FJKH and National Disability Insurance Agency [2018] AATA 1294 (15 May 2018)

As a result of the insufficient level of funding and the delay in completing the internal review, the applicant has suffered from an increase in his anxiety levels, an increase in problematic behaviours, and a decrease in his ability to concentrate, which has impacted the applicant's social skills development.[1]

1. I should also record that, subsequent to the application for review being lodged in this matter, an internal review decision was made on 7 February 2018 and a request for review has also been lodged in respect of that decision, which is now application 2018/0936.
2. Notwithstanding the advent of an internal review decision and application 2018/0936, given the importance of the issue the subject of this decision, both parties agreed that the Tribunal should proceed to determine the question of whether in the circumstances as they existed at the time of the application for review on 7 December 2017, the Agency was deemed to have made a reviewable decision and the Tribunal's jurisdiction was invoked.

1. The NDIS Act provides for internal review of various decisions made under the Act (described as "reviewable decisions"), including a decision under s 33(2) to approve the statement of participant supports in a participant's plan.[2]
2. Section 100 relevantly provides that upon being notified of a reviewable decision, a person affected by that decision may request the CEO to review the decision. Such a request must be made within three months after receiving the notice.[3] The request may be made in writing or orally. Where the CEO receives a request for review of a reviewable decision, the CEO is obliged to cause the reviewable decision to be reviewed by a person described in the Act as "the reviewer" who has delegation to conduct such a review and who was not involved in making the reviewable decision.[4] Subsection (6) of s 100 provides that:

The reviewer must, as soon as reasonably practicable, make a decision:

(a) confirming the reviewable decision; or

(b) varying the reviewable decision; or

(c) setting aside the reviewable decision and substituting a new decision.

1. Section 103 provides that applications may be made to this Tribunal for review of a decision made by a reviewer under s 100(6).
2. Another provision of central relevance to the issue currently before me is s 25(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which provides as follows:

Failure of decisionmaker to meet deadline

(5) 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.

1. The particular question which has arisen for my determination is whether, in the circumstances I have described above, it may potentially be open to the Tribunal to conclude that the Agency has failed to make an internal review decision as soon as reasonably practicable, within the meaning of s 100 of the NDIS Act, with the result that a decision is deemed to have been made pursuant to s 25(5) of the AAT Act, such that the Tribunal has jurisdiction in this matter.
2. I should add that it has been agreed between the parties that, for present purposes, I will only determine whether or not the time period specified by s 100(6), namely "as soon as reasonably practicable" is a period to which s 25(5) attaches. If I conclude that it is, it has been agreed that the parties will have a further opportunity to potentially submit evidence and make submissions as to whether, as a matter of fact, that period had elapsed before the application for review was lodged on 7 December 2017.

IS THE PERIOD "AS SOON AS REASONABLY PRACTICABLE" ONE TO WHICH SECTION 25(5) ATTACHES?

1. The Agency has contended that the expression "as soon as reasonably practicable" in s 100(6) does not constitute a "period prescribed by the NDIS Act" for the purposes of s 25(5) of the AAT Act for a number of reasons. Those reasons include the following:

6.1 it is wholly inconsistent with existing case law on s.25(5) of the AAT Act;

6.2 it is wholly inconsistent with the interpretation of the same expression in the Full Federal Court authority of Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 230 FCR 82;

6.3 while the Tribunal is not formally bound by the Full Court decision of Snedden, it is highly persuasive and absent strong reasons to indicate that the Full Court's interpretation of that expression is not equally applicable to s.25(5), the Tribunal should adopt that interpretation; and

6.4 the construction provides no certainty with respect to when the Tribunal's jurisdiction would be enlivened.[5]

1. The Agency has also submitted that "there are other clearly established legislative remedies available" to an applicant wishing to "pursue the absence of a s.100 decision".[6]
2. The Agency further contends that:

had the legislature intended to impose strict time limits on the internal review decisionmaking process, there is an abundance of legislative provisions which could have been adopted to set those time limits clearly (see for example s.100(2) of the Act, or s.79 of the Seafarers Rehabilitation and Compensation Act 1992).

1. The Agency also seeks to contrast s 100(6) with other provisions of the NDIS Act which specify what the consequence will be if the nominated timeframe is not complied with:

For example, s 48(2) of the Act provides that the CEO must decide whether or not to conduct a review of a participant's plan within 14 days of receiving the request, and goes on to state what will happen if that decision is not made within 14 days, i.e., the CEO is taken to have decided not to conduct the review. The respondent contends that if it was intended that the power to make a decision under s 100(6) would expire if the decision was not made as soon as reasonable (sic) practicable, then the Act would have expressly provided for this, as it does in s 48(2).[7]

1. I will next address the main arguments advanced by the Agency.

1. Both parties essentially acknowledged that there were no authorities directly on point. However they both referred me to the decision of the Full Federal Court in Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 as providing some guidance as to construction of the phrase "as soon as reasonably practicable", and the potential implications of such a timeframe being imposed in a statutory context.
2. One of the relevant aspects of the Snedden decision in this context is the clear acknowledgment by the Court that the requirement that a decision be made as soon as reasonably practicable does impose a requirement that the decision be made within a determinable timeframe. The provision under consideration by the Court was in the following terms:

The AttorneyGeneral shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.[8]

1. With respect to the meaning of the phrase, the Court observed as follows:

There are essentially three elements to the composite expression "as soon as is reasonably practicable". First, the word "practicable" has the meaning of "capable of being carried out in action; feasible": M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 (M38/2002) at [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at [121]. Secondly, the qualification "reasonably" limits or qualifies what would otherwise be an absolute obligation: M38/2002 at [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at [121]. Third, the phrase "as soon as" supplies a temporal element: Al-Kateb at [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah at [74]; Judgment at [24].

It is undesirable to attempt to provide a rigid definition of when it would be "reasonably practicable" for the Attorney-General or Minister to make a determination under s 22(2): cf NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 at [51]. That will depend on a consideration of all the relevant circumstances of the particular case at hand. So much is clear from the additional words "having regard to the circumstances" that are included in the subsection. A range of considerations may be relevant.[9]

1. The Court went on to refer to the finding of the primary judge that, although there had been a lengthy delay, she was not persuaded that the determination was not made as soon as reasonably practicable having regard to all of the circumstances.[10] The Court held that this finding was open to the primary judge on the evidence before her. There is no suggestion in the judgment of the primary judge or the Full Court that a reasonably practicable timeframe was not something which could be established or determined with precision. Elsewhere in their judgment, the majority also pointed out that:

The words "as soon as is reasonably practicable" do have work to do in the context of the availability of mandamus. They determine the time from which a person can commence proceedings to enforce the Minister's duty. They avoid the need for an applicant for mandamus to have to rely on an implied or constructive refusal to make the decision based on unreasonable delay.[11]

1. Counsel for Mr Snedden argued that the words "as soon as reasonably practicable" conditioned the exercise of the relevant power, such that, if the decision was not made within that timeframe, the Minister lost power to make the decision. The Court summarised the effect of this argument as follows:

The effect of Mr Snedden's construction of s 22(2) is that if the AttorneyGeneral does not make a decision one way or another "as soon as is reasonably practicable", the Minister loses his power to make the determination. He cannot decide to surrender and issue a warrant under s 23. Nor, however, can he decide not to surrender and to order the release of the person. The person would therefore remain in custody under the terms of the s 19(9) warrant. Aside from s 22(5), there is no provision in the Act for the setting aside or stay of a s 19(9) warrant.[12]

The Court noted that there was in fact no provision of the Act which dealt with a situation where the Minister had lost power to make a determination under s 22. The Court ultimately rejected Mr Snedden's argument, stating:

The construction of s 22(2) which may result in the person whose extradition is being sought placed in limbo where he or she can neither be surrendered nor released by order of the Attorney-General is inconsistent with the tightly structured binary scheme in the Act. Given the importance of construing s 22(2) so that it is consistent with the language and purpose of all provisions of the Act (Project Blue Sky at [69]), this is a powerful reason for rejecting Mr Snedden's construction.

If the legislature had intended that the Minister's power to make a decision expired if it was not made "as soon as is reasonably practicable", the structure of the Act suggests that provision would have been made for what would happen if that came to pass.[13]

The text of s 22(2) also does not support Mr Snedden's construction. As the primary judge found, the language used in the subsection, including the use of the imperative "shall", confers on the Attorney-General both the power to make the surrender determination and the duty to make the determination as soon as is reasonably practicable. Read in that way, the time stipulation does not condition the exercise of power. Rather, it conditions the performance of the duty to exercise the power. As the Minister submits, and as the primary judge found, the performance of the duty to exercise the power as soon as is reasonably practicable can be compelled by an order in the nature of a writ of mandamus.[14]

1. Returning to this matter, as I understood his submissions, Mr Dubé, who appeared for the Agency, did not contend that the obligation imposed by s 100(6) to make a decision as soon as reasonably practicable conditioned the exercise of a reviewer's power to make an internal review decision.[15] It would be surprising if he had made such a submission given the consequences which would flow from that construction of s 100(6). As in Snedden, the NDIS Act also makes no provision for what would occur in the event of the Agency losing power to make a reviewable decision. If s 100(6) was construed in that way, depending on the length of the delay and the approach taken by the Agency, a claimant awaiting an internal review decision may ultimately receive a decision. Notwithstanding a lengthy delay, this would probably still enliven the Tribunal's jurisdiction, even if it was made without power.[16] Alternatively, if the Agency took the view it no longer had power to make an internal review decision, it may decline to make a decision. This would leave the claimant without any clear remedy or ability to access merits review. Even mandamus would not lie as the Agency would have no power to make the decision.
2. In any event, as I have indicated, Mr Dubé did not urge me to construe s 100(6) in that way, and I see no basis for doing so.
3. However, Mr Dubé did contend that if the applicant's construction was correct and s 25(5) was engaged once a reasonably practicable period had elapsed, one consequence of this would be that, once s 25(5) was engaged, a reviewer's power to proceed to make an internal review decision would be extinguished.
4. Mr Dubé contended that this consequence flowed from the interaction between s 25(5) and s 26 of the AAT Act, which relevantly provides as follows:

Restriction on powers of decisionmaker after application for review is made

(1) Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

(b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

(2) A reference in subsection (1) to the alteration of a decision is a reference to:

(c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.

Mr Dubé contended that once a 'deemed' affirmation decision had come into existence pursuant to s 25(5) and an application had been made to the Tribunal, s 26 had the effect that that deemed decision could not be altered. This in turn meant that an internal review decision could no longer be made, as any such decision would alter the deemed affirmation decision, in contravention of s 26.

1. However, I have concluded that I am not persuaded by this argument.
2. In my view, the making of an actual reviewable decision would not amount to an alteration of any deemed decision. The meaning of "alteration" is defined in s 26(2) and an actual internal review decision would not involve expressly varying or setting aside the deemed decision. Rather, in my view, both the deemed decision and the actual decision would be reviewable by the Tribunal, although once an actual decision had been made, it is unlikely there would be any remaining utility in an application for review of the deemed decision.
3. Although the statutory context is different, some support for this analysis is to be found in decisions involving the Freedom of Information Act 1982 (the FOI Act).
4. As at 1995, s 56 of the FOI Act operated to create a deemed decision to refuse access to documents if no decision was made within the stipulated timeframe. Section 56(5) of the FOI Act also provided:

Where, after an application has been made to the Tribunal by virtue of this section but before the Tribunal has finally dealt with the application, a decision is given, other than a decision:

(a) to grant, without deferment, access to the document in accordance with the request; or

(b) to amend or annotate the record of personal information to which the application relates;

the Tribunal may treat the proceedings as extending to a review of that decision in accordance with this Part.

1. Section 56(5) clearly contemplated that the existing application for review of a deemed decision would continue once an actual decision had been made, but allowed for the Tribunal's consideration to include the actual decision without the need for a further application for review.
2. In Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301, Beazley J observed:

Section 56(5) does not have the effect of substituting one decision for another for the purposes of review. It merely permits the Tribunal to extend its determination to a later decision, although, in a given case, it may be that only the later decision is subject of consideration on the review application.

1. It follows, in my view, that the existence of s 26 does not tell against the construction of s 25(5) put forward by the applicant. I should add that even if s 26 did prevent an actual internal review decision being made once an application for review of a deemed decision had been made to the Tribunal, it is not clear to me that any especially undesirable or unworkable consequences would follow. I acknowledge there would be uncertainty in many matters as to whether a reasonably practicable period had elapsed and s 25(5) was engaged, until that issue was determined by the Tribunal. I also acknowledge the possibility that an applicant could apply to the Tribunal within a very short time of receiving a first instance reviewable decision. The Agency would then be prevented from issuing an internal review decision until the Tribunal had ruled on that application (which would probably be dismissed). However, I would expect frivolous applications of that kind to be made in only a very small minority of cases. In any event, on my analysis, those problems do not arise.
2. Consistently with my observations above, I should add that in my view, as in Snedden, the time stipulation here does not condition the exercise of the power, but rather it conditions "the performance of the duty to exercise the power". I further consider that, in conjunction with s 25(5) of the AAT Act, the effect of the existence of this duty is to allow a claimant to commence proceedings in the Tribunal without first having to seek mandamus from the Courts.

A definite timeframe could easily have been specified

1. Mr Dubé also contended that if Parliament had intended that an applicant would have the ability to go to the Tribunal without an internal review decision after a particular period of time had elapsed, it could quite easily have specified that period. Mr Dubé pointed to provisions of the NDIS Act which do impose a time limit for decisions to be made. For example, s 20 of the NDIS Act provides as follows:

CEO must consider and decide access requests

If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request:

(a) decide whether or not the prospective participant meets the access criteria; or

(b) make one or more requests under subsection 26(1).

1. Section 21(3)(a) has the effect that if the CEO does not comply with the time limit in s 20, the CEO is taken to have decided that the prospective participant does not meet the access criteria. Similarly, s 26(2) provides that upon receipt of certain information or a report, the CEO must within 14 days after the last information or report is received, either decide whether or not the prospective participant meets the access criteria, or make a further request for information. Section 21(3) provides that if the CEO does not do either of those things within the 14day period, the CEO is taken to have decided that the prospective participant does not meet the access criteria.
2. Section 48 also relevantly provides as follows:

Review of participant's plan

(1) A participant may request that the CEO conduct a review of the participant's plan at any time.

(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.

Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.

Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).

(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.

...

(5) The CEO must conduct a review of a participant's plan before the plan's review date and in the circumstances, if any, specified in the plan.

1. I should also acknowledge that s 100(1) of the NDIS Act provides as follows:

(1) The CEO must give written notice of a reviewable decision to each person directly affected by the reviewable decision. The notice must include a statement:

(a) that:

• (i) the person may request the CEO to review the reviewable decision; or

• (ii) if the CEO is taken to have made the reviewable decision because of subsection 21(3) or 48(2) - the decision will be reviewed automatically; and

(b) that the person may seek further review under section 103.

1. I accept that the Act reflects a distinction between certain decisions which are required to be made within a particular timeframe (with the consequence that if that timeframe is not complied with, this will automatically entitle the claimant to internal review), and other decisions which are only required to be made "as soon as reasonably practicable". However, the real question is whether Parliament's intention was that failure by the Agency to make an internal review decision as soon as reasonably practicable would or would not trigger access to merits review by the Tribunal.
2. I should also observe that I do not regard it as entirely surprising given the nature of some of the decisions involved, that no specific timeframe has been imposed by the NDIS Act for the making of many decisions. Section 48 provides an instructive example in this regard. The decision whether or not to conduct a review of a participant's plan must be made within 14 days of receiving the request. However, if the CEO decides to conduct a review, that review must be completed "as soon as reasonably practicable". In my view, this approach reflects an acknowledgment of the multitude of facts and circumstances which will affect the speed with which a plan review can occur.
3. The plan involved could be a relatively straightforward one involving minimal expenditure, where the participant is seeking one additional support. At the other end of the spectrum, a participant with high and complex needs may have a plan which involves many different supports and a budget in the hundreds of thousands of dollars. Such a participant may be seeking multiple changes to the current plan for many different reasons, some based on expert opinion. I do not find it surprising that the Act does not impose a rigid timeframe in such circumstances, and that there is no provision for automatic escalation of such decisions to the next tier of merits reviews upon expiration of a specified timeframe. Rather, the requirement is that the review be conducted "as soon as reasonably practicable" having regard to the nature of the decision and all of the surrounding circumstances.
4. Viewed in this light, noting the multitude of different decisions which are reviewable decisions under the NDIS Act, and the multitude of different circumstances in which those decisions are required to be made, it is also not entirely surprising that s 100(6) does not impose a rigid timeframe, or a series of different timeframes, within which internal review decisions must be made. Rather, it requires internal review decisions to be made "as soon as reasonably practicable". To my mind, however, that does not necessarily have the consequence that there is no applicable timeframe which can ever give rise to a deemed affirmation pursuant to s 25 of the AAT Act.
5. I should also add that if a definite timeframe had been specified, this may well have led to the Tribunal's jurisdiction being engaged much earlier and more frequently than is likely to be the case on the basis of the current wording of s 100(6). Assuming say a 60 or 90 day timeframe had been specified, a very large number of matters are likely to have automatically fallen within the Tribunal's jurisdiction in the absence of any internal review decision, and without any consideration as to whether the Agency had had a reasonable time to make its decision. This would potentially have imposed an enormous workload on the Tribunal and in effect required the Tribunal to review many first instance decisions which had not been the subject of internal review (albeit on my analysis in some instances an internal review decision may ultimately have been made while an application was on foot in the Tribunal).
6. Again, I do not find it surprising that a specific timeframe was not specified, given the consequences which would have been likely to follow from doing so.

The construction urged by the applicant would lead to a lack of certainty as to when the Tribunal's jurisdiction was enlivened

1. At the hearing convened on 29 March 2018, Mr Dubé developed this submission. He contended that if the applicant's construction was adopted, it would effectively mean that whenever a person was in receipt of a reviewable decision made under the NDIS Act, had sought internal review and felt that the NDIA had not made an internal decision quickly enough, they would be able to file an application in the Tribunal and contend that s 25(5) had been activated and the Tribunal's jurisdiction enlivened. On each occasion where this happened, the Tribunal would be obliged to first determine the question of whether or not a reasonably practicable period had elapsed.
2. Mr Dubé pointed out that this would be likely to lead to the Tribunal being confronted with multiple applications in which applicants were contending the Agency had taken too long to make an internal review decision, and the Tribunal would then have to adjudicate on each of these applications. In effect, Mr Dubé contended this construction would open up another avenue of review, as the Tribunal would potentially become an alternative second tier of review, and would become obliged to consider applications for review in respect of initial decisions which had not been subjected to the "filter" of an internal review. He suggested this would be highly undesirable and could not have been intended by Parliament.
3. I acknowledge the force in these arguments and accept that what might be regarded as inconvenient consequences would potentially flow from the construction urged upon me by the applicant. I have little doubt that if such a construction was adopted by the Tribunal, it would be likely to lead to a significant and perhaps dramatic increase in applications to the Tribunal, in circumstances where I understand many claimants are experiencing lengthy delays in having decisions made pursuant to internal review requests. I also accept that to some degree, this would result in uncertainty as to whether the Tribunal's jurisdiction had been invoked. In the case of each particular application, this uncertainty would persist until the Tribunal had determined whether it had jurisdiction.
4. I am not persuaded that this would necessarily have any undesirable effect for applicants since, as I have already explained, in my view, an application to the Tribunal in these circumstances would not relieve the Agency of its obligation to make an internal review decision, or deprive that decision of effect. I do accept, however, that it would be likely to place an additional burden on the Tribunal, and perhaps divert resources of the Agency away from making internal review decisions and toward managing and participating in matters before the Tribunal.
5. Having said that, if the scenario described above did eventuate, I would expect that parameters would soon be established by decisions of the Tribunal, which would provide guidance as to what the Tribunal was likely to consider a reasonably practicable period of time in a given set of circumstances. I would also expect that in this context, most participants or claimants would still prefer that a reviewable decision be made before they considered making an application to the Tribunal. A reviewable decision may be favourable and in effect provide an immediate remedy, eliminating the need for them to seek further review. Even if unfavourable, a reviewable decision gives a claimant an immediate right to seek review by the Tribunal, without the need to first establish that the Tribunal has jurisdiction by reason of the length of the Agency's delay in making an internal review decision. Of course, in many cases seeking to establish the requisite delay will not ultimately prove to be a good use of time or resources, as that issue will be overtaken by the advent of an actual reviewable decision, as it has been in this matter. For these reasons, even on the construction of the provisions advanced by the applicant, there would remain significant incentives for potential applicants to await a reviewable decision rather than proceeding too hastily to the Tribunal.
6. In addition, I consider I should also have regard to the consequences for claimants and participants which would potentially flow from the construction urged by the Agency. As pointed out by the applicant, those consequences include countenancing a scenario whereby NDIS participants who consider the statement of supports in their current plan to be inadequate are effectively denied any meaningful right of merits review by the Tribunal.
7. I make that observation in circumstances where, as acknowledged by the Agency, the review date for many NDIS plans at present is 12 months after the commencement of the current plan. This has the consequence that, assuming a delay of up to three months in making an internal review request with respect to the supports in a plan, unless an internal review decision is made within a further six months, threequarters of the life of the plan will already have passed by the time the applicant is in a position to seek review by the Tribunal. Assuming a delay of a further four weeks or so before an application can be made to the Tribunal and an additional four weeks before the matter is listed for a first conference, by the time a first listing occurs, an applicant's plan will be on the verge of its review date. It is highly likely that, before a matter is listed for hearing, the plan will already have been replaced by a new plan, thus depriving the applicant of any meaningful opportunity to have the Tribunal review the original plan.
8. Having said that, I acknowledge that, in some circumstances, there will be utility in the Tribunal proceeding to review a plan which has subsequently been replaced. For example, where a participant or their family has been able to meet unfunded expenses from their own pocket, or providers have been willing to provide services without payment. In those circumstances there may be additional supports which have in fact been provided but not funded and reimbursement can potentially be provided for these in the event of a favourable decision by the Tribunal.
9. There is also a potential mechanism available under s 26 of the AAT Act whereby during the currency of an application before the Tribunal, a plan can potentially be extended and the supports increased to match that extension, such that an applicant's existing supports can be maintained over a longer period of time so as to allow the Tribunal to complete a review. However, that mechanism depends on the consent of the Agency and, of course, is not effective by itself to deliver an increase in supports to the applicant during the life of the plan under review (unless the Agency consents to increasing the applicant's existing supports).
10. This matter provides a case in point. By the time the applicant lodged an application with the Tribunal, in December 2017, his plan had been in place for just under nine months. The plan had a review date of 16 March 2018 and as indicated above, an internal review decision was eventually made on 7 February 2018. At the time of the hearing before me on 29 March 2018, all of the funds allowed for in the plan had been expended, the plan under review had not been varied under s 26 and, in effect, the applicant had not had an opportunity to have the Tribunal adjudicate on whether he should have additional supports before the review date of his plan passed. Like many applicants, the applicant was also in the positon whereby unless his plan was extended pursuant to s 26, he had little alternative but to acquiesce to a new plan, which would mean potentially starting the review process again from the beginning.
11. In my view, Parliament having provided for review of certain NDIS decisions by the Tribunal, it is unlikely to have been intended that lengthy delays on the part of the Agency in making internal review decisions would have the result that NDIS participants would be denied any meaningful opportunity to seek merits review by the Tribunal.

1. Mr Dubé also contended that the construction urged by the applicant would be unworkable as it would result in a situation whereby, as has occurred here, an applicant could potentially apply to the Tribunal for review of a deemed decision, and in the meantime an internal review decision would in fact be made by the Agency. This would give rise to uncertainty and potentially lead to a situation in which two Tribunal applications would be on foot at the same time, one relating to a deemed decision and the other an actual decision, which may have varied or set aside the original determination.
2. As I have indicated above, I accept that if the applicant's construction is correct, it is likely that there would in some cases ultimately be two applications before the Tribunal, one relating to the deemed decision and the other to the decision which was in fact ultimately made (as is currently the case with this matter). However, ordinarily when such circumstances arise, two such applications would proceed through the Tribunal's processes and be heard together. In reality, to the extent that the decision in fact made by the Agency was favourable to an applicant, I would expect that the second application would become the vehicle for merits review by the Tribunal, and the first application may ultimately be withdrawn or dismissed. The situation would not be entirely unlike a scenario which regularly arises in compensation matters whereby the reviewable decision the subject of the application to the Tribunal is overtaken by a subsequent reviewable decision of own motion. In such circumstances, the second reviewable decision often has the consequence that the applicant does not need to proceed with their first application, though to the extent they are not happy with the reconsideration of own motion, they can proceed with a review of that decision.
3. I note that the situation postulated by Mr Dubé arose in Jetopay Pty Ltd and Australian Fisheries Management Authority [1993] AATA 388; (1993) 32 ALD 209, in which there were two applications on foot in the Tribunal, one relating to a deemed decision and one relating to the actual decision which was subsequently made. Both applications travelled together to hearing and, in the event, both decisions were affirmed.
4. Mr Dubé also referred to the practical difficulties which would potentially arise from having two decisions in operation at the same time which had different effects. For example, subsequent to a deemed decision affirming a decision that a claimant was not eligible to be a participant in the scheme, an actual decision could be made that the person was entitled to access to the scheme.
5. However, on my analysis, this would not be likely to give rise to any real difficulties in a practical sense. A deemed decision under s 25(5) will necessarily always affirm the decision already made. This is simply a mechanism to allow an applicant access to the Tribunal and does not result in any change to the applicant's status or entitlements. Where a subsequent actual decision does change the applicant's position, that decision will become the operative decision. Returning to the example above, the second decision granting the applicant access to the scheme would be the operative decision, and it could be expected the applicant would withdraw their application to the Tribunal for review of the deemed decision.
6. For these reasons, in my view, the practical consequences which are likely to follow do not tell against the construction urged by the applicant.

1. In the Agency's written submissions, it was submitted that the construction advanced by the applicant was "wholly inconsistent" with "existing case law on s 25(5"). In his oral submissions, Mr Dubé properly conceded that, so far as he was aware, this issue has not arisen previously, either in the Tribunal or the Federal Court.
2. I also have not been able to locate any previous decisions which directly address the issue. In my view, authorities which simply confirm s 25(5) will not apply in the absence of any timeframe for the making of a reviewable decision are not helpful. As I have indicated above, a timeframe is specified here, and the Federal Court has confirmed that "as soon as reasonably practicable" is an ascertainable timeframe in a given set of circumstances.

1. I acknowledge that where no time for the making of a decision is prescribed, a person may request a certificate under s 10 of the Ombudsman Act 1977 that there has been an unreasonable delay in making the decision. However, in my view, a time limit is prescribed here, and so this provision does not apply. Similarly, where there is no law that prescribes a period within which a decision is required to be made, an application may be made under s 7 of the Administrative Decisions (Judicial Review) Act 1977. Again however, that provision does not apply here.
2. On my analysis, mandamus would potentially lie to force the making of an internal review decision, upon the making of an application to the Federal Court under s 39B of the Judiciary Act 1903. However, proceedings of this kind would be costly and burdensome for an NDIS participant or claimant, and would be unlikely to yield a quick outcome. As I have indicated above, in my view one effect of s 25(5) is to obviate the need for such an application to be made and to allow NDIS claimants to proceed directly to the Tribunal in the case of unreasonable delay by the Agency, without first having to leave the merits review 'arena', and pursue expensive litigation in the Courts.

1. I have accordingly concluded that the period referred to in s 100(6) of the NDIS Act is a "period prescribed" for the purposes of s 25(5) of the AAT Act.
2. As foreshadowed above, the parties will be given an opportunity to be heard as to whether a reasonably practicable period had elapsed before the present application for review was lodged.

1. The period referred to in s 100(6) of the NDIS Act is a "period prescribed" for the purposes of s 25(5) of the AAT Act.

I certify that the preceding 72 (seventytwo) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean.

.........[Sgd]........................................

[1] Outline of Applicant's Submissions lodged 22 January 2018 [21].

[5] Respondent's written submissions dated 8 February 2018.

[8] Extradition Act 1988, s 22(2).

[9] Snedden v Minister for Justice & Anor [2014] FCAFC 156; (2014) 230 FCR 82, 103 [116][117], noting this is the judgment of the majority of the Full Court Middleton and Wigney JJ.

[15] Such a submission would also have been inconsistent with [13.2] of the respondent's written submissions.

[16] Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167.