Zammit-Ross and National Disability Insurance Agency

[2024] AATA 3291

Zammit-Ross and National Disability Insurance Agency [2024] AATA 3291 (2 September 2024)

Division:GENERAL DIVISION

File Numbers:2021/4480 &          2024/6050

Re:Yma Zammit-Ross

APPLICANT

AndNational Disability Insurance Agency   

RESPONDENT

DECISION

Tribunal:Senior Member K Parker

Date:2 September 2024

Place:Melbourne

The Applicant has applied to the Tribunal to make a direction under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) to extend the time for lodgement of her application seeking review of a decision made by a delegate of the CEO of the Respondent on 5 July 2024 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘2024 Application’). The Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for lodgement of the 2024 Application until 6 August 2024 under s 29(7) of the AAT Act.

The Applicant has also applied for an order to reinstate a previous application for review of decision before the Tribunal numbered 2021/4480 (‘2021 Application’). The 2021 Application was finalised on 7 February 2023 by a decision of the Tribunal made under s 42C of the AAT Act, following receipt by the Tribunal of signed terms of agreement entered into by the parties (‘s 42C Decision’).

The Tribunal has decided not to reinstate the 2021 Application as its authority to conduct a review in relation to the 2021 Application expired on 7 February 2023 upon the making of the s 42C Decision.

The Tribunal notes that despite the refusal of the Tribunal to reinstate the 2021 Application, the Applicant may proceed with seeking a review of the supports and plan management specifications in her NDIS plan, by proceeding with the 2024 Application which is now on foot before the Tribunal as a result of this Decision.

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

Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – application for extension of time to lodge an application for review (‘EOT Application’) – Applicant seeks review of a decision made to approve a statement of participant supports in her National Disability Insurance Scheme (‘NDIS’) plan and requests that the funding be self-managed, instead of plan-managed – substantive application lodged approximately four days after the expiry of the 28-day statutory time limit under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) – acceptable explanation for the delay – Tribunal satisfied it is reasonable in all the circumstances to extend the time for lodgement – EOT Application granted

PRACTICE AND PROCEDURE – application for reinstatement (‘Reinstatement Application’) of previous application lodged in 2021 (‘2021 Application’) – 2021 Application was finalised by a decision by the Tribunal under s 42C of the AAT Act (‘s 42C Decision’) after parties entered into terms of settlement – Respondent implemented the s 42C Decision and undertook a subsequent plan review, resulting in a new NDIS plan for the Applicant – Applicant asserts that the Respondent “re-negged” on the agreement forming the basis of the s 42 Decision, by reducing the supports in her new NDIS plan by 40 per cent –Tribunal’s authority expired upon making of the s 42C decision – reinstatement application not granted

Legislation

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

National Disability Insurance Scheme Act 2013 (Cth), ss 99, 100, 103

Cases

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member K Parker

2 September 2024

INTRODUCTION

EOT Application – 2024 Application

1. On 6 August 2024, the Applicant, Ms Yma Zammit-Ross, lodged with this Tribunal an application for review (‘2024 Application’) of a decision made on 5 July 2024, relating to an earlier decision on 14 February 2024 to approve a statement of participant supports forming part of her NDIS plan.

2. The 2024 Application was lodged approximately four days after the 28-day statutory time limit under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). Ms Zammit-Ross requested that the Tribunal extend the time for lodgement of the application for review under sub-s 29(7) of the AAT Act (‘EOT Application’).

3. The Respondent, National Disability Insurance Agency (‘NDIA’), by its representative, informed the Tribunal, for the first time at the hearing of the EOT Application on 2 September 2024, that it does not oppose the EOT Application. When the Tribunal asked the NDIA’s representative why he had not advised the Tribunal about the NDIA’s position (of not opposing the EOT Application) prior to the Interlocutory Hearing, he explained that he had only been allocated this matter on 30 August 2024.

   Reinstatement Application – 2021 Application

4. Ms Zammit-Ross has also applied for reinstatement (‘Reinstatement Application’) of a previous application for review of decision numbered 2021/4480 (‘2021 Application’).

5. The 2021 Application involved the review of a decision made by the NDIA about Ms Zammit-Ross’ previous statements of participant supports. The 2021 Application was finalised by the making by this Tribunal of a decision under s 42C of the AAT Act on 7 February 2023 (‘s 42C Decision’), following receipt on 2 February 2023 from the parties of executed terms of agreement. The s 42C Decision resulted in a new statement of participant supports for Ms Zammit-Ross being approved by a delegate of the CEO of the NDIA in February 2023.

   Interlocutory Hearings – 2 September 2024

6. The 2021 Application was listed for an interlocutory hearing on 2 September 2024 in relation to the Reinstatement Application. The 2024 Application was also listed for an interlocutory hearing on this day to address the EOT Application and for the Tribunal to decide if it had authority to conduct a review in relation to the 2024 Application if the EOT Application was granted. The NDIA advised the Tribunal at the interlocutory hearing on 2 September 2024, that it does not take any issue with the Tribunal having jurisdiction to conduct a review in relation to the 2024 Application. The Tribunal agrees, and is satisfied it would have jurisdiction to conduct a review in relation to the 2024 Application if the EOT Application is granted. Accordingly, it was not necessary for the Tribunal to address the issue of jurisdiction with the parties at the interlocutory hearing.

7. Ms Zammit-Ross was self-represented. The NDIA was represented by NDIA in-house lawyer, Mr Leo Nguyen.

   ISSUES

8. The issues arising in this matter are:

   (a)whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Ms Zammit-Ross to lodge the 2024 Application until 6 August 2024; and

   (b)whether the Tribunal should reinstate the 2021 Application under s 42A of the AAT Act.

   CONSIDERATION OF EOT APPLICATION

   Relevant Legislation

9. Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging an application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:

   Prescribed time for making applications—general

   (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

   (a)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

   (b)  …

10. Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement of an application for review of decision, if it is satisfied that “it is reasonable in all the circumstances to do so”.

    Tribunal may extend time for making application

    (7)  The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

    Relevant factors to be considered

11. The factors the Tribunal will consider in making this assessment are:[1]

    (a)the length of the delay in lodging the 2024 Application;

    (b)the explanation given for the delay;

    (c)the Tribunal’s preliminary impression as to the merits of the substantive 2024 Application;

    (d)whether the NDIA has suffered any prejudice on account of the delay;

    (e)whether Ms Zammit-Ross has rested on her rights of review;

    (f)public interest; and

    (g)any other matter the Tribunal considers appropriate (such as alternative avenues of review).

    [1] Hunter Valley Developments v Cohen (1984) 3 FCR 344.

12. Firstly, the Tribunal has considered the length of the delay in lodgement of the substantive 2024 Application. The delay in this case is very short, being only approximately four days.

13. This factor weighs in favour of granting the EOT Application.

14. Secondly, the Tribunal has considered the explanation given by Ms Zammit-Ross for the delay in lodgement of the substantive application. Ms Zammit-Ross explained that she acted immediately upon receiving the internal review decision from the NDIA (under s 100 of the NDIS Act) in July 2024, by making a request for reinstatement of her previous application (that is, the 2021 Application). Ms Zammit-Ross said she was waiting for the Tribunal to revert to her. The Registry subsequently informed Ms Zammit-Ross she may lodge a new application for review in relation to the July 2024 internal review decision by the NDIA under s 100 of the NDIS Act. Upon receiving this advice, she lodged the 2024 Application form with the Tribunal.

15. The Tribunal considers the confusion about which was the appropriate path Ms Zammit-Ross was to take, to seek a review of the decision on 5 July 2024 regarding the earlier decision on 14 February 2024 to approve a statement of participant supports for her, is understandable. The Tribunal considers that Ms Zammit-Ross acted promptly to pursue the correct path once she was advised how to do so. As soon as the Tribunal’s Registry reverted to Ms Zammit-Ross, a new 2024 Application for the review was lodged by her. The Tribunal accepts Ms Zammit-Ross’ explanation for the delay.

16. This factor weighs in favour of granting the EOT Application.

17. Thirdly

    , the Tribunal must consider the merits of the substantive 2024 Application. It is not appropriate to delve into a detailed analysis of the evidence and instead, it is for the

    
    

    Tribunal to form a preliminary impression as to the Applicant’s prospects of success, were the matter to proceed.

18. The Tribunal has considered the evidence to see whether Ms Zammit-Ross has an arguable case in respect of the 2024 Application. The Tribunal considers that she does. Among other things, Ms Zammit-Ross is requesting the reinstatement of funding for active overnight supports, which were considered by the NDIA as recently as February 2023, as being “reasonable and necessary supports” for her (as implied from the act of the relevant delegate of the CEO of the NDIA at that time entering into the terms of settlement which formed the basis of the s 42C Decision issued on 7 February 2023).

19. The factor weighs in favour of granting the EOT Application.

20. Fourthly, the NDIA does not point to there being any prejudice having been suffered by it as a result of the very short period of the delay in lodgement. At the hearing, the NDIA informed the Tribunal it does not oppose the extension of time.

21. This factor weighs in favour of granting the EOT Application.

22. Fifthly, the Tribunal has considered whether Ms Zammit-Ross has “rested on her rights”. The delay was only very short and Ms Zammit-Ross was confused about the correct path to take, to seek a review. This mistake was reasonable to make. The Tribunal does not consider that Ms Zammit-Ross can be said to have “rested on her rights”.

23. Accordingly, the Tribunal considers this to be a neutral factor and does not weigh against the granting of the EOT Application.

24. Sixthly, the public interest gives rise to an expectation that parties will observe statutory timeframes when seeking a review before this Tribunal. The delay in lodgement in this application was very short. The Tribunal is not satisfied that this is a factor which should weigh against granting the EOT Application.

    Conclusion in respect of the EOT application

25. The Tribunal has concluded that there are several factors weighing in favour of granting the EOT Application, specifically:

    (a)the very short period of the delay, being only approximately four days;

    (b)Ms Zammit-Ross has an acceptable explanation for the delay in lodgement;

    (c)Ms Zammit-Ross has an arguable case in respect of the 2024 Application; and

    (d)there is no identifiable prejudice to the Secretary should the Tribunal permit the 2024 Application to proceed.

26. Accordingly, the Tribunal considers that it is reasonable in all the circumstances, to extend the time for lodgement of Ms Zammit-Ross’s application for review of decision, to 6 August 2024 under subsection 29(7) of the AAT Act. In other words, the Tribunal grants the EOT Application. This means the 2024 Application for review is now permitted to proceed before the Tribunal.

    2024 APPLICATION REMITTED UNDER S 42D OF THE AAT ACT

27. A further discussion was held with the parties about the respective position of each party regarding the substantive matters in dispute between them. Arising from this discussion, the NDIA informed the Tribunal that it was open to reconsidering this matter. The Tribunal considers it appropriate to remit this matter for reconsideration by the NDIA on or before 5pm on 12 September 2024. A remittal order will be sent to the parties separately from this Decision.

28. If the above remittal does not resolve in this matter being resolved between the parties, the Tribunal has referred this matter to Registry to be listed for a further case management directions hearing on 13 September 2024 before the Tribunal, to address the urgent circumstances raised by Ms Zammit-Ross, namely, she anticipates her current funding under her NDIS plan to be depleted by October 2024.

    CONSIDERATION OF THE REINSTATEMENT APPLICATION

29. The second issue arising for determination by the Tribunal is whether it should grant the Applicant’s Reinstatement Application, in respect of the 2021 Application.

30. The Tribunal does not consider that it is open to it to reinstate the 2021 Application because the 2021 Application was not dismissed, but rather it was finalised by a decision of the Tribunal made on 7 February 2023 under s 42C of the AAT Act. Upon issuing of the s 42C Decision, the Tribunal’s authority expired.

31. The provisions in the AAT Act contained in s 42A of the AAT Act which provide for review proceedings to be reinstated are based upon an application having been dismissed. While there is an argument that s 42A(9) of the AAT Act, if given a literal meaning, might constitute a separate and standalone basis upon which the Tribunal can reinstate a proceeding (noting that it makes no express reference in this provision to the matter having been dismissed), the Tribunal interprets s 42A(9) of the AAT Act as providing for the basis upon which an application made under s 42A(8) or s 42A(8A) should be decided upon, rather than it giving rise to a separate stand alone right of reinstatement. Even if the Tribunal is wrong in relation to interpreting s 42A(9) in this way, and Ms Zammit-Ross can apply under s 42A(9) to the Tribunal to seek to reinstate a proceeding in circumstances other than a dismissal, the Tribunal does not consider it would be appropriate to do so. Ms Zammit-Ross’ only concern about the s 42C Decision relates to the fact that 12 months subsequent to the NDIA entering into the terms of agreement which resulted in the making of the s 42C Decision, the NDIA has made a different decision about the level of funding which should be approved in her NDIS plan. This does not mean there was any error in the making of the s 42C Decision or that it would be appropriate for the 2021 Application to be reinstated. Time has moved on, and the NDIS Act provides for ongoing and periodic plan reviews. These matters are now able to be addressed, by Ms Zammit-Ross proceeding with her 2024 Application which is now before the Tribunal as a consequence of this Decision.

    CONCLUSION IN RELATION TO THE REINSTATEMENT APPLICATION

32. For the reasons set out in the above paragraph, the Tribunal does not grant the Reinstatement Application. The 2021 Application will not be reinstated by the Tribunal.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Parker.

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

Associate

Dated: 2 September 2024

Dates of hearing:	2 September 2024
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Leo Nguyen, In-house Lawyer, NDIA