Internal Review of Plans and deemed decisions - NNXF and NDIA [2019] AATA 5552

Key points

• In NNXF and NDIA [2019] AATA 5552 [opens in new window] the Tribunal decided in a 2-1 split that if an internal review of a plan is not completed by the NDIA "as soon as reasonably practicable", then an applicant can commence proceedings for review by the Tribunal without having to wait for the NDIA to finish its internal review.
• This is some good news for NDIS participants and their supporters frustrated by long wait times for internal reviews, but given the importance of this issue an appeal of this decision is reasonably likely.
• Participants who are currently waiting for internal reviews to be completed who feel that the review has taken longer than reasonably practicable should consider applying to the Tribunal to seek review of their plan.  However, the question of whether "as soon as reasonably practicable" has elapsed is highly fact-dependent. It may also depend on the NDIA and its resources.

Background

The applicant has Down syndrome and an intellectual disability. On 28 June 2018 she received a statement of participant supports (SOPS) as part of the NDIS. The applicant received less under the SOPS than she had previously received under the state-based scheme prior to the implementation of the NDIS, so on 10 September 2018 her sister applied for an internal review of the SOPS under s 100(2) of the NDIS Act [opens in new window]. 

Almost six months later the NDIA had still not made a decision on the internal review. On 8 March 2019 a representative of Disability SA lodged an application for review with the Tribunal. 

The question was whether the Tribunal had jurisdiction to review the SOPS despite the fact that the NDIA had not yet made a decision on the internal review. The applicant relied on s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act):

For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing (emphasis added).

Under s 100(6) of the NDIS Act [opens in new window], if an internal review application is made under s 100(2), then decision-makers are required to decide "as soon as reasonably practicable" (ASARP) whether to confirm, vary, or set aside and substitute the SOPS. 

Essentially, the applicant argued that the NDIA had failed to determine her internal review application ASARP, and therefore s 25(5) of the AAT Act meant that the NDIA was deemed to have confirmed the SOPS that was in place. That meant that she could seek review in the Tribunal pursuant to s 103 of the NDIS Act [opens in new window].

The NDIA conceded for the purposes of the Tribunal hearing that the decision was not made ASARP. However, the NDIA argued that the Tribunal did not have jurisdiction to conduct merits review before the NDIA had completed its internal review, because, among other things:

• ASARP is not a "period prescribed" for the purposes of s 25(5) AAT Act; and
• Section 25(5) of the AAT Act only applies to binary decisions e.g. to approve or reject something. Here, the decision maker has a choice of 3 things (affirm, vary, set aside and substitute), and therefore s 25(5) does not apply.

The Tribunal's decision

By a 2-1 majority, the Tribunal decided that it did have jurisdiction.

The Majority decision

The majority of President Thomas and Deputy President Britten-Jones was influenced by the general principles set out in s 4 of the NDIS Act which guide actions under the NDIS Act. These include principle 7: "People with disability have the same right as other members of Australian society to pursue any grievance." 

The NDIA argued that there could be no review by the Tribunal of a SOPS until the internal review was completed, regardless of the time it took and regardless of the length of the delay. 

The majority found (see [34] and [111] of the decision) that it would be contrary to that general principle for the NDIS Act to operate in the way that the NDIA said it did, because it would deprive people with disability of the right to pursue grievances about SOPS before the Tribunal.

I personally don't agree with the majority's analysis on this point. The general principle only gives people with disability "the same right as other members of Australian society" to pursue grievances. If the NDIS Act was structured in the same way, but dealt with a subject matter other than disability, the same issues would still arise.

At [71] - [98] the majority decided that ASARP was capable of being a "period prescribed" for the purposes of s 25 of the AAT Act. At [92] the majority made clear that the question of what is ASARP depends on the circumstances of a particular applicant. That means that there is no hard and fast rule that e.g. internal reviews must be completed within 3 months in order for them to have been done ASARP. It is a factual question. Interestingly, at [93] of the decision the majority seems to suggest that only the applicant's circumstances, and not the NDIA's circumstances, matter in deciding whether ASARP has elapsed. (I come back to this below.)

At [123] - [126] the majority discuss the NDIA's other argument that s 25(5) can't apply because a decision-maker has a choice of 3 things, not 2. They reject the argument, and find that when an applicant seeks internal review of a SOPS, they are asking the decision-maker to either vary or set aside the SOPS. If a decision-maker does not, ASARP, vary or set aside the SOPS, then the decision-maker is simply maintaining the status quo (the SOPS as issued), and therefore is taken to have affirmed the SOPS.  

Deputy President Forgie's decision

Deputy President Forgie disagreed that the Tribunal had jurisdiction, and set out a very lengthy and thorough judgment explaining why. 

Deputy President Forgie thought that ASARP is not a "period prescribed". At [193] - [200] she makes the point that ASARP depends not just on the circumstances of the applicant, but also on other factors such as the NDIA's resources, the number of internal review applications it receives, the prioritisation of those requests and the time at which they are received. There would need to be evidence of all of these factors before the Tribunal could decide whether an internal review decision had not been made ASARP. An applicant is unlikely to have evidence about the NDIA's internal pressures - this would have to come from the NDIA.

At [220] the Deputy President stated that a pivotal question is "What is meant by 'a period prescribed by that enactment' in s 25(5) of the AAT Act?" After analysing various provisions of the AAT Act the Deputy President comes to the conclusion that 'a period prescribed' requires a "clearly ascertainable limit or latest time for making a decision" - see [222] of her decision. She makes the point that s 29 of the AAT Act [opens in new window] sets out time limits for a person to apply to the AAT for review of a decision. In order to know when that time period has elapsed, one must know when the decision was made - that is, one must know the point in time when ASARP elapsed. Because ASARP depends on a whole bunch of factors, it is not possible to know when this is. This demonstrates that s 25(5) of the AAT Act does not apply to s 100(6) of the NDIS Act. 

At [246] - [252] the Deputy President makes the point that even if s 25(5) did apply to s 100(6) of the NDIS Act, the only thing that a decision-maker will be deemed "not to have done" is to not have made a decision at all. In her view this is not the same as affirming the SOPS. A decision to not make a decision under s 100(6) is not reviewable by the Tribunal, because it is not one of the specified decisions in s 99 of the NDIS Act [opens in new window].

What this means for NDIS participants and their supporters

This decision goes some way towards providing participants and supporters with an avenue out of the gridlock of NDIA internal review of SOPS. If a participant is issued a SOPS and is dissatisfied with it, the first step remains to seek internal review. If the internal review process takes an unreasonably long time, the participant can lodge an application for merits review with the Tribunal. Provided that the Tribunal takes the view that the NDIA did not make a decision ASARP, it will carry out a merits review of the SOPS. This means that participants no longer have to wait around indefinitely for the NDIA to complete its internal review.

However, there are a few things that must be remembered:

1. Given the importance of this issue and the 2-1 split, it is reasonably likely that the NDIA will appeal this decision to the Federal Court. The Court may wind up overruling this decision.
2. ASARP is very much dependent upon a particular applicant's circumstances. The Tribunal in this case did not have to deal with this issue because of the NDIA's concession that it had taken too long, so we don't know what exactly the Tribunal will require to be satisfied that ASARP has elapsed. However, an applicant who wants to approach the Tribunal because internal review has taken too long should have evidence to show what has been done (e.g. emails, letters, records of phone calls) to try and get the NDIA to make a decision. Also, if there are circumstances showing the urgency of having the internal review completed, then this should also be put before the Tribunal.
3. I also agree with Deputy President Forgie that the NDIA's circumstances have to be taken into account. The NDIA appears to be under-resourced, and some reviews are taking up to 9 months to complete [opens in new window]. The NDIA has to balance competing demands for resources, and has to prioritise the most urgent cases. Increased access to the Tribunal is not a substitute for increased funding for the NDIA.
4. There is a risk that an applicant applies, but the Tribunal decides that ASARP has not yet elapsed. If so, then the Tribunal will not have any jurisdiction to conduct an internal review, and the applicant will have to try again some time later.