Taylor and National Disability Insurance Agency
[2023] AATA 2721
•24 August 2023
Taylor and National Disability Insurance Agency [2023] AATA 2721 (24 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4537
Re:Michael Taylor
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:24 August 2023
Place:Adelaide
Mr Taylor’s application for an extension of time pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975 (Cth) in which to seek review of the Agency’s decision, dated 21 February 2023, is granted. Time is extended until 27 June 2023.
....................[Sgnd]....................................................
Member I Thompson
CATCHWORDS
PRACTICE AND PROCEDURE – access request to become a participant of the NDIS rejected – decision affirmed on internal review – application for review by the Tribunal not lodged in time – application for extension of time – whether reasonable in all the circumstances to extend time – application granted.
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Gabor v Secretary, Department of Education, Employment and Workplace Relations (2010) FCA 706
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
NDIA v Davis [2022] FCA 1002
Bassanese and Secretary, Department of Social Services [2015] AATA 700
Killoch and Van Oord Australia Pty Ltd [2015] AATA 457
Zizza v Federal Commissioner of Taxation [1999] FCA 37
SECONDARY MATERIALS
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
REASONS FOR DECISION
Member I Thompson
24 August 2023
This matter concerns an application for an extension of time in which to seek review of an internal review decision of the National Disability Insurance Agency (“the Agency”) made on 21 February 2023. That decision confirmed an original decision of the Agency that Mr Taylor does not meet the access criteria to become a participant of the National Disability Insurance Scheme (“NDIS”).
On 22 June 2023, Mr Taylor lodged an application to the Tribunal for review of the Agency’s internal review decision. On 27 June 2023, his representative sent an email to the Tribunal with the request that the substantive application be “accepted and processed.” That request is 94 days outside the required timeframe. The Administrative Appeals Tribunal Act 1975 (“the AAT Act”) requires applications for review to be lodged within 28 days of the decision under review.
Accordingly, the issue currently before the Tribunal is whether Mr Taylor should be granted an extension of time for the filing of his application for review of the Agency decision. An interlocutory hearing was convened by telephone at which the Tribunal heard submissions from Mr Taylor, supported by Mr Asabere, and from the Agency’s representative, Ms Zdilar.
Mr Taylor has made two access requests to become a participant in the NDIS. The first request was made in 2021 and it was rejected. The second was made in 2022 and similarly rejected. Two themes emerged in Mr Taylor’s explanation for the delay in lodging his current application to the Tribunal. The first theme concerned his confusion about the applicable time limit. The second theme in his oral submission relates to his stress and anxiety.
In written submissions, the Agency explained its reasons for opposing the request. Those reasons were canvassed in detail with a focus on the length of the delay, the explanation for the delay, potential prejudice to the Agency if an extension was granted, and the availability of alternative avenues for relief. At the interlocutory hearing, Ms Zdilar made oral submissions which highlighted the length of the delay, and the lack of adequate reasons to justify the delay. It was emphasised that the Agency’s internal review outcome letter to Mr Taylor clearly set out the twenty-eight-day time limit on lodging review applications to the Tribunal.
EXTENSION OF TIME – THE LEGAL FRAMEWORK
Section 29(2) of the AAT Act requires that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) of the AAT Act enables the Tribunal to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so.
While the Tribunal is given a discretion, it is accepted that the starting point is that proceedings not commenced in time should not be permitted.
There are relevant factors regarding the Tribunal’s discretion as to whether or not an extension of time ought to be granted. The principles which inform the discretion are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Johnson and Minister for Home Affairs [2018] AATA 3469. These, and numerous other cases, make it clear that the Tribunal must consider:
(a) the extent of the delay;
(b) the explanation for the delay;
(c) any prejudice to the respondent or the general public arising from an extension of time;
(d) the merits of the substantive application for review; and
(e) any alternative avenues of relief for the applicant should the extension of time not be granted.
Further guidance about the principles is derived from the judgment of Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations (2010] FCA 706, at [7] in the following terms:
(a)“whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an ‘acceptable explanation for the delay’, and it must be ‘fair and equitable in the circumstances’ to extend time.
(b)action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c)any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d)however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e)the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(f)considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.”
The principles that were discussed in Gabor were in the context of s 44(2A) of the AAT Act rather than s 29 of the AAT Act. It is clear, however, that these principles are directly relevant in the context of s 29 of the AAT Act.
The decision of the Federal Court in Zizza v Federal Commissioner of Taxation[1999] FCA 37 confirmed the requirement to weigh together all relevant factors in determining whether or not to exercise the discretion. The Court commented at [45] that a “ranking” approach in applications under s 29(7) of the AAT Act as to the weight afforded to each of the elements is to be avoided.
In the application of the principles, Senior Member Toohey pointed out in Killoch and Van Oord Australia Pty Ltd [2015] AATA 457 at [15] that:
“These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.”
CONSIDERATION
Each of the most relevant criteria relating to the application for extension of time will be considered in turn.
The extent of the delay and the reasons for it
The written request for an extension of time to review the internal review decision was lodged on 27 June 2023. The Agency submitted that this delay of 94 days outside the 28-day period specified in s 29 (2) of the AAT Act is a significant delay
Mr Taylor told the Tribunal that he recalled speaking to someone “in the NDIS system” at some stage about requesting a review of the Agency’s decision. He cannot recall exactly what was said. However, reference was made in the conversation to a 90-day time limit. By whatever means, Mr Taylor had a recollection about a 90-day timeframe for lodging a review. It seems likely that he has confused the 90-day limit for lodging a request with the Agency for an internal review of the original decision, in contrast to the 28-day time limit for lodging an application to the Tribunal for review of the Agency’s internal review decision.
Mr Taylor said that he has a recollection of reading the Agency’s letter which contained the outcome of his internal review request. That would be the letter dated 21 February 2023 from the Agency. It appears that he did not consider the contents of the letter in any detail. He was angry about the outcome which was set out in the first page of the letter. Nothing else in the letter sunk in and at some stage he discarded it. It is important to note that the letter, on page 2, provides details of the steps for applying to the Tribunal for an external review within 28 days.
Mr Taylor explained at the interlocutory hearing that he was overwhelmed by the result of the internal review. He said he needed a break mentally; he did not want to deal with the matter straight away and he “let it sit.” The process had been stressful for him with regard to each of his two access requests. He suffers from anxiety and depression, he said that he lives from day to day, he said that he does not live well, he does not have a family and he is isolated. He said that he was overwhelmed by the rejection, noting it was the second time his request was rejected. In addition to his existing stress and anxiety, the process of applying to the NDIS was stressful for him while the second rejection of his request was an additional stressor. In his words – “I was at the end of my rope.”
Mr Taylor had support from Mr Asabere. He is a case manager with the support agency, OARS Community Transitions, which provides various types of support including support to those who are homeless or at risk of homelessness. Mr Asabere provided an email dated 27 June 2023 in which he wrote that Mr Taylor understood that he had 90 days for the review application. He also referred to Mr Taylor’s stress and anxiety which resulted in the late lodgement and that Mr Taylor “is pleading for his application to be accepted and processed.”
At the interlocutory hearing, Mr Asabere confirmed the mental health difficulties which Mr Taylor was suffering, in particular, early this year and late last year. Mr Asabere told the Tribunal that his agency provided assistance to Mr Taylor last year after his first access request had been declined. The assistance included support to enable Mr Taylor to seek and obtain funding for assessments by a psychologist and by an occupational therapist. When the second access request was declined on internal review, Mr Asabere assisted with an enquiry to a disability rights advocacy service. Unfortunately, it was to no avail. He thought that the enquiry was made some time in February this year. From that time onwards Mr Asabere said it was difficult to make any contact with Mr Taylor who was not having “an easy ride.” Processing NDIS reviews was not part of Mr Asabere’s expertise. His involvement was in support of Mr Taylor accessing the appropriate avenues for engaging with the Agency and the Tribunal.
Included within the documentation is a psychology report dated 11 July 2022 by a psychologist Dr Timothy Connell, a letter dated 6 January 2023 from a general medical practitioner Dr Stan Sim, and an occupational therapy report dated 12 August 2022 written by Ms Katie de Zeeuw following her assessment of Mr Taylor on 2 August 2022. From these 3 reports a series of diagnoses are apparent. Mr Taylor has diagnoses of somatic symptom disorder with predominant pain and major ongoing anxiety and panic; social anxiety disorder with associated paranoia and major social avoidance; major depressive disorder; obesity and chronic lower back pain; bilateral hip osteoarthritis; left knee osteoarthritis with cartilage damage; right wrist degeneration; left shoulder bursitis; sleep apnoea; bladder and bowel urgency and incontinence. The Tribunal accepts that none of the reports bear directly upon the failure to lodge the Tribunal application in time.
However, those reports provide important details about Mr Taylor’s diagnoses and the impact of his physical and mental health problems. Numerous medications prescribed for him included medication to treat major depressive disorder and anxiety disorder, together with antipsychotic medication. According to the Depression, Anxiety and Stress Scale 21 (“DASS-21”), a screening test indicated that his level of psychological distress was extremely severe for depression, extremely severe for anxiety and severe for stress. Dr Connell, who is a clinical psychologist of considerable experience, described major depression as a serious disorder associated with an elevated risk of suicide and while it lasts, there is likely to be an impairment of decision-making which, in Mr Taylor’s case, would require the assistance and guidance of a long-term responsible person, such as a personal mentor, to provide long term support for him. Dr Connell noted these difficulties particularly in the context of self-management and learning which include severe difficulty remembering to do important things, severe to moderate difficulty with analysing and finding solutions to everyday problems, difficulty concentrating for 10 minutes and moderate levels of difficulty learning new tasks.
The Agency submitted that Mr Taylor’s misunderstanding of the period for lodging the application to the Tribunal is unsatisfactory as he had written notification of the 28-day timeframe. It was submitted that there was no evidence to support the proposition that his stress and anxiety provided justification for the delay. Both the length of the delay and unsatisfactory explanation about the reason for the delay, are factors that weigh against the extension of time being granted.
The Tribunal agrees that the length of the delay, as the Agency contended, is significant. The Tribunal does not accept, however, that the explanation for the delay is unsatisfactory. Both Mr Taylor and Mr Asabere made oral submissions at the interlocutory hearing. Having heard those submissions the Tribunal is satisfied that the impacts and myriad difficulties that Mr Taylor has with his physical health, mental health and activities of daily living, and residing at some stage in a small room in a boarding house, bear directly upon his failure to lodge the substantive application to the Tribunal. Those problems individually and cumulatively provide an unfortunate context for that failure, albeit not an excuse. The Tribunal considers that the delay is attributable to factors that include predominantly Mr Taylor’s lack of coping mechanisms. Mr Asabere became aware of the problem about lodging the application and he has clearly done his best and gone to great effort to assist Mr Taylor to get the application back on track.
In all the circumstances, the Tribunal is satisfied that the length of the delay is unsatisfactory. However, the explanations for the delay are satisfactory to some degree and comprehensible to an even greater degree. On balance, the explanations for the delay weigh in favour of granting the extension.
Prejudice
While the Agency did not assert significant prejudice would follow if the application was granted, the delay presents some difficulty for the Agency in the sense of having previously had the benefit for about three months, of apparent finality of the decision
The Agency submitted correctly that it has a right to rest on its decision when applicants understand their review rights and do not apply for review within the required timeframes. It was also submitted that there could be unfairness to other applicants applying for external review by allowing the relevant time to be extended for Mr Taylor.
While it is difficult to point to any particular prejudice to the Agency if the extension would be granted, the Tribunal accepts that the absence of prejudice would not, of itself be a reason to grant the requested extension.
Merits of the substantive application for review
As Deputy President Bean stated in Bassanese and Secretary, Department of Social Services [2015] AATA 700 at [13]:
“… before granting an extension of time, it is appropriate for consideration to be given to whether the substantive application has any prospects of success. In particular, it is appropriate for the relevant decision-maker to consider whether there would be any purpose served by granting an extension of time. If the application appears hopeless, there may be no real utility in granting an extension of time and in those circumstances it would generally not be appropriate to do so.”
The Tribunal accepts that it is not appropriate at this stage to conduct a comprehensive review on the merits of the substantive application. The limited documentary material available to the Tribunal includes the Agency’s internal review outcome letter dated 21 February 23. It includes explanations for the Agency’s findings on internal review. The Agency was satisfied that the criteria under s 24(1)(a) of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”) were met, namely that Mr Taylor has a disability attributable to physical impairment from chronic pain, osteoarthritis, and degenerative disease of the lumbar spine. It was satisfied that he has a disability through psychosocial impairment from somatic symptom disorder with predominant pain, social anxiety disorder with paranoia and major depressive disorder. It was not satisfied that the criterion was met for obesity, obstructive sleep apnoea, leg cramps, irritable bowel syndrome, and tendinitis bursitis. At this stage of its reasoning, the explanation by the internal reviewer focused on sections 5. 4 and 5. 6 of the NDIS (Becoming a Participant) Rules and specified reasons why the Agency considered that further specialist medical evidence is required both in relation to Mr Taylor’s physical impairment and his psychosocial impairment. In the absence of satisfactory evidence about permanence, the internal reviewer went on to explain that the Agency was not satisfied that the remaining criteria in s 24 of the NDIS Act were met, nor was it satisfied that the early intervention criteria in s 25 of the NDIS Act were met
The Agency’s internal reviewer explained that further evidence would be required both in relation to permanency of impairments and the reduction in Mr Taylor’s functional capacity. That is not to say that additional evidence about permanence and functional capacity could not be provided while the matter proceeds through the Tribunal’s case management processes or in anticipation of a hearing. It is clear to the Tribunal that Mr Taylor’s substantive application is not without substance or merit. On the contrary, he has provided already considerable supporting evidence. Whether or not that evidence is sufficient ultimately to satisfy the criteria for permanence in s 24 of the NDIS Act, and sequentially other criteria in s 24 of the NDIS Act, or s 25 of the NDIS Act, is not a matter for the Tribunal to determine at this point. Certainly, however, the reports of Dr Connell and Ms de Zeeuw provide significant content about Mr Taylor’s physical and psychiatric history and the impact of his impairments on activities of daily living.
Accordingly, this consideration concerning the merits of the substantive application, does not weigh against the granting of an extension of time.
Alternative avenues of relief
If Mr Taylor wants to become a participant of the NDIS, the Agency submitted that he should obtain further evidence about his impairments and then make a new request to the Agency. According to this submission, it would be a more “expedient and straightforward” way of seeking access.
The Tribunal accepts that if the application for extension of time was not granted, Mr Taylor would have an alternative avenue. As he is 51 years old, he still has 14 years in which to lodge an access request. It is correct, therefore, to assert that it would be open to him to reapply to become an NDIS participant.. It is a matter of contention, however, that this would be the most expedient way for Mr Taylor to pursue his application. While the actual lodging of a new application may not be problematic, the procedures and processes which follow might be time consuming and complex.
While acknowledging that Mr Taylor would have the right to make a fresh application to the Agency, it is equally important to acknowledge that he has managed with some support to coordinate the provision of comprehensive reports by a psychologist and by an occupational therapist, together with clarifying correspondence from a general medical practitioner.In that regard he had made important progress in pursuit of his case through the Agency and , potentially , in the Tribunal. In his application to the Tribunal he pointed out that the reports provide extensive details about his disability which he considers are sufficient to confirm his condition as permanent.
In weighing up these matters, the Tribunal considers that the availability of an alternative avenue for relief is not a compelling factor against granting an extension of time.
Conclusion
The authorities indicate that there is a need for finality in administrative decision-making. The sense of finality enhances the certainty for all parties involved and other individuals in similar circumstances. The considerations are nonetheless finely balanced
Taking into account Mr Taylor’s mental health problems, that he has an arguable case in the substantive review; that the delay is quite lengthy but relates to his mental health, relative isolation, and his lack of coping mechanisms; that prejudice to the Agency will not be substantial; the Tribunal considers that it is reasonable to grant the extension. It is a conclusion that is reached in the context of an application under the NDIS Act. In the Federal Court decision of NDIA v Davis [2022] FCA 1002, Mortimer J commented at [142], “the NDIS Act is beneficial and remedial legislation designed to operate in relatively high-volume decision-making, in a pragmatic context, and in respect of people (and their families and carers) already facing great challenges in their daily lives.”
DECISION
Mr Taylor’s application for an extension of time pursuant to s 29 (7) of the Administrative Appeals Tribunal Act 1975 (Cth) in which to seek review of the Agency’s decision, dated 21 February 2023, is granted. Time is extended until 27 June 2023.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Thompson.
.......................[Sgnd]..................................
Associate
Date of Decision: 24 August 2023 Date of Hearing: 26 July 2023 Applicant’s Representative Self-Represented
Solicitor for the Respondent: Mary Zdilar
National Disability Insurance Agency
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