Wagner and National Disability Insurance Agency
[2020] AATA 1775
•2 June 2020
Wagner and National Disability Insurance Agency [2020] AATA 1775 (2 June 2020)
Division:NATIONAL DISABILITY INSURANCE DIVISION
File Number: 2019/7993
Re:Rosemary Wagner
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 2 June 2020
Place:Melbourne
The Tribunal decides to:
dismiss the applicant’s application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 on the basis that it does not have reasonable prospects of success.
…………[sgd]………………..
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – whether application has reasonable prospects of success – whether applicant meets age requirements under s 21(1)(a) of the National Disability Insurance Act 2013 – applicant aged over 65 when applicant made – cannot meet age requirements –no earlier application for internal review – application dismissed under s42B(1)(b) of the Administrative Appeals Tribunal Act 1975
Legislation
National Disability Insurance Scheme Act 2013; s 20; s 21; s 22; s 24; s 28; s 100; s 103
Administrative Appeals Tribunal Act 1975; s 42B(1)(b)
Acts Interpretation Act 1901; s 29
Evidence Act 1995; s 160; s 163
Cases
Secondary materials
REASONS FOR DECISION
Deputy President S A Forgie
On 2 December 2019, Ms Wagner applied for review of a decision made by the National Disability Insurance Agency (Agency) on 4 November 2019. The Agency affirmed its earlier decision dated 13 August 2019 that Ms Wagner did not meet the access criteria to become a participant of the National Disability Insurance Scheme (NDIS). It did so on the basis that Ms Wagner did not meet the requirements set out in s 24(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act). In particular, she did not meet the age requirements as she was over the age of 65 years at the time she lodged her request on 3July 2019. I held a hearing to consider whether Ms Wagner’s application had reasonable prospects of success or whether it did not and should be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). I gave Ms Wagner’s representative an opportunity to make further written submissions after the hearing. Now that that the time for receiving them has passed and for the reasons that I will now set out, I have decided that Ms Wagner’s application does not have reasonable prospects of success and have dismissed it under s 42B(1)(b) of the AAT Act.
Ms Wagner suffers from Bipolar Disorder, Diabetes Type 2, Hypothyroidism, Sleep Apnoea, Heart Failure and Respiratory Failure. She first applied to the Agency for access to the NDIS when she was 63 years of age. On 16 July 2018, a delegate of the Chief Executive Officer of the Agency decided that Ms Wagner did not meet the access criteria under s 20 of the NDIS Act. Ms Wagner was then 64 years of age. The “access criteria” are set out in s 21. Section 21(1) provides:
“A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).”
The delegate decided that Ms Wagner had not met either the disability requirements or the early intervention requirements. The disability requirements are set out in s 24. Had Ms Wagner asked the delegate to review that decision under s 100(2),[1] a reviewer would have considered her circumstances and her health again and assessed them against the requirements of s 24. That review would have been conducted under s 100(5) and a decision made under s 100(6) of the NDIS Act. Had she still been dissatisfied with the decision made on that review, she could have lodged an application to the Tribunal for review.[2] Her request for access to the scheme would have been considered afresh in the course of the review conducted under s 100(5) and again by the Tribunal had Ms Wagner sought review.
[1] She was entitled to do that as the decision that she did not meet the access criteria was a reviewable decision under Item 1 of s 99(1) of the NDIS Act.
[2] NDIS Act; s 103
Sadly, Ms Wagner did not seek review of the decision made by the delegate on 16 July 2018. Instead, she lodged a separate request for access to the NDIS. She made that request on 3 July 2019 but by then she was over 65 years of age. That meant that she could not meet the age requirements as required by s 21(1)(a). Section 22 provides that a person meets the age requirements if two criteria are met. The first, set out in s 22(1)(a), is that “the person was aged under 65 when the access request in relation to the person was made”. The second criterion is not relevant in this case. At the time she lodged her request, Ms Wagner had already celebrated her 65th birthday. She had done so only a couple of months earlier in the year but she was over the age of 65 years all the same. She could not meet the requirements of s 22(1)(a) and so could not meet the first of the access criteria that she had to meet under s 21(1)(a). As she could not do so, the only decision that the CEO could make under s 21 was to decide that Ms Wagner did not meet the access criteria. Therefore, she could not become a participant of the NDIS.[3]
[3] A person becomes a participant under the NDIS if the CEO has decided that he or she meets the access criteria: NDIS Act; s 28(1).
This is the decision a delegate of the CEO came to on 11 October 2019. When Ms Wagner sought review of the decision, a reviewer affirmed the decision on 4 November 2019. As she was entitled to do, Ms Wagner lodged an application in this Tribunal on 2 December 2019.
With one exception, a person who makes an access request to become a participant must meet the access criteria and, of particular relevance in this case, the age requirement, before the CEO will make a decision under s 28 that he or she is a participant. That follows from the fact that the access criteria set out in s 21 are cumulative. Therefore, even if a person meets the residence requirements and either the disability or early intervention requirements, he or she will not satisfy the access criteria if he or she does not meet the age requirements.
The one exception is set out in s 21(2). It is met if the person satisfies the residence requirements set out in s 23(3) of the NDIS Act,[4] as Ms Wagner does, and was also:
“(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at the other time; and
(ii)received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii)received the supports under a program prescribed by the National Insurance Scheme rules for the purposes of this subparagraph;”.[5]
[4] NDIS Act; s 21(2)(a)
[5] NDIS Act; s 21(2)(b). If the person satisfies s 21(2) and becomes a participant, he or she would no longer be entitled to receive the supports described in s 21(2)(b) or equivalent supports: NDIS Act; s 21(2)(c).
There is no evidence that Ms Wagner met or meets the requirements of s 21(2). It follows that she had to be aged under 65 years when she made her request. She was 65 years of age when the second request was made on her behalf. It makes no difference that the earlier request had been made when she was under that age. Each request must be decided upon by the CEO and the person affected by that decision may apply for review of that decision within three months of receiving notice of it.[6] The fact that an earlier request was made when she was under the age of 65 years cannot affect the course of decision-making regarding her second request and the review of the decisions.
[6] NDIS Act; s 100(2). Ms Wagner would have also been entitled to seek review under s 100(2) on the basis that the CEO had neither decided whether or not a prospective participant meets the access criteria or sought further information within 21 days of receiving her request to be a participant in the NDIS: NDIS Act; s 21(3) and s 99(1), Item 1.
As she cannot meet the age requirements, Ms Wagner’s request to be a participant in the NDIS cannot succeed. As the Tribunal is obliged to make a decision according to the law and on the evidence, it cannot make a decision other than to decide that she does not meet the access requirements under s 20. Therefore, she cannot be a participant in the NDIS. Her application can have no prospect of success let alone any reasonable prospects of success. I decided, therefore, to dismiss her application on that basis under s 42B(1)(b).
Before leaving this matter, I note that the requests were made on Ms Wagner’s behalf by two different agencies. Mr Czech submitted on Ms Wagner’s behalf that she did not receive the decision made by the delegate of the CEO regarding her first request. Those assisting her found notice of the decision among at her home. Given her health and difficulties I accept she has in coping with daily living, I understand that Ms Wagner might well not have read the notice of the decision made by the CEO’s delegate on 16 July 2018. I have asked myself the question whether she can be said to have “received” it at a much later date so that she could seek first internal review in the Agency under s 100(5) and, ultimately, review in the Tribunal.
The internal review right hinges on a person’s making a request for that review “… within 3 months after receiving the notice.” The words “receiving” or “receive’ are not defined in the NDIS Act. They are not defined in the Acts Interpretation Act 1901 (AI Act), which is described in its Overview as “… like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under the Commonwealth Acts.” The AI Act remains relevant, though, and I will return to it shortly.
Division 3 of Part 4.3 of the Evidence Act 1995 (Evidence Act) does set out certain presumptions relating to postal and other forms of communication. Not every provision of the Evidence Act applies in the Tribunal but s 163 does apply because s 5 extends its operation to “Australian courts”. The expression “Australian court” is given an extended meaning in the Dictionary to the Evidence Act and includes: “a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence”.[7] The Tribunal is such a body and so must have regard to s 163.
[7] Evidence Act; s 3; Dictionary, Part 1; paragraph (e) of the definition of “Australian court”
Section 163 of the Evidence Act provides:
“Proof of letters having been sent by Commonwealth agencies
(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
(2) In this section:
business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
letter means any form of written communication that is directed to a particular person or address, and includes:
(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c) any unenclosed written communication that is directed to a particular person or address.
Note: Section 5 extends the operation of this section to proceedings in all Australian courts.”
Applying the presumption, it would mean that the letter dated 16 July 2018 and addressed to Ms Wagner would have been presumed to have been sent to her on 23 July 2018. Were the Tribunal to fall within the definition of a “federal court”, which it does not,[8] s 160 would have presumed that she received it on the seventh working day after it was posted i.e. 1 August 2018. Section 160 is not a provision whose operation is extended to an “Australian court” by s 5.
[8] The Tribunal does not come within the definition of a “federal court” in the Dictionary to the Evidence Act because it is not required to apply the laws of evidence in performing a function or exercising a power under the law of the Commonwealth.
Although the presumption in s 160 of the Evidence Act does not apply, that in s 29 of the AI Act does. It provides:
“Meaning of service by post
(1) Where an Act authorises or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.”
Whatever merit complaints about Australia’s postal service may have, it cannot be said that a letter deemed to have been sent in July 2018 would not have been delivered in the ordinary course of post until the following year. There is no question that Ms Wagner was in possession of it because others found it among her possessions in 2019. On any view, the provisions of s 163 of the Evidence Act and s 29 of the AI Act would mean that she would be taken to have received notice of the first decision in August 2018. When she made her second request in July 2019, she did so on a date well beyond the three month time limit within which she could have sought internal review of the first decision. I have no basis on which I could read her second request in some way as a request to the Agency to review its decision dated 16 July 2018 under s 100(5). Her first request and her rights of review attaching to the Agency’s decision had come to an end and, with her 65th birthday that ensued between August 2018 and her second request in July 2019, so had her ability to satisfy the access requirements under s 20 of the NDIS Act.
DECISION
For the reasons I have given, I have dismissed Ms Wagner’s application under s 42B(1)(b) of the AAT Act on the basis that it does not have reasonable prospects of success.
| I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie |
...............[sgd].........................................................
Associate
Date of decision: 2 June 2020
Heard: Applicant’s Advocate: | 7 April 2020 Mr Peter Czech |
| Respondent’s solicitor: | Mr Paul Flintoft National Disability Insurance Agency |
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