AAT response about unreasonable delays in NDIS internal review process

Subject: FW: concern that the NDIA may be showing contempt for the AAT [DLM=For-Official-Use-Only]
Date: Wed, 6 Mar 2019 03:10:38 +0000
From: Sian Leathem <Sian.Leathem@aat.gov.au>
To: 'convenor@a4.org.au' <convenor@a4.org.au>
CC: Kate Lynch <Kate.Lynch@aat.gov.au>

Dear Mr Buckley,

Please note that my reference to a period of 6 months was illustrative only. In any instance where the AAT receives an application for review under s103 of the NDIS Act and there is no evidence of an internal review decision having been made by the NDIS under s100(6) of the Act, the matter is referred to a member to consider the issue of jurisdiction.  This usually results in the convening of a telephone directions hearing to explore the status of the matter.  While the AAT may not have jurisdiction to proceed with determining the application, in our experience this process generally assists applicants to progress their matter with the NDIS.    The directions hearing provides a mechanism for early intervention that may assist in getting things on track between the applicant and NDIS.

Regards,

Sian Leathem

Registrar

Administrative Appeals Tribunal

Executive

T: 02 9391 2497 M: 0418 127 624

From: Bob Buckley (A4 Convenor) [mailto:convenor@a4.org.au]
Sent: Tuesday, 5 March 2019 2:35 PM
To: Sian Leathem
Cc: Kate Lynch
Subject: Re: FW: concern that the NDIA may be showing contempt for the AAT [DLM=For-Official-Use-Only]

 

Dear Ms Leathem,

So just to be clear, you say (below) that the AAT now will not accept a review request relating to an uncompleted internal review until at least 6 months after a participant requests an NDIA internal review.

And you (the AAT) understand that this now means that autistic children seeking early intervention support do not have access to a timely review process.

Bob Buckley
Convenor, Autism Aspergers Advocacy Australia (A4)
website: http://a4.org.au/

A4 is the national grassroots organisation advocating for autistic people, their families, carers and associates. A4 is internet based so that Australians anywhere can participate.

“The first step in solving any problem is recognising there is one.” Jeff Daniels as Will McEvoy in The Newsroom.

On 5/3/19 12:57 pm, Sian Leathem wrote:

Dear Mr Buckley,

 

Apologies if my last email was unclear.  In practice, if an applicant seeks to lodge an application with the AAT before he or she receives notification from the NDIA of a reviewable decision and an extended period of time has passed, say 6 months, the usual approach would be for the Tribunal to hold a jurisdiction hearing.  Ultimately, while the Tribunal may not have jurisdiction to determine the application, the hearing provides an opportunity for applicants and the NDIA to discuss progress, including when a decision can be expected from the NDIA.  It also provides an opportunity to canvass any related issues that may be delaying the NDIA’s decision.   

 

I trust that this clarifies the position.

 

Regards,

 

Sian Leathem

Registrar

 

Administrative Appeals Tribunal

Executive

T: 02 9391 2497 M: 0418 127 624

E: sian.leathem@aat.gov.au

www.aat.gov.au

 

 

 

 

From: Bob Buckley (A4 Convenor) [mailto:convenor@a4.org.au]
Sent: Tuesday, 5 March 2019 11:25 AM
To: Sian Leathem
Cc: Kate Lynch
Subject: Re: FW: concern that the NDIA may be showing contempt for the AAT [DLM=For-Official-Use-Only]

 

Dear Ms Leathem

thank you for your reply (below).

However, your response leaves us confused about the situation. Please make it clearer.

If an NDIS participant requests that the NDIA "internally review" a decision but the NDIA does not complete and notify the participant of such a review "as soon as reasonably practicable", is the participant able to apply to the AAT for a review of the issue? Is it now (since KRBG and National Disability Insurance Agency [2019] AATA 144 (11 February 2019) (KRBG)) up to the AAT to require that the NDIA resolve this impasse practically by insisting the NDIA immediately provide a completed review ... that the participant may still wish the AAT to review?

If this is not how the process is now meant to operate, please can you explain how the AAT ensures NDIS participants can access an effective review process when the NDIA fails to conduct "as soon as reasonably practicable" an internal review requested by the participant?

Please note that delays in these review processes typically deny autistic children access to (funding for) essential early intervention; such delays are often a severe detriment for an autistic child.

Bob Buckley
Convenor, Autism Aspergers Advocacy Australia (A4)
website: http://a4.org.au/

A4 is the national grassroots organisation advocating for autistic people, their families, carers and associates. A4 is internet based so that Australians anywhere can participate.

“The first step in solving any problem is recognising there is one.” Jeff Daniels as Will McEvoy in The Newsroom.

On 28/2/19 10:05 am, Sian Leathem wrote:

Dear Mr Buckley,

 

Ms Kate Lynch has referred your email dated 15 February 2018 to me for reply.

 

In your email, you have queried the accuracy of the statement made by the National Disability Insurance Agency (NDIA) that “You cannot ask the AAT to review an NDIA decision until the NDIA has internally reviewed it.”  You have suggested that the NDIA’s statement is incorrect in view of the Tribunal’s decision in Re FJKH and National Disability Insurance Agency [2018] AATA 1294 (FJKH) delivered on 15 May 2018.

 

The content of the NDIA’s website is, of course, a matter for it and not for the Tribunal but I would suggest that it reflects the Tribunal’s decisions to date.

 

I would note, however, that FJKH decided that the requirement under s 100(6) of the National Disability Insurance Scheme Act 2013  (NDIS Act) that a decision be made “as soon as reasonably practicable” could be regarded as a requirement that the reviewer do so within a “period prescribed” for the purposes of s 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act). 

 

The Tribunal did not go on to decide two issues.  One was whether a time that was “as soon as reasonably practicable” had passed.  The second was the practical effect of the Tribunal making a decision that the NDIA had not made a decision under s 100(6) of the NDIS Act “as soon as reasonably practicable”.  Having regard to s 25(5) of the AAT Act, was the NDIA deemed to have confirmed the reviewable decision, varied it or set it aside and substituted another decision? 

 

This issue was considered by the Tribunal in Re KRBG and National Disability Insurance Agency [2019] AATA 144 (11 February 2019) (KRBG).  It was decided that, when s 100(6) of the NDIS Act and s 25(5) of the AAT Act are read together, they do not lead to a deemed decision that the Tribunal can review.  That is, the NDIA’s failure to make a decision does not lead to the deeming of a decision confirming a reviewable decision, varying it or setting it aside and substituting another.

 

The practical resolution of the matter was achieved in that case by the NDIA’s undertaking to have a reviewer immediately review the Statement of Participant’s Supports.  When he received the decision, KRBG was then able to lodge a new application for review in the Tribunal if he wished to do so. 

 

The time within which an appeal may be lodged in KRBG in the Federal Court has not yet expired.  I am not aware whether KRBG or the NDIA intend to appeal.

 

Thank you for raising this issue with the Tribunal.

 

Regards,

 

Sian Leathem

Registrar

 

Administrative Appeals Tribunal

Executive

T: 02 9391 2497 M: 0418 127 624

www.aat.gov.au

 

 

 

From: Bob Buckley (A4 Convenor) [mailto:convenor@a4.org.au]
Sent: Friday, 15 February 2019 3:03 PM
To: Kate Lynch
Subject: concern that the NDIA may be showing contempt for the AAT

 

Dear Ms Lynch

I am unsure who to send this to. If you are not an appropriate person, please would you pass it on to whoever in the AAT is responsible for such a matter.

The NDIS website has a web-page about "internal review of decisions" (see https://www.ndis.gov.au/applying-access-ndis/how-apply/receiving-your-access-decision/internal-review-decision). However, the page goes beyond that and discusses what can happen when someone is "still not happy after the internal review" by the NDIS. The page content is shown below.

Note that the pages says "You cannot ask the AAT to review an NDIA decision until the NDIA has internally reviewed it."

My understanding of the the AAT's decision in  FJKH and National Disability Insurance Agency [2018] AATA 1294 (15 May 2018) is that the NDIS's claim above is incorrect. I believe this decision of the AAT means that a person can ask the AAT to review an NDIA decision without the NDIA having reviewed the matter ... if the NDIA has delay the matter "unreasonably".

I am concerned that the NDIS is ignoring this AAT decision thereby showing contempt for the AAT.

--
Bob Buckley
Convenor, Autism Aspergers Advocacy Australia (A4)
website: http://a4.org.au/

A4 is the national grassroots organisation advocating for autistic people, their families, carers and associates. A4 is internet based so that Australians anywhere can participate.

“The first step in solving any problem is recognising there is one.” Jeff Daniels as Will McEvoy in The Newsroom.

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Important: This message and any attachments may contain confidential or legally privileged information. If the message was sent to you by mistake, please delete all copies and notify the AAT by return email. Any review, retransmission, dissemination or other use of this information by persons or entities other than the intended recipient is prohibited and may attract criminal penalties.

Important: This message and any attachments may contain confidential or legally privileged information. If the message was sent to you by mistake, please delete all copies and notify the AAT by return email. Any review, retransmission, dissemination or other use of this information by persons or entities other than the intended recipient is prohibited and may attract criminal penalties.