Certain types of decisions made under particular sections of the Act are identified as “reviewable decisions”. [s99] Decisions falling under this category require the Agency to take certain actions and allow each person directly affected to pursue internal review and apply to the Administrative Appeals Tribunal. [s100]
When a reviewable decision is made, it should be accompanied by a set of reasons in plain English. The Agency must provide written notice of the decision to each person directly affected, including a statement that the person may request review of that decision by the Agency or further review at the Administrative Appeals Tribunal.
Failure, however, of the Agency to comply with this obligation does not affect the validity of that decision or the right of a person to request review.
A request for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision. [s100]
The following decisions are reviewable decisions.
- A decision that the person does not meet the access criteria.
- A decision not to specify a period longer than 28 days, when requesting that a prospective participant provide information or reports from assessment or examination.
- A decision to revoke a person’s status as a participant.
- A decision to approve the statement of participant supports in a participant’s plan [s33(2)].
- A decision not to extend a grace period [s40(2)(b)].
- A decision not to review a participant’s plan [s48(2)].
- A decision to refuse to approve a person or entity as a registered provider of supports [s70].
- A decision to revoke an instrument approving a person or entity as a registered provider of supports [s72].
- A decision whether to make a determination in relation to a person [s74(1)(b)].
- A decision not to make a determination that [s74(1)-(2)] do not apply to a child [s74(4)(c)].
- A decision whether to make a determination that a person has parental responsibility for a child [s75(2)-(3)].
- A decision to appoint a nominee.
- A decision whether to cancel or suspend the appointment of a nominee.
- A decision to give notice to require a person to take reasonable action to claim or obtain compensation [s104].
- A decision to give notice – Agency proposes to recover an amount [s111].
- A decision not to treat the whole of part of a compensation payment as not having been fixed by a judgement or settlement [s116].
Decision that person does not meet access criteria
- following the access request [20(a)]; or
- following the provision of information and reports [26(2)(c)].
Where no decision or request has been made within the relevant period, a decision is taken to have been made and review can be requested. [21(3)]
A prospective participant has a number of options to consider when found not to meet the access criteria. He or she can:
- make a request that the Agency review the decision
The Agency must then initiate an internal review by a person not involved in the original decision.
While waiting for an outcome, prospective participants may wish to continue to advocate that he or she meets the access criteria, as the decision may be varied before the review is complete.
The Review of the decision may result in reversal, further requests from the Agency, or confirmation.
If the decision is confirmed, the prospective participant can seek review at the Administrative Appeals Tribunal, make a complaint to the Commonwealth Ombudsman or make another access request.
- make a complaint to the Commonwealth Ombudsman
- decide not to seek review
The prospective participant may decide not to seek review, taking into account personal circumstances or evidence relevant to the access criteria, which may change over time. If no decision is pending or review is under way, a new access request can be made at any time. [s19(2)]
Decision not to specify a period
When a person has made an access request to become a participant, the agency can make certain requests of the prospective participant to provide information, or to undergo assessments or examinations and provide the resulting reports.
When making these requests the Agency can specify a period longer than 28 days, otherwise the information or reports must be provided within 28 days. [s26(2)(b)]
The decision not to specify a period is a reviewable decision.
The Act and Draft Rules do not provide specific criteria to guide this type of decision. When, however, limited time is provided to comply with complex demands, principles of fairness and reasonableness are likely to be considered relevant.
The section appears to be intended to allow for flexibility, to accommodate individual circumstances on a case-by-case basis. Therefore a person’s particular circumstances are arguably relevant to this decision.
A prospective participant may wish to make arguments identifying the challenges in attempting to comply with the request within 28 days. Supporting evidence might include:
- limited availability of required resources or personnel;
- particular sensitivities;
- absence of relevant supports;
- examples of difficulty and inconvenience; and
- practical and logistical barriers.
Decision to revoke a person’s status
If satisfied that the person does not meet the residence requirements, or the disability requirements or early intervention requirements, the Agency can revoke a person’s status as a participant in the NDIS launch.
The decision to revoke a person’s status as a participant is a reviewable decision. The Agency must give written notice of the decision to the participant, stating the date on which the revocation takes effect. [s30]
This decision might be made at any time, but would seem more likely to occur when the Agency becomes aware of some change of circumstances in the participant’s life.
As a reviewable decision, notice should be accompanied by a set of reasons in plain English, according to Senate Committee submissions.
If the revocation is not clearly or fully explained, the person should first seek out an explanation of why the Agency believes that he or she does not meet the requirements and what evidence has been relied upon. Consultation with the Agency may lead to resolution by reversal of the decision or acceptance that the relevant criteria are not met.
If the person continues to believe that he or she meets the relevant criteria, an internal review may be requested. The access criteria will be useful in identifying any evidence or information that should be submitted to the Agency. Tip
Unfortunately, a person is not entitled to be paid NDIS amounts after his or her status as a participant has been revoked, as he or she ceases to be a participant. [s29] Therefore, every effort should be made to resolve this matter swiftly, as review processes may extend to leave a person without necessary supports.
Decision to approve a Statement of Participant Supports in Plan
If the Agency approves a statement of participant supports under [s33(2)] that the participant is not satisfied with, he or she should express this to the Agency, identifying the problems or gaps in the approved statement.
The decision to approve a statement of participant’s supports is a reviewable decision.
A participant can request reasons from the original decision maker, and pursue internal review. This may be appropriate when the Agency has not correctly or fully applied the relevant approval criteria, considered the evidence or incorporated the input of the participant.
There are also other options worth considering, if wanting to revision of the supports provided by the plan.
The participant may provide any further information or reports that have been requested by the Agency during the approval process. [s36] The participant may also provide a revised statement of goals and aspirations, if the current one does not sufficiently specify or reflect his or her individual context and objectives. [s47]
If these actions do not prompt the Agency to review and replace the approved statement with one that satisfies the participant, he or she can make a request for review of the participant’s plan at any time. [s48]
If the Agency does not respond within 14 days, a decision not to review a participant’s plan is taken to have been made, which is a reviewable decision.
Decision not to a Review a Participant’s Plan
If the Agency does not make a decision within 14 days, a decision not to review a participant’s plan is taken to have been made, which is a reviewable decision. (This period may be extended by the Rules up to 28 days). [s204]
The Agency should then provide notice under [s100] that the decision will be automatically reviewed, and an internal review should be carried out.
A participant may wish to argue and demonstrate how the existing plan does not or no longer meets the approval criteria or adequately describes the supports, or appropriately assigns responsibility for the management of funding.
The principles relating to plans may help to strengthen arguments that the existing plan does not give effect to the aims of the legislation, as review and replacement of a participant’s plan, should so far as reasonable practicable:
- be directed by the participant;
- be underpinned by the right of the participant to exercise control over his or her own live;
- maximise the choice and independence of the participant; and
- facilitate tailored and flexible responses to the individual goals and needs of the participant.
Decision to appoint a nominee
A participant wishing to challenge a decision to appoint a nominee may wish to take issue with the necessity of a nominee appointment or with the choice of individual or entity appointed.
As the Agency may appoint a plan nominee on its own initiative under [s86] against the wishes of the participant, the decision about the necessity of a nominee, the extent of the appointment and the choice of nominee should be subject to substantial scrutiny.
The appointment of a correspondence nominee under [s87] is also a reviewable decision.
Whether a nominee should be appointed
If the participant does not request appointment of a nominee, a nominee will only be appointed if the Agency believes that the participant would not be able to participate in the NDIS without having a nominee.
As this is a reviewable decision, reasons should be provided by the Agency.
The principles relating to participation of people with disability clearly state that people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to make decisions.
Enabling supports should be provided to participants to make decisions, before substitute decision-making is resorted to, and should only be used to the extent necessary. Tip
The nominee appointed
If the participant has any information relevant to the person’s eligibility or suitability for the nominee role, the participant should share this with the Agency.
When a participant is dissatisfied with the nominee appointed he or she should contact the Agency to explain his or her concerns, and can request the agency cancel the appointment. If these concerns are not investigated, internal review of the nominee’s appointment may be worth pursuing.
If a participant complains to the Agency about who has been appointed, and the Agency decides not to cancel or suspend the nominee’s appointment this is also a reviewable decision.
Decision on cancellation or suspension of a nominee appointment
A decision by the Agency to cancel or suspend, or not to cancel or suspend, the appointment of a nominee is a reviewable decision. In certain circumstances the Agency must cancel a nominee appointment. [s89] In a range of circumstances the Agency may consider the cancellation or suspension of a nominee appointment and make a decision informed by the relevant criteria.
Decision to cancel or suspend a nominee appointment
If the Agency decides on the cancellation or suspension of a nominee appointment the participant should receive from the Agency a copy of the instrument of cancellation or suspension.
When the participant believes that the person in question has been a suitable and effective nominee, he or she may wish to ensure that the Agency’s decision to suspend or cancel a nominee has taken all information into account, and is based on the relevant criteria.
The participant may wish to express support for the nominee to the Agency.
If possible, the participant should provide supporting reasons for his or her trust and preference of the person in question, by outlining examples of when the nominee performed well, complied with the plan nominee duties or the correspondence nominee duties, and actively promoted or protected the participant’s wellbeing.
If the Agency has suspended the appointment of a person as a nominee on the belief that the person has caused or likely to cause harm to the participant, the participant may wish to consider or dispute the evidence.
If supportive of a cancellation or suspension of a nominee appointment, participants should be aware that the nominee, as a person directly affected by this decision, can also request review of a suspension or cancellation.
Relevant concerns or information about the person in question should be provided to the Agency, if concerned that review may lead to a decision not to cancel or suspend the person as nominee.
Decision not to cancel or suspend a nominee appointment
If the participant knows or suspects the nominee appointed has engaged in wrongdoing or has not been fulfilling the plan nominee duties or correspondence nominee duties, the participant should provide any evidence of this neglect, poor performance or misdeeds to the Agency.
If the participant is convinced the nominee should not continue in this role, he or she should formally request the nominee appointment be cancelled, providing all relevant supporting evidence to the Agency.
When a participant requests the Agency cancel a nominee appointment:
- if the participant requested the nominee appointment, the Agency must cancel the appointment [s89]; or
- if the Agency appointed the nominee of its own initiative, the Agency may cancel the appointment [s90].
If the Agency decides not to cancel or suspend, the participant may consult the Agency and request reasons, if not already provided.
If the participant is not satisfied that the Agency has considered all evidence or applied the relevant criteria, internal review should be pursued.