Ferguson v Children's Guardian - [2024] NSWCATAD 298 - NSWCATAD 2024 case summary — Zoe

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Ferguson v Children's Guardian

[2024] NSWCATAD 298

NCAT Administrative and Equal Opportunity|2024-09-26

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Court

NCAT Administrative and Equal Opportunity

Decision date

2024-09-26

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Judgment (22 paragraphs)

[1]

REASONS FOR DECISION

On 9 July 2024, Ms Kristy Ferguson ("the Applicant") applied to the Tribunal for administrative review of a decision made by on 22 November 2023 ("the Administratively Reviewable Decision"). The Respondent refused an application by the Applicant for a NDIS Worker Check Clearance (NDlS Clearance) under s 8 of the National Disability Insurance Scheme (Worker Checks) Act 2018 ("the NDIS WC Act") the Administratively Reviewable Decision ("the Substantive Application"). The Applicant made the Substantive Application: 1. Without having first sought internal review of the Administratively Reviewable Decision under s 53 of the Administrative Decisions Review Act 1997 (the ADR Act), and 2. 230 days after the Administratively Reviewable Decision.
On 15 August 2024, the Tribunal made orders requiring the Applicant to "file an application seeking leave to extend the time for filing [the Substantive Application] and any order sought pursuant to s 55(4) of [the ADR Act] (if required) together with evidence and submissions by 22 August 2024."
On 27 August 2024, the Applicant served a bundle of material on the Respondent which (while framed as an appeal from the Tribunal's 15 August 2024 orders), was intended to be a miscellaneous application ("the Miscellaneous Application") for an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act").
The Respondent contends that the Interlocutory Application should be dismissed, and that the Substantive Application should be dismissed for want of jurisdiction.
There is no dispute that the Administratively Reviewable Decision when it was made, was a decision which could be reviewed by the Tribunal: s 30(1) of the CAT Act, ss 7 and 8 of the ADR Act and s 41 of the NDIS WC Act.
In order for the Tribunal to deal with the Substantive Application, the Applicant must satisfy the matters prescribed in s 55 of the ADR Act, which include: 1. having lodged her application within the time prescribed for making such an application: s 55(2) of the ADR Act and Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules); and 2. having duly applied for an internal review under s 53 of the ADR Act: s 55(3) ADR Act.

[4]

ADR Act

Chapter 3 of the ADR Act makes provision for the processes for the administrative review of administratively reviewable decisions. Part 2 in that Chapter sets out the processes for administrative review by the administrator and Part 3 sets out the processes for administrative review by the Tribunal.
The relevant section in Part 2 is s 53 which, makes provision for 'internal reviews' by the administrator of an administratively reviewable decision. That section relevantly provides as follows: 53 Internal reviews (1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section. (2) Requirements for an application An application for an internal review is: (a) to be in writing, and (b) to be addressed to the administrator concerned, and (c) …, and (d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person: (i) … (ii) … was notified of the making of the administratively reviewable decision, and … … (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). Note - Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection.
The relevant section in Part 3 is s 55 which makes provision administrative review by the Tribunal. That section relevantly provides as follows: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. … 3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) …, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
There is no dispute that the applicant is an interested person for the purpose of s 55(1).

[5]

CAT Act and Rules

Section 40 of the CAT Act provides that an application to the Tribunal is to be made in the time and manner prescribed in the enabling legislation or the procedural rules.
Rule 24 of the NCAT Rules sets out the requirements for making an administrative review application to the Tribunal, including the time within which such an application is to be made. That rule relevantly provides as follows: 24 Administrative review applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is - (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or (a1) …, or (b) in any other case - the period of 28 days after - (i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision - the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or (ii) if the applicant has not requested reasons under section 49 of that Act - the day on which the applicant was notified of the making of the administratively reviewable decision.
Section 41 of the CAT Act provides as follows: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
I have dealt with the legal principles relevant to the exercise of the Tribunal's discretion to extend time below.

[8]

The Notice of the Administrative Reviewable Decision 22 November 2023

The respondent's notice of decision is a two page document that is addressed to the applicant. It is not in dispute that the Applicant received the notice.
In the Notice, the Respondent set out the grounds on which the decision was made and the Applicant's right to seek an internal review as follows: You have a conviction for fraud (dishonestly obtain financial advantage) relating to an incident that occurred in 2012. You were an adult at the time of committing the offence. The victim was a vulnerable person. You are therefore a presumptively disqualified person. Under section 15 of the National Disability Insurance Scheme (Worker Checks) Act 2018, you are presumed to pose a risk of harm to people with disability. You made an unauthorised transaction from a vulnerable person's bank account in 2012. The victim of your offending was a person to whom you were employed to provide support. You exploited the position of trust and access privileges in committing theft and fraud against the victim for your personal gain. This type of offending is relevant to NDIS work. NDIS work can involve access to participants' funding packages, personal finances, and personal information. NDIS participants may have difficulty detecting, preventing, or notifying of, dishonesty perpetrated against them. A repetition of similar behaviour could result in financial and emotional harm to people with disability. It is more than 11 years since your offending. We do not consider this passage of time sufficiently mitigates the risk of harm you are presumed to pose from your offending behaviour. This is due to the nature (dishonesty), victim (vulnerable person), and context (care setting) of your offending. You submitted information to us, and we have considered it. We note your claim that you used the victim's card by mistake. We cannot accept this version of events given your guilty plea and subsequent conviction. We note you became a single parent at the time of committing the offence. We accept that you have been employed as an Enrolled Nurse and have completed a Diploma in Nursing since the offence. Further, we note that your current role does not include taking participants on personal outings, that you do not have access to participant's funds, and you do intend to work as independent support worker with NDIS participants. We do not consider that these factors sufficiently mitigate the risk of harm associated with your offending behaviour. We have not identified anything exceptional in relation to your offending or your overall history that would mitigate the risk of harm you are presumed to pose to people with disability. We are satisfied that you pose a risk of harm to people with disability. This is due to the nature (dishonest), victim (vulnerable person), and context (care setting) of your offending. Can this decision be reviewed? You can apply for a review of this decision by logging into your MyServiceNSW account. You will need to pay a fee. You must submit your application for review within 28 days (4 weeks) of this notice. If you are still unsatisfied, you can then apply to the NSW Civil and Administrative Tribunal (NCAT) via their website at www.ncat.nsw.gov.au. Your exclusion will remain in effect during any review by us or NCAT.
The Applicant contends after she received the Administrative Reviewable Decision, her employer said to her that the role in which she was employed no longer required her to have an NDIS worker check. Based upon this advice, the Applicant took no further steps about the decision. She did not pursue her rights for internal review, or, otherwise.
The time for the Applicant to apply for internal review of the Administratively Reviewable Decision expired on 20 December 2023.
If the Applicant had applied for internal review on the latest date available, the internal review would have been taken to be finalised, at the latest, on 10 January 2024 (see s 53(9)(b) of the ADR Act).
The Applicant filed the Substantive Application with the Tribunal on 9 July 2024, this is about 6 months after she could have filed it if she had followed the procedure set out in the ADR Act.

[9]

Submissions

The Applicant provided the following explanation about why she failed to request an internal review and then lodge an application for administrative review with the Tribunal: 1. In the Substantive Application, the Applicant said she did not file the Application within time because: "I didn't know I could apply". This is hard to accept in circumstances where the Application was given notice of her right to apply for an internal review on page 2 of the 22 November 2023 notice of decision. Perhaps she did not read the part about a right of review, but this was not her evidence. I can place no weight on this explanation. This is because the right of review is clearly set out in the notice. The Applicant did not state that she failed to read the notice, nor, her rights of review. 2. Her then employer told her after receiving the Administratively Reviewable Decision in November 2023 that her position did not require a NDIS check. It is for this reason she did not pursue internal review. 3. In oral submissions, the Applicant said she became aware she required a NDIS worker check in about January or February 2024. After a short period, the Applicant lost her position as an enrolled nurse working in aged care because she did not have a NDIS worker check. Due to the stress of losing her employment, needing to feed, bath and cloth two children as a single parent and general anxiety of her situation, the Applicant did not focus her attention to applying to the Tribunal until July 2024.
The Applicant has continued her studies. She is about to graduate from university with a bachelor's degree in nursing. Currently, she is working for NSW Health in the local hospital. Her real desire is to return to working in aged care, which is her passion. The Applicant said her future career opportunities are limited because she works in a rural area, and, if she can not work in the aged care she will be limited to general health.
The Respondent contends the applicant does not "not clearly articulate why it is necessary for the Tribunal to deal with the Substantive Application in order to protect the Applicant's interests." The Respondent submitted the following: The word "interests" is not defined in the ADR Act. In the Guardian's submission, the Tribunal should interpret "interests" to mean: a. The rights of the Applicant to seek review of the Administratively Reviewable Decision in the manner provided by Parliament under the ADR Act and NDISWC Act. b. If an application for internal review has been made but has not yet been determined, [s 55(6) of the ADR Act] the effectiveness of the determination of the Substantive Application. In the Respondent's submission, the Tribunal should not be satisfied that it is necessary for the Tribunal to deal with the Substantive Application in order to protect those interests.
The respondent contends that the Applicant was on notice of the procedure for seeking internal review and the time for doing so. I find that this is established. That information was contained in the same email which advised the Applicant of the decision itself. The Applicant does not deny she received the decision.
The Respondent submits that the Tribunal should "not endeavour to protect interests which were expressly confined by Parliament in the enactment of the ADR Act. To do so would confer rights upon the Applicant which were not intended by Parliament." In that regard, parliament has established a 28 day period in which the Applicant could have applied to seek internal review of the Administratively Reviewable Decision, the time to finalise the request for internal review and the time to apply to the Tribunal for review. I accept that where the Tribunal "is empowered to exercise a discretion, even one which is unfettered, that discretion must be exercised judicially." (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]).
The Respondent contends "there is no reason why the Applicant could not have applied for internal review within 28 days of the Administratively Reviewable Decision." The Applicant has not explained why she could not apply for an internal review, but rather, she did not because her employer said the NDIS clearance was not necessary for her position. The respondent submits that it should have been obvious to the Applicant that that position could change in the future. The only "interest" the Applicant seeks to protect is her interest in circumventing the procedural requirements of the ADR Act, and this is not an interest the Tribunal should be minded to protect.
In relation to the reasonable time factor, the Respondent contends that 230 days which passed between the Administratively Reviewable Decision and the Substantive Application is a significantly long period and not a reasonable one.
The Respondent submits that the Applicant has given two conflicting explanations for the delay. The first should not be accepted, namely, that she was unaware of her rights to seek internal review and review by the Tribunal. I agree. The second, namely, that her employer said the NDIS clearance was not required for her position. The Applicant "must have known she might seek alternate employment. Her election not to seek review of the Administratively Reviewable Decision could not be rationally informed by a short-term change in her then employer's requirements."

[11]

Extension of time

The NDIS WC Act does not prescribe a time within which an administrative review application is to be lodged with the Tribunal. The relevant time prescribed in rule 24(2)(b)(ii) of the NCAT Rules applies (within 28 days after the applicant was notified of the Respondent's decision).
Relevantly, I find the following matters which were not in dispute. The Applicant has acknowledged that she was notified of the Respondent's decision on 22 November 2023. The time for the Applicant to apply for internal review of the Administratively Reviewable Decision expired on 20 December 2023. If the Applicant had applied for internal review on the latest date available, the internal review would have been taken to be finalised, at the latest, on 10 January 2024. The Applicant did not lodge the Substantive Application until 230 days later, on 9 July 2024.
In Jackson v NSW Land and Housing Corporation at [18], the Appeal Panel noted that s 41 of the NCAT Act confers an unfettered discretion on the Tribunal to extend the time for the making of an application to it. However, as set out above, this discretion must be exercised judicially. At [22], the Appeal Panel set out the following considerations that it considered to be relevant to the exercise of the discretion to extend time under s 41 of the NCAT Act: 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - …; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - … and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - …; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - …; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - …
The Tribunal has also noted that, in administrative review applications, there is a public interest component to the evaluation of the discretion as well as the timeliness or delay in the antecedent administrative processes: CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [28] to [29] and CFZ v Department of Education [2015] NSWCATAD 231 at [9] and [10].

[13]

Reason for delay

I find, the applicant's explanation as to why her application was lodged late does not weigh in favour of time being extended.
I accept that, at the time the applicant was notified of the Respondent's decision, her employer said that a NDIS worker check was not required for her position. However, it must have been obvious to the Applicant that she may require the clearance in the future should she change roles, positions or employers. The Applicant has not provided any explanation about whether she considered these matters.
I accept that, the Applicant was told by her employer in January that the NDIS worker check was required, and without a clearance the Applicant' employment in aged care would be terminated. The Applicant said from late January/February 2024, she was focused on obtaining another job, managing stress and anxiety and ensuring she had employment to enable food and accommodation for her children, noting the Applicant is a single parent. However, the Applicant waited some 4 to 5 months before she lodged the Substantive Application. Apart from broad submissions in this regard, the Applicant has not provided any evidence of when she obtained her new position with NSW Health, medical evidence about the extent of her anxiety and why it took her 4 to 5 months to lodge the application with this Tribunal. The Applicant could also have lodged a request for internal review of the Administratively Reviewable Decision with the Respondent within this time, but she did not and has not satisfactorily explained why that was so.
Even though the Applicant relied solely upon her employers advice that an NDIS worker check was not required for her then role, she was nevertheless fully aware of the grounds on which the Respondent had decided to refuse the clearance, and the process available for internal review and administrative review of the Administratively Reviewable Decision. This included a knowledge of the time within which an internal review and an administrative review application were to be made.
I agree with the Respondent that the Applicant provided two conflicting reasons for her delay. The first being that she was not aware of her review rights, which I do not accept, the second being that her employer said she did not require a NDIS Clearance for her position, which in time was incorrect. I accept that it should have been obvious to the Applicant that she may in the future require the NDIS worker check should her employment change or cease.
In the absence of identifying any misunderstanding of the Administratively Reviewable Decision that was made, or what the Applicant needed to do if she was dissatisfied with the Administratively Reviewable Decision, I find that the Applicant has not provided a satisfactory explanation for the delay.

[14]

Prospects of success

In Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 at [46] the Tribunal said: 46. It is not the role of the Tribunal, when deciding an application for an extension of time to make a finding as to whether the applicant is likely to be successful in the proceedings. The test of whether an applicant has a fairly arguable case is designed to avoid such speculation. …
The Administratively Reviewable Decision noted that the Applicant is required to undergo a risk assessment, that is because she is a presumed risk of harm to persons with a disability pursuant to s 15 of the NDIS WC Act "For the purposes of a risk assessment of a presumptively disqualified person, it is to be presumed that the person poses a risk of harm to persons with disability unless there are exceptional circumstances that justify a determination that the person does not pose such a risk." Note: A presumptively disqualified person requires a risk assessment and is presumed to pose a risk of harm to persons with disability unless there are exceptional circumstances. See Part 3.
In the Substantive Review Application the Tribunal will undertake a risk assessment based upon the mandatory factors as set out in s 16 of the NDIS WC Act: (a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a "relevant event" ), and how it is relevant to NDIS work, (b) the length of time that has passed since a relevant event occurred, (c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event, (d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour, (e) the person's conduct since a relevant event, (f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work, (g) such other matters as the Screening Agency considers appropriate.
The Applicant provided the following reasons for why she may be successful in the Tribunal setting aside the Administratively Reviewable Decision. I inadvertently utilised the incorrect keycard and independently reported the discrepancy in relation to my previous conviction from 11.5 years ago. The investigation resulted in the filing of criminal complaints, despite the fact that the money was returned. I have since progressed in my career, becoming an EEN and currently in my final year of a Bachelor of Nursing program that was funded by a scholarship from Uniting Age Care. My criminal history goes back to 2013, and it is currently expended on my record. Since that time, I have been working assiduously in aged care as an Assistant in Nursing (MN), undergoing training to become an Endorsed Enrolled Nurse (EEN), and am on my way to finishing my Bachelor of Nursing. I have maintained a pristine record both before and after the incident. I have been free of any additional complications for the past 11 years. In light of these circumstances, I am of the opinion that the denial of an NDIS certification and the termination of my position as a nurse in aged care constitutes borderline discrimination. I have diligently pursued a reputable profession and have consistently exhibited my dedication to the healthcare sector. My work history and educational accomplishments demonstrate my commitment to professional development and my contributions to patient care. The decision to terminate my employment and deny my clearance does not accurately represent the positive changes and personal development that I have experienced over the past decade. I respectfully ask that the Appeal Panel reevaluate this decision, considering the substantial impact it has on my career as well as my professional contributions and spotless record. I am confident that a fair and equitable evaluation of my case will illustrate that I am a qualified candidate for continued employment and NDIS clearance.
I find based upon the explanation given above, the Applicant has an arguable case. This weighs in favour of an extension of time.

[20]

No internal review

Having considered the above extension of time request, it is unnecessary to consider this issue. However, for completeness I will briefly do so.
First, as the Respondent's decision is an administratively reviewable decision, the internal review provisions in s 53 of the ADR Act apply. This is because, the NCAT WC Act does not place any conditions on the review processes contained in the s 9 of the ADR Act.
In accordance with s 53(6)(c) of the ADR Act, the Respondent informed the Applicant of her right to seek internal review and the time within which an application for internal review should be made. This is set out clearly in the Administratively Reviewable Decision. The evidence establishes, which is not in dispute, that the Applicant did not apply for internal review within the 28 days, or at all.
I must consider whether: 1. the Applicant's application has been made within a reasonable time following the 22 November 2023 Administratively Reviewable Decision, and 2. it is necessary for the Tribunal to deal with the applicant's application to protect her interest.
I have provided my reasons that the Applicant's application was not lodged within a reasonable time. It was lodged well outside the prescribed time and no satisfactory explanation has been given for the delay.
I do not accept the Respondent's submissions that it is not necessary to deal with the Substantive Application to protect the Applicant's interests. The Applicant without a NDIS worker check will not be able to work in some areas of health or disability, such as aged care. I am not satisfied the "interest' test can be so narrowly confined to the Applicant's interest as being her seeking review of the Administratively Reviewable Decision and the procedure and time limits for seeking internal review and also review by this Tribunal. I find that the 'necessary interest' element would be satisfied.
For the same reasons which are set out above, I am not satisfied that the Substantive Application was made within a reasonable time as required under s 55(4)(b) of the ADR Act.

Ferguson v Children's Guardian

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