If an internal review of a reviewable decision has occurred and a person directly affected is not satisfied with the reviewer’s decision, he or she can apply to the Administrative Appeals Tribunal (or AAT), which has a National Disability Insurance Scheme Division.
When deciding whether to make an application to the AAT, a person should consider:
- the full set of reasons explaining the reviewer’s decision;
- relevant rules and legislation;
- factual evidence available;
- likelihood and effect of delays in process; and
- possible expense.
It should also be assessed whether professional legal representation or advice is necessary.
The AAT is intended to provide a mechanism for review that is fair, just, economical and quick [s2A Administrative Appeals Tribunal Act 1975 (Cth)]. It is different from a court as the AAT is not bound by the rules of evidence. Some explanations of the relevant procedures and forms to commence an action are provided on the AAT website.
After an application is made to the AAT, the Agency can no longer set aside, vary or substitute the decision, without the consent of the applicant and the Tribunal. [s26 Administrative Appeals Tribunal Act 1975 (Cth)]
The AAT may make a decision:
- affirming the reviewer’s decision;
- varying the reviewer’s decision; or
- setting aside the reviewers decision and:
- making a decision in substitution; or
- remitting the matter for reconsideration in accordance with any directions or recommendations.
The AAT must give reasons for its decision. Any variation or substitution of a decision takes effect as if the Agency reviewer had made that decision. [s43 Administrative Appeals Tribunal Act 1975 (Cth)]
If an agreement is reached between the Agency and the participant that the AAT is satisfied would be within its powers, the AAT can make a decision in accordance with the terms of that agreement. [s42C Administrative Appeals Tribunal Act 1975 (Cth)] This may also occur through an alternative dispute resolution process, to which the AAT has referred them. [s34D Administrative Appeals Tribunal Act 1975 (Cth)]
Alternative Dispute Resolution
The AAT uses alternative dispute resolution (ADR) processes, in its NDIS division. ADR processes are not court based and therefore less legalistic and less formal. The focus of ADR is generally on reaching a compromise through discussion and collaboration.
In most cases the AAT will facilitate a Case Conference, or, if appropriate, a Conciliation. If the case is not resolved by agreement, the AAT will hold a Hearing and make a decision. If you believe that you have all the relevant information necessary for a decision to be made about your application and you do not wish to attend a Conciliation, you can request a Fast-Track Hearing at the Case Conference.
Despite its potential benefits, ADR processes may also present risks in certain situations. ADR processes often work well if parties have a similar degree of power in bargaining and arguing their positions. Where one party is substantially weaker in influence or ability to conduct negotiation, safeguards are crucial to ensure the vulnerable party is protected from being marginalised or pressured into giving concessions or accepting less. Vigilance is needed.
As the AAT is developing protocols tailored to reflect the needs of stakeholders in the area, a strong focus on effectively protecting rights, and fulfilling NDIS objects and principles should guide all procedures. A person with disability applying to the AAT should not experience the processes as disempowering or intimidating.
An applicant may feel more confident in protecting his or her rights at the AAT if accompanied by an advocate, lawyer or other person, to support him or her to express legal arguments, present evidence to the AAT and negotiate with Agency representatives. The applicant should consider the advocacy and support options available.
Advocacy and Support
If the person does not have an advocate, he or she may wish to explore advocacy options when undertaking the AAT process. Independent advocacy can assist the person to understand his or her rights, and to put forward the person’s perspective, make arguments, identify relevant evidence and ensure that the person’s voice is heard in the process. As an advocate is on the person’s side, and endeavouring to protect his or her rights, the risks of the person feeling intimidated, disadvantaged or marginalised by the process can be minimised.
People with disabilities seeking external merits review will be offered a ‘support person’. This support person’s role is to
– foster self-advocacy to the extent possible
– where self-advocacy is not appropriate, provide individual advocacy support, developing and implementing an individual plan in partnership with the applicant
– assist applicants to navigate the process, to ensure they understand the process and are able to make informed decisions. This may include preparing documents, attending conferences and hearing.
This support will be provided by agencies that also provide advocacy but is not equivalent to advocacy. The support person will be familiar with all aspects of the AAT process. The provision of a support person does not prevent the person from deciding who will provide them with support. This may include seeking access to independent advocacy advice, support and representation from another advocacy provider. If the person has been working with an advocacy agency through the internal review process, they may choose to maintain the relationship with that agency, and may wish to continue receiving support from an advocate or another source.
Advocacy can help to put forward the person’s perspectives and arguments, rather than merely providing support in the form of information, explanation or encouragement. An advocate may also provide more comprehensive and individualised support than a support person is in a position to offer. The person should make an informed and considered decision when choosing what kinds of support and advocacy will suit his or her particular needs and preferences, taking into account the nature of alternative dispute resolution processes. See navigating the NDIS for advocacy and other support options.