Ms Wagner had applied for a review of a decision made by the National Disability Insurance Agency (NDIA) in November 2019. The NDIA affirmed an earlier decision which found Ms Wagner had not met the access criteria for the National Disability Insurance Scheme (NDIS). Ms Wagner was over 65 years of age at the time she applied and did not meet the age requirements under s 21(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

The applicant appealed the NDIA’s decision. The Administrative Appeals Tribunal (AAT) had to consider whether Ms Wagner’s application had reasonable prospects of success or not, and whether it should be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). 

Ms Wagner had previously applied for the NDIS when she was 63 years old. The NDIA had decided she did not meet the disability requirements (s 24 NDIS Act), or the early intervention requirements (s 25 NDIS Act). She was 64 years old when this decision was made. Instead of applying for a review of that decision as per s 100(2) of the NDIS Act, she lodged a new request for access to the NDIS in July 2019. By then she was over the age of 65 and could not meet the age requirements. It is this second application that came before the AAT.

Even if a person meets the other required access criteria, they must be refused access based on their age. There is only one exception for access (s 21(2) NDIS Act), which was irrelevant for Ms Wagner. The only decision, which could be made under s 21 of the NDIS Act, was that Ms Wagner could not become a participant of the NDIS.

The Tribunal had no other choice but to dismiss Ms Wagner’s application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it did not have the reasonable prospects of success.

After making the decision, Deputy President S A Forgie then went on to discuss the possibility of Ms Wagner seeking an internal review with the NDIA based on her first application. If she was successful in getting an internal review and the decision again went against her, then she would be able to lodge an appeal application with the AAT.

The Deputy President was motivated to make this investigation because Ms Wagner had claimed she did not receive the NDIA’s decision from her first NDIS request. The notice of decision was found by the people who assisted her with making the second NDIS application. It was found beyond the three-month time limit available to request an internal review of the decision. The two NDIS requests were made on Ms Wagner’s behalf by two different organisations.

The Deputy President investigated the definition of the word received to see if there was an argument that the document was received at a much later date. Neither the NDIS Act nor the Acts Interpretation Act 1901 (Cth) (AI Act) provide definitions for the words receive or received. So, the Deputy President relied on s 29 of the AI Act which defines the term meaning of service by post.

The Deputy President had to make the finding that Ms Wagner had received notice of the first decision in August 2018. This finding was based on the fact the document was found, albeit by people assisting Ms Wagner. Her second request to the NDIA was in July 2019, well beyond the three-month time limit to seek an internal review of the first decision. Her second request to the NDIA could not be read as a review of the first decision. [16]

The Deputy President acknowledged Ms Wagner’s personal circumstances and how they may have impacted her ability to advocate her own case. ‘Given her health and difficulties I accept she has in coping with daily living, I understand that Ms Wagner might well not have read the notice of the decision made by the CEO’s delegate on 16 July 2018’ [10]

It is common for people, who live in similar circumstances to Ms Wagner, to have different support workers and organisations involved in their lives. The Deputy President’s actions in trying to find another pathway for Ms Wagner to argue her case reveals one of the many barriers that people with disabilities face within our justice system. Everyone needs support when dealing with the legal system, some more and some less. If the organisation that was involved with lodging the first request for the NDIS had ensured Ms Wagner was made aware of the NDIA’s findings within the three-month time limit, there may have been a different outcome.