Usher and National Disability Insurance Agency

[2021] AATA 5287

Usher and National Disability Insurance Agency [2021] AATA 5287 (15 September 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/4876

Re:Georgia Usher

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Tribunal:Senior Member B J Illingworth

Date:15 September 2021

Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 15 SEPTEMBER 2021:

For the reasons delivered orally at the conclusion of the interlocutory hearing, the Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

...................[SGND]...........................

Senior Member B J Illingworth

Catchwords

PRACTICE AND PROCEDURE – Application for extension of time – National Disability Insurance Agency – Internal review decision not requested – Extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

REASONS FOR DECISION

Senior Member B J Illingworth

15 September 2021

1. On 16 June 2021, the National Disability Insurance Agency (NDIA) by email communication sent a Recovery Notice (the reviewable decision) to Berkshire Hathaway Insurance CTP SA (the Insurer) pursuant to s 111(2) of the National Disability Insurance Scheme Act 2013 (the Act) to recover an amount of $383,450.92 (the recoverable amount) in relation to a compensation claim made by Georgia Usher (the applicant) for an injury sustained on 6 November 2015.

2. A decision made pursuant to s111 of the Act is a reviewable decision in accordance with s99 of the Act.

3. On 16 June 2021, the NDIA by email communication sent a letter to the applicant’s representative, Mr Simon Flower of Flower and Associates, and advised that a Recovery Notice had been given to the insurer and enclosed a copy of that Notice.

4. By letter dated 8 July 2021 and signed by Mr Flower, the NDIA was advised that the applicant had instructed Mr Flower to lodge an appeal against the decision made by NDIA on 16 June 2021.  The letter said, “[t]he reasons why this decision should be reviewed are as follows” and then listed seven reasons.

5. On 21 July 2021, an Application for Review of Decision was received by the Tribunal advising, amongst other things, that:

   (a)the participant was represented by Mr Simon Flower of Flower and Associates;

   (b)the decision the subject of the application was received on 16 June 2021; and

   (c)that the applicant applied for an extension of time within which to make the application for review.

6. The Tribunal notes that the time limit within which to apply for a review of a decision is 28 days after the receipt of the decision. The applicant applied for an extension of time within which to review the decision made on 16 June 2021 in terms as follows:

   Application to appeal lodged with NDIA on 8 July 2021. The decision itself stated that the timeframe to appeal was 3 months from 16 June 2021 or 16 September 2021. Extension sought on the basis of a representation made by the respondent in the decision and that the appeal was initially lodged in time with the NDIA.

7. It is apparent that the decision the applicant sought to review was the decision dated 16 June 2021, namely the Recovery Notice. The reason for the request for an extension of time appears to confuse the time within which the applicant must request an internal review of the reviewable decision, with the time to bring an application before the Tribunal. It also seems to suggest that because the “appeal” was initially lodged with the NDIA that no prejudice attaches to the grant of an extension of time. 

8. The letter from the NDIA to Mr Flower dated 16 June 2021 under heading “How to request a review of this decision” reads as follows:

   If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.

   When asking for an internal review you should explain why you think the decision made is incorrect.

   …

   If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).

   The letter also provided a website which gave information about reviews of decisions.

9. The letter from Flower and Associates dated 8 July 2021 conflates the term ‘appeal’ and ‘review’ and demonstrated a lack of understanding of the process to be undertaken upon receipt of a s99 reviewable decision and the operation of s100 of the Act and the decision which can be the subject of review to the Tribunal.

10. Pursuant to s100 of the Act, upon receipt of the reviewable decision the participant has 3 months from the date of receipt of that reviewable decision within which to request an internal review of that reviewable decision and explain why the participant thinks the decision is incorrect.

11. If upon receipt of the internal review decision the applicant is not happy with that decision, the applicant may within 28 days of receipt of that decision apply to the Tribunal for a review of that decision. 

12. It is not immediately clear what the applicant intended to convey in the letter dated 8 July 2021. To give notice of instructions to “appeal” the decision dated 16 June 2021 does not suggest that the participant is requesting an internal review of the reviewable decision.  To then give seven reasons why the decision should be “reviewed” further adds confusion to what the applicant is intending to achieve.

13. However, it is apparent that by the Application for Review of Decision and Application for Extension of Time to the Tribunal, the applicant intended to bring the reviewable decision dated 16 June 2021 before the Tribunal without having first requested the internal review of the reviewable decision in accordance with s100(2) of the Act.

14. Hence, the application before the Tribunal is misconceived both in terms of the Application for Extension of Time and Application for Review of Decision. 

15. The applicant must first make a request for internal review of the reviewable decision pursuant to s100(2) of the Act. That must be done within 3 months of receipt of the reviewable decision. If dissatisfied with the outcome of that the internal review, the applicant may apply to the Tribunal for a review of that decision within 28 days of its receipt.

16. The current application for review is not in respect of an internal review decision made in accordance with s100(2) of the Act, and accordingly the jurisdiction of the Tribunal is not enlivened in respect of the decision of 16 June 2021.

17. When considering the application for extension of time within which to bring an Application for Review, the Tribunal must ask itself:

    (a)what is the decision that the applicant seeks to review; and

    (b)is that a decision in relation to which the Tribunal has jurisdiction?

18. The application that the applicant seeks to review is not a decision in relation to which the Tribunal has jurisdiction to review. If the correct procedure had been followed it would be the internal review decision made pursuant to s100(2) of the act which would enliven the jurisdiction of the Tribunal. However, the applicant has not requested an internal review of the reviewable decision. The Tribunal notes that the three months within which the applicant may request that internal review is 3 months from the date of the reviewable decision dated 16 June 2021, which time is about to expire.

19. Hence, the application for extension of time is not in relation to a decision with respect to which the Tribunal has jurisdiction. The application for extension of time is refused.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.............[SGND]................

Associate

Dated: 15 September 2021

Date of interlocutory hearing:	15 September 2021
Advocate for the Applicant:	Simon Flower, Flower & Associates
Advocate for the Respondent:	Andrea Botros, National Disability Insurance Agency