Unreasonable delay
109 There was no real dispute between the parties as to the principles that apply to an application for review of a failure to make a decision to which the ADJR Act applies. Those principles were considered by Bromberg J in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [20]-[29], and were recently summarised by the Full Court in Patrick v Australian Information Commissioner [2024] FCAFC 93 (Patrick FC) at [37] (Bromwich, Abraham and McEvoy JJ).
110 Where a statutory provision imposes a duty to make a decision without specifying a time limit within which such a decision must be made, it will usually be implied that the decision must be made within a "reasonable time": BMF16 at [20]. Sections 7(1) and 16(3) of the ADJR Act recognise and give effect to such a principle, by permitting judicial review on the ground that there has been "unreasonable delay" and conferring power on the Court to make an order directing the making of the decision.
111 It is accepted that what is a reasonable time for making a decision, and what amounts to "unreasonable delay", depends on the facts and circumstances of the particular case. This involves an "objective assessment": BMF16 at [26], referring to Thornton v Repatriation Commission (1981) 35 ALR 485 at 490, where Fisher J said "[i]n my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would, in the circumstances, have approved the delay" (see also Patrick at [37]).
112 In Thornton, the respondent had deferred consideration of the applicant's claim for a pension on the basis that there was an appeal pending before the High Court raising similar issues, the determination of which would be relevant to the applicant's entitlement to the claimed pension. Justice Fisher articulated the relevant question as follows (at 492):
The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.
113 This passage was accepted as "an authoritative statement of the appropriate test" in ASP15 v Commonwealth (2016) 248 FCR 372 at [21]-[23] (Robertson, Griffiths and Bromwich JJ). Counsel for the Agency submitted that the passage draws a contrast between, on the one hand, a delay that is justified and for a considered reason, and on the other hand, a delay that is "capricious" or involves some "neglect, oversight or perversity". I do not draw from Thornton any such bright-line distinction, nor do I consider that the decision in that case should be taken to suggest that a delay will only be unreasonable if it is capricious, neglectful or perverse. The question that arose for determination in Thornton was not concerned with a situation involving lengthy processing times or prolonged and drawn-out investigations, but rather with whether it was reasonable for the respondent to adopt a considered position of awaiting the outcome of an appeal to the High Court, rather than risk making a decision on the applicant's pension claim which later turned out to be incorrect.
114 In determining whether there has been unreasonable delay, it is necessary to have regard to the scheme of the legislation, including its purpose and subject matter. As Bromberg J stated in BMF16 at [25]:
Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.
115 While the applicant bears a legal onus to establish its ground of review, and therefore must prove on the balance of probabilities the facts necessary to demonstrate that there has been "unreasonable delay" in making the decision, there may be circumstances in which a respondent has a "practical" or "persuasive" onus to provide a reasonable explanation or satisfactory justification for any delay, at least where the delay is prima facie longer than is required by the nature of the process: see BMF16 at [27]-[28]; AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at [59] (Besanko and Thawley JJ). Further, as noted by Besanko and Thawley JJ in AQM18 at [59]:
In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969.
116 The applicant submitted that the time taken by the Agency to date amounted to an unreasonable delay in making decisions under s 45 of the NDIS Act on its payment requests. The applicant noted that from when it was registered in 2016 until 3 July 2024, the Agency had processed claims for payment made by the applicant within two to three business days. In particular, in relation to the first and second payment requests, it is now 28 days and 25 days respectively since the applicant provided the Agency with documents to substantiate the claims. The applicant referred to the impact on participants, some of whom have ceased using the applicant's services, and one who had raised concerns about the consequences of the delay in payment to her service providers (as set out in paragraph 47 above). The applicant also referred to the number of outstanding invoices from suppliers, and the impact on the financial capacity of the applicant. It was submitted that the ongoing delay in processing payments operated to undermine the objectives and principles of the NDIS, including allowing participants to exercise rights to choice and control in utilising the services of the applicant and allowing access to a diverse and sustainable market for disability supports.
117 The Agency's submissions emphasised the subject of the power concerning the payment of public moneys, and the important public interest of ensuring that only valid claims for payment are paid by the Agency. While s 182 of the NDIS Act provides for the recovery of wrongly paid moneys, any such recovery would be inherently uncertain and would involve the expenditure of further public resources, and would be subject to risks that any amounts paid might be irrecoverable from an insolvent payee. The Agency submitted that the impact on the applicant, including any potential prejudice, was "essentially commercial" and was "concerned with cash flow considerations". The Agency contended that the evidence of the applicant's potential or foreshadowed insolvency was equivocal, and amounted at most to an indication from the applicant's director that he would have to consider whether to wind up the company by the end of this week. The applicant had not provided any evidence of its financial position, nor the terms of the director's loan provided by Mr Ahmed.
118 The Agency submitted that the practical limitations involved in the preparation, investigation and consideration of payment integrity reviews called for the review of many individual transactions and supporting documents. The inherent nature of the review process, as opposed to an automated processing of claims that are assumed to be compliant and legitimate, must allow sufficient time to carry out that process. The median time for conducting such payment reviews was approximately 60 days. The Agency submitted that this period "is indicative of what the nature of the payment review process requires in the statutory context with current resourcing", and that the time taken to review the applicant's payment requests is not "unusually lengthy", let alone unreasonable. The Agency submitted that Parliament would not intend that the power to make payments should be required to be exercised "before any realistic opportunity could be had to verify the validity of the payment claims themselves", and that to impose such a requirement would be "inconsistent with the statutory scheme, including the role of the respondent in ensuring its financial sustainability".
119 The Agency submitted that, to the extent that any explanation is called for, the time taken by the Agency to date in reviewing the payment requests was justified in the circumstances and could not properly be described as capricious or a consequence of neglect, oversight or perversity. It was necessary for the PHT to review 849 payment claims, both for services provided by the applicant or its subcontractors and services provided by external NDIS providers in respect of which the applicant is the plan manager. Staff within the PHT had multiple reviews on foot at any given time, and the particular staff member to whom the applicant's payment requests had been allocated had been working overtime to manage his or her workload (albeit not confined to the applicant's claims). The nature of the review was manual and labour-intensive, requiring the review of documents including rosters, payslips, invoices, timesheets, support logs and evidence of support worker accreditation. Where necessary, the officer may be required to contact third parties to confirm that supports have been provided. The Agency contends that the applicant has not always provided all substantiating information that has been requested, meaning that the officer has been "forced" to seek further information from third parties.
120 In determining what is a reasonable period for the determination of the applicant's payment requests, and whether there has been unreasonable delay by the Agency in making a decision under s 45 of the NDIS Act in relation to those payment requests, I have had regard to the nature of the NDIS and the statutory objects and guiding principles set out in the NDIS Act. The subject matter of the decisions is directed to the funding of reasonable and necessary supports for NDIS participants. While the decisions immediately affect the financial interests of the applicant as the service provider or plan manager, the decisions (including their timeliness) also have consequential impacts on the interests of the affected participants and their support workers.
121 I accept that there is a public interest in the proper payment of public funds and in ensuring the integrity and financial sustainability of the NDIS. Nevertheless, it is clearly not suggested that every request or claim for payment under s 45 of the NDIS Act can or should be manually reviewed and verified before any payment is made. Rather, as the letters from the Agency to the applicant stated, the Agency "periodically" reviews payments as part of its Payments Integrity Review Program, including to ensure that funds are spent in accordance with the participant's plan and to ensure the ongoing sustainability of the NDIS (in accordance with its statutory functions). The parameters of the Payments Integrity Review Program and the resources committed by the Agency committed to the conduct of payment integrity reviews are ultimately matters for the Agency, in conjunction with the Commonwealth Government more broadly. The Payments Integrity Review Program is not itself established by the NDIS Act. There was no evidence adduced by the Agency directed to the manner in which cases are selected by the PIT for "periodic" review, nor the basis on which the applicant's payment requests since late June 2024 had been subjected to such reviews. Although counsel for the Agency drew my attention to Mr Winton's evidence that his role involves dealing with payment claims "which are considered high risk" (and also refers to the automated process being applied to "low risk NDIS payment claims"), there is no evidence before the Court in the present proceeding to demonstrate or establish any factual basis on which the applicant's payment requests can be or have been so characterised.
122 It is also necessary to take into account the practical limitations attending the exercise of the power under s 45 of the NDIS Act, including the preparation, investigation and considerations that are called for in making the relevant decisions. In this regard, however, it is to some extent a matter for the Agency to determine the number, scope and extent of payment integrity reviews to be conducted by its officers within its resourcing constraints. Further, once a payment request has been placed on hold and subjected to review, it is a matter for the reviewing officer to determine what is necessary in order to verify or substantiate that the amount is payable under the NDIS in respect of the participant's plan. As Mr Winton notes in his affidavit, where the claimant has been given an opportunity to substantiate the payment request and sufficient information has not been provided, this may result in the Agency "issuing a determination that the claim could not be substantiated". The claimant would then be left with the possibility of either resubmitting the claim for payment with additional supporting information, or (perhaps) requesting reasons for or seeking review of the Agency's decision under s 45 of the NDIS Act.
123 The resources available to the Agency may also be a relevant consideration in determining whether a reasonable time has elapsed for making the decisions. In the present case, Mr Winton has given evidence as to the "current operating environment", under which the median time to finalise each payment integrity review is approximately 60 days. Mr Winton indicates that the Agency is currently in the process of recruiting additional staff with "the goal of at least doubling the size" of the PHT in the near future.
124 I accept that limits on the available resources to deal with a given workload is, in some circumstances, capable of providing some explanation for the time taken to make a decision on an application. That does not mean that a lengthy delay that is caused by a lack of adequate resources can never be regarded as unreasonable: see e.g. BMF16 at [104], referring to an observation made by the Privy Council in Oliveira v Attorney-General (Antigua and Barbuda) [2016] UKPC 24 at [44] that "absence of resources is not in general an excuse for maladministration". In Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 477, Neave J stated:
Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.
125 More recently, the relevance of resourcing constraints and the competing demands on finite resources to the question of unreasonable delay in making a decision was addressed by Wheelahan J in Patrick v Australian Information Commissioner (No 2) [2023] FCA 530, and on appeal by the Full Court (Bromwich, Abraham and McEvoy JJ) in Patrick FC, in the context of the time taken by the Commissioner to make a decision on a number of applications for the review of agency decisions refusing freedom of information requests. The Full Court accepted (at [29]-[30]) that resourcing was properly treated as one relevant consideration in the process of determining whether any particular delay is unreasonable, provided that it is part of the explanation for that delay. The Full Court recognised (at [46]) that "[a]n assessment in all the circumstances does not preclude a finding that a delay is unreasonable in circumstances where the explanation provided refers to resourcing of the agency". In the circumstances of that particular case, the Full Court affirmed the conclusion reached by Wheelahan J that the Commissioner's delay in making decisions on the pending reviews was not unreasonable, in the context of the limited resources available to the Commissioner and the competing demands on those resources.
126 In the circumstances of the present case, however, the delay by the Agency in making decisions on the applicant's payment requests is not satisfactorily explained or justified by a lack of resources within the Agency. As discussed above, the payment of claims for amounts payable under s 45 of the NDIS Act does not require manual processing and review in every case. It is a matter for the Agency in the first instance to determine how many and what payment claims will be placed on hold and subjected to payment integrity reviews. The Agency did not seek to call any evidence to justify why such a large number of payment requests or claims made by the applicant had been placed on "hold" such that the Agency was incapable of completing the payment integrity reviews and closing the cases for up to 60 days or more, in contrast to the automated processes of claims made by the applicant between 2016 and June 2024. This is particularly in circumstances where many of the payment requests relate to the same providers and the same participants, and therefore cover information and underlying facts of a similar nature.
127 This is not a case involving any significant periods of inactivity on the part of the Agency in processing or reviewing the payment requests, although I note that the Agency has not always responded to the applicant's correspondence with alacrity (see, for example, the period of four business days taken to advise the applicant that the officer was unable to open or access documents provided by the applicant in response to the Agency's request for information referred to in paragraph 20 above). Nevertheless, in my view, the nature of the selective process engaged in by the Agency in conducting periodic payment integrity reviews does not reasonably require up to 60 days or more to substantiate and make a determination on a payment request. The situation might be different if the selection of particular claims for review was directly informed by a particular concern held by the Agency about the integrity of those claims, or was more narrowly targeted to particular claims, whether as a representative sample or otherwise. As discussed above, on the evidence in this proceeding, I do not consider that this has been shown in the present case. Rather, it is a situation in which a "periodic review" has been applied to all payment requests submitted by the applicant since late June 2024.
128 In so far as the Agency contends that the applicant has not provided sufficient documentation to substantiate the payment claims, and that it is therefore reasonable for the relevant officer to make further inquiries with third parties, it is also possible for the Agency to make a decision based on the information available to it. If payment is refused because it has not been properly substantiated as an amount payable under s 45 of the NDIS Act, the applicant will be free to resubmit the claim and attempt to meet or cure any identified deficiency. Alternatively, the applicant may be able to seek judicial review of the Agency's decision, and if necessary, request a statement of reasons under s 13 of the ADJR Act. It is common ground that the decision would not be subject to merits review under Pt 6 of Ch 4 of the NDIS Act.
129 For completeness, I note that s 7(1) of the ADJR Act requires that the person has a duty to make a decision to which the ADJR Act applies. I have proceeded on the basis that, in so far as the Agency or the CEO makes a decision under s 45 of the NDIS Act that an amount is payable under the NDIS in respect of a participant's plan, and as to the manner in which that amount is to be paid, there is an implied duty on the Agency or the CEO to make such decisions. The Agency did not advance any submission to the contrary.
130 Accordingly, I find that there has been unreasonable delay by the Agency in making decisions under s 45 of the NDIS Act in respect of the applicant's payment requests. To adapt the language used by Bromberg J in BMF16 at [30], I consider that the scheme of the NDIS Act does not envisage that the process of assessing a claim for payment under s 45 of the NDIS Act should be a matter of great complexity that requires procedures or processes which are inherently time consuming. The NDIS Act does not provide for any formal hearing or inquiry into such claims, nor does it confer any investigative powers on the Agency in support of the process.
131 Having regard to the fact that such payments are generally processed within two to three business days, I consider that any manual payment integrity review that is initiated by the Agency in respect of a particular claim should have been determined more quickly and that a reasonable period has already elapsed for the making of those decisions, particularly in relation to the first and second payment requests. While the third and fourth payment requests have been pending for slightly shorter periods, I do not consider that it is necessary to distinguish them on that basis. It is not necessary for me to fix a specific time that is determined to be a reasonable period within which a decision ought to have been made on each of the payment requests, other than finding in all the circumstances that it is shorter than the current timeframes. An indicative period might be something in the vicinity of two weeks after the provision of documents in response to a request for information to substantiate the payment.