6. External review by the AAT
After an internal review is completed, if the person whose interests are affected still disagrees with the decision they may make an application directly to the Administrative Appeals Tribunal (AAT) for external review by an independent tribunal (section 103 NDIS Act).
The AAT cannot review a decision until an internal review has been completed.
Please note: As indicated in the Overview of this Operational Guideline, the avenues of review available to a person include internal review by the NDIA and external review by the AAT. When an internal review decision is made by the NDIA (however that decision is described), the internal review decision is reviewable by the AAT and not through a further internal review. For example, a participant plan that results from an internal review decision (but 'given effect' through the plan review process) is reviewable by the AAT and not through a further internal review decision.
Further information or assistance about applying for external review and how the AAT will deal with the application can be obtained by calling the AAT on 1800 228 333, or by visiting the AAT website (external) (External website).
6.1 What is external review?
External review is the process by which the AAT re-considers the facts, law and policy aspects of a decision and determines what the correct or preferable decision is.
Similar to an internal review, the AAT will put themselves in the shoes of the original decision maker and consider the decision from a fresh perspective. In doing so, the AAT will consider the same legal framework as the original decision maker, together with any additional information of relevance, and may exercise all the powers and discretions which were available to the original decision maker.
This type of review is often referred to as 'merits review' or a 'de novo' appeal. Merits review differs from a judicial review where a judge in a court can consider only whether the decision was correct in law. In merits review the reviewer is able to change the decision if there is a preferable decision, even where the decision being reviewed is legally valid.
6.2 What is the time limit for requesting an external review?
A person must make a request for external review within 28 days of receiving written notice of an internal review decision from the NDIA (section 29(2)(a) AAT Act).
If this timeframe has passed, a person can apply directly to the AAT for an extension of time (External website) by filling out a form on the AAT website or by writing directly to the AAT.
If an application for an extension of time is made, the AAT will extend the time for making an application for external review if they consider it is reasonable to do so.
6.3 How can a request for external review be made?
Applications for external review to the AAT may be made online (external) (External website).
Alternatively, applications can be made by completing an application form (external) (External website) which can be lodged with the AAT in person, email, by fax or by post.
6.4 Can a request for external review be withdrawn?
Yes. A person can write to the AAT at any time and tell them that they want to withdraw their application.
Alternatively, the AAT can send a person a withdrawal form (external) (External website) to sign and return to them.
6.5 What happens when a request for external review is made?
When the AAT receives a request for external review, it must arrange for the internal review decision to be reviewed (i.e. re-considered).
For more information about the steps in the AAT external review process, please see the review of NDIS decisions Practice Direction (external) (External website) and the other fact sheets (external) (External website) available on the AAT website.
6.6 What decisions can the AAT make?
When the AAT reviews an internal review decision made by the NDIA it can:
- affirm the decision (meaning the decision is not changed); or
- vary the decision (meaning part of the decision is changed); or
- set aside the decision, and make a new decision in its place or send the case back to the NDIA to make a new decision (section 43(1) of the AAT Act).
6.7 What happens to the reviewable decision whilst an external review is being conducted?
An internal review decision remains in effect whilst an external review is being undertaken by the AAT.
A request for external review to the AAT does not affect the operation of, or prevent the NDIA from taking action to implement, the internal review decision (section 41(1) of the AAT Act).
However, a person may make a request to the AAT for an order (i.e. a stay order) suspending the operation of the internal review decision. The stay order may or may not be granted.