Last updated 25 February 2020
A person affected by a decision of the National Disability Insurance Agency (NDIA) can seek review of that decision if it is reviewable. All decisions that are reviewable are listed in s 99 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Importantly, a decision to refuse a person access to the scheme and a decision to approve a participant’s statement of supports are both reviewable decisions (items 1 and 4 of s 99 of the NDIS Act).
There are two stages of review:
- internal review
- external review.
Although there are no costs associated with pursuing either an internal or external review, time limits apply.
Under s 100 of the NDIS Act, a person affected by a reviewable decision of the NDIA can ask for an internal review of the decision over the phone, by email, by letter or by completing an internal review application form.
For more information about the process of requesting an internal review, visit the National Disability Insurance Scheme website.
Requests for internal review must be lodged within three months of a person receiving the notice of the decision with which they are dissatisfied.
It is important that a person seeking review is clear about the nature of their request. That is, they should state that they are seeking ‘a section 100 internal review of a reviewable decision’ and explain why they are seeking the review (e.g. they do not agree with the NDIA decision to refuse to grant them access to the National Disability Insurance Scheme (NDIS), or they do not agree with the NDIA decision to refuse to fund certain supports). This will help to minimise the chances of the person’s request for an internal review being mischaracterised as an unscheduled review request or a complaint about the NDIA’s processes.
The NDIA must complete the internal review as soon as reasonably practicable, the outcome of which will be a decision by the NDIA to either confirm, vary or set aside and substitute a new decision (s 100(6) NDIS Act).
Under s 103 of the NDIS Act, a person who is dissatisfied with the outcome of their internal review may pursue the matter further by lodging an external review (an ‘appeal’) in the Administrative Appeals Tribunal (AAT).
Where a person has not received an outcome to their request for an internal review, the person may nevertheless be able to apply for an appeal in the AAT. See NNXF and National Disability Insurance Agency  AATA 5552 (23 December 2019) in which the AAT determined that it has jurisdiction to determine certain applications where an internal review decision may be deemed to have been made.
For more information about the process of requesting an external review, which may be lodged online, or via letter or application form, visit the AAT website.
Requests for external review must be lodged within 28 days of a person receiving the notice of the NDIA internal review decision with which they are dissatisfied. Requests for external review lodged outside of this time period may be accepted where a person can provide good reasons for their delay.
An external review by the AAT is a ‘hearing de novo’, which means that the AAT will look at a person’s case afresh and consider all the material, including new material filed by an applicant and/or the NDIA, to determine the person’s case.
Typically, an external review application will proceed through the following steps:
- Provision of T-documents—all the documents that are in the NDIA’s possession that are relevant to the review must be collated by the NDIA and filed in the AAT and provided to the applicant.
- Case conference—an informal meeting with the AAT and NDIA is scheduled to discuss whether an agreement can be reached and, if not, to prepare a ‘to-do list’ for the progress of the external review application. To-dos may require an applicant to file further evidence, and the NDIA to consider and respond to that evidence by set dates before the listing of a further case conference.
- Directions hearing—this hearing is held prior to a final hearing for the purposes of preparing a timetable for the progress of a case to a hearing.
- Final hearing—the applicant and NDIA present arguments in support of their case and can call witnesses to give evidence to the AAT member/s.
Most commonly, external review applications resolve by agreement between the applicant and the NDIA, without the need for the AAT to determine the matter at a final hearing. In all cases, the AAT will issue a decision either confirming, varying or setting aside and substituting a new decision once a matter is determined (either by agreement reached between the parties or as a result of a final hearing).
More information about the external review process within the AAT is available on the AAT website.
Model litigant rules and complaints
In cases where a person is concerned about the NDIA’s conduct in review proceedings, it may be helpful for the person to raise the requirement of the NDIA to comply with the ‘model litigant rules’. The NDIA, as a Commonwealth Government agency is required to comply with these rules, which set standards for conduct of NDIA staff and its lawyers, and are found in Appendix B to the Legal Services Directions 2017.
In addition, in Queensland, complaints may be made about registered NDIS service providers under the Human Rights Act 2019 (Qld) (Human Rights Act), where the complainant considers that the provider has acted or made a decision in a way that is not compatible with human rights or, in making a decision, the provider has failed to consider a human right that is relevant to the decision (s 58 Human Rights Act). Complaints that progress to the Human Rights Commission may be referred by the Human Rights Commissioner to the NDIS Quality and Safeguards Commission (s 73 Human Rights Act). For more information about the right to complain and the complaint-making process, visit the Human Rights Commission website.