NDIS Appeals: External Review

That sinking feeling!

After weeks of waiting and navigating NDIS bureaucracy, you have finally received your internal review decision from the National Disability Insurance Agency (NDIA). You heart sinks as you read the letter or email: the internal review decision is negative. As you read through the typically ‘template’ and glib reasons the NDIA has provided to back up its decision (such as, ‘X requested support is not value for money’) that sinking feeling may arise to anger as you scream ‘they just don’t get it, this so wrong!’.

While may feel like you are at the end of your tether, at law that is not the end of it. 

You are entitled to ‘appeal’ the decision to the Administrative Appeals Tribunal (AAT). This article provides an overview of the AAT appeals or ‘external review’ process.

First, a little bit about the AAT

The AAT is an independent body established under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and commenced operations on 1 July 1976. 

It conducts merits review of administrative decisions made under Commonwealth laws, including NDIS, social security, taxation and migration laws.

It currently has a dedicated NDIS Division that, as its name suggestions, exclusively deals with NDIS-related applications for external review: section 17A, AAT Act.

The high-level objectives of the AAT in carrying out its external review function are to provide a mechanism of review that:

• is accessible;
• is fair, just, economical, informal and quick;
• is proportionate to the importance and complexity of the matter; and
• promotes public trust and confidence in the decision-making of the Tribunal.

Am I entitled to apply for external review by the AAT?

Now let’s try and fix that sinking feeling! 

If you have received a negative internal review decision from the NDIA, then you will be entitled to apply to the AAT for external review of the decision: section 103, National Disability Insurance Scheme Act 2013 (Cth)(NDIS Act) and sections 25 and 27, AAT Act.

28-day time frame for application

You must lodge your application for review by the AAT within 28 days of receiving the negative internal review decision: section 29(2), AAT Act. The AAT may allow late lodgements if it is satisfied that it would be reasonable in all the circumstances to allow a late lodgement: section 29(7), AAT Act.

How do I lodge an application?

You can apply online at the AAT’s website, download and complete the application form and email, post, fax or deliver it to an AAT registry, or write a letter to the AAT. You can also contact the AAT for help you complete your application if you need assistance.

The AAT no longer charges an application fee for NDIS-related applications.

Do I need a lawyer?

You are not required to have a lawyer for the AAT process. You can represent yourself. 

That said, I recommend that you engage a lawyer to represent you in the AAT process for these reasons:

• It will make the process easier and less stressful for you. For example, the lawyer will prepare and review submissions and other documents, and analyse and advise on evidentiary, legal and strategic issues. They will also speak for you at any case conferences, conciliation and/or hearing.
• While the AAT process is relatively informal, there are some protocols, rules and procedures. A lawyer will help you navigate and comply with these.
• Having a lawyer will rectify the ‘power imbalance’ created by the NDIA hiring ‘top of the town’ external lawyers, and even barristers for Hearings. As an interesting aside, in recent times, the amount of tax payer money, almost $22 million, the NDIA has spent on defending AAT appeals in the past financial year was scrutinized by Senate Estimates. 

Can my Support Coordinator represent me at the AAT?

It can get messy and risky if your Support Coordinator acts as your representative in an AAT review application about plan funding.

This is because your Support Coordinator is not independent. They are remunerated from your NDIS plan funding and may have, or be seen to have, a vested interest in the outcome of the appeal. 

For these reasons, I recommend that your Support Coordinator not represent you at an AAT appeal.

The better role for your Support Coordinator is (as one of your NDIS-funded service providers) provide you with an updated written statement or report from themselves about your support needs. This will form good evidence to support your application.

What happens next? The AAT review process

For NDIS review applications, the AAT’s approach is to, in the first instance, bring the parties together and try and help them to reach an agreement about the issues in dispute through an alternative dispute resolution process (ADR), usually conciliation. 

If ADR processes fail, then the AAT will hold a Hearing to obtain each party’s ‘side of the story’ before making its own decision on the application: Divisions 3 and 4, Part IV, AAT Act. 

The nitty-gritty steps are set out in the AAT’s Review of NDIS decisions Practice Directions and are as follows:

• On receipt of your application, the AAT registry will write to you (usually by email) confirming that it has received your application.
• The AAT registry will allocate a Contact Officer who will be your AAT contact throughout the process. The Contact Officer will be in touch with you within 3 days to explain the review process, and to ascertain any accessibility requirements you may have.
• The AAT registry will advise the NDIA of your application and ask the NDIA to send to the AAT and you all relevant documents it holds (‘T documents’) within 28 days.
• The AAT will consider the best way to progress the application. In most cases, it will schedule a Case Conference within 2 to 4 weeks of receipt of the T documents.
• At any point of the proceedings, you may provide further evidence and/or further detailed submission. However, I recommend you try and do this before the Case Conference, so as to come fully prepared for this first conference (being prepared will improve the prospects of the dispute being resolved at the Case Conference, and avoid a protracted process).
• Prior to the Case Conference, the NDIA’s lawyers will usually provide a Statement of Issues articulating what it considers to be the main issues in dispute. 
• At the Case Conference, an AAT Registrar or Member may try and help the parties to resolve the matter if possible. If not, they will make a Case Plan and timetable for resolving the matter, including a Conciliation and/or Hearing. 
• The parties must do anything that the Case Plan directs them to do (for example, provide more information or evidence to the AAT and other party).
• At Conciliation, an AAT Registrar or Member will work with the parties to help them to resolve the matter.
• If the matter is resolved at (or possibly before or after) Conciliation, the parties will draft and sign the terms of the agreement and provide it to the AAT. The AAT will then formalise their agreement in written orders, and send the record to each party to conclude the AAT process.
• If the matter does not resolve at Conciliation, an AAT Member will conduct a Hearing at which each party can ‘tell their story’ and, if they wish, call witnesses. Each party should also tender further written statements and submissions before or at the Hearing.
• After the Hearing, the AAT Member will carefully consider all the evidence, legislation and operational policies and form and arrive at its own decision.

The AAT’s decision

The AAT must make the legally correct decision or, where there can be more than one correct decision, the preferable decision.

The AAT has the power to:

• affirm a decision;
• vary a decision;
• set aside a decision and substitute a new decision; or
• remit a decision to the decision-maker for reconsideration: section 43(1), AAT Act.

For NDIS matters, the AAT usually gives it decision and reasons in writing, and gives a copy of the decision record to each party: section 43(3). 

The decision record may also be published on its website, subject to confidentiality considerations.

What happens to my plan while I am waiting for my external review decision?

As the above steps indicate, the AAT process may take some weeks or months. While the process is in train, the original decision (as affirmed on internal review) remains in force and effect: section 100(7), NDIS Act. 

How Special Voices can help you with external review

It can be daunting going through the AAT process alone and unrepresented! 

Special Voices has experience and expertise in legally representing applicants in NDIS appeals at the AAT, and a track record in fighting hard for applicants to get a fair outcome while avoiding unnecessary delays. Contact us to enquire about our low-cost NDIS appeal legal representation services.