Maze

NDIS 101

Support Coordination

What is an external (AAT) review?

Team DSC

First Stop - Internal Review

A participant cannot request an external review until after there has first been an internal review decision. 

Once an NDIS participant receives their NDIS plan, they have three months to apply for an internal review of the decision/s that they do not agree with. A different NDIA delegate to the original decision maker will then make an internal review decision .

Once the NDIA has made this internal review decision, they cannot undertake another internal review on the same decision. So if the participant does not agree with the internal review decision, they can then apply to the Administrative Appeals Tribunal (AAT) to review it.

This is sometimes called an ‘external review’ or a ‘merits review’. 

What is the AAT?

The AAT is separate from the NDIA. The AAT currently reviews decisions made internally within the NDIA, by NDIA delegates, guided by legislation (specifically, the NDIS Act 2013).

Despite the announcement in December 2022 that the AAT will be replaced by a new federal administrative review body (with the new name yet to be determined), the current AAT will continue to progress current cases and consider new applications until the new body is established. Any remaining cases not yet considered by the AAT will be transitioned to the new review body once it is established.

The AAT has different processes on how it makes decisions, and different staff to the NDIA. The reviews made by the AAT are independent of NDIA decisions.

When reviewing decisions, the AAT must review decisions “on the merits”. This means that the AAT takes a fresh look at the relevant facts (including any new information or supporting evidence), policies, legislation, and guidelines, and arrives at their own decision.


Applying to the AAT

Applications to the AAT for an external review must occur within 28 days of the internal NDIA review decision. If the person misses this deadline, they can submit an application for an extension of time on the AAT website as soon as possible.

Here is the form to apply for an external review no later than 28 days of receiving the NDIA’s decision. Or contact the AAT via phone.

AAT Powers

The AAT has the power to: 

  • Affirm a decision - agree with the original internal review decision by the NDIA, and there is no change

  • Vary a decision - meaning the original decision of the NDIA is changed or altered in some way

  • Set aside a decision and substitute a new decision - where the AAT decides that the original decision/s made by the NDIA was wrong

  • Remit a decision to the decision-maker for reconsideration - that is, hand the decision-making power back to the NDIA, often with guidance and direction around next steps


The AAT Processes

The AAT follow an alternative dispute resolution process, led by the AAT’s Conference Registrar. The NDIA try to work with the person in case conference or conciliation meetings to see if they can resolve the matter without a hearing. 

Most matters are resolved (because the NDIA makes an offer that the person is happy with) or withdrawn before hearing.

Case conferences

It can take months for the AAT to provide a date for the first case conference. In the meantime, the person might get a call from a team at the NDIA, trying to clarify what the person is requesting or, in some cases, agree to resolve it. 

The NDIA will usually provide an email with the name of a case manager, and a lawyer who is representing the NDIA should also get in contact with the person. 

Case conferences are informal meetings, usually held over the phone, where the Respondent (NDIA) describes: 

  • what’s missing from the evidence, and 

  • what extra information could lead the NDIS or AAT to make a preferable decision.

Case conferences are based on an ‘alternative dispute resolution process’. This means the NDIA is meant to work with the person to get the evidence that would help them, or the AAT, make a decision. 

Conciliation 

Conciliation is like an advanced case conference. The Conference Registrar might suggest parties go to conciliation when there is no progress at case conferences.

T-documents 

The NDIA should send T-documents before the first case conference. These list all the documents, legislation, and reports the person has submitted to the NDIA (they can be 500+ pages). The T-docs are numbered, and it helps to point to their number when the person is discussing a particular report at a case conference. 

Statement of Issues (SOI) 

SOIs are similar to an NDIA internal review outcome letter, except it provides a new take (or position) on the person’s evidence. The person can expect an SOI to be provided to the Applicant (participant/ their representative) a day or so before each case conference. 

SOI’s are written by lawyers representing the NDIA and detail which supports the NDIA agree to fund (if any), and why they don’t yet agree to the contested supports. 

SOIs will cite legislation, and should also say what the NDIS wants to happen next. 

The SOI document should help the person understand what additional evidence, if any, could help them to advance their matter toward a resolution (for e.g. the NDIA might request a letter from the person’s psychiatrist seeking clarity on what supports Department of Health are providing and for what reason). 

Hearing

Sometimes people think case conferences are hearings, but they are different. 

Very few people (less than 2%) go to a full AAT hearing, and they are much more formal and usually happen when all attempts at agreed decisions have been attempted at case conferences or conciliation.

At a hearing, the NDIA might use highly qualified legal professionals, such as barristers, to speak on their behalf. Although it can feel like the odds are against the person, many disabled people have won supports at hearings without representation. 

The NDIA can and does make “offers” (agrees to fund the supports) up to and on the day(s) of the hearing. 

It is the role of the Member of the AAT to hear arguments and evidence, and provide a decision in writing. 

Published decisions 

Published decisions on the outcomes of AAT hearings can be found on the Australasian Legal Information Institute (AustLII) website. Each matter that has gone to a hearing “turns on its own facts”, meaning each decision is unique to the individual person and do not set precedents for other Applicants. However, the person can get a good idea about how the NDIS should apply the law by reviewing past decisions at the AAT. 

Federal Court

The AAT’s decisions at a Hearing can be appealed to the Federal Court. While AAT is a no-fee jurisdiction, it’s possible to have to pay money at the Federal Court. Consider seeking legal advice if the person wants to challenge an AAT decision at the Federal Court of Australia.


How long does an external review take?

The median time that someone is actively in an AAT process is 23 weeks and 85% of matters at the AAT are finalised within 12 months (AAT Annual Report 2020-21). 

The length of time depends on many things, including the evidence the person has collected, whether the support has been funded before, and whether the NDIA can be guided by clear guidelines of decisions. 

If a matter goes to hearing, the process can take as long as 2 years. A person should contact the NDIA if their plan is about to run out while they are at the AAT.

Can the person submit additional information?

Yes. The NDIA will provide a Statement of Issues one to two days before a case conference. This document lists the NDIA’s position about each part of the decision they made and what evidence (or reports) they think might be helpful to collect in the future.  

Where to get help

The person can ask the AAT to book in a free appointment with legal aid or seek non-legal advocacy, which is funded by the Department of Social Services. 

Artwork by Melissa Pym.