Operational Guideline – Review of Decisions –
Overview
Legislation
1.
Read ss.4, 17A, 99, 100,101, 102, 103 and 202 of the National Disability Insurance Scheme Act
2013 (NDIS Act).
People have a right to seek review of decisions
2.
Generally speaking Australians have the right to seek review of government decisions made under
legislation to ensure the legislation has been correctly applied. For over 35 years review of certain
decisions has also been available in the Administrative Appeals Tribunal (AAT) where the AAT can
make the decision which it thinks is the best decision. This is known as 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.
3.
Review of decisions helps to ensure the National Disability Insurance Agency (NDIA) is open and
accountable and the review process is to be used to improve the way decisions are made.
4.
Under the NDIS Act, people directly affected by decisions listed in s.99 can seek review of the
decision internally, that is within the NDIA itself, and then externally through the AAT.
5.
In the case of review of a decision on a plan the original decision remains in effect so that supports
can be provided until a new decision is made by the NDIA reviewing delegate or the AAT member.
The new decision will be to confirm the original decision, vary the original decision or set aside the
original decision. This means that supports provided under the original decision continue to be
provided until a new decision is made.
General principles
6.
People with disability have the same right as other members of Australian society to pursue any
grievance.
See s.4(7) of the NDIS Act.
7.
People with disability should be supported in their dealings and communications with the NDIA so
that their capacity to exercise choice and control is maximised.
See ss.4(9) and 17A(2) of the NDIS Act.
8.
The role of advocacy in representing the interests of people with disability is to be acknowledged
and respected, recognising that advocacy supports people with disability by:
a.
Promoting their independence and social and economic participation
b.
Promoting choice and control in the pursuit of their goals and the planning and delivery of their
supports, and
Operational Guideline – Review of Decisions – Overview (v 1.0)
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c.
Maximising independent lifestyles of people with disability and their full inclusion in the
community.
See s.4(13) of the NDIS Act.
Delegates are to make the best possible decisions in
the circumstances
9.
The NDIA strives to ensure that when a delegate makes a decision in the exercise of a power in the
NDIS Act, the outcome of the decision is the best possible outcome under the NDIS Act, NDIS
Rules and policies reflected in the Operational Guidelines, and given the material relevant to the
participant available to the delegate. This can only happen if:
a.
The decision complies with the law. That is, it complies with the legislation (including the
NDIS Rules) and administrative law principles
b.
The delegate considers the NDIA’s policies that apply to the decision and follows those
policies unless there is a good reason not to do so
c.
The delegate has exercised judgment following careful consideration of all the important
information
d.
The decision is properly recorded and documented, including all the important information and
documents on the file, and
e.
For reviewable decisions that affect a person adversely, a statement of reasons is provided to
the person affected.
Requests for review of decisions should be
considered internally first
10. Most of the decisions made by a delegate under the NDIS Act are reviewable. In almost all cases,
original decisions are made by delegates appointed by the CEO of the NDIA, as opposed to the
CEO personally. The process for review has two stages. The first stage of review is a review by
another delegate (internal review), ideally at the local level, and then the second stage is external
review by the AAT.
See ss.99, 100(6) and 103 of the NDIS Act.
11. In addition to internal and AAT review, a person affected by a decision of the NDIA is always able
to raises matters of concern including complaints with the relevant decision maker, whether it is the
original decision maker or the internal review decision maker. The NDIA encourages people to
raise matters of concern at any stage, and always will strive to resolve concerns and complaints
informally and as quickly as possible.
12. When a reviewable decision has been made, the delegate must give written notice to each person
directly affected by the decision outlining that the decision has been made and the avenues
available for review of the decision. This includes the option for the person to have a conversation
about the decision with the original decision maker before proceeding to request review.
See Operational Guideline – Review of Decisions – Conducting an Internal Review.
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Most decisions are reviewable in the AAT
13. Where a person has sought internal review and remains dissatisfied with the outcome of the
internal review then their review should progress to the AAT. A prospective participant and
participant, or other applicant (for example a nominee or registered service provider), before
proceeding to external review by the AAT, can raise any matters of concern with the reviewing
delegate informally, and the reviewing delegate can consider whether it is possible to resolve these
concerns without the need to proceed to AAT review. This is not a mandatory step and it is an
option available to prospective participants or participants or applicants. If after this step the person
is still dissatisfied then they can seek external review by the AAT. A delegate considering a change
to a decision at this stage should seek advice from the NDIA’s Legal Services Branch through
reviews@ndis.gov.au.
See s.103 of the NDIS Act and Operational Guideline – Review of Decisions – Conducting an Internal Review.
Original decision maker
14. Before requesting an internal review the person directly affected by the decision should be
encouraged to discuss their concerns with the original decision maker in the first instance,
especially if they think an important matter was overlooked or new information has come to light.
15. The original decision maker should consider any new information that might justify a change in the
original decision. A delegate considering a change to an original decision at this stage should seek
advice from the NDIA’s Legal Services Branch through reviews@ndis.gov.au.
16. Any person directly affected should be assisted to exercise their formal internal review rights in the
event that they are dissatisfied with the original decision maker’s conclusions.
Internal review
17. The internal review should be conducted in a manner and location that is most appropriate for the
person’s circumstances and needs. This may involve review on the papers, or at one of the NDIA’s
offices or at the home of the person. In any internal review the review delegate should, at the very
least, discuss the matter with the applicant by telephone or an equivalent means.
18. The internal review should be informal, easy to understand and allow the person directly affected to
have their say. The review delegate must decide whether to confirm, vary or set aside the original
decision and the review should be carried out at arm’s length from the original decision maker.
19. The outcome of the internal review should be explained to the maximum extent possible, in the
language, mode of communication and terms that are most appropriate to the person directly
affected. Wherever reasonably practical, the internal review decision should be provided orally as
well as in writing.
See s.7 of the NDIS Act and Operational Guideline –Review of Decisions — Conducting an Internal Review and
Operational Guideline – Review of Decisions – Making Better Decisions.
20. Where a reviewable decision involves complex or novel factors, the NDIA’s delegate should consult
with the national policy area which may seek the expert panel’s recommendations.
21. The NDIA can vary a decision at any time during the review process.
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Review by the Administrative Appeals Tribunal
22. A person directly affected by an internal review decision may apply to the AAT for external review
of the internal review decision and the AAT will then decide whether to confirm, vary or set aside
the decision. Once this application is made, the Administrative Appeals Tribunal Act 1975 (AAT
Act) will apply to the review by the AAT.
See ss.100(6) and 103 of the NDIS Act and s.19(2)(baaa) of the AAT Act.
23. It is mandatory to seek internal review by the NDIA before applying to the AAT for external merits
review. That is, a person cannot request review of a decision by the AAT unless they have first
gone through internal review in respect of the decision.
A Person Directly Affected
24. A person directly affected by a reviewable decision may include, amongst others, people from the
following categories:
a.
Prospective participants
b.
Participants
c.
People with parental responsibility
d.
Nominees
e.
People who seek to have parental responsibility or to become a nominee
f.
Persons or organisations applying to become registered service providers, and
g.
Registered providers of supports.
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