VZVX and National Disability Insurance Agency
[2023] AATA 1617
•14 June 2023
VZVX and National Disability Insurance Agency [2023] AATA 1617 (14 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/0327
Re:VZVX
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date:14 June 2023
Place:Sydney
The Tribunal dismisses the application for review, under ss 42A(2) and 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
...............................[SGD]........................................
Deputy President Antoinette Younes
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal of application for review – whether Tribunal satisfied that it is appropriate to dismiss the application – proper notice – Applicant failed within a reasonable time to progress with his application – Applicant failed within a reasonable time to comply with a procedural direction of the Tribunal – procedural fairness – explanation for delay – prejudice to the parties if application dismissed – application dismissed under s 42A(5) and in 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 42A, 42D
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 48, 100
CASES
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Berry v Commissioner of Taxation [2015] FCA 1244
Charara v Federal Commissioner of Taxation [2016] FCA 451
De Los Santos-Aguilar v Migration Agents Registration Authority [2014] AATA 269
Guse v Comcare (1997) 25 AAR 477
Katterns v Comcare (2002) 36 AAR 277
Re Byrt and Commissioner of Taxation [2013] AATA 862
Re De Simone and Commissioner of Taxation [2017] AATA 1005
Re Evans and Comcare [2019] AATA 799
Re Gulf Meat Exporters Pty Ltd and Export Development Grants Board (1982) 4 ALN No 116
Re Lewtas and Comcare [2017] AATA 1804
Re McGrath and Inspector-General in Bankruptcy [2011] AATA 27
Re Vilips and Migration Agents Registration Authority [2007] AATA 1613
REASONS FOR DECISION
Deputy President Antoinette Younes
14 June 2023
The Applicant lodged an application for review with the Tribunal on 18 January 2019 in relation to a decision made by the National Disability Insurance Agency (the Agency) dated 20 December 2018.
In his original application to the Agency for access dated 30 June 2016,[1] the Applicant identified “severe sciatica due to L4/L5-S1 nerve compression” and schizophrenia as his primary disability. He also identified major depression as an additional disability. He lodged a further access request on 10 August 2016 with the Agency,[2] and he was accepted into the National Disability Insurance Scheme (NDIS). He became a participant in March 2017. A statement of participant supports (SOPS), pursuant to s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), was approved and came into effect from 30 March 2017, for a 12-month period.[3]
[1] Section 37 T-Documents, T3, 10-27.
[2] T4, 19-27.
[3] T13, 118.
On 28 November 2017, the Applicant lodged a request for an unscheduled plan review under s 48 of the NDIS Act seeking the following additional supports:[4]
[4] T7A, 71-75.
a.Allow a plan manager to pay his providers;
b.Increased support coordination funding, to at least 104 hours per year;
c.Additional funding for assistive technology prescribed by his therapists;
d.Additional Capacity Building Daily Living supports;
e.Additional Core Funding to facilitate social and community participation; and
f.Additional funding for transport.
On 7 May 2018, a delegate of the CEO of the Agency approved a SOPS for the Applicant in accordance with s 33(2) and a Plan was implemented commencaing on 4 May 2018 for 12 months.[5] The Applicant sought a review of that decision and on 25 October 2018, a delegate made an internal review decision under s 100(6) of the NDIS Act. The delegate found the following requests to be reasonable and necessary:[6]
(i)Higher level of support coordination funding; and
(ii)Funding for improved social, community and civic supports, as requested.
[5] T15.
[6] T9.
On 25 October 2018, the delegate approved the SOPS for the Applicant in accordance with s 33(2) of the NDIS Act and a Plan was implemented commencing on 25 October 2018 for 12 months.[7] On 12 November 2018, a further plan was implemented commencing on 9 November 2018 for 12 months.[8] On 7 December 2018, the Applicant sought to change the support coordination funding in the NDIS Plans for himself and for another related matter and the Agency treated this as a request for internal review pursuant to s 100 of the NDIS Act.[9] On 20 December 2018, a decision was made to vary the Applicant’s SOPS to include his request that the support coordination funding be plan-managed as reasonable and necessary.[10] A Plan was implemented commencing on 20 December 2018 for 12 months.[11] It is unclear when the request was made, however at some point, the Applicant sought to have included in his Plan an allocation for music therapy.[12] The December internal review decision letter and summary of decision from the Agency did not refer to any request for, or any decision being made about, music therapy.
[7] T16, 139-146.
[8] T17.
[9] T10, 96.
[10] T2, T2A.
[11] T18.
[12] T11, 97.
On 18 January 2019, the Applicant lodged an application for review with the Tribunal.[13] The decision in relation to which he sought review was set out as follows:
Original plan decision was made without music therapy and [the Applicant] wanted his support coordination to be plan management which was not approved. A verbal internal review request was made May 2018. There were long delays and then a complaint to the ombudsman. A light touch review was carried out and the support coordination was amended to plan management however the music therapy was still denied. Another complaint has been made to NDIS in relation to the denial of music therapy.
[13] T1.
In response to the question “why do you claim the decision is wrong?” the Applicant stated the following:
The decision to deny music therapy was wrong. [The Applicant] believes that music therapy should be included in his plan. He spoke to 3 different NDIA planners (staff) including the Assistant Director at Gosford who informed [the Applicant] that there was a directive no music therapy can be funded.
After lodging the application with the Tribunal, the Applicant’s existing plan was extended for six months on 21 January 2020, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The plan provided for core supports in the amount of $6,288.36; capacity building supports of $12,407.76 and capital supports (assistive technology: planning of a specialised bike carrier: $2,654.60). While the Agency contended that there had been no primary decision concerning music therapy, and neither the October internal review decision nor the December internal review decision appeared to have considered it, the Agency understood the appeal to this Tribunal in relation to the Applicant to be limited to music therapy. That substantive issue is yet to be determined.
APPLICATION FOR DISMISSAL
THE ISSUES
The issues before the Tribunal are whether the Tribunal’s discretion to dismiss an application pursuant to s 42A(2) and/or s 42A(5) of the AAT Act is enlivened and, if it is so enlivened, whether the Tribunal should dismiss the application for review lodged by the Applicant on 18 January 2019.
PROCEDURAL BACKGROUND
In accordance with established procedures, the parties were streamed through the alternate dispute resolution pathway within the Tribunal, which is intended to provide an informal and timely resolution of the matter. Between 9 April 2019 and 12 April 2023, this matter has had multiple conferences and Directions hearings, during which Directions were made to progress the matter.
The chronology set out below is relevant to whether the application should be dismissed. In support of the application to dismiss, the Respondent relied on a number of events highlighting non-compliance and non-appearance by the Applicant.
The following is a chronology of the relevant events:
·Directions hearing held on 18 July 2019 – the Applicant was directed that on or before 8 July 2019, the Applicant is to give all reports, records and other documents upon which the Applicant intends to rely. Non-compliance – the Applicant advised that he was still in the process of obtaining occupational therapy, physiotherapy and psychological reports. The Applicant was directed to advise the Tribunal by 2 August 2019 in respect of the medical reports.
·Directions hearing held on 25 February 2021 - the Applicant indicated that he was not yet ready to proceed to a hearing as he wanted to gather further evidence. However, a further report was not provided until November 2021 (Report of Mr Martin dated 16 November 2021).
·Directions Hearing held on 28 June 2022 – the Applicant did not appear but returned the call. Hearing by telephone listed for 27 – 28 June 2022 was vacated.
·Directions hearing held on 5 July 2022 – the Tribunal directed the Applicant to provide further evidence by 23 August 2022. The Applicant did not comply with this direction.
·Directions hearing held on 28 November 2022 – the Applicant did not appear at this hearing, stating he had reception issues. The Applicant was directed to provide any further evidence by 23 December 2022. Whilst the Applicant did not attend the Directions hearing, he was advised of the Tribunal’s direction over the telephone by the Associate. The Respondent’s representative also notified the Applicant over the telephone of the Tribunal’s directions. The Respondent advised that the Respondent’s representative (Mr Bewsher) also rang the Applicant later on 28 November 2022 to confirm that he was aware of the Tribunal’s directions. The Applicant did not comply with the direction to provide any further evidence by 23 December 2022.
·Directions hearing held on 7 February 2023 – Applicant did not appear. The Respondent indicated that they are seeking to have the matter dismissed, due to multiple non-appearances and non-compliance by the Applicant. The Tribunal directed, among other things, that:
·on or before 28 February 2023, the Respondent must file and serve submissions supporting the application for dismissal;
·on or before 28 February 2023, the Respondent must file and serve an application for dismissal;
·on or before 31 March 2023, the Applicant must file and serve any submissions in reply;
·the matter is to be listed for a further directions hearing by telephone on 11 April 2023 at 11:00AM.
·An Associate contacted the Applicant to follow up on his non-appearance at the Directions hearing by telephone held on 7 February 2023. The Associate informed the Applicant of the Directions made and the Respondent’s position that the matter be dismissed. The Applicant stated he was available at the time of the Directions hearing. The Applicant did not comply with the 3rd Direction made above.
·Directions hearing on 11 April 2023 was vacated due to the Applicant’s unavailability. The Applicant was contacted by the Associate on 11 April 2023 and advised that an interlocutory hearing to dismiss the application was listed on 30 May 2023. The Applicant stated that he may not be available in May. The Applicant also stated he would like to proceed to a substantive hearing. He did appear at the interlocutory hearing listed on 30 May 2023.
The Respondent submitted that the Applicant has failed to progress his application despite significant opportunity over the last four years, contrary to the principles that the Tribunal proceedings are intended to be relatively quick and efficient. The Respondent further submitted that there would not be significant prejudice to the Applicant should the application be dismissed. The Respondent’s reasons for this submission includes that there is limited merits to this application, the Applicant relies on dated reports with limited relevance, and in case of dissatisfaction with his next plan, the Applicant would be able to exercise his review rights. In relation to the Applicant’s submissions that he has been unable to find a suitable advocate or support coordinator, and that he does not have access to internet at his home, the Respondent contended that “many NDIA applicants are self-represented, and that it is the Applicant’s responsibility to progress his application (not the responsibility or role of a support coordinator)… The Respondent submits the Applicant may choose not to have internet at his home, but he is still able to progress his AAT Application by other means.”[14]
[14] Submissions in support of the dismissal application, dated 27 February 2023, [17] –[18].
RELEVANT LEGISLATION
The Tribunal’s objectives are articulated in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Subsection 33(1AB) of the AAT Act provides that:
A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Subsection 42A(2) of the AAT Act gives the Tribunal the power to dismiss an application for review if a party (other than the person who made the decision) fails to appear.
Subsection 42A(2) provides:
If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person whomade the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or
(b)in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.
Subsection 42A(5) of the AAT Act provides that:
(5)If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
There is judicial guidance that the power to dismiss should be exercised as a last resort. In Guse v Comcare (1997),[15] the Court remarked that subsection 42A(5) of the AAT Act provides a discretionary power that should be regarded as one of last resort. In relation to the exercise of this power, the Court held that:
The very nature of the discretion seems to me to demand that the Tribunal consider, after the default has occurred, whether in the circumstances then obtaining, a "reasonable time" has elapsed and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance…
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed.
[15] Guse v Comcare (1997) 49 ALD 288; 25 AAR 477 at 480.
In Charara v Federal Commissioner of Taxation (2016), the Federal Court held that s 42A(5) is in aid of the objective in ss 2A(b) of the AAT Act[16] and set out the principles relevant to the exercise of the discretion as follows:[17]
The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[16] Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451 at [75].
[17] Charara v Federal Commissioner of Taxation at [79]–[80].
The Respondent relied on a number of judgements and contended that if it is apparent from the facts that the applicant is not pursuing the application, the Tribunal is entitled to exercise the power to dismiss.[18]
[18] Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345; 121 ALD 242; [2011] FCA 299; Re Byrt and Commissioner of Taxation (2013) 140 ALD 236; [2013] AATA 862; Berry v Commissioner of Taxation (2015) 149 ALD 270; [2015] FCA 1244; Re Evans and Comcare [2019] AATA 799 at [66].
The Respondent also referred to previous Tribunal decisions relating to dismissal. In Re McGrath and Inspector-General in Bankruptcy,[19] the Tribunal declined to make the order sought, stating at [20] that the discretion to dismiss should be exercised sparingly and only in the clearest cases. However, there have been multiple decisions, where the Tribunal exercised the power to dismiss an application. In Re Lewtas and Comcare,[20] the Tribunal noted that the applicant had both been advised of the need to comply with a direction and had been given an opportunity to explain why she had not complied with that direction thus making out the conditions for the exercise of the dismissal power.
[19] Re McGrath and Inspector-General in Bankruptcy (2011) 119 ALD 439; [2011] AATA 27.
[20] Re Lewtas and Comcare [2017] AATA 1804.
In Re De Simone and Commissioner of Taxation,[21] the Tribunal observed that:
[21] Re De Simone and Commissioner of Taxation [2017] AATA 1005 at [10].
Section 42A(5) plainly complements the Tribunal’s s 33 powers to regulate the conduct of an application to the Tribunal. Section 42A(5) affords a process for dealing with non-compliance with directions designed to cause:
(a) the issues in dispute to be identified; and
(b) gathering or preparation of evidence directed to the facts that bear upon the issues in dispute,
both for the purposes of assisting the parties to prepare their cases and assisting the Tribunal in discharging its review responsibilities. An applicant who fails or refuses to participate in the processes directed by the Tribunal does so at the peril of the application being dismissed.
In Re Vilips and Migration Agents Registration Authority (2007),[22] the Tribunal noted that the mere fact that delay had been caused by a medical condition was not in itself sufficient to give an applicant a right to maintain a matter before the Tribunal indefinitely. This is particularly the case if the evidence shows that there is no reasonable prospect of the condition being resolved in the foreseeable future.
[22] Re Vilips and Migration Agents Registration Authority (2007) 96 ALD 249; [2007] AATA 1613 at [17].
PROCEDURAL FAIRNESS
The Tribunal is mindful of the necessity to, before dismissing a matter, forewarn the Applicant of the potential dismissal and be given an opportunity to provide an explanation for the non-compliance.[23] The Tribunal must be satisfied that the Applicant has been given proper notice before exercising its power to dismiss for non-appearance pursuant to s 42A(7) of the AAT Act.[24] The Tribunal notes that the Court in Katterns v Comcare[25] concluded that the Tribunal had erred in dismissing an application pursuant to subsection 42A(5) of the AAT Act without giving notice to the parties of its intention to do so and extending to them an opportunity to be heard in relation to the application.
[23] De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269 at [25].
[24] Re Gulf Meat Exporters Pty Ltd and Export Development Grants Board (1982) 4 ALN No 116.
[25] Katterns v Comcare (2002) 36 AAR 277; [2002] FCA 1366.
The first issue that needs to be addressed is whether the Applicant has had proper notice of the potential dismissal.
The Tribunal observes that the Notice of Listings sent to the Applicant in relation to the Directions hearings include details of the date and time for the listings and the following information:
What happens if you do not attend?
If you cannot attend at the time listed above, you should advise us as soon as possible.
If an applicant or an applicant’s representative fails to attend, the Tribunal may dismiss the application under section 42A(2) of the AAT Act.
Information provided to the Applicant in association with Directions issued by the Tribunal in this matter include the following:
1.If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.
2.The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3.If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
4.Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.
5.If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must make a request to the Tribunal for an extension of time to comply or for a variation of the direction. You should make the request well before the date by which you are required to comply with the direction.
Non-appearances
Although the Applicant has not appeared at Directions hearings on various occasions, it is reasonable to focus on the recently held Directions hearings on 28 November 2022 and 7 February 2023 when the Applicant did not appear.
On 28 November 2022, in a telephone call with the Associate, the Applicant said he had reception issues and did not get the Associate’s voicemail until 10:40am. He said he tried to call back at 10:40am but it took the person answering the call a while to understand what he was saying.
The Applicant did not appear at the Directions hearing held on 7 February 2023. After the Directions hearing, the Associate contacted the Applicant and advised that the Tribunal contacted him over 5 times but each time the caller got a tone on the Applicant’s phone that indicated that his phone was either disconnected or off. The Applicant told the Associate that his phone was not disconnected and that he was available.
During the interlocutory hearing, the Applicant offered a number of explanations which are discussed below.
The Tribunal finds that the Applicant has failed to appear on at least two occasions, including 28 November 2022 and 7 February 2023, and consequently the power to dismiss for non-appearance is enlivened under s 42A(2) of the AAT Act. The Tribunal is satisfied that the Applicant has been given proper and reasonable notice of those listings through the Listing Notices as well as telephone communications with the Associates.
Non-compliance and progression
In a Directions hearing held on 25 February 2021, the Applicant indicated that he was not yet ready to proceed to a hearing as he wanted to gather further evidence. However, a further report was not provided until November 2021 (Report of Mr Martin dated 16 November 2021).
On 4 May 2022, a Directions hearing was held and the Applicant was directed to provide any further physiotherapy reports and other material upon which he intends to rely, by 1 June 2022. The matter was listed for hearing on 27 – 28 June 2022, which had to be vacated as the Applicant had not complied with the Direction made on 4 May 2022.
A Directions hearing was held on 5 July 2022 to deal with the non-compliance. The Applicant stated that he was unable to get an advocate. He was given until 23 August 2022 to provide any further physiotherapy report and other material upon which he intends to rely. The Applicant did not comply with this direction.
In a Directions hearing held on 28 November 2022, the Applicant did not appear at this hearing, stating he had reception issues. The Applicant was directed to provide any further evidence by 23 December 2022, but he did not.
On the evidence, the Tribunal finds that the Applicant has not complied with directions, and as such, that the requirements of s 42A(5)(b) are met. Moreover, the Tribunal is satisfied that the application has not proceeded to any significant extent since the review application was lodged and that the Applicant has contributed significantly to the limited progress of the application.
In considering this matter, the Tribunal is satisfied the Applicant has failed to, within a reasonable time, proceed with the application. The Tribunal is satisfied that the requirements of s 42A(5)(a) are met.
Should the application be dismissed?
In the course of the interlocutory hearing held on 30 May 2023, the Applicant apologised to the Tribunal and explained his difficulties, including lack of legal representation or a support coordinator. He stated that he has no one to assist him and that he has been ready to go to a hearing. The Tribunal noted that although he has provided some material in support of his application for review, that material is dated, which means that the Tribunal could potentially give it limited weight.
The Applicant gave evidence that despite multiple attempts, he has been unable to find a support coordinator because of ‘notes’ made on his file by the Agency. He explained that he had support coordinators in the past, but they did not do their job and the Agency did not assist. The Applicant contended that the Agency inappropriately used the dismissal process in his son’s case as well.
In relation to the Respondent’s submission that there are limited adverse consequences to the dismissal, the applicant disagreed and referred to his son’s case, which was apparently dismissed by the Tribunal on a technicality which was later overturned by the Federal Court. He said he wants justice for himself and for his son, whose funding was adversely impacted following the dismissal.
The Respondent submitted, and the Tribunal accepts, that the circumstances of the son’s dismissal are not relevant to this application. In any event, there is nothing before the Tribunal to support the contention that the Agency inappropriately used the dismissal process in his son’s case, or is doing so in this case. It is the Tribunal’s task to consider relevant and probative evidence.
The Respondent contended that there are support services available and that there is no basis for the claim that the Applicant has been unable to find a support coordinator because of ‘notes’ made on his file by the Agency. The Respondent submitted that a third party does not have access to participant’s files without their consent. There is no probative evidence to support the contention that the difficulties in finding a support coordinator are because of ‘notes’ made on his file by the Agency.
In relation to the Applicant’s non-appearances and non-compliance, the Respondent submitted that those are not beyond the Applicant’s control and that it is the Applicant’s responsibility to progress his matter. The Respondent submitted that there is no disadvantage to the Applicant in case of dismissal as he has the right under s 48 of the NDIS Act to request a review of his plan. The Respondent noted that, in the case of dissatisfaction with the outcome of that review, the Applicant has rights of review. The Respondent argued that dismissal in these circumstances is consistent with the objectives of the AAT Act and an efficient use of the Tribunal’s limited resources. The Tribunal is persuaded by those submissions. The potential adverse consequences to the Applicant would need to be considered in the context of s 48(2) of the NDIS Act, which provides for the reassessment of a participant's plan on request of a participant.
As to the submissions that the application for review has limited prospects of success, the Tribunal is of the view that it would be prejudging the issues prior to proper consideration. The Tribunal notes those submissions but makes no specific findings in this regard. Moreover, this application is not about the substantive issues, but about dismissal.
The Tribunal has carefully considered the Applicant’s explanations. A fair review of the chronology relevant to these proceedings indicate that the matter has not progressed in a meaningful way since the application was lodged with the Tribunal on 18 January 2019. Factors contributing to the lack of progression would appear to the Tribunal to, in no small part, include constraints affecting the Applicant’s capacity to participate. These constraints are due to his disability, for which he has sought assistance from the NDIS and indeed was accepted into the scheme. The effect this has had on the review process at the Tribunal would appear to be compounded by the lack of representation and advocacy available to assist the Applicant with the review process.
The Tribunal accepts that the Applicant has faced challenges in finding legal representation and a suitable support coordinator. The Tribunal acknowledges the Applicant’s difficulties in navigating through the processes and procedures of the Tribunal. The Tribunal however has no power, or role, to appoint representatives or advocates for applicants who, for whatever reason, find engaging with and traversing Tribunal procedures difficult or confusing. In particular, the Tribunal does not have the power to appoint or seek the appointment of a guardian ad litem, where this may be of assistance to an Applicant in proceeding with their application.
On balance, the Tribunal is satisfied that it is not reasonable, or consistent with its objectives, or appropriate for the Tribunal, to put aside or ignore an application where, as is the case in this matter, an Applicant’s engagement in the proceedings might be compromised. The repeated listings reflect the Tribunal’s genuine and empathic endeavour to engage the Applicant in procedures by which the application could proceed. The Tribunal has given the Applicant multiple opportunities to engage in the process and comply with Directions, in order to assist in the timely and fair disposition of this matter.
In the particular circumstances of this matter, consideration as what is a ‘reasonable time’ within which to proceed with an application. Although the Applicant contends that he is ready to go to a hearing, the material in support such as reports are dated and could only be given limited weight. In reality, the proceedings in this matter have not gotten off first base, with this being engagement in case conferencing to confirm supports requested, identify evidentiary gaps and clarify if discussions between the parties in the ‘informal’ alternate dispute resolution pathway may effectively narrow or resolve the issues that are in dispute. The explanations given by the Applicant about the non-appearances and non-compliances are not entirely persuasive; the Tribunal accepts the Respondent’s submissions that many NDIS Applicants before the Tribunal are not represented and there is an obligation to progress their matters. The non-appearances and non-compliances are arguably indicators of limited commitment to progress the matter.
The Applicant has been given multiple opportunities to prepare his case, but the several instances of non-appearance and non-compliance with the Tribunal’s directions strongly support a conclusion that the application should be dismissed. A decision to dismiss a matter such as this, particularly in the case of a vulnerable person, weighs heavily on the Tribunal personally. However, the Tribunal must discharge its review obligations in the context of the objectives of the AAT Act, including fairness, proportionality, and timeliness.
In conclusion and for the above stated reasons, the Tribunal finds that the requirements of ss 42A(2), 42A(5)(a), and 42A(5)(b) are met. For those reasons, the Tribunal is satisfied that it is reasonable to dismiss the application for review under ss 42A(2), and 42A(5) of the AAT Act.
DECISION
The Tribunal dismisses the application for review, under ss 42A(2) and 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.
................................[SGD]...................................
Associate
Dated: 14 June 2023
Date of hearing:
30 May 2023
Applicant:
By telephone
Representative for the Respondent:
Mr J Bewsher, National Disability Insurance Agency
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