Operational Guideline – Review of Decisions –
Making Better Decisions
Legislation
1.
Read s.99 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and relevant
delegations from the CEO.
Making better decisions
2.
The National Disability Insurance Agency (NDIA) requires delegates to make each decision so that:
a.
b.
3.
The decision is legally valid. This means delegates are to:
i.
Apply the legislation correctly, and
ii.
Comply with the legal requirements that apply when making decisions in the exercise of
powers in the legislation. These principles are called the administrative law principles,
and
The decision is the best decision on the merits. This means the decision the delegate makes
is the decision the delegate thinks is the best decision in all the circumstances of that
particular case, including having regard to the NDIA’s policies as expressed through
documents such as Operational Guidelines. This requires the delegate to exercise his or her
own judgment.
Sometimes this is called making the ‘correct and preferable’ decision. When a delegate correctly
applies the legislation and complies with the administrative law principles the result will be a legally
valid decision:
a.
When this is done and there is only one decision that is open to be made – that decision will
be the correct decision, or
b.
When this is done but there is more than one decision that is open to the delegate – the
delegate must then consider the merits of the case and make the decision he or she thinks is
best – this is called the preferable decision.
See: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634.
Identify the power to make the decision
4.
A delegate can only make a decision if the delegate has legal authority. Therefore, the delegate
needs to:
a.
Identify the decision to be made and the legislation under which it is made – check s.99 of the
NDIS Act to see if the decision is a reviewable decision and can therefore be reviewed
through internal review and then in the Administrative Appeals Tribunal (AAT), and
b.
Identify the ‘test’ in the legislation (which may include the NDIS Rules) that is to be applied
when making the decision – when the word ‘satisfied’ is used in the legislation it indicates that
Operational Guideline – Review of Decisions – Making Better Decisions (v 1.0)
Publication date: 9 December 2013
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the delegate has to determine something and the words in the legislation around the word
‘satisfied’ contain a test that has to be applied. For example, for making decisions on access
requests, the test is in s.21 and expanded on from ss.22 to 25 and in the National Disability
Insurance Scheme (Becoming a Participant) Rules 2013. For plan decisions the test is in s.33
and is expanded on in s.34.
Ensure you have a delegation to make the decision
and are free from bias
5.
The person making a decision must have a delegation that gives them authority to make that
decision. Before making a decision delegates are to check the relevant instrument of delegation.
6.
A delegate should not make a decision if there is a reason why they should not make that particular
decision. For example, if there is a perception of bias because a delegate has a conflict of interest
attributable to the financial or other benefit the delegate may be thought to gain from using a
particular service provider who benefits from the decision.
Identify and comply with the prerequisites for the
decision
7.
The NDIS Act and NDIS Rules will often contain pre-requisites or pre-conditions that must exist
before a decision can be made. Delegates need to check the legislation to identify any prerequisites. For example, before an access decision can be made there must be a valid access
request. That is, the documents submitted as an access request must meet the requirements in
s.19 of the NDIS Act before they legally can be considered an access request. For example, if a
person submits an access request form that does not comply with the requirements in s.19
because it does not use the approved form at all, then it is legally not an access request and an
access decision cannot be made. The person needs to be assisted to submit a valid access
request before a decision is made.
Identify and comply with the procedures for the
decision
8.
The NDIS Act and NDIS Rules will almost always contain procedures that are to be followed.
9.
These include:
a.
Timeframes that must be met – for example, the 14 days in ss.26(2)(c) and (d) to decide the
access request or request further information, and
b.
Lists of matters that must be considered when making a decision – for example, the factors
about the residence requirements in s.23(2) or the matters that must be considered in r.3.1 of
the National Disability Insurance Scheme (Supports for Participants) Rules 2013 when
deciding whether a support represents value for money when making a plan decision.
10. It is important to note that with plan decisions, a plan can only be replaced by a new plan decision
and a plan cannot be varied. The NDIS Act sets out the procedure for a review and replacement of
a plan. Until the plan is replaced by a new plan the supports in the plan continue and do have to
change if for example if only the goals of the participant change.
See s.37(2) of the NDIS Act.
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11. The failure by a delegate to follow a procedure in the NDIS Act or NDIS Rules may lead to the
decision being invalid and required to be made again. While this is not always the case, delegates
are required to follow the procedures in all cases.
Gather the material for the decision
12. Once the appropriate test has been identified, the delegation checked, the pre-requisites or preconditions met and the procedures in the legislation complied with the delegate can then gather
and check the material that is necessary for the decision.
13. The terms ‘information’, ‘material’ and ‘evidence’ are all used. They amount to the same thing –
what information you need to make the decision.
14. Delegates are to gather the material they need to allow them to consider each and all of the
elements of the test in the legislation and to follow each and all of the procedures in the legislation.
15. If further information is necessary, delegates can consider using the powers in the NDIS Act to
request information. For example, for access decisions a delegate may consider using the power
in s.26 to require participants and others to provide information or for participants to undergo
assessments.
Weigh the material and reach findings of fact
16. Up to this point the delegate has identified the test, identified the matters that must be considered
when making the decision and the delegate has gathered the necessary material to make a
decision.
17. The delegate can now go through the material and reach findings of fact in relation to each element
of the test and each of the matters that must be considered. An example is a finding of fact for the
purposes of s.24(3)(a) in relation to the accommodation the person uses in Australia when
considering the residence requirement.
18. Reaching a finding of fact involves weighing the material. The weight, or importance, that a
delegate gives to a piece of information is a judgment that the delegate must make. Some matters
that may assist delegates in assessing the status and quality of material are:
a.
Rely more on clear, coherent and plausible material. Disregard irrelevant or grossly poor
material.
b.
Look for supported findings not just assertions. That is, findings supported by several pieces
of material.
c.
Often there is material or submissions which put two conflicting views of the facts. To deal
with conflicting factual material delegates can isolate the facts and compare them. Look at the
nature of the material and its source and weigh the material. Resolve the conflict by
preferring, the reasons for decision, one view of the facts over the other.
d.
Consider the credibility of the source. For example, greater or equal weight will be given to
the potential participant or participant as the ‘experts’ as to their own needs and the supports
that they require.
e.
Where expert opinion is inconsistent the delegate will need to decide which opinion has
greater force. Advice from the national policy area may be required in such a case.
19. Delegates should check that each of the findings of fact is supported by at least some material.
The more important the finding of fact to the making of the decision the more weighty or substantial
should be the material that supports the finding of fact.
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Consider NDIA policies
20. For most of the decisions a delegate will make, there will be an NDIA document that sets out policy
that is to be taken into account. NDIA policies play an important role in ensuring that delegates
make consistent decisions and Government policy settings are taken into account.
21. Policy can be set out in Operational Guidelines, procedure documents, assessment tools or other
NDIA documents.
22. Policy is not the law. The law must be followed in each case. By contrast delegates may decide
not to follow a policy in a particular case. This is because delegates are required by the law not to
apply policies inflexibly but to consider the merits of each case and apply policy when appropriate.
23. At the same time, delegates are expected to apply NDIA policies in most cases and a delegate
would need to have good reasons for departing from an NDIA policy in a particular case. A
delegate may decide not to follow NDIA policies and make a decision contrary to policy, only when
the delegate, after careful consideration, considers that it is necessary not to follow the policy. For
example, delegates are not to follow a policy in particular case if to do so would lead to a decision
that is so unreasonable that no reasonable delegate could make it. Delegates are encouraged to
discuss such decisions with a subject matter expert or seek advice from the NDIA’s Legal Services
Branch before making the decision.
Make and document the decision
24. At this point the delegate exercises the power in the legislation and formally makes the decision
under the NDIS Act and NDIS Rules. It is at this point that people’s legal rights and obligations are
changed by the decision. The decision is now subject to internal review and then possible review in
the courts, the AAT or both.
25. A statement of reasons is to be drafted for any decision that affects a person adversely. The law
says that the statement is to set out:
a.
The findings on material questions of fact;
b.
The evidence or other material on which those findings were based, and
c.
The reasons for the decision.
26. A statement will automatically include these findings, reference to evidence and other materials and
reasons if you follow paragraphs 4 to 23 above in dealing with the decision.
27. Standard headings that may be helpful in preparing reasons are:
a.
What is the decision to be made?
b.
What must be decided in order to make the decision? – identify the relevant criteria in the
NDIS Act and NDIS Rules that must be satisfied in order to resolve the matter. In the case of
a general access decision the criteria are set out in s.21(1) of the NDIS Act.
c.
Do I have the delegation to make the decision? – Consult the current instrument of
delegation on the intranet.
d.
Findings on material questions of fact and the evidence or other material on which
those findings were based – Take each criterion in order and make a finding as regards
whether each criterion is met.
i.
For simple matters such as the age criterion in s.21(1) it is enough to state that the
prospective participant or participant satisfies s.21(1)(a) based on the birth certificate (or
other material on the NDIA database that refers to the applicant’s age).
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e.
ii.
For more complex criteria such as s.21(1)(c)(ii), the disability requirements, it may be
necessary to refer to reports from medical and allied medical professionals.
Alternatively, there may be adequate information in the prospective participant’s or
participant’s Centrelink record (if any).
iii.
Refer, when making each finding on each criterion to the information you have access to
in making the finding. Where the evidence is complex, there being some suggesting that
the criterion is met and some suggesting that it is not met, then the delegate needs to
decide which is the more convincing finding, and give some reasons for their finding.
This satisfies the requirements to ‘make findings on material questions of fact’ and state
‘the evidence or other material on which those finding were based’.
Reasons for decision – Summarise the findings made and state the final decision. This
satisfies the requirement to give the reasons for the decision.
28. The decision is to be properly documented and reflect the delegate’s consideration. The quality of
the documents is very important when other delegates have to make later decision and when the
decision is subject to review.
Natural justice or procedural fairness
29. A delegate is required to apply the rules of natural justice or procedural fairness in making a
decision. This means that a prospective participant or participant or other person affected by a
NDIA decision has the right to:
a.
A fair hearing and the opportunity to present their case
b.
The right to have a decision made by an unbiased and disinterested decision maker, and
c.
The right to have that decision based on relevant evidence.
30. Failure to make a decision according to these principles means that the decision is unlawful and
can be set aside if an affected person challenges it.
31. In practice, in the NDIA, this means that:
a.
A delegate who knows a person who may be affected positively or adversely by a decision
they will make must discuss this with a supervisor who must arrange for another officer to
make the decision
b.
A delegate must go through the procedure in paragraph 27 above in order to satisfy the
affected person’s right to have a decision based on relevant evidence, and
c.
A hearing, in the NDIA context, will often be carried out through the discussion process that
occurs between NDIA officers and prospective participants or participants provided they are
made aware of the problems in their request or application and are given a full opportunity to
respond to the apparent problems.
Operational Guideline – Review of Decisions – Making Better Decisions (v 1.0)
Publication date: 9 December 2013
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