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This page provides information about how decisions made by the NDIA can be reviewed and the processes and steps associated with requesting a review or appealing a decision. Refer to the Overview for important contextual information about these guidelines and the NDIS.
These guidelines are dynamic and will be regularly updated to reflect any changes to procedures or the NDIS model.
Important information in this guideline includes:
Requesting a review of an NDIA decision should be pursued when you do not agree with a decision made by the NDIA. This process is different to the process of reassessing a plan, which is outlined in Monitoring and reviewing the plan. An NDIS plan can be reassessed at various stages, for example at the request of a participant, or as a regular part of the planning cycle.
Note: there is a difference between requesting a review (reassessment) of a plan and requesting a review of a decision. Requesting that the NDIA conduct an internal review of an NDIA decision must occur within three months of the plan approval date. You will need to work with the support coordinator to make the request.
An internal review of a decision is when a decision made by the NDIA carries formal rights of review under the National Disability Insurance Scheme Act 2013. If a person disagrees with an internal decision, the following avenues of review are available:
For children and young people in the parental responsibility of the Minister, OOHC caseworkers are responsible for requesting a review. This will occur following discussion with the child or young person and carer.
The avenues of review outlined above must be undertaken in sequence. For example, a person affected by a decision must first request an internal review before proceeding to external review.
The main objective of the review processes is to ensure decisions are made according to law. If there are a range of possible decisions that are correct in law, the review process should ensure that the decision made, was the best that could have been made based on the relevant facts.
Most decisions made by the NDIA under the NDIS Act are reviewable decisions, including:
As stated above, a request can be made for an Internal Review of an NDIA decision. 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.
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. 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.
A person must make a request for an internal review within three months of receiving written notice of a decision from the NDIA (such as an approved NDIS plan).
A decision remains in effect whilst an internal review is being undertaken.
If the carer of a child or young person in the parental responsibility of the Minister is not happy with their NDIS plan, they should discuss their concerns with their OOHC caseworker. As the child’s representative, it is the responsibility of the OOHC caseworker to determine whether a request for an internal review needs to be made.
OOHC caseworkers need to work closely with the carer, the child or young person, and the support coordinator to determine if the decision needs to be reviewed.
OOHC caseworkers should discuss their reasons for disagreeing with an NDIA decision with their manager. An example would be where the level of support or assistive technology (equipment and aids) does not seem to be meeting the child or young person’s disability support needs. For DCJ staff, delegation for determining to request a review of a reviewable decision sits with the Manager Client Services. Consultation with the DCJ Engagement and Family Support team may be appropriate when deciding on the appropriate course of action.
A request to the NDIA for an internal review may be made by:
A written request can be sent to a particular NDIA office, NDIA branch or NDIA staff member. Requests for an internal review of a decision need to be made within three months of the original decision.
For more detailed information on review of NDIA decisions, see Request a review of a decision.
After an internal review is completed, if you still disagree with the NDIA decision, an application can be made directly to the AAT for external review. The AAT is independent and will decide whether to confirm, vary or set aside the original decision made by the NDIA.
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.
The AAT cannot review a decision until an internal review has been completed. A person must make a request for external review within 28 days of receiving written notice of an internal review decision from the NDIA.
If you’re not satisfied with an external review, you can appeal the AAT's decision to the Federal Court on a question of law. The NDIA can also appeal to the Federal Court if dissatisfied with a decision of the AAT due to a question of law.
People who are considering an appeal on a question of law are encouraged to seek independent legal advice before proceeding.
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.
If you encounter a situation with the NDIS that differs from these guidelines and needs clarification, speak to your manager to determine whether the matter needs to be raised with the NDIA locally or speak to your local DCJ representative.
16 Dec 2022