Worthington and National Disability Insurance Agency

[2022] AATA 606

Worthington and National Disability Insurance Agency [2022] AATA 606 (30 March 2022)

Division:                NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):     2021/8589

Re:Mr Jason Worthington

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member Damien O’Donovan

Date:30 March 2022

Place:Canberra

The Tribunal dismisses the application under s 42A(2) of the Administrative Appeals Tribunal Act 1975.

………………..[sgd]………………..

Senior Member Damien O’Donovan

Catchwords

PRACTICE AND PROCEDURE – dismissal of application for non-attendance at alternative dispute resolution - repeated non-attendance – failure to provide proper explanation for non-attendance - application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 29, 42A(2)

REASONS FOR DECISION

Senior Member Damien O’Donovan

30 March 2022

INTRODUCTION

1. Jason Worthington filed an application for review of a decision of the National Disability Insurance Agency (Agency) on 12 November 2021.

2. Mr Worthington is seeking to have included in his approved statement of participant supports funding for home modifications to allow him to accommodate gym equipment provided for under his existing plan.

3. On 9 December 2021, the Tribunal, under s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act), notified Mr Worthington and his then Support Coordinator that his application had been received. The Tribunal sent confirmation to Mr Worthington via the email address used by Mr Worthington to contact the Tribunal (email address). The Tribunal used that same email address in all future correspondence with Mr Worthington. Soon after, a listing notice was issued advising the parties of a conference by telephone on Wednesday, 23 February 2022 at 10:00am (‘first conference’).

4. On 13 December 2021 the Tribunal received correspondence from Mr Worthington’s support coordinator advising that she was no longer providing services for Mr Worthington. Her ceasing to provide services for Mr Worthington was confirmed on 20 January 2022.

5. On 28 January 2022, Mr Worthington confirmed his intent to continue with his application, but on 22 February 2022, Mr Worthington advised the Agency that he was double booked and unable to attend the first conference that had previously been listed. The Tribunal vacated the first conference and, on 23 February, sent out listing notices to the parties for a new conference on 2 March 2022 at 10:00am (‘second conference’).

6. When the conference proceeded on that day, the Tribunal called the applicant several times on a mobile number ending in 055 but the calls went through to voicemail. 

7. A listing notice for a relisted conference was sent out later on 2 March 2022, advising of a relisted conference to be held on 16 March 2022 at 2:30pm (‘third conference’). In the email, the Tribunal advised Mr Worthington that failure to attend the third conference may lead to his application before the Tribunal being dismissed under s 42A(2) of the AAT Act. A follow up email was sent by the Tribunal on 2 March 2022 asking Mr Worthington to confirm that he would attend the third conference. Mr Worthington confirmed he would attend in an email to the Tribunal dated 4 March 2022.

8. When the conference proceeded on 16 March 2022 the Tribunal was unable to contact Mr Worthington. The Tribunal made numerous calls to the applicant’s mobile number ending in 055. On each occasion the call went through to voicemail.

9. On 18 March 2022 the Agency contacted the Tribunal advising it would seek dismissal of the Application.

10. On 18 March 2022, the applicant emailed the Tribunal stating:

    I just noticed I had a call on the 16th just past. I never received the call. Not sure what happen there.

11. Also on 18 March 2022, the Tribunal emailed Mr Worthington and the Agency advising the parties that it was considering dismissing Mr Worthington’s application under s 42A(2) of the AAT Act for failure to attend the second and third conferences. The email also invited Mr Worthington to provide any submissions relating to the dismissal application.

12. Mr Worthington responded to the Tribunal on 24 March 2022 stating:

    I’ve already emailed, I know my phone is being stuffed with. If you guys want to deny me of the opportunity go right ahead. I’m over the games.

    Legal Framework

13. Section 42A(2) provides as follows:

    If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made 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.

14. The second and third conferences were alternative dispute resolution processes under Division 3 of the AAT Act. The applicant’s failure to attend those events activates the Tribunal’s discretion to dismiss the application without proceeding to review the decision.

15. The question is whether the Tribunal should exercise that discretion.

    Consideration

16. The applicant’s non-attendance at the second conference remains unexplained. His explanation about his non-attendance at the third appears to be that there was a problem with his phone. Even accepting that that is the case, it is clear that the problem is not a mere technical one. It took the applicant two days to recognise that the Tribunal was trying to contact him and respond to the Tribunal. This is in circumstances where the applicant:

    (c)had been advised of the conference;

    (d)had confirmed that he would be attending; and

    (e)knew (or ought to have known) that the Tribunal would try and call him.

17. If the applicant had been ready and willing to participate in the conference at the scheduled time, it is reasonable for the Tribunal to expect him to contact the Tribunal near the appointed time if there is a technical problem which is preventing the conference going ahead. The applicant’s long delay in getting in touch, combined with his apparent ignorance of why the Tribunal would be trying to contact him, satisfy me that the applicant was not ready and willing to participate in the conference as scheduled.

18. This level of indifference to participation in the Tribunal’s processes is not acceptable.

19. I am conscious that the applicant is a participant in the National Disability Insurance Scheme and faces significant disadvantages in engaging with the Tribunal which would not be shared by a represented party or many applicants in other parts of the Tribunal’s jurisdiction. However, even allowing for that, if an applicant cannot engage appropriately with the Tribunal, and he has been unable to do so to date, it is not possible to conduct meaningful review and that reality needs to be confronted sooner rather than later.

20. My concerns about excluding a vulnerable applicant from review on this particular occasion are significantly ameliorated by the fact that although the applicant’s default has meant that he will not be able to pursue review in the Tribunal on this occasion, he is still able to seek a review of his plan with the Agency and provide material which would support a different decision concerning the range of supports included in his statement of participant supports. If he remains dissatisfied, he can seek internal review and ultimately re-agitate these issues with the Tribunal. This decision does not foreclose his ability to pursue the supports which he seeks.

21. In these circumstances, it is appropriate in this case to dismiss the application.

    DECISION

22. The Tribunal dismisses the application under s 42A(2) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

...........................[sgd].............................................

Associate

Dated: 30 March 2022

23.     Date(s) of hearing:	24.     25 March 2022
25.     Date final submissions received:	26.     24 March 2022
27.     Applicant’s representative:	28.     Self-Represented
29.     Solicitor for the Respondent:	30.     Ms Sara Ryan, Mills Oakley Lawyers