Sharp and National Disability Insurance Agency

This matter concerned an application by Ms Sharp for an extension of time to seek review of a decision made by the National Disability Insurance Agency (NDIA). Ms Sharp, a participant in the NDIS, sought to have her chronic lung disease recognised as an additional disability for the purposes of her NDIS plan. The NDIA had made a decision on 30 January 2023, which Ms Sharp sought to have reviewed by the Tribunal. The primary issues before the Tribunal were whether it had jurisdiction to review the NDIA's decision and whether an extension of time should be granted for Ms Sharp to lodge her application.

The Tribunal was required to determine two principal legal issues. Firstly, it needed to ascertain whether it possessed jurisdiction to review the NDIA's decision of 30 January 2023, particularly in light of the NDIA's assertion that there was no provision for re-application of access criteria and that the decision-making process was progressive. Secondly, the Tribunal had to consider whether it was reasonable in all the circumstances to grant Ms Sharp an extension of time to lodge her application for review, given the short delay and the factors relevant to the exercise of that discretion.

In relation to jurisdiction, the Tribunal found that it had the power to review the internal review decision of 30 January 2023. It reasoned that the NDIA's decision, while potentially part of a progressive decision-making process, was nonetheless a decision that could be the subject of an internal review and subsequently a Tribunal review. The Tribunal also considered the application for an extension of time. It was satisfied that the delay was short, that there was a reasonable explanation for the delay, and that granting the extension would not cause prejudice to the NDIA. Furthermore, it considered that Ms Sharp had a prospect of success and that there was no readily available alternative remedy. Consequently, the Tribunal concluded that it was reasonable in all the circumstances to exercise its discretion to grant the extension of time.

The Tribunal ordered that the time for lodging Ms Sharp’s application for review be extended to 28 February 2023, and confirmed that it had jurisdiction to review the internal review decision of 30 January 2023.