Operational Guideline –Review of Decisions – Representing the National Disability Insurance Agency at the Administrative Appeals Tribunal
Legislation
1.Read ss.7, 99 and103 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and ss.28 and 30 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
2.On 1st July 2013 the Administrative Appeals Tribunal (AAT) issued a Practice Direction on its process in external merits review of decisions of National Disability Insurance Scheme process which is available on the AAT website.
Timeframes
3.A person (applicant) must make an application to the AAT within 28 days after receiving notice of the internal review decision.
4.If an application is made after more than 28 days, the decision can be reviewed by the AAT if the AAT grants an extension of time for the applicant to lodge their application for review. Extensions of time are fairly easy to get from the AAT. The AAT tends to grant an extension in the following situations:
a.Where the NDIA has no objection to the grant of an extension, or
b.Where, although the NDIA may object to the grant of an extension, the AAT is satisfied that:
i.The applicant had a good reason for delay, and for the length of delay, in applying for review
ii.The applicant let the NDIA know in other ways that he or she was unhappy with the decision by, for example, writing to the Minister or the Ombudsman or complaining to the NDIA
iii.The NDIA would not be prejudiced if an extension of time is granted – this may be a problem for an applicant who waits a lengthy period to appeal and the NDIA has lost the opportunity to collect material to explain its decision but it is seldom relevant when the delay is short, and/or
iv.The applicant’s case is strong on its merits.
Any one, or a combination, of these may be enough for the AAT to decide to permit the extension of time.
5.Almost all decisions made under the NDIS Act can go to internal review. These are called ‘reviewable decisions’ and are listed in s.99 of the NDIS Act. These decisions can be reviewed by the AAT but only after they have gone through the internal review process within the NDIA. This is because the AAT cannot review a decision unless the legislation gives the AAT jurisdiction to review that particular decision. For example, plan management decisions are not separately reviewable by the AAT but are reviewed as part of the plan decision (see s.99(d)).
See ss.99 and 103 of the NDIS Act.
AAT review is the final level in a three level process
6.There are three levels of decision:
a.The original decision – this is the first decision made by a delegate in the NDIA
b.The internal review decision – this is the second decision and is made by a delegate in the NDIA after the delegate has reviewed the original decision, and
c.The AAT review decision – this is the third decision and is made outside the NDIA by a member of the AAT.
7.At each of the three levels the NDIA delegate or AAT Member considers the material before them at the time they make the decision. The later a review occurs in the process the greater the quantity of information is that will be available to the decision maker. A participant or prospective participant involved in the review process at each level will be encouraged to speak with the NDIA delegate or the AAT Member about why they are not happy about the decision and to present further information to support their case.
8.At each of the three levels the NDIA delegate or AAT Member is required to make the decision that they consider to be the best decision on the merits. This is the correct or preferable decision. If only one decision is legally possible it will be that decision. Where a decision is based on an opinion or exercise of discretion, there may be several possible decisions and all may be lawful. The best decision will be the one preferred with good reason by the decision maker.
9.The outcome of AAT review is that a new decision maker makes a new decision that replaces the earlier decision. The new decision made by the AAT will be to confirm, vary or set aside the earlier decision. The AAT can also send the matter back to the NDIA for it to remake the decision according to principles laid down by the AAT.
See s.100(6) of the NDIS Act.
When the AAT receives an application for review
10.When the AAT receives an application for review (review application) within the required 28 day timeframe, the AAT will write to the applicant confirming receipt of the application and assign a contact officer who is the AAT contact during the AAT review process.
11.The AAT will also tell the NDIA that they have received a review application. The AAT will request the NDIA to send to the AAT all the documents that the NDIA has that are relevant to the review application and to supply a statement of reasons for decision. This is called a ‘s.37 statement’ (as this process is required under s.37 of the AAT Act). These materials are called the ‘T-documents’.
12.The NDIA is under an obligation to, as soon as possible after being notified that the AAT have received a review application, send the T-documents to both the applicant and the AAT.
When the AAT receives the T-documents
13.When the AAT receives the T-documents from the NDIA they will consider the best way to process the review application. In most cases, the AAT will ask the applicant and a NDIA representativeto attend a case conference which will be held 2 to 4 weeks after the AAT receives the T-documents.
14.The representativefrom the NDIA will have experience and qualifications in resolving cases through alternative dispute resolution techniques such as conciliation and mediation.
15.If the AAT believes that there are special circumstances why the application should proceed directly to a hearing, they will refer the application to an AAT Member and arrange a directions hearing. At the directions hearing the AAT Member will discuss with the applicant and the NDIA representativehow the review application will proceed. An early hearing may be arranged by the AAT in a case that is urgent. This is unusual, however, and the AAT relies heavily on the case conference process.
16.The AAT will tell both the applicant and the NDIA representativethe date, time and place of the next step in the review process and what both parties need to do before the case conference or, in special circumstances, the directions hearing.
17.The applicant can bring a support person to assist them at the case conference, conciliation conference and hearing (including fast-track hearings) at the AAT. This can include advocacy but it can also include assistance in self-advocacy and providing guidance on the AAT process. The Department of Social Services through the National Disability Advocacy Program (NDAP) provides External Merits Review Support (EMRS) to one advocacy body in each launch jurisdiction that can provide support persons who may also be advocates.
18.Both the applicant and the NDIA representativemust prepare for the next step in the review process as directed by the AAT.
Preparing for the case conference
19.A case conference is an informal meeting between the applicant and the NDIA representativeto discuss whether both parties can reach agreement and, if agreement is not possible, to plan how the review application will proceed.
20.The AAT Contact Officer will discuss with the applicant the date, time and place of the case conference, what will happen at the case conference and how the applicant can prepare for it.
21.The applicant is told that they must read the T-documents and identify any further information they think is relevant to their application and, where possible, obtain that information and send it to the AAT and to the NDIA.
22.The applicant must also think about what outcomes they want from their application for review and be ready to tell the AAT the dates that are suitable for them for any future conciliation conference or hearing. The applicant should also decide whether they want to ask for a fast-track hearing (see below about fast-track hearings).
23.Similarly the NDIA representativemust review the T-documents, identify any further material they think is relevant to the application for review and, where possible, gather and send that information to the AAT and the applicant. They must also consider how the application for review might be resolved and the dates that will be suitable for any future conciliation conference or hearing.
24.The NDIA representativemust also advise the AAT if the application for review raises any novel or complex issues which may require a specially constituted tribunal.
25.It is important that the NDIA representativeat the case conference has the full authority to settle the case if an agreement is reached with the applicant.
At the case conference
26.At the case conference an AAT Conference Registrar or AAT Member will help the applicant and the NDIA representativereach an agreement if that is possible. If an agreement is reached the AAT will record the agreement in writing.
27.If there is no agreement, the AAT Conference Registrar or AAT Member will discuss with the applicant and the NDIA representative whether the application should be listed for a conciliation conference, or proceed straight to a hearing. The AAT will then prepare a written case plan setting out:
a.Any issues that have been resolved and any issues that remain in dispute
b.What will happen next
c.The dates and places of the conciliation or hearing
d.Any additional material that the applicant or the NDIA representative must give the AAT
e.Who will be attending the conciliation conference or hearing
f.What information the applicant and the NDIA representative will present at a hearing and whether there are other persons, such as family members, carers or doctors, who the applicant will want the AAT to hear from
g.Any accessibility and communication needs the applicant has, and
h.Anything else that will ensure the process is as fair and as quick as possible for both the applicant and the NDIA.
28.Both the applicant and the NDIA representative are required to come prepared, and willing to reach agreement with each other if at all possible, and bring any relevant documents that the applicant has not already given to the AAT or which are not already in the T-documents.
29.The applicant must also be ready to discuss what they want to include in their case plan if they do not reach agreement with NDIA and must decide if they want a fast-track hearing (see below). The NDIA must also be ready to discuss how it considers the matter should proceed if agreement is not reached.
Requesting a fast-track hearing
30.The AAT will provide the applicant with a fast-track hearing if the applicant asks for it and if:
a.The applicant has all the relevant information necessary for a decision to be made about their application by the date of the fast-track hearing, and
b.The AAT is satisfied that a fast-track hearing would not disadvantage the applicant or the NDIA.
31.The AAT will generally schedule a fast-track hearing within 6 weeks after the case conference.
32.Where a fast-track hearing is scheduled, the AAT will expect the applicant and the NDIA to be ready on the day set for the hearing. The AAT will not ordinarily adjourn a fast-track hearing unless there are very good reasons. The NDIA as a rule should not request an adjournment.
33.Both the applicant and the NDIA must provide the AAT with any further information or evidence they want the AAT to consider no later than 14 days before the fast-track hearing. The AAT will not ordinarily allow the applicant or the NDIA to submit evidence or relevant information after that time unless there are very good reasons and if the other party does not object.
34.The AAT also requests that in order to assist the AAT to understand what decision the applicant wants the AAT to make, the applicant may send the AAT a written summary of the applicant’s position no later than 7 days before the hearing.
35.If the applicant sends to the AAT any further information or evidence, or a summary of their position, they must also send a copy to the NDIA. If they need help to send documents to the NDIA, the AAT Contact Officer can assist the applicant.
36.The NDIA may also send to the AAT and the applicant a written summary of its position no later than 7 days before the fast-track hearing. Again, it would not be advisable for the NDIA to miss this opportunity to assist the AAT and the applicant by stating a considered position.
Conciliation
37.If the case plan includes conciliation, it will usually be scheduled within 4 weeks after the case conference. Conciliation is a form of alternative dispute resolution that can be used when the AAT considers that conciliation would be worthwhile to try as a means of resolving the application without going to a hearing.
38.The AAT Contact Officer will confirm the date, time and place of the conciliation and will discuss what the applicant needs to do to be ready.
39.At the conciliation, an AAT Conference Registrar or AAT Member will work with the applicant and the NDIA representative to help both parties reach agreement if possible. If the applicant and the NDIA reach agreement, the AAT will record the agreement in writing.
40.If the parties do not reach agreement, or only reach agreement about some parts of the application for review, the AAT will confirm the date and place of the hearing. They will record this on the case plan and send a copy to both parties. The hearing will deal only with the matters not agreed between the parties.
41.Both the applicant and the NDIA must do all of the things that the case plan requires them to do before the conciliation, and come to the conciliation willing and prepared to reach agreement with each other if possible. If there is any information that the applicant has not already given to the AAT about their application, they must bring it to the conciliation.
42.The NDIA must ensure that their delegate at the conciliation will have full authority to settle the case if agreement is reached.
The hearing
43.The hearing is an opportunity for the applicant and the NDIA each to tell its side of the case to an AAT Member who will make a decision.
44.The AAT Contact Officer will contact the applicant between 7 and 14 days before the hearing to confirm the date, time and place of the hearing and discuss what will happen at the hearing. At the hearing, the AAT Member will ask the applicant about their application and what decision they want. The AAT member will also ask the NDIA to do the same.
45.The AAT Member will consider all of the information that the applicant and the NDIA presents. Generally, this will mean the documents that the applicant and the NDIA have provided about the applicant’s case. The applicant and the NDIA have the right to call witnesses but often that will be unnecessary. The AAT Member will usually only hear from other persons such as family members, carers, doctors or other experts if the applicant or the NDIA want and ask for that.
46.The AAT Member will control the procedure in the hearing, which will be as informal as possible. The AAT Member will not follow the formalities that usually apply in courts. The rules of evidence that apply in courts do not apply in the AAT. The AAT Member will consider all the evidence that is relevant to the issues to be determined unless there is a legal reason why it cannot be considered.
47.If there are expert witnesses, such as specialist doctors with the same specialisation, the AAT Member will expect them to give their evidence as witnesses who are able to be questioned at the same time. This is the process known as ‘concurrent evidence’.
48.Throughout the hearing process the proper role of the NDIA representativeis to assist the AAT in various ways. He or she is to advise the AAT on the NDIA processes and assist the AAT and the applicant to understand the meaning of NDIA documents where this is necessary. The NDIA representative is to ensure that all relevant information, including any material that might assist the applicant but which the applicant has not produced, or which has been produced but requires interpretation, is addressed by the NDIA representativein an effort to assist the AAT. The NDIA representative’s role is to make sure that the AAT is fully assisted, and the applicant is enabled to put their case cogently to the AAT. This is consistent with the longstanding principle that in tribunals and courts the Commonwealth is to be a model litigant.