5. Internal review by the NDIA
5.1 What is an internal review?
In an internal review an NDIA staff member who was not involved in the making of the original decision re-considers the facts, law and policy aspects of a decision and determines what the correct or preferable decision is.
The NDIA staff member who performs the review (known as the reviewer) puts themselves in the shoes of the original decision maker and considers the decision from a fresh perspective. The reviewer is also able to consider any new information which has become available.
When conducting the internal review, the reviewer will consider the same legal framework as the original decision maker (unless Parliament has changed the law and said that the changes apply to decisions that are being reviewed), 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.
5.2 Who can request an internal review?
A person who is directly affected by a reviewable decision may request that the decision be reviewed by the NDIA (section 100(2)).
The person or persons who are directly affected by a reviewable decision will vary depending on the type of decision which has been made by the NDIA.
Persons who may be directly affected by a decision include:
- a prospective participant;
- a participant (including participants who are children);
- one or more persons with parental responsibility for a child;
- a child's representative, or a person seeking to a be a child's representative;
- a child's guardian;
- a plan or correspondence nominee, or a person appointed, or seeking to be appointed as a plan or correspondence nominee;
- a registered provider of supports, or a person or organisation who applies to be a registered provider of supports; or
- a person who owes a debt to the NDIA.
Whether a person requesting a review is directly affected by a reviewable decision is a question of fact to be determined in the individual circumstances of each case.
5.3 What is the time limit for requesting an internal review?
A person must make a request for an internal review within 3 months of receiving written notice of a reviewable decision from the NDIA (section 100(2)).
If a request for internal review is made more than 3 months after a person receives written notice of a reviewable decision, the decision cannot be reviewed.
However, a person who does not make a request for internal review in time, can consider making a new request or application under the NDIS Act.
For example, a prospective participant who is no longer able to request an internal review of the decision to refuse their access request because more than 3 months has elapsed could simply make a new access request instead.
5.4 Automatic internal review of certain decisions
There are two situations in which an internal review will be automatically undertaken by the NDIA:
- where the NDIA is taken to have decided that a prospective participant does not meet the access criteria because the access decision was not made within the required 21 days (section 21(3)); or
- where the NDIA is taken to have decided not to conduct a review of a participant's plan because the decision as to whether or not to perform the review was not made within the required 14 days (section 48(2)).
In the above situations, a person directly affected by the decision will not need to request an internal review. Rather, the NDIA is required under the NDIS Act to automatically review its decision (section 100(5)).
5.5 How can a request for internal review be made?
A request for internal review may be made by:
- sending or delivering a written request (including by email) to the NDIA (section 100(3)(a)); or
- making an oral request, in person or by telephone or other means to the NDIA (section 100(3)(b)).
A written request can be sent to a particular NDIA office, NDIA branch or NDIA staff member. An application for Internal Review form is available if a person requests one.
An NDIA staff member who receives an oral request must make a written record of the details of the request, including the day on which the request is made (section 100(4)).
If a person requires support to request a review (for example, an interpreter), the NDIA will arrange or provide the support where it would be reasonable to do so.
5.6 Can a request for internal review be withdrawn?
Yes. A person may withdraw their request for internal review of a reviewable decision by:
- sending or delivering a written notice to the NDIA (section 102(1)(a)); or
- contacting the NDIA and withdrawing the request for internal review orally, whether in person, by telephone or by other means (section 102(1)(b)).
If a person contacts the NDIA and withdraws their request for internal review orally, the NDIA must make a written record of the details of the withdrawal, including the day on which the request for withdrawal was made (section 102(2)).
5.7 What must the NDIA do when it receives a request for internal review?
When the NDIA receives a request for internal review, it must arrange for the reviewable decision to be reviewed (i.e. re-considered).
The NDIA staff member who performs the review (known as the reviewer) must be a person who was not involved in making the original reviewable decision (section 100(5)(d)).
The reviewer must, as soon as reasonably practicable, make a new decision:
- confirming the reviewable decision (meaning the decision is not changed) (section 100(6)(a)); or
- varying the reviewable decision (meaning part of the decision is changed) (section 100(6)(b)); or
- setting aside the reviewable decision and substituting a new decision (section 100(6)(c)).
The reviewer will take all reasonable steps to speak to the person who has requested the internal review to provide them with the opportunity to explain their reasons for requesting a review. The reviewer will also give the person the opportunity to explain why a different decision should be made, to provide additional information or evidence and respond to any adverse information.
The reviewer should advise the person affected of the likely decision before sending out a written notice. This gives the person a last chance to provide any additional information.
5.7.1 Prioritising requests for review
Some of the requests for internal review received by the NDIA require attention as a matter of priority. To ensure the NDIA identifies and deals with priority requests the NDIA has developed principles on which to base a judgement about the priority of a request. The principles will be reviewed and further refined in 2020.
In considering the priority of an application for internal review, the NDIA will consider information which indicates:
- risk of harm to the health or well-being of a person;
- instability in the accommodation arrangements of a person, including the risk of homelessness;
- instability in the care arrangements of a person, including the risk of a primary carer not being able to provide care; and
- risk associated with the nature of the person's disability, including the risk of rapid deterioration or progression.
5.8 Requirement to give written notice of the internal review decision
When the NDIA makes an internal review decision it must take such steps as are reasonable in the circumstances to give any person whose interests are affected by the decision written notice:
- of the making of the decision; and
- of the right of the person to have the decision reviewed by the AAT (section 27A(1) AAT Act).
In providing this written notice, the NDIA must also include a statement of reasons containing:
- the findings on material questions of fact, referring to the evidence or other material on which those finding were based; and
- the reasons for the decision (section 28 AAT Act).
5.9 What happens to the reviewable decision whilst an internal review is being conducted?
A reviewable decision remains in effect whilst an internal review is being undertaken.
A request for internal review does not affect the operation of, or prevent the NDIA from taking action to implement, the original reviewable decision (section 100(7)).
5.10 What happens if a reviewable decision is varied before an internal review is completed?
If a reviewable decision is varied by the NDIA before a decision on the internal review is made, the request for review continues and is taken to be a review of the reviewable decision as varied (section 101).
The reviewer should advise the participant of the variation and confirm the participant's request to proceed with the review of the decision.