Are AAT rulings precedent setting?

I was recently asked for an explanation of a statement made by the NDIA’s CEO, Martin Hoffman, in Senate Estimates on 29th October 2020:

‘In respect of AAT cases, of course they are not precedent setting; they are individual cases relevant specifically to the facts of the particular matter, unlike Federal Court cases…’

This sounds a bit superior – like ‘everyone should know this’– when, in fact, this isn’t something that is easily understood by those who are trying to navigate their way around the NDIS. The statement is actually correct – which is a bit annoying – but maybe some background information might be helpful to better understand what Mr. Hoffman meant.

Here goes...

Let’s start at the beginning; a person is denied access to the NDIS or receives his or her Plan. They instantly experience that NOT HAPPY JAN moment.

What to do?

First, everyone has the right to ask for a review of a government decision, including an NDIS decision. Once notified, the NDIA must conduct an internal review by someone uninvolved with the initial decision. The review will amend the decision or decline to do so. That’s the second NOT HAPPY JAN moment. If that decision is hard to live with, the next step is to appeal the decision by applying to the Administrative Appeals Tribunal (AAT).

What is the AAT's role in the NDIS?

First, the AAT sits outside the NDIA; it is an independent body which reviews decisions made by any government ministers, departments or agencies.

Though it’s not well known, all government decisions which adversely affect people are challengeable. Government agencies have the power to make decisions under the relevant legislation. They are also required to be put under scrutiny if a decision they make is in error.

NDIA decisions about eligibility to access the NDIS and plan funding are both challengeable.

The AAT decision

Sometimes decisions are settled ‘out of court’; in other words, before they go to an AAT hearing. In these cases, the details are confidential and not available for public scrutiny. Otherwise, the AAT will decide to either overturn or support the NDIA decision. The AAT’s decisions are based on the unique circumstances of each case, so each decision relates to only to its case. The decisions don’t set precedents for other decisions or AAT hearings. Only rulings by Australian courts create precedents.

Here’s an example. Let’s say a café owner wants to put up an awning outside the café, so the owner applies to the Local Council and relevant State Government Agency for approval. Based on the circumstances of the case, the Council and the State Government Agency approve the awning. Another café, further down the street, sees the new awning and puts one up an awning of its own, on the assumption that awnings must have been approved for all cafés in the area. The Council comes along and says that awning has to be removed because that café’s owner didn’t seek Council or State Government approval. That café is on the corner of two busy streets, so an awning wouldn’t have been approved because it would have blocked the view of traffic coming around the corner.

Clear? Not yet!

So, here’s the lowdown – decisions made by government agencies are based on the unique circumstances of each case and do not set precedents for all ‘similar-looking’ circumstances: just one café, not all cafés. Similarly, just one NDIS Participant, not all NDIS Participants; AAT decisions are based on the circumstances of a particular case, not a transferable aspect of the law.

So how are precedents set for all NDIS participants?

If the AAT decision still feels wrong and doesn’t seem to reflect the ‘vibe’ of the NDIS Act, the Participant can take the case to Federal Court and ask for a judicial review of the decision to make sure it hasn’t breached the Act or been interpreted incorrectly. At this stage, the court is ruling on a matter of law, so it sets a precedent.

It is rather like the Aussie movie The Castle, where a family was going to be thrown out of their home so that an airport runway could be extended. The government Agency was within its rights to make that decision, but the family and their sweet dorky lawyer challenged the decision because it fundamentally breached the ‘vibe’ of the Constitution.

Side note – that movie profoundly influenced my decision to become a lawyer, as it’s the vibe of the law that really interests me most. My apologies … I digress.

Here's a more relevant example of challenging a decision and setting the precedent: the McGarrigle case.

In 2017, Liam McGarrigle, a 21-year-old NDIS Participant, applied to the Federal Court for a judicial review of the AAT decision to only partly fund his transport expenses. These expenses were for his travel to work and to a group program. His Plan only provided for 75% of his annual travel, and the AAT supported this decision.

He appealed on a number of questions of law which he believed were raised by the decision made by AAT in July 2016.

Liam’s submission to the Federal Court requested the AAT’s decision be overturned on the basis that the NDIS Act required supports determined as ‘reasonable and necessary’ to be fully funded.

This was a landmark case, with Justice Mortimer finding that the AAT had ‘erred in law’ in their approach to s34(1) of the Act (the reasonable and necessary section); therefore, the first question of law was answered in favour of Liam. The Court then ruled that the AAT decision be set aside and the matter sent back for determination in light of the Court’s ruling about the correct interpretation of this part of the NDIS Act.

Not surprisingly, the NDIA appealed this decision, but they were unsuccessful in their appeal.

So, this is how a precedent is set for everyone. It was only through a judicial review that a precedent was set for the NDIA to fully fund supports that it had already determined to be reasonable and necessary.

Now that’s a precedent worth fighting for.

In summary, AAT decisions don’t set precedents because they are decisions for that Participant only and based on that individual’s circumstances. Court rulings, however, do set precedents as they clarify whether the law has been misinterpreted, applied incorrectly or breached.

Second side note – I highly recommend watching The Castle specifically in light of the McGarrigle ruling. It’s an old and daggy movie but worth keeping in mind should there be future challenges which might try to derail the real vibe of the NDIS.

Why should we still care about AAT decisions?

Much like we care about the family being held on Christmas Island in detention for an extraordinarily long time, with no resolution in sight. We care about them and their circumstances. We care because what is happening to them is unfair and unjust. Similarly, we care about the experiences that other members of our community have with the NDIS. It is because we care that we keep an eye on AAT rulings and use them to hold the NDIA to account for its decisions.

On a more practical level, AAT rulings provide useful examples for Participants and how their supports are or are not being funded. They are pretty much the only decisions that the public can access, and they weigh out the reasons and justifications behind every decision in painstaking detail. So, Participants should be encouraged to use them as evidence when negotiating with planners. They can also be useful when people get a ‘blanket no’ to a support from planners, such as the blanket no to sex work which was challenged by both the AAT and the Federal Court. Therefore, we encourage you to keep reading AAT decisions, keep holding the NDIA to account and keep relying on them as examples of what is possible in our NDIS.