Browning, Aneita --- "Review of NDIA decisions: Complaints, internal review and AAT merits review" [2014] PrecedentAULA 57; (2014) 125 Precedent 10

---

REVIEW OF NDIA DECISIONS

COMPLAINTS, INTERNAL REVIEW AND AAT MERITS REVIEW

By Aneita Browning

The National Disability Insurance Scheme (the Scheme, or NDIS), administered by the National Disability Insurance Agency (the Agency, or NDIA), aims to ‘support a better life for hundreds of thousands of Australians with a significant and permanent disability and their families and carers’.^[1] The independent statutory agency operates under the National Disability Scheme Act 2013 (Cth) (the Act).^[2]

The nature of the Scheme means that, from time to time, there will inevitably be participants, or members of their support network, who are dissatisfied with a decision of the Agency. Complaint and review mechanisms are in place to assist should that situation arise. This article distinguishes the complaint procedure from the internal review and the external review processes. After briefly touching on representation, support and the role of the National Disability Advocacy Program (the Advocacy Program) the focus is then the external merits review application process in the Administrative Appeals Tribunal (AAT).

It is important that participants and their supporters are encouraged to engage with the different processes in order to protect their interests. This has the added, broader benefit of ensuring that the Scheme delivers on the goal of providing ‘peace of mind for every Australian, for anyone who has, or might acquire, a disability’.^[3]

COMPLAINT OR INTERNAL REVIEW?

Dissatisfaction with the services or actions of the Agency may be pursued by complaint and, in limited circumstances, by applying for an internal review of decisions made. The eligibility criteria, procedures and outcomes differ, so the first question is whether the action sought is to (a) lodge a complaint; or (b) seek review of a decision.

The information available from the Agency highlights that complaints are valued to ‘help us to see what works, what doesn’t and where we can make improvements’.^[4] This process is an important mechanism available to a person when there is dissatisfaction with an Agency service or action, regardless of whether the decision made is a reviewable one. The subject matter of complaints will vary but might include the Agency’s procedures or conduct of a staff member.

A complaint can be lodged in writing (email, post, fax or online form), in person, or over the phone and it can be made in a preferred language.^[5] Once received, internal enquiries will be undertaken by the Agency and the complainant will then receive notification of the resolution. If the outcome is unsatisfactory, then an internal review of the complaint-handling can be commenced. This can ultimately be escalated to the Commonwealth Ombudsman.

Other complaint or review mechanisms may also be open to participants in relation to service providers; for example, in the event of dissatisfaction with a care provider or a nominee. These are separate processes not explored here.

REVIEWABLE DECISIONS

An application for an internal review of a ‘decision’ should not be confused with the complaints procedure, as the steps and outcomes are different. It is foreseeable that a complaint may be the preferred avenue if the process of the decision-making was unsatisfactory (for example, overly complicated or drawn out Agency procedures or inadequate information available) but where a review of the Agency decision itself is not sought.

The Agency website provides that:

‘If your complaint is about a decision made by or for the Chief Executive Officer, (CEO) of the NDIA you can lodge an application for review. These are known as reviewable decisions and any person directly affected by a decision of the Agency can request such a review.’^[6]

Not all Agency decisions are reviewable, so the first question, as to whether an internal review can be pursued is, whether the decision was made by or for the Agency’s CEO (a CEO decision). Whether it is a CEO decision should be clearly stated in the initial correspondence informing the participant of the decision. If it is not a CEO decision then it is not a ‘reviewable decision’.

A range of CEO decisions are reviewable, including those about eligibility to the Scheme and supports provided under the Scheme (see ss99 and 100). There is an automatic right of review in limited circumstances – decisions about access criteria (s21(3)) and a participant’s plan (s48(2)). Therefore, the next question is whether the decision is a ‘CEO decision’ reviewable under s99 of the Act.

In Burston and National Disability Insurance Agency,^[7] Senior Member Toohey considered whether a decision was reviewable and emphasised:

‘...The legislation is new. It refers to different kinds of reviews. It is not surprising, especially in the early days, if there is some confusion on the part of participants and planners. What this underlines is the importance of making as clear as possible to participants what kinds of reviews are available, clarifying what kind of review a participant is seeking, whether a review because circumstances have changed or because the participant is dissatisfied with the plan, and the implications of the different kinds of reviews.’^[8]

This highlights the importance of correctly identifying the type of decision and understanding the recourse available.

The third question is who will make the application for review? The right of review is not limited to a prospective participant^[9] or participant, and a ‘person directly affected’ (such as a family member) has standing to apply.^[10] (‘Affected person’ is used inclusively here.)

COMMENCING THE REVIEW PROCESS

The Agency recommends that, before applying for an internal review, the first step is to ‘request reconsideration by the original decision-maker about your concerns, especially if you think an important matter was overlooked or new information has come to light’.^[11] Following reconsideration, the matter may be resolved but, if not, the next step is to seek an internal review.

The affected person must request the internal review within three months notice of the original decision.^[12] This stage of review involves an independent decision-maker (the reviewer) and the original decision-maker is not involved.^[13] As with lodging a complaint, the form of the request for internal review is flexible and may be oral (in person or over the phone) or written (email, post, fax or the online form). This should include an explanation of why the affected person thinks the decision is incorrect.^[14]

The reviewer will confirm, vary or substitute the decision.^[15] If the outcome of the internal review is unsatisfactory to the affected person, there is an option to pursue either another internal review^[16] or to make an application for external merits review at the AAT.^[17]

EXTERNAL MERITS REVIEW

External merits review in the AAT is an opportunity for the affected person to have the internally reviewed decision reconsidered.^[18] In undertaking the review, the AAT is independent of the Agency and ‘a fresh decision’ is made ‘which is the correct and best decision possible in the circumstances’.^[19] The Tribunal may affirm the original decision or it may substitute a decision.

As highlighted in Burston, the AAT has no general discretion to review decisions and only those that are reviewable decisions under the Act can progress for external merits review.

REPRESENTATION AND SUPPORT

There is a presumption, ‘so far as is reasonable in the circumstances’, that participants ‘have capacity to determine their own best interests and make decisions that affect their own lives’.^[20] Giving effect to this may require representation or support from others. Throughout the various complaint and review stages, advocacy and personal support are permitted and encouraged.

Advocacy

The government-funded Advocacy Program ‘provides people with disability access to effective disability advocacy that promotes, protects and ensures their full and equal enjoyment of all human rights enabling community participation’.^[21]

Three Program Guidelines provide an overview of the Advocacy Program.^[22] There is also a range of material and resources available online^[23] to inform affected persons about the role of the Advocacy Program and the services available in the launch areas.

There are numerous reasons why a participant and their supporters may not engage with the complaint and review processes available. For example, lack of knowledge and understanding about the procedures; physical and mental health considerations; or limited personal resources, such as time and energy to pursue a matter. Therefore, support and advocacy assistance is integral to the success of the Scheme for participants and for ensuring full participation of those affected by Agency decisions.

Appearing in the AAT

An applicant may self-represent in the AAT or they may be represented by a lawyer or another person acting as advocate. This is an individual decision that will depend on the capacity, skills and knowledge of the affected person, the complexity of the matter, and personal preference.

Support persons are also welcome in the AAT.^[24] This is someone who provides personal support but does not act as advocate in the proceedings.

The Advocacy Program provides services to ‘ensure the external merits review system is accessible and as non-adversarial as possible for people with disability’ and applicants to the AAT are entitled to advocacy support through the local service.^[25]

PROCEEDINGS IN THE AAT

The AAT has a dedicated NDIS Division that deals with applications for external merits review. The objectives of the AAT – to ensure a process that is fair, just, economical, informal and quick – apply equally to review of CEO decisions.

Making the application

There is an AAT Practice Direction^[26] and online video^[27] about making an application for external merits review. This provides useful information about preparing for this review process, particularly given that these applications are dealt with in a different manner to other applications in the AAT.

The AAT Registries in each of the launch site jurisdictions^[28] have staff dedicated to assist with these applications. Staff can provide information and support such as organising interpreters or accommodating access needs.

An application to the AAT for review of a decision must be filed within 28 days after receiving the internal review decision. Limitation dates should be complied with. However, the Tribunal has discretion to grant extensions of time when it is reasonable to do so and exceeded timelines should not be considered fatal to an application. For example, circumstances may arise beyond the control of an affected person – such as health complications – that may be considered reasonable to justify an extension of time.

Application is made to the AAT Registry closest to the participant. Unlike the applications made to the Agency (for complaints and internal review), applications to the AAT cannot be filed orally. Although there is a form that can be used, the requirement is simply that it must be in writing (email, post or fax).^[29] There is no filing fee for review of CEO decisions.

Once the application has been filed, the affected person becomes the applicant and the Agency, as the decision-maker, becomes the respondent.

The progression of a matter will depend on the facts and the parties. At different stages, specified timeframes apply to the conduct of the AAT, the applicant and the respondent. Adjournments are considered only where there is very good reason.

Preliminary matters

The following, based on the Review of National Disability Insurance Scheme Decisions Practice Direction (1 July 2013),^[30] outlines how a review may progress:

• The Registry will appoint a Contact Officer trained to handle NDIS matters.

• Within three days, the Contact Officer will contact the applicant to discuss the application.

• The Contact Officer will notify the respondent of the application and request a copy of all relevant documents.

• The respondent will provide a copy of the relevant documents to the applicant and the AAT (these documents are referred to by the AAT as ‘T-docs’).

• Once the respondent provides the T-docs to the AAT and applicant, a Case Conference will be scheduled.

• Prior to the Case Conference:

o The applicant is to provide any relevant information to the respondent and the AAT, and notify the AAT of any special support required.

o The respondent is to provide any additional relevant information to the applicant and the AAT (including identifying any novel or complex issues which may require a specially constituted Tribunal) and ensure that their representative has authority to settle at the Case Conference.

• Within two to four weeks after the T-docs are provided, the parties will participate in the Case Conference, which is an informal meeting facilitated by a Conference Registrar or Tribunal Member to discuss whether the matter may be resolved by agreement or to prepare a Case Plan.

o If the parties reach agreement at the Case Conference, it will be formalised in writing by the facilitator.

o If agreement is not reached, then a written Case Plan will be prepared – setting a date for Conciliation or a Fast-Track Hearing (if conciliation is not suitable or a quick decision is required) and also specifying any additional material the parties are required to provide.

When an applicant is represented, the contact with the AAT and the exchange of information with the respondent will be through the advocate.^[31] Alternatively, if a support person is helping the applicant, copies of documents can be provided to that person and the applicant, but the principal contact will remain with the applicant.^[32]

Conciliation

The Practice Direction outlines the steps for Conciliation if scheduled in the Case Plan:^[33]

• The Conciliation will be scheduled within four weeks of the Case Conference.

• The Conciliator, who is an AAT Registrar or Tribunal Member, assists the parties to reach agreement if possible.

• Any agreement reached is recorded in writing.

• If parties do not reach agreement, or reach agreement in part, then the matter will be scheduled for hearing.

Hearings

The Tribunal will consider the complexity of the matter, the witness list, and the needs of the application before setting down the hearing dates. The steps that follow are:^[34]

• Prior to the hearing the applicant and respondent are responsible for arranging witnesses if required (for example, specialist doctors).

• The Contact Officer makes contact between 7 and 14 days prior to the scheduled hearing.

• No less than 14 days prior to the hearing, the parties must provide any additional information to each other and the AAT.

• It is optional for the parties to send a written summary of their position to the AAT and the other side, but must do so no less than seven days prior to the hearing.

• At least two days prior, the respondent must provide a list of any cases to be referred to.

• The Tribunal may be constituted by a Member sitting alone, or a panel of up to three; this depends on the matter under review.

• The hearing will be as informal as possible, without court formalities, and adjustments may be made to accommodate an applicant.

• The rules of evidence do not apply, so the Tribunal considers the relevance and weight of the evidence (unless there is a legal reason it cannot be considered).

• Any expert witnesses are expected to give their evidence concurrently.^[35]

A Fast-Track hearing is scheduled within six weeks of the Case Conference but, otherwise, the requirements and the progress of the matter is the same as above.

In addition, there may be directions hearings during the progression of a matter. For example, an application made for a pseudonym to be used.^[36] The parties may request a directions hearing in writing, explaining why it is necessary. These will generally be conducted over the phone by a Tribunal Member.

AAT DECISIONS

Consent decisions

Parties are free to reach agreement at any stage during the external review. If that occurs, the respondent will prepare a written agreement, provide it to the applicant for signature and then forward the signed copy to the AAT. This will be formalised into Orders by the Tribunal and a copy will be sent to the parties. ^[37]

Tribunal decisions

Following the hearing the Tribunal will deliver its decision which may be to affirm, vary or substitute the decision of the internal reviewer. The decision may be delivered at the end of the hearing and then later published or it may be reserved, but will be delivered no later than 60 days after the hearing.^[38]

NDIA reviews

To date, four matters have progressed through the hearing stage to a decision of the Tribunal. Key issues under consideration in those cases were whether:

• a participant satisfied the disability requirements;^[39]

• the supports requested were more appropriately funded through the health system;^[40]

• a support requested satisfied the reasonable and necessary test;^[41] and

• the decision was reviewable and the AAT had jurisdiction.^[42]

Appeal from the AAT

Decisions of the AAT can be appealed to the Federal Court of Australia. However, the right of appeal is limited to errors of law, not dissatisfaction with the decision. The appeal must be filed within 28 days.^[43]

CONCLUSION

The introduction of the NDIS is a new, specialised way of delivering necessary services and supports for people in the community who live with a significant and permanent disability. An integral part of the Scheme is the right to complain or to seek internal and external review of certain decisions. Participants, their supporters and legal advocates should not shy away from engaging with these processes.

Importantly, there is flexibility for lodging applications, various support and advocacy options are available, adjustments to meet individual needs are possible, and the cost is kept to a minimum. As the Scheme is rolled out more widely around the country, more decisions will become subject to review by the AAT which, in turn, will provide further guidance about the Scheme and the interpretation and application of the Act.

Aneita Browning is a barrister in Tasmania and a member of the Precedent Editorial Committee. EMAIL: [e-mail].

---

^[1] www.ndis.gov.au/about-us.

^[2] In addition to the Act, there are a number of integral instruments including Operational Guidelines. The NDIS website (www.ndis.gov.au) has links to statute and various publications (consistent with the Information Publications Scheme).

^[3] See note 1 above.

^[4] National Disability Insurance Agency, ‘Feedback, complaints and review’, 25 November 2013,www.ndis.gov.au/documents/672.

^[5] Ibid.

^[6] Ibid.

^[7] [2014] AATA 456 (4 July 2014).

^[8] Ibid, at [24].

^[9] The Act, s28 covers prospective participants.

^[10] The Act, s100.

^[11] See note 4 above.

^[12] Ibid.

^[13] Ibid.

^[14] Ibid.

^[15] The Act, s100(6).

^[16] See note 4 above.

^[17] The Act, s103.

^[18] Applications may be made to the AAT for a review of a decision made by a reviewer under the Act s100(6) (see the Act, s103).

^[19] Justice Duncan Kerr, President of the AAT, ‘Information for National Disability Insurance Scheme Applicants’, www.aat.gov.au/ApplyingForAReview/NDIS/ReviewProcessVideo.html.

^[20] The Act, s17A.

^[21] Australian Government Department of Social Services, ‘National Disability Advocacy Program (NDAP) Overview’, www.dss.gov.au/our-responsibilities/disability-and-carers/program-services/for-people-with-disability/national-disability-advocacy-program-ndap.

^[22] NDAP Program Guidelines, Part A: Services and Support for People with Disability – Program Guidelines; Part B: Information for Applicants; and Part C: Program Guidelines, www.dss.gov.au/our-responsibilities/national-disability-advocacy-program-ndap.

^[23] For example, a series of short educational videos is available on youtube – ‘What is self advocacy?’, ‘What is family advocacy?’, ‘What is individual advocacy?’, What is legal advocacy?’, ‘What is citizen advocacy?’, and ‘What is systemic advocacy?’: accessed at www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/national-disability-advocacy-program-advocacy-for-people-with-disability-dvd.

^[24] See note 19 above.

^[25] www.dss.gov.au/our-responsibilities/disabiity-and-carers/program-services/for-people-with-disability/national-disability-advocacy-program-ndap.

^[26] AAT, Review of National Disability Insurance Scheme Decisions Practice Direction, www.aat.gov.au/LawAndPractice/PracticeDirectionsAndGuides/PracticeDirections/NDISPracticeDirection.htm.

^[27] See note 19 above.

^[28] The current NDIS launch sites cover Tasmania for youth aged 15-24; SA for children aged 13 and under; the Barwon area of Victoria for people up to age 65; and the Hunter area in NSW for people up to age 65, the ACT for people up to age 65, the Barkly region of the NT for people up to age 65 and the Perth Hills area of WA for people up to age 65.

^[29] AAT, Information for National Disability Insurance Scheme Applicants, www.aat.gov.au/ApplyingForAReview/NDIS.

^[30] See note 19 above.

^[31] See note 26 above.

^[32] Ibid.

^[33] See note 19 above.

^[34] See note 26 above.

^[35] AAT, Guidelines for the Use of Concurrent Evidence in the AAT, www.aat.gov.au/LawAndPractice/PracticeDirectionsAndGuides/Guidelines/ConcurrentEvidence.htm.

^[36] This would be an application under the Administrative Appeals Act 1975 (Cth), s35.

^[37] See note 26 above.

^[38] Ibid.

^[39] Mulligan and National Disability Insurance Agency [2014] AATA 374 (13 June 2014).

^[40] Young and National Disability Insurance Agency [2014] AATA 401 (20 June 2014).

^[41] TKCW and National Disability Insurance Agency [2014] AATA 501 (23 July 2014).

^[42] See note 7 above.

^[43] AAT, ‘AAT Decisions’, www.aat.gov.au/StepsInAReview/IHaveMyDecision.htm.