Watson and National Disability Insurance Agency
[2018] AATA 2247
•8 June 2018
Watson and National Disability Insurance Agency [2018] AATA 2247 (8 June 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/2313
Re:Holly Watson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:8 June 2018
Place:Sydney
The application for an extension of time is refused.
...........................[sgd].............................................Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – extension of time application – whether reasonable in the circumstances to grant application – significant delay in seeking extension of time – merits of substantive application considered – disability and early intervention requirements under National Disability Insurance Scheme Act – no evidence as to applicant’s conditions - extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
National Disability Insurance Scheme Act2013 (Cth) ss 21, 24, 25
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
12 July 2018
The decision of the Tribunal and the reasons for the decision were delivered orally on 8 June 2018. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.
INTRODUCTION
On 11 April 2018, Ms Holly Watson applied to the Tribunal for review of a decision made by the National Disability Insurance Agency (the NDIA) on 21 July 2017 that Ms Watson did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the NDIS Act) to become a participant of the National Disability Insurance Scheme (the NDIS).
Ms Watson then lodged an application to the Tribunal on 3 May 2018 in accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for an extension of time to make her application.
The NDIA opposes the extension of time sought.
The application was heard by the Tribunal on 8 June 2018. Ms Watson attended the hearing by teleconference and was represented by Mr Diego Figueroa from Partners in Recovery: Flourish Australia.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” [emphasis added].
The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
(b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application; and
(f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.
These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.
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.
REASONS FOR DELAY
The length of delay in Ms Watson seeking a review of the decision by the NDIA on 21 July 2017 is approximately eight months after the 28 day limit.
On behalf of Ms Watson, Mr Figueroa explained to the Tribunal that, following the decision by the NDIA on 21 July 2017, Ms Watson made a second access application to the NDIA to become a participant in the NDIS. This second application was refused by the NDIA on 31 January 2018; however, the avenues for her to seek an internal review of this decision are no longer open to her as she was required to make a request to the NDIA for the decision to be reviewed within 3 months from 31 January 2018. Mr Figueroa also stated that the process for Ms Watson to collect relevant documents and medical evidence to support her application to access the NDIS has been frustrating.
The NDIA, in its written reasons for opposing the extension of time dated 11 May 2018, noted:
From our records, a second Access Application was made on 30 January 2018, after seeking an extension to lodge a new Access Request Form on 20 October 2017, as the Applicant was still collecting and collating evidence. Extension was given by the Agency until 1 December 2017. The Applicant did not submit this new Access Request until 30 January 2018. On 30 January 2018 another Access Not Met decision was made by the Agency and communicated to the Applicant’s representative on 31 January.
As Ms Watson sought to make a second application for access to the NDIS after her first application was refused and an internal review decision was made, I am satisfied that Ms Watson “rested on her rights” and allowed the NDIA to believe that the matter relating to the decision on 21 July 2017 was finalised.
In view of the significant delay and the evidence that Ms Watson lodged a second application to access the NDIS after 21 July 2017, I am satisfied that these circumstances weigh against granting an extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both the NDIA and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes.
I am satisfied the NDIA would have expectations about the finality of the decision-making, particularly as Ms Watson subsequently lodged a second application to access the NDIS. I therefore find that there would be prejudice to the NDIA if the extension of time is granted. This factor weighs against granting an extension of time to Ms Watson.
MERITS OF SUBSTANTIVE APPLICATION
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time. The issue in the substantive application is whether Ms Watson can meet the access requirements set out in the NDIS Act.
Relevant legislation and consideration – access criteria
To become a participant in the NDIS, the applicant must satisfy the access criteria. The primary access criteria are summarised in section 21(1) of the NDIS Act:
21 When a person meets the access criteria
(1) 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).
Section 21(2) of the Act also provides alternative access criteria that, described simply, outlines that a person may be able to access the NDIS if they were receiving supports from a ‘qualifying program’ during the relevant ‘qualifying period’.
Sections 24 and 25 of the Act state:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)The person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)The impairment or impairments are, or are likely to be, permanent; and
(c)The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a)the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Ms Watson’s impairments were set out and briefly considered in the NDIA decision on 21 July 2017, which stated that the internal reviewer was not satisfied Ms Watson’s impairments met the requirements of paragraphs 24(1)(c) and 24(1)(e) of the NDIS Act, or met the requirements of section 25 of the NDIS Act.
For the purposes of this application for an extension of time, the Tribunal was not provided any medical evidence or other documentation that could support the merits of the substantive application. I accept submissions made by Mr Figueroa at the hearing that the process of collating information for the purposes of applying to the NDIS has been traumatic for Ms Watson. I also understand that this process of collating documentation has been finalised following an occupational therapy report on 9 November 2017.
Unfortunately for Ms Watson, whether the Tribunal grants an extension of time or not, she will be required to undergo further consideration of evidence about her impairments either through the Tribunal review process or due to further assessment by the NDIA.
As the Tribunal has no evidence in relation to Ms Watson’s impairments, I am unable to consider the merits or otherwise of the substantial application. I note, however, that it is open to Ms Watson to lodge a new application to become a participant to the NDIS and to provide evidence in relation to meeting the requirements in sections 24 and 25, as well as subsection 21(2) of the NDIS Act.
Taking into account all of the information that I have before me, I am not satisfied that it is reasonable in the circumstances to grant an extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein
of Dr L Bygrave, Member.............................[sgd]...........................................
Associate
Dated: 12 July 2018
Date of hearing: 8 June 2018 Advocate for the Applicant: Mr D Figueroa, Flourish Australia Solicitors for the Respondent: Mr A Downie, National Disability Insurance Agency
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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