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NDIS Minister Bill Shorten has announced a plan to blitz through the huge backlog of cases in front of the Administrative Appeals Tribunal (AAT). At an event hosted by Every Australian Counts (EAC), he shared details of an independent committee that will be established to review outstanding AAT cases to see if they can be resolved without the court’s involvement.
The committee will be chaired by former Disability Discrimination Commissioner Graeme Innes (check out our recent interview with Graeme here) and will consist of expert reviewers who are independent of the Agency and their external lawyers.
The current AAT reviews process has not been working for NDIS participants for quite some time. Over the past year, there has been a 400% increase in AAT cases, with the number of appeals as a proportion of participants more than doubling. The NDIA has also been taking a lot of flak for spending nearly $22m on external lawyers between 2020–21 for these disputes.
The committee’s initial focus will be to address the huge backlog of unresolved AAT cases (there are currently 3,991 open cases). They will begin by trailing the new process in 15 to 20 cases. The plan is then to ramp it up quickly and get through more than 2,000 before Christmas. New cases that come before the AAT in the meantime will not yet be reviewed by the committee. However, in the long term Shorten hopes an alternative disputes resolution process will be available for everyone.
Participation is voluntary, and people will not have to accept the outcome of the review. Participants will also have the right to have a lawyer review any of the committee’s recommendations, but the Agency will be not lawyering up.
The committee will work separately and in parallel to the Tribunal, so people will not lose their spot in the AAT queue and should not see any delays in their case. Shorten said he envisions the disputes resolution process taking no more than a month to reach a resolution.
Shorten bluntly described this as an attempt to “cut the bullshit” that is making the reviews process inaccessible for ordinary people. Along those lines, the committee is expected to find solutions that work for the participant rather than messing about with technical legalese.
AAT cases to *maybe* inform Operational Guidelines
Many NDIS AAT cases deal with similar matters, such as transport disputes or assistive animals. People often find they are unable to access supports that the Tribunal has considered reasonable and necessary in other cases. This is because the AAT rules on individual matters rather than interpreting legislation in a general sense. The AAT, unlike the Federal Court, does not set legal precedents that must inform future cases.
However, at the webinar, Shorten said that when a ruling was generally applicable and not too closely tied to an individual’s circumstances, he would like to see the Operational Guidelines updated. This would mean that rulings would inform the Agency’s future decision making, even if they do not set a legal precedent. However, we still don’t know if or when this change will be put in place.
Contacted by the Agency, not a law firm
The NDIA’s new Chief Legal Counsel Matt Swainson told the webinar that over the last few months, Agency staff – rather than external lawyers – have been progressively contacting participants. Swainson also said that he does not believe participants should be pressured into accepting settlements in short timeframes, and he thinks they should be able to elect to be contacted through their advocate. This was not a formal new policy announcement that we have in writing, but Swainson did promise that advocates could hold the NDIA accountable to these promises.
Is anything changing with internal reviews?
An audience member asked about last year’s changes to the Operational Guidelines that removed the requirement for the NDIA to interact with participants during internal reviews. Shorten said the idea of having an internal review without speaking to the person was like having a “bus company that doesn’t pick up passengers” (the man loves a metaphor). However, there was no firm commitment from the Agency to reverse the changes in the Operational Guidelines and the matter was taken “on notice”.
At the start of the EAC webinar, the audience was asked to write one word to describe current AAT process. Responses included frustrating, traumatic, exhausting, difficult, soul-destroying … you get the vibe. At this stage, any changes that could dial it up to “adequate” would be a huge improvement.
You can check out the full EAC webinar here.
