasons given for the application for review are squarely directed to issues relevant to s 24 of the NDIS Act, particularly in respect of the treatment and permanence of Ms Sharp’s COPD.
On 8 March 2023, Ms Sharp’s Support Coordinator lodged an application for an extension of time, setting out the following explanation for the failure to meet the 28 day time limit:
Kirsty Sharp was hospitalised due to her debilitating condition of CPOD and I was unable to contact her, this meant that the application was one day late.
On 24 March 2023, the Agency informed the Tribunal it opposed the extension of time application and stated:
This Respondent considers that this correspondence cannot be reviewed by the Tribunal under s103(1).
The Respondent submit that it erred in reviewing the request for a secondary impairment being ‘accepted’ under s100. Such a decision is not a reviewable decision caught under s99 once a participant is found to meet the Access requirements, as the Applicant did in August 2019.
The Respondent’s power to review a decision under s100(6) is restricted to decisions stipulated under s99. As above, the decision purported to be reviewed in the decision dated 30 January 2023 is not reviewable under s100(6), and so the Respondent lacked the legal power to make the decision. For this reason the decision is invalid.
If the Applicant wishes to advance a request for further supports relating to new impairments, then the must seek a review of those supports specifically, not the underlying impairment that they may relate to.
I conducted interlocutory hearings on 11 April 2023, in which the parties made submissions and were given opportunity to consider and adduce further relevant materials.
On 14 April 2023, the Agency provided extracts of its interaction records and related submissions.
The interlocutory hearing resumed on 18 April 2023 and each party made further oral submissions.
Jurisdiction
The Agency asserts Ms Sharp’s request for COPD to be included in her NDIS profile does not amount to a request for internal review of the 24 November 2022 decision. A request for a secondary impairment to be ‘accepted’ is not a reviewable decision for the purposes of s 99 of the NDIS Act and it is not, therefore capable of internal review under s 100. For this reason, the Agency argues the internal review decision was made in excess of power under s 100(6) of the NDIS Act, and it is invalid. Addressing this point, the Agency provided the Tribunal with the following submissions:
The Respondent submits that the purported decision under review is, in fact, not a reviewable decision under s99. It was made in error.
The Respondent submits that once a participant is granted access to the scheme for one or more conditions, they do not need a formal assessment under s24 of any other conditions for which they might seek supports. Nonetheless, the Agency does an assessment of the impairments, permanence, and functional capacity in arriving at a decision as to what supports are reasonable and necessary for any subsequent conditions.
In any case, The Respondent submits the decision under review was not a decision to approve a plan of supports under s33 (which is a reviewable decision under s99) as the Applicant did not request any additional supports.
Accordingly, the Respondent submits that the foregoing leads to the conclusion that the Tribunal must dismiss the application because the decision is not reviewable by the Tribunal: s42A(4) of the AAT Act.
If the Applicant wants to progress their request, they will need to request a change in circumstances for a s48 reassessment by the Agency and provide additional evidence in support of the COPD condition, and the specific supports they wish to be included as part of their plan arising from the impairments of COPD.
The Agency draws support for the proposition the Tribunal lacks jurisdiction to review the internal review decision from Goodliff and National Disability Insurance Agency[4] (Goodliff). The Agency asserts Goodliff turned on facts similar to those in Ms Sharp’s case in which Ms Goodliff sought inclusion of additional conditions to those accepted by the Agency, in respect of which the Tribunal decided it lacked jurisdiction.
[4] [2021] AATA 5022.
Through her legal representatives, Ms Sharp submitted the approach adopted by the Agency is incorrect. She asserts the point of the issue relating to inclusion of COPD under her NDIS profile is to obtain funding for supports identified by Mr Clark in his report on 16 October 2022. She relies on Rogers and National Disability Insurance Agency[5] (Rogers) when arguing the terms of her request for internal review recorded in the Agency’s interaction notes should be construed broadly and generously. Following QDKH v National Disability Insurance Agency[6] (QDKH), there is no requirement for her to specify supports she is seeking, so the argument goes, as this is a matter for the decision-maker to assess and decide.
[5] [2022] 2809 at [41].
[6] [2021] FCAFC 189.
Ms Sharp asserts, even if the internal review decision is invalid (which she did not concede), it is reviewable by the Tribunal because it accords to the three criteria the Tribunal in LQTF and National Disability Insurance Agency[7] (LQTF) distilled from Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[8] (Brian Lawlor), namely:
48. … The first is that the exercise of power by the decision-maker may be either an actual or a purported exercise and may be a lawful or an imperfect, or perhaps unlawful, exercise of the power that has been conferred. The second feature that must be present is that the power that has been either actually or purportedly exercised must be a power expressly or implicitly given by the relevant enactment. The third feature is that the decision must be a decision in respect of which a person may make an application to the Tribunal.
[7] [2019] AATA 631 at [46]-[50].
[8] [1979] FCA 21
The Tribunal’s jurisdiction in a case of this kind is conferred by s 103 of the NDIS Act for the purposes of s 25 of the AAT Act. Essentially, the jurisdiction conferred is for review of a decision made under s 100(6) of the NDIS Act.

It is necessary to consider the terms of s 100:
(1) The decision‑maker of a reviewable decision must give written notice of the reviewable decision, and of the reasons for the reviewable decision, to each person directly affected by the reviewable decision.
(1A) The notice must include a statement:
(a) that:
(i) the person may request a review of the reviewable decision in accordance with this section; or
(ii) if the decision‑maker is taken to have made the reviewable decision because of subsection 21(3), 47A(5) or 48(4)—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 decision‑maker 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 decision‑maker; or
(b) making an oral request, in person or by telephone or other means, to the decision‑maker.
(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 decision‑maker receives a request for review of a reviewable decision; or
(b) the decision‑maker is taken to have made a reviewable decision because of subsection 21(3), 47A(5) or 48(4);
the decision‑maker (the reviewer) must review the reviewable decision.
(5A) The decision‑maker cannot review the reviewable decision personally if the decision‑maker was involved in making the reviewable decision.
(5B) A delegate of the decision‑maker cannot review the reviewable decision if the delegate was involved in making the reviewable decision.
(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).
(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision‑maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.
(8) A failure of the decision‑maker to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.
The term reviewable decision refers to a reviewable decision set out in the table following s 99(1). It is necessary only to consider Item 1 and Item 4 in the table for present purposes. Item 1 refers to a decision the person does not meet the access criteria under s 20(1)(a), s 21(3) or s 26(2)(c). Item 4 refers to a decision to approve the statement of participant supports in a participant’s plan under s 33(2).
In Ms Sharp’s case, the 24 November 2022 decision to approve the SOPS under s 33(2) is a reviewable decision. The requirement in s 100(1) and (1A) to give Ms Sharp a notice of the SOPS decision and the reasons for it does not appear to have been met. On the available materials, the only notice she was given is the Notice of the Plan on 24 November 2022, which does not set out reasons for the SOPS decision and it does not address any supports which were found not to be reasonable and necessary for the purposes of s 33(5) and s 34(1) of the NDIS Act. Furthermore, the Notice does not set out any particular disability or impairments to which it relates, in respect of which supports may be provided or funded, or on which Ms Sharp was found to meet the access criteria in s 21 of the NDIS Act. The Notice and the Plan do not refer to Ms Sharp’s disability attributable to impairments resulting from COPD, and no reference is made to the supports recommended by Mr Clark. On the terms of these documents, it is not possible to know if such matters were considered and decided. It is necessary to go to the Agency’s interaction notes to discover what occurred, by inference at least, in the decision-making process.
It is a matter of concern that an Agency of the Commonwealth with responsibility for administering the NDIS appears to have failed to adhere to the requirements of the legislation it administers, as well as the basic tenets of contemporary procedural fairness and administrative decision-making, which requires an administrative decision-maker provide reasons for a decision to a person whose rights, entitlements or reasonable expectations are adversely affected by it. One might expect this is especially important in respect of government administrative decision-making for people with disability, when making a decision about supports for a participant in the NDIS. Otherwise, how is an NDIS participant to understand or even to know the matters decided, positively and negatively, in respect of reasonable and necessary supports, including any limits in respect of disability or impairments for which supports will not be funded, if they are not given a decision setting out such matters? The point is sharpened in the context of legislation, including s 100(2) of the NDIS Act, which prescribes a time limit upon exercise of the statutory right to request review of such a decision. It is apposite to recall Deane J’s observation in Public Service Board of NSW v Osmond[9]: the exercise of a decision-making power in a way which adversely affects others is less likely to be, or to appear to be, arbitrary if the decision maker formulates and provides reasons for his decision.
[9] [1986] HCA 7 at [1].
Nevertheless, albeit not exposing an intention contrary to s 100(1) or excusing failure to comply with the duty to provide notice of a decision and the reasons for it, s 100(8) operates to preserve the validity of the SOPS approval decision under s 33(2) and Ms Sharp’s right to request review. Nonetheless, the seriousness of the apparent failure of the Agency to comply with the legal obligation to provide reasons for the SOPS decision in this case would be elevated if the failure to provide reasons for such a decision is systemic. Providing a participant with a formulaic plan setting out supports that will be provided or funded does not satisfy the requirement to inform the person of supports that will not be provided or funded and the reasons for this. A systemic failure to provide reasons for administrative decisions made under s 33(2) of the NDIS Act would be a matter of serious concern one would expect the CEO to promptly address.
The significance of such a failing in this case is that, on review, it is not easy to determine with certainty what was before the original decision-maker and the content of what was decided, positively and negatively.
Doing the best with the available materials, it is likely the original decision-maker had before them the 16 October 2022 report of Mr Clark, setting out recommended supports Ms Sharp required in respect of impairments resulting from her COPD condition. It is also likely the decision-maker was provided with the spirometry results and the report of Dr Chazan on 26 September 2022. The Agency’s interaction notes confirm matters relating to Ms Sharp’s COPD were considered and decided, initially positively (albeit without particular supports being identified for additional funding) and shortly afterwards negatively.
I am not persuaded the decision-making in respect of Ms Sharp’s COPD was separate from the decision-making process which led to the approval of the SOPS which was instrumental in the Plan which came into effect on 24 November 2022. The better conclusion is it was part of the decision-making process at that time.
I accept Ms Sharp’s assertion she was seeking funding for supports identified by Mr Clark.
I am satisfied it was open for the original decision-maker to determine if the supports recommended by Mr Clark were reasonable and necessary supports for the purposes of s 33(5), s 34 and under the Rules. It might be inferred the decision-maker found they did not meet the required threshold on the basis the supports Mr Clark recommended were not in respect of the disability on which Ms Sharp’s access to the NDIS as a participant was decided.
Whether or not that is correct, the original decision to approve the SOPS on 24 November 2022 is a reviewable decision under Item 4 of the table following s 99(1).
There is no dispute Ms Sharp requested review of the decision on 5 December 2022. The particular reason given for her request for review under s 100(2) is not a factor which limits the scope of the review under s 100. Rogers and QDKH reinforce this construction. Where a request for review is made, under s 100(5) the reviewer must review the reviewable decision. In effect, the reviewer must do over again what the original decision-maker was required to do, answering the same statutory question and being bound by the same constraints as the original decision-maker when exercising the power of review. There is no proper basis to limit the scope of review under s 100 to matters contested by a participant or requestor. A construction of that kind would be contrary to QDKH, which is binding authority, and the plain language of the statute.
Clearly enough, in this case, the reviewer had jurisdiction to address supports recommended by Mr Clark in respect of disability Ms Sharp suffered as result of impairments resulting from her COPD condition. Errors of the kind the Agency alluded to in submissions in respect of the conflation of legislative provisions and thresholds applying to access criteria and reasonable and necessary supports, to my mind, are no more than errors within jurisdiction: they are rectifiable errors on review. On any fair reading of the internal review decision, the reviewer attempted to make a decision in respect of supports by reference to access criteria thresholds as well as the threshold under s 34(1)(f).
The Agency is correct to assert there is no secondary application provision or requirement in respect of impairments or disability not previously found to meet the access criteria in s 21. The NDIS Act provides for matters of that kind to be dealt with progressively in the context of participant plans and the approval of reasonable and necessary supports under Part 2, Chapter 3. So much was clarified in McLaughlin and National Disability Insurance Agency[10] at [53]-[54], referred to in Goodliff and more recently in HRZI and National Disability Insurance Agency[11].
[10] [2021] AATA 496 at [53]-[54].
[11] [2023] AATA 481 at [148]-[154].
For these reasons, the Agency’s proposition the internal review decision is invalid cannot be accepted. I am satisfied it is not invalid.
Even if I am wrong about this, no different result would obtain because, adopting the principles distilled from Brian Lawlor in LQTF, the internal review decision is a decision in fact made in the purported exercise of power conferred under s 100(6) of the NDIS Act for review of the decision to approve the SOPS under s 33(2) on 24 November 2022. It is, therefore, a decision within the terms of s 103(1) of the NDIS Act which is reviewable by the Tribunal pursuant to an application under s 25(1) of the AAT Act.
The Tribunal has jurisdiction to review the 30 January 2023 internal review decision, subject only to the grant of an extension of time under s 29(7) of the AAT Act.
Extension of time
It is not necessary to say much about the discretion to extend time under s 29(7):
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
As can be seen, exercise of discretion to extend the time for Ms Sharp to lodge an application for review of the internal review decision is preconditioned by satisfaction that it is reasonable in all the circumstances to do so.
Ms Sharp’s application for review is 1 day out of time. An adequate and reasonable explanation has been given for the delay. The Agency withdrew opposition to the extension of time application where, as I have found, the Tribunal has jurisdiction to review the internal review decision. There is no suggestion Ms Sharp rested on her rights. There is no prejudice asserted or likely to arise. The application is not lacking any prospect of success should it be allowed to proceed. While there is an alternative remedy available under the legislative provisions for variation or review of the Plan under s 47A or s 48 of the NDIS Act, this does not weigh so heavily against exercise of the discretion under s 29(7) it would not be reasonable to exercise it in the circumstances.
I am satisfied it is reasonable in all the circumstances to exercise the discretion to grant additional time under s 29(7) to allow Ms Sharp’s application to proceed.
Decision
The Tribunal has jurisdiction to review the internal review decision on 30 January 2023.
The time for lodging Ms Sharp’s application for review is extended to 28 February 2023.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

....................[SGD].....................
Associate
Dated: 25 May 2023

Dates of hearing

11 April 2023, 18 April 2023

Date final submissions received

14 April 2023

Solicitor for Applicant:

Ms A Clark, Legal Aid ACT

Solicitor for Respondent:

Mr A Hay, NDIA

Dates of hearing	11 April 2023, 18 April 2023
Date final submissions received	14 April 2023
Solicitor for Applicant:	Ms A Clark, Legal Aid ACT
Solicitor for Respondent:	Mr A Hay, NDIA