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At What Cost?

Chris explores the NDIA's mounting legal fees, as the number of Administrative Appeals Tribunal (AAT) cases reaches an all time high.

By Chris Coombes

Updated 15 Apr 202417 Dec 2021

Government data acquired by Team DSC reveals that the NDIA spent $34.8 million on Administrative Appeals Tribunal (AAT) matters in 2020-21 (NDIA Freedom of Information – 3 December 2021). Of this, over $17.3 million was paid to private law firms to represent the NDIA at external reviews (an increase from $13.4 million the year before). The NDIA has refused to release the names of the law firms contracted to represent the NDIA at the AAT and the amount paid to each, claiming “trade secrets or commercially valuable information” exemptions under s47(1)b of the Freedom of Information Act.

The number of cases before the AAT can be viewed as the tip of the iceberg, giving us an insight into tensions in the planning process. The AAT Annual Report (2021) revealed that “in this reporting year, there was a 76% increase in applications for supports”. Last month, The Australian noted a 20% increase in external plan reviews year on year.

The NDIA responded to claims of rising AAT matters with a media release of its own. On 5 December, an NDIS media release titled “Clarification of NDIS AAT Applications” claimed that the increase in external review applications was proportional to new participants entering the Scheme.

On 11 December, citing data retrieved from the AAT, The Guardian revealed a 300% spike in NDIS appeals when compared with the same month-by-month period in the previous year. Additionally, The Guardian found that this increase was not proportional to the number of new entrants to the Scheme, as the NDIA had claimed. On 30 November 2021, information obtained by the Guardian showed that the AAT had 3,084 NDIS cases on hand; by comparison, the AAT had 913 NDIS cases on hand on 30 November 2020.

The NDIA spokesperson told The Guardian, “The statement issued on the NDIS website relates to figures released in the AAT’s annual report (1 July 2020 to 30 June 2021) and we provided comparable figures to 30 June 2021. […] The agency acknowledges the increase in the number of AAT appeals since 30 June”.

Where is the NDIS cutting plans? 

We might not have a full picture of exactly what is being cut from plans for at least 12 months, when we begin to see published decisions by the AAT from this period.

In the absence of published data, DSC consulted disabled people, providers, legal representatives, and appeals advocacy organisations about where they’re noticing cuts over the past five months. From what we have heard, cuts are widespread and felt across all states and territories. They noted the following trends:

  • Participants who had previously been approved to live alone in Specialist Disability Accommodation (SDA) dwellings or have requested that kind of SDA arrangement are now being approved for three- or four-bedroom dwellings instead.
  • The NDIA has reduced Supported Independent Living (SIL) funding, particularly for people with higher staff-to-participant ratios.
  • The NDIA has reduced or is now funding only a portion of intensive therapy programs for children.
  • People are also reporting cuts to their Support Coordination funding.

These cuts will surely save the NDIA some money in the short term. But at what cost?

Legal Costs

As mentioned above, the NDIA spent $34.8m on pursuing AAT matters in the last financial year, including $17.3m on external legal representation. It is likely that this figure will increase this financial year, given the Agency’s need to respond to the 300% spike in matters before the Tribunal.

In contrast, the Department of Social Services (DSS) recently released a tender for advocacy organisations to compete for approximately $10 million dollars a year. This is less than a third of what the NDIA spent on external reviews last financial year and does not cover the cost of legal representation.

In a separate Freedom of Information release by the AAT obtained by Team DSC, the AAT revealed that 1,780 external review applications were received in 2020–21. Of these, 622 were represent by disability advocacy organisation, but 325 received legal representation. Put simply, access to legal and advocacy support is a massive problem for NDIS participants, which will only be exacerbated by this recent spike in external reviews.

Human Costs

From our consultation with the sector, we heard about other costs associated with the 300% uptick in AAT matters, including:

  • Parents, nominees, and disabled people have reduced working hours to collect evidence, submit reviews, and attend case conferences. This has lessened economic productivity and caused significant stress.
  • For participants who don’t have access to informal supports or advocacy, Support Coordinators are helping collect evidence to bolster their internal and external reviews. This means that fewer Support Coordination hours are dedicated to linking people with services and working toward their goals.
  • Disabled people who have not been successful in pursuing an external review or don’t have the resources or emotional energy to appeal a decision are losing supports. This can have wide-ranging consequences, including loss of function, serious harm, or even death. Advocates felt that this undermined the Royal Commission’s cautions against participants being left without adequate supports.

Broken Trust

With people around the country noticing these dramatic reductions in plans and in the absence of communication about what is happening, the sector’s trust in the NDIA has taken a hit.

At DSC’s 2021 Home and Living conference, DSC Executive Director Roland Naufal questioned Martin Hoffman, the NDIA’s CEO, about reports of widespread cost cuts to plans, particularly in the home and living area. Roland asked Mr Hoffman a simple but powerful question: “What’s happening?” Mr Hoffman suggested participants who are unhappy with a decision should gather the evidence that the support is reasonable and necessary and submit it to the NDIA. This can only be described as a missed opportunity for Mr Hoffman, on behalf of the Agency, to address the elephant in the room.

What does all this mean for NDIS participants and providers? For those who can stomach a review, it could very well be worth it. There’s no evidence that the AAT itself has changed its interpretation of the NDIS Act or the level of evidence required. And the AAT Quarterly report (2021) showed that, in 2020-21, 98% of matters don't go to hearing.

But we are still left with the question… is the $34.8m the NDIA is spending on external reviews money well spent?


Chris Coombes

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