Review of decisions

1. What is the purpose of this operational guideline?

This Operational Guideline provides guidance in relation to the processes by which a person directly affected by a reviewable decision made under the National Disability Insurance Scheme Act 2013 (NDIS Act) can request that the decision be reviewed.

In addition, this Operational Guideline provides guidance on how decisions under the NDIS Act will be reviewed once a review of a decision is initiated.

2. What is the relevant legislation?

3. Overview

A reviewable decision is a decision made by the National Disability Insurance Agency (NDIA) which carries formal rights of review under the NDIS Act (see which decisions can be reviewed?).

If a person disagrees with a reviewable decision directly affecting them, the following avenues of review are available:

  • the person directly affected may request that the reviewable decision be reviewed by the NDIA. This is the first avenue of review available which is known as internal review (section 100(2));
  • if the person whose interests are affected still disagrees with a decision following the outcome of an internal review, they may make an application to the Administrative Appeals Tribunal (AAT) requesting a further review. This is the second avenue of review available which is known as external review (section 103); and
  • if the person or the NDIA disagrees with a decision following the outcome of an external review, they may appeal to the Federal Court of Australia, on a question of law. This is the final avenue of review available which is known as an appeal on a question of law (section 44(1) AAT Act).

The avenues of review outlined above must be exercised in sequence. For example, a person affected by a decision must first request an internal review before proceeding to external review. Similarly, an appeal on a question of law arising from an external review decision can only be initiated after a person has been through both internal and external review.

In addition, the ADJR Act allows a person aggrieved by an administrative decision made by the NDIA to apply to the Federal Court or the Federal Circuit Court for a judicial review of that decision.

Persons who are considering appealing a decision made by the AAT on a question of law, or seeking judicial review of a decision made by the NDIA are encouraged to seek independent legal advice.

The main objective of the review processes described above is to ensure that correct or preferable decisions are made under the NDIS Act. Correct means that decisions are made according to law. Preferable means that, if there are a range of possible decisions that are correct in law, the decision that is settled on is the best that could have been made on the basis of the relevant facts.

The review of decisions process also has the following broader objectives:

  • improving the quality and consistency of NDIA decisions;
  • enhancing the openness and accountability of decisions made by the NDIA; and
  • supporting the general principle that people with disability have the same right as other members of Australian society to pursue any grievance (section 4(7)).

Note, the review of decisions process should not be confused with the process for reviewing and changing a participant's plan. A participant's plan can be reviewed at various stages, for example at the request of a participant, or at any time on the initiative of the NDIA (see what is the difference between a plan review and an internal review?).

4. Which decisions can be reviewed?

Decisions under the NDIS Act which can be reviewed are known as reviewable decisions.

The majority of decisions made by the NDIA under the NDIS Act are reviewable decisions.

Each of the following decisions is a reviewable decision:

Access
  • a decision under section 20(a), 21(3) or 26(2)(c) that a person does not meet the access criteria (section 99(a));
Requiring provision of information
  • a decision under section 26(2)(b) not to specify a period for the provision of information or a report (section 99(b));
Revocation Plan decision Participant absent overseas
  • a decision under section 40(2)(b) not to extend a grace period for the temporary absence of a participant from Australia (section 99(e));
Plan reviews Registered providers Children Nominees Compensation Debt recovery
  • a decision under section 190 not to write off a debt (section 99(r));
  • a decision under section 192 that the NDIA is not required to waive a debt (section 99(s));
  • a decision under section 193 not to waive a debt (section 99(t));
  • a decision under section 194(3) or (4) that the NDIA is not required to waive a debt (section 99(u)); and
  • a decision under section 195 not to waive a debt (section 99(v)).

4.1 Requirement to give written notice of a reviewable decision

The NDIA must give written notice of a reviewable decision to each person directly affected by the reviewable decision (section 100(1)).

The notice must include a statement that the person:

  • may request that the NDIA review the reviewable decision (i.e. that the person may request an internal review) (section 100(1)(a)(i)); and
  • may seek further review to the AAT (i.e. may seek an external review) (section 100(1)(b)).

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.

See also what must the NDIA do when it receives a request for an internal review?

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.

5.8 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.

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.

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.

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.

See also what happens when a request for external review is made?

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 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.

Alternatively, applications can be made by completing an application form 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 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 and the other fact sheets 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.

7. Appeals to the Federal Court on a question of law

A person who is not satisfied with an external review can appeal the AAT's decision to the Federal Court on a question of law (section 44(1) AAT Act).

The NDIA can also appeal to the Federal Court if dissatisfied with a decision of the AAT due to a question of law.

This type of review is limited in that the Federal Court cannot reconsider the merits of an AAT decision. Rather, the Federal Court is confined to hearing appeals on a question of law. The Federal Court provides information on its website regarding appeals from a decision of the AAT.

Persons considering appealing a decision of the AAT on a question of law are encouraged to seek independent legal advice before proceeding.

7.1 What is a question of law?

A question of law may include, for example, whether:

  • the AAT denied a person procedural fairness;
  • the AAT incorrectly interpreted or applied the NDIS Act;
  • the AAT applied or identified the correct test; or
  • there was any evidence to support a finding of fact made by the AAT.

See also the distinction between questions of fact and questions of law in section 44 Appeals to the Federal Court located on the Federal Court's website.

7.2 What is the time limit for appealing to the Federal Court?

An appeal must be lodged within 28 days of receiving notice of the AAT's external review decision, or within such further time allowed by the Federal Court (section 44(2A) AAT Act).

7.3 Who are the parties to the court proceedings?

The parties to the Federal Court proceedings are the people who were the parties to the AAT proceedings during the external review.

7.4 What orders can the court make?

When deciding an appeal the Federal Court can make any order it thinks appropriate (section 44(4) AAT Act).

This may include orders:

  • affirming the decision of the AAT (meaning the decision is not changed);
  • setting aside the decision of the AAT;
  • directing the case back to the AAT for a re-hearing; or
  • dismissing an appeal if it is satisfied that the proceeding is frivolous or vexatious.

7.5 What happens to the AAT decision whilst an appeal is being conducted?

A decision made by the AAT continues to have effect from the time it is made and is not affected because a person appeals that decision.

However, a person may seek an order from the Federal Court (i.e. a stay order) suspending the operation of the AAT's decision. The stay order may or may not be granted.

8. Judicial review of administrative decisions

The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) allows a person to apply to the Federal Court or the Federal Circuit Court for judicial review of decisions made by the NDIA under the NDIS Act.

The ADJR Act provides that the Court will review a decision by considering whether the decision-maker has properly made that decision according to the law. This is known as judicial review.

The Court cannot consider whether the decision was the best exercise of the decision maker's discretion. For merits review of NDIA decisions, a person affected by a reviewable decision should consider making a request for internal review.

Persons considering seeking a judicial review are encouraged to seek independent legal advice.

8.1 Decision making according to the law

Under the ADJR Act, a court can conclude that a decision was not made according to law if it is satisfied that any of the following circumstances apply:

  • the decision was made in a way that is not procedurally fair;
  • the decision-maker did not follow procedures that were required by law when they made the decision;
  • the person who purported to make the decision did not have the power to make the decision;
  • the decision could not be made under the NDIS Act;
  • the decision-maker used the decision-making power in an improper way and not for the purpose intended by the NDIS Act;
  • the decision-maker made a mistake about the law that applied to the facts of the case;
  • the decision was made or affected by fraud;
  • there was no evidence or other material to justify the decision; or
  • the decision was otherwise contrary to law (section 5 ADJR Act).

8.2 What orders can the court make?

The court can set aside the NDIA's original decision in whole, or in part, if it is satisfied that the decision was not made according to law. However, the court cannot replace the decision with another decision.

Rather, if the Court sets the NDIA's decision aside, it will return the matter to the NDIA for a new decision to be made, subject to directions, if appropriate.

8.3 What happens to the NDIA's decision whilst a judicial review is being conducted?

The NDIA's decision continues to have effect from the time it is made and is not affected because a person seeks judicial review.

However, a person may seek an order from the court (i.e. a stay order) suspending the operation of the external review decision. The stay order may or may not be granted.