Background
The National Disability Insurance Agency (NDIA) is a Commonwealth agency responsible for running the National Disability Insurance Scheme (NDIS).
The NDIS was established to support people living with permanent and significant disability. Decisions made by the NDIA often have a major impact on the people the scheme was designed to support. Receiving a decision from the NDIA that you disagree with can be stressful and confusing. The good news is that many of these decisions can be challenged.
What is a reviewable decision?
Certain decisions made by delegates of the NDIA are “reviewable”. This means that if you are unhappy with a decision made by the NDIA, you have the right to ask for the decision to be reviewed.
The most commonly reviewed decisions include:
- The Statement of Participant Supports (your NDIS plan);
- A decision that a person does not meet the access criteria; and
- Revocation of a person’s status as a participant of the NDIS.
Stages of review
There are two stages of review and it is important to understand the key differences:
- Internal review (this is often referred to as a s 100 review or a “review of a reviewable decision”); and
- External merits review (this is by the Administrative Review Tribunal ‘ART’).
An internal review is a request for the NDIA to take a fresh look at a reviewable decision. If you wish to ask for an internal review it must be requested within 3 months of receiving the original decision (e.g your NDIS plan or access rejection letter). The outcome from the internal review must confirm, vary or set aside the original decision.
Taking your matter to the Tribunal
If you are unhappy with the outcome of an internal review, you can then appeal the decision by applying to the Tribunal for an external merits review. This application must be lodged within 28 days of receiving the internal review outcome. There is no application fee to apply to the ART for review of an NDIS decision.
The ART (formerly known as the Administrative Appeals Tribunal) was established to conduct independent reviews of decisions made by Australian Government ministers, departments and agencies, including immigration, Centrelink, child support and the NDIS. It is not a court. However, decisions made by the ART can be appealed to the Federal Court of Australia on a question of law (e.g. if the ART denied procedural fairness to a party or incorrectly interpreted the relevant legislation).
The ART looks at the evidence afresh and decides the correct and preferable decision.
Alternative dispute resolution (ADR)
The ART follows a process of ADR to try to reach an agreement and resolve the matter. After you apply, your matter will be listed for a case conference, which is facilitated by a conference registrar. The registrar may then list a second or third case conferences before a conciliation conference.
During the conference stage, the NDIA often makes a settlement offer, which you can accept, negotiate or reject. You don’t have to accept the first offer. If the matter doesn’t resolve, it proceeds to a hearing, where a Tribunal member decides the outcome.
Legal representation can help you take part effectively in this process. A solicitor can also assist you with gathering and filing additional evidence, such as medical reports, functional capacity assessments and statements of lived experience.
Why early advice matters
The strength of your evidence plays a major part in the outcome of an NDIS appeal. Medical and allied health reports need to speak directly to the legislative criteria, and many practitioners are not familiar with the relevant thresholds. Getting advice early helps you identify the right pathway, meet the time limits and gather the right material.
How Wadlow Solicitors can help
If you’ve received an NDIS decision you don’t agree with, Wadlow Solicitors can explain your options in plain terms and support you at each stage.
Contact Wadlow Solicitors or call (08) 8212 2955 to schedule an appointment with our solicitor, Victoria Smith.
