10.1
This chapter outlines the background to the Administrative Appeals Tribunal (AAT) process for National Disability Insurance Scheme (NDIS) participants, followed by some of the major issues raised in evidence concerning the AAT, including:
Eligibility to lodge an appeal with the AAT.
The need for legal representation.
The length of the process.
The transparency of cases settled by consent.
Limited impact of AAT decisions.
The conduct of the NDIA in the appeals process.
Access to advocacy and legal assistance for participants.
10.2
The chapter ends with the committee view and recommendations.
Background
10.3
The AAT carries out independent merits reviews of administrative decisions made by the Australian Government, including some decisions made by the National Disability Insurance Agency (NDIA) (see below). The AAT makes decisions on the merits of the case by looking at the relevant facts, law and policy and arriving at its own decision. The AAT must make the legally correct decision’ or, when more than one correct decision is possible, ‘the preferable decision’.
10.4
Participants who are unhappy with the NDIA’s decisions following internal reviews of reviewable decisions can appeal to the AAT, provided they appeal within 28 days of receiving the NDIA’s decision. The AAT is unable to review decisions that the NDIA has not internally reviewed first, and it is not able to review every NDIA decision, including decisions made after a participant has lodged an appeal.
10.5
The decisions that participants can appeal to the AAT are those made under section 100(6) of the National Disability Insurance Scheme Act 2013—that is, where a reviewer confirms a reviewable decision, varies the reviewable decision, or sets aside the reviewable decision and substitutes a new decision (also called s100 reviews). Reviewable decisions related to planning include decisions to approve statements of participant supports in a participant’s plan, decisions not to reassess a participant’s plan, and decisions to appoint a plan nominee.
10.6
The decisions of the AAT only apply to the case at hand and do not set precedents that must be followed in subsequent cases. However, since November 2017, the AAT has published decisions with written reasons made about the NDIS in cases where the AAT made a decision and the matter was not resolved through conciliation.
10.7
The AAT is a no costs jurisdiction, which means that parties must bear their own legal costs, and the AAT does not have the power to order costs against the losing power except in a small number of exceptions largely connected to matters unrelated to the NDIS.
10.8
The AAT may affirm the original decision (meaning it does not change the NDIA’s original decision); vary the decision; or set aside the decision and replace it with a new decision. However, most cases are resolved before reaching the formal hearing stage, often in informal case meetings through a conciliation process, in what is termed consent decisions—that is, the participant and the NDIA come to an agreement. The AAT, if it is unhappy with this agreement, then contacts the participant and the NDIA further to discuss the problem. The outcomes of these agreements are not published.
10.9
Through its NDIS Appeals program, the Department of Social Services funds access to advocacy and legal assistance for participants who seek a review through the AAT in the NDIS Appeals program, with:
access to a skilled disability advocate who acts as a support person; and/or
access to funding for legal services, if there is a wider community benefit and/or disadvantage that would substantially benefit from legal representation.
10.10
The Department of Social Services maintains a list of advocates whom participants involved in appeals to the AAT can use as part of this program.
10.11
The NDIA reported that in the September 2020 quarter, there were 7,732 new requests for reviews of reviewable decisions related to planning. In the same quarter, there were 342 NDIS cases before the AAT, of which 66 per cent were related to plans. As of September 2020, a total of 4,319 cases had been taken to the AAT, with 3,356 being resolved before hearings. Seventy-three cases went to hearings and received a substantive decision.
Table 10.1: AAT cases on the NDIS, 2019-20
|
|
|
|
|
By decision
|
|
|
|
Decision affirmed
|
5
|
<1%
|
|
Decision varied or set aside
|
13
|
<1%
|
|
By consent
|
|
|
|
Decision affirmed
|
16
|
1%
|
|
Decision varied or set aside
|
985
|
65%
|
|
Dismissed by consent
|
11
|
<1%
|
|
Other
|
|
|
|
Withdrawn by applicant
|
413
|
27%
|
|
Dismissed by Tribunal
|
22
|
1%
|
|
No jurisdiction
|
62
|
4%
|
|
TOTAL
|
1,527
|
100%
|
|
|
|
|
Source: Administrative Appeals Tribunal, Annual Report 2019–20, September 2020, Table A4.5.2, p. 155; Maurice Blackburn Lawyers, answers to questions on notice, 7 November 2019 (received 29 November 2019).
10.12
The AAT reported that in 2019–20, it had finalised 1,527 cases related to the NDIS. As outlined in Table 10.1, in 2019–20 only one per cent of the cases the AAT oversaw that were related to the NDIS were determined by an AAT decision. In 65 per cent of cases, participants and the NDIA came to an agreement in which the NDIA agreed to vary or set aside its decision before a formal hearing. In 27 per cent of cases, participants withdrew their applications.
10.13
The NDIA informed the committee that during the 2019–20 financial year, it spent $7,181,901 on legal experts to represent it at the AAT, including contracted external legal firms and counsel’s fees.
10.14
The NDIA has a dedicated team, the AAT Applications and Decisions Division, ‘to implement an early resolution model for matters in the AAT’. It stated that the aim of this model is ‘to resolve matters as early in the AAT process as possible, or…to have matters well prepared and managed if they do proceed to a hearing’. The NDIA further outlined:
Since 3 December 2018, all new applications from the AAT have been considered in line with the early resolution case management model. Early resolution case managers work closely with Applicants and their representatives to attempt to resolve the matter in advance of the first AAT case conference. Even if the matter cannot be resolved at that point, the approach to early resolution will continue throughout the process…The average number of days to achieve resolution is now 58 days as opposed to 195 days for matters received prior to 3 December 2018.
Eligibility to lodge an appeal with the AAT
10.15
The committee learned that there may be issues in participants meeting the eligibility criteria to lodge an appeal with the AAT. The committee was informed that the NDIA may be offering participants unscheduled plan reviews (called section 48 reviews) ‘in exchange for withdrawing an s100 internal review’ of a reviewable decision, which can be appealed to the AAT. As a result, the participant would no longer be able to appeal to the AAT. People with Disabilities WA argued:
If a new planning meeting is required because of an Internal Review, the new plan should be considered the outcome of the internal review and a notice of decision should be issued explaining any changes to supports in the plan to enable the person to exercise their right to an appeal at the AAT.
10.16
The NDIA informed the committee that it does not shift requests for reviews of reviewable decisions to change of circumstances reviews. However, it also noted:
The NDIS Act requires requests for s100 reviews to be lodged within three months from the date a participant was notified of the original decision. If a participant lodges their request for an s100 review outside this timeframe, the NDIA cannot conduct an internal review. This would be an example of a circumstance where the NDIA explores other review types with the participant.
A participant request may, in some instances, fit both an s100 review and an s48 review. In these instances, the NDIA contacts the participant or their authorised representative to discuss the circumstances and the different types of reviews. The participant or authorised representative is then able to make an informed decision on the type of review they would like to proceed with.
10.17
National Legal Aid highlighted ‘uncertainty about whether a participant can apply to the AAT’ if they have not yet received an internal review decision, meaning that participants may ‘have limited options to expedite their reviews, even if the supports they seek are needed to keep them safe and well’. It noted that although the NDIS Act requires a delegate of the CEO of the NDIA to make a decision on a reviewable decision ‘as soon as reasonably practicable’, in practice participants have no way to be certain that a decision has been made as soon as reasonably practicable, other than to go to the AAT.
10.18
Dr Darren O’Donovan, an academic specialising in administrative law, called for participants to be restored the right to apply to the AAT in cases where internal reviews of funding have ‘been subjected to unreasonable delay’. He also proposed that the AAT be given a direct power to extend review dates while an appeal is underway.
10.19
Even where participants may be eligible to lodge an appeal with the AAT, the committee learned that they may be deciding not to. Maurice Blackburn Lawyers suggested that there may be many more participants with unsuitable plans who are unable to appeal to the AAT given ‘the barriers to actually progressing a dispute to the AAT’.
10.20
Queensland Advocacy Incorporated proposed that if the NDIA appointed staff to contact participants after denying an internal review, it may reduce participant stress and their ‘hardline intention to “seek justice”‘. It proposed that these staff could discuss in greater detail the following matters with the participant:
The reasons for the negative outcome.
Evidence that the participant could provide that could potentially lead to a successful request outcome.
Confirm the participant’s right to pursue the matter via the AAT.
Provide suggestions on how the participant could best utilise their existing plan in the meantime.
10.21
People with Disabilities WA acknowledged that some cases were able to be resolved before an AAT case conference thanks to the introduction of an early resolution team. However, it also argued that given the Early Resolution process requires participants to provide further evidence to demonstrate that the supports they are requesting are reasonable and necessary, it would make more ‘sense for the planner in the first instance, and the Internal Review Officer during a review, [to] provide feedback to the participant on what further information they need’.
10.22
The NDIA advised the committee that as part of its Participant Service Improvement Plan for 2020–21, the NDIA is committed to:
Improving the quality of decision letters to make clearer the reasons for how the NDIA has made a decision (in plain English)
Clarifying and publishing guidelines and procedures so there is consistency in how the NDIA makes decisions and in the information available to planners and participants
Ensuring all guidelines will come with plain English descriptions and more examples
Ensuring all NDIA documents use consistent terms and definitions with less jargon
Publishing information that clarifies what reasonable and necessary means, with case studies and examples
10.23
Mr Martin Hoffman, the CEO of the NDIA, stated that proposed Participant Service Guarantee (see Chapter 2) will include review timeframes and decision timeframes. The NDIA has already published a Participant Service Charter ahead of the Participant Service Guarantee, which states that the NDIA will complete an internal review of a reviewable decision within 90 days of receiving a request.
Legal representation in the AAT
10.24
As outlined above, the NDIA in the 2019–20 financial year spent $7,181,901 on legal experts for AAT appeals. Some submitters expressed concern about the amount that the NDIA was spending on legal representation, with several proposing that NDIA funding for AAT appeals be capped. The mother of one participant, who reported that the NDIA had agreed to all of her requests at AAT review, submitted that it ‘struck me what a colossal waste of funds, time and energy the whole process had taken’.
10.25
Roundsquared argued that the cost for the NDIA to engage expensive legal representatives for appeals to the AAT ‘would be far in excess of the funds sought for supports and services of participants’. Similarly, Speech Pathology Australia argued that funds ‘that should be used to provide the services and supports participants need in the first instance is being wasted on administrative appeals against poor decisions and inappropriate allocation of funding’.
10.26
Other submitters questioned how fair the AAT process is for participants if the NDIA is able to afford legal representation while participants cannot. Maurice Blackburn noted that the NDIA hires private firms to represent it in the AAT, who are able to navigate ‘the difficult and complex legal issues that arise during appeals’ which a self-represented participant would, in many cases, be unable to do. This situation, Maurice Blackburn argued, ‘runs completely counter to the “choice and control” mantra[,]…results in the most uneven of playing fields, is grossly unfair, and does little to promote trust and accountability’.
10.27
Participants, Mr Tom Ballantyne from Maurice Blackburn Lawyers suggested, ‘literally sit at a table or on the end of the phone by themselves’ while several lawyers from inside the NDIA and external insurance firms are seated on the other side of the table or at the other end of the phone. As a result, he contended, participants have little choice but to ask for assistance with reviews from agencies or individuals that may not be best placed to provide legal advice, such as service providers and members of Parliament.
10.28
Spinal Cord Injuries Australia outlined the following difficulties for participants engaging in the AAT appeals process:
The participant must negotiate with the NDIA, who is always represented by a lawyer.
The NDIS legislation is regularly cited, discussed and analysed.
Further evidence must be produced, including expert reports and medical records.
The NDIA provides formal statements of facts, ‘sometimes many pages in length and written in legalese’.
10.29
The NDIA advised the committee that the following processes are in place to ensure that the AAT appeals process is fair for participants. It should be noted that these are in addition to the free advocacy and legal support funded by the Department of Social Services (with most submitters to the inquiry appearing to be unaware of these services):
Tribunal Members and Conference Registrars in the AAT oversee the AAT process and ensure procedural fairness and accessibility for all parties.
In the NDIS Division, the AAT takes additional steps to ensure the applicant is given appropriate support during the proceedings.
The NDIA is subject to the Legal Services Directions 2017 and acts as a model litigant at all times. Importantly, in line with model litigant guidelines the NDIA will defend applications when it is appropriate to do so and in all cases assist the Tribunal to arrive at the correct and preferable decision. In line with these obligations, the NDIA at all times approaches AAT cases fairly and reasonably.
Length of process
10.30
Submitters to the inquiry highlighted the time that the AAT appeals process can take. The mother of three children who were NDIS participants reported that the ‘AAT process is long – my son’s matter was recently settled twelve months after the application was first made’. Further, during this period:
I had to pay for my son’s therapies out-of-pocket which put a huge amount of financial stress upon my family. I drained my savings account, and delayed things like getting my car serviced (to the point where my mechanic told me I’d been driving around on unroadworthy tyres for the past 6 months). But for participants who are unable to scrounge up their out-of-pocket costs, then it would be very difficult to go through an AAT appeal. It is a tier-two system, where only those with money, and energy, will be able to proceed. Many people with a disability already live in poverty, so the decks are already stacked against them.
If the NDIA want to reduce the number of cases going to the AAT, then first of all they’ve got to want to do that. If rejecting a review is a deliberate strategy to hopefully cull those participants who cannot financially or emotionally endure the twelve month (plus) long battle at the AAT, then obviously they have no reason to change what they’re doing.
10.31
The Royal Australasian College of Physicians suggested that some of its fellows had ‘found the AAT to be thorough and very reasonable in understanding individual needs, but the process is slow and very expensive’.
10.32
Autism Aspergers Advocacy Australia highlighted that families with children with autism are appealing to the Administrative Appeals Tribunal (AAT) ‘to access evidence-based early intervention’. Delays in the AAT process, it argued, have:
…massively diminished the access of autistic children to essential early intervention. In many instances, the [NDIA] settles for close to the full request on the steps of an AAT hearing…Despite the AAT’s decisions, there is no discernible change to NDIS policy so families still have to battle the [NDIA] with its bottomless resources in the AAT to get an NDIS plan to include evidence-based early intervention for an autistic child.
10.33
The issue of the impact of AAT decisions on NDIA policy is discussed separately below.
10.34
Maurice Blackburn Lawyers contended that the high number of cases withdrawn by applicants —27 per cent of cases in 2019–20—may be because ‘participants don’t have the capacity, strength or resources to continue’. It suggested that a ‘system that hypothetically results in one in three complaints being withdrawn because the participant cannot continue does nothing to provide accountability or fairness’.
10.35
ADACAS Advocacy drew the committee’s attention to participants with psychosocial disability in contact with ADACAS who had ‘found themselves unable to go through the [Administrative Appeals Tribunal] appeals process’ because they felt the process was overwhelming, that it takes too long and that the level of stress that the process can create is too much for them. ADACAS requested that the NDIA ‘urgently investigate alternatives or more streamlined approaches that can make appeals processes more accessible for everyone’.
10.36
A further issue raised in the inquiry concerned participants exhausting their funding before obtaining an AAT decision (or agreement by consent with the NDIA). ConnectAbility raised the following example of a Supported Independent Living participant who they argued needed a registered nurse to perform enemas three times a week. The NDIA did not agree that the NDIS should fund this, despite ConnectAbility pointing out that standard support workers were not qualified to administer an enema and, if ‘the bowel was punctured by administering the enema it could put the participant’s life at risk’. ConnectAbility outlined the impacts of appealing the decision to the AAT:
Before it went to court the [NDIA] special resolution team intervened and the matter was settled (appropriate level of funding supplied for a registered nurse to administer enemas). What was the financial cost to the participant? Our Support Coordinator spent 99% of the participant’s support coordination funding on this single issue. The funding ran out 2 months prior to end plan and no further support could be given until the plan and funding renewed. The entire case took 10 months to be resolved. It was a disgraceful waste of time and money to fight for what was reasonable and necessary.
10.37
The Rights Information and Advocacy Centre submitted that because of the NDIA extending plans while going through the AAT process, providers were unwilling to take participants with short plans without a guarantee that the plan would be extended, with new service agreements needed for each extension. It also suggested that LACs were being told not to provide support for participants involved in the AAT.
10.38
Dr Darren O’Donovan, an academic specialising in administrative law, drew the committee’s attention to ‘the extremely complicated nature of the [AAT]’s ability to extend a plan while an appeal is before it’. He proposed that participants would benefit from amendments to existing provisions that would clarify the ability of the AAT ‘to secure the continuation of a person’s funding while they undertake an appeal beyond doubt’.
10.39
Ms Lindsay Ash, a Senior Solicitor representing National Legal Aid, at the hearing on 21 November 2019 noted that at Legal Aid New South Wales, ‘almost every matter that we’ve run in the last year in relation to supports has resulted in increased funding for a participant – in many cases, a substantial increase’. However she noted that on average matters were taking almost a year to resolve, with one case in particular taking two years. As a result, ‘it is common for a plan to have run its course before a decision is made about what it should contain’.
The Australian Government’s position
10.40
The NDIA, in its submission to the inquiry, advised it had established the AAT Applications and Decisions Division ‘to implement an early resolution model’ for AAT matters. Since December 2018, it had taken into consideration its early resolution case management model for all new applications from the AAT, with its team attempting ‘to resolve the matter in advance of the first AAT case conference’. Before December 2018, the average number of days to achieve resolution had been 195 days, while at the time of making its submission (published on the committee’s website in September 2019), the average number of days had dropped to 58.
10.41
The Tune Review suggested that the NDIA should be allowed to push back a plan review date until after the AAT has handed down a judgement. Further, plans should be able to be amended while being appealed, with agreement from the participant, the NDIA and the AAT where, for example, most ‘of the supports in contention have been agreed or settled between the participant and the NDIA and can be placed into the participant’s plan and utilised, while the AAT’ addresses the remaining supports in contention.
10.42
The Australian Government supported this recommendation and provided the following comments:
Providing flexibility for the NDIA to alter or vary a decision (or a plan), with the agreement of the participant and while the matter is before the AAT, and providing the AAT with jurisdiction to hear that decision (or plan) as varied would significantly improve the administration of external review processes and deliver positive participant experiences.
Transparency of cases settled by consent
10.43
The Australian Psychological Society argued that ‘each and every instance of a plan being successfully disputed’ at the AAT ‘represents a system failure’. Similarly, Maurice Blackburn Lawyers argued that the NDIA’s ‘internal review process is broken if such a high proportion of decisions “affirmed” in internal review are then overturned’ in the process of participants appealing to the AAT, ‘particularly given that the vast majority are resolved by consent (i.e. the NDIS is conceding they got it wrong)’.
10.44
The committee learned of concerns that further information about cases settled by consent between participants and the NDIA is not publicly available, unlike cases where the AAT has handed down decisions, with the AAT publishing written reasons for these decisions.
10.45
The Public Interest Advocacy Centre (PIAC) called for the NDIA to publish information about ‘AAT settlement outcomes in a manner which balances confidentiality and privacy obligations with the need for transparency and accountability’. It suggested that the NDIA consult with participants and advocates when determining what information to publish.
10.46
The PIAC argued that the Australian Human Rights Commission takes the same approach to its Conciliation Register without suggesting ‘that the Commission’s Register could be generalised to other individuals’. The website for the Conciliation Register provides the following advice:
The Conciliation Register provides summaries of a selection of complaints that have been resolved through the Australian Human Rights Commission’s conciliation process.
This information is provided to assist people involved in complaints to prepare for conciliation. This information is provided for guidance only and should not be considered or used as legal advice. Parties to complaints should seek independent legal advice if they require advice about outcomes appropriate to their particular circumstances.
10.47
The Public Interest Advocacy Centre (PIAC) suggested that a register of de-identified settlement outcomes should include the following information:
The nature of the participant’s disability.
Whether the participant was represented by an advocate or lawyer throughout the appeals process.
The number of days taken for the determination of the internal review.
The number of days taken between the AAT application being lodged and the settlement being finalised.
A de-identified narrative detailing:
the supports being requested by the participant;
the approved plan as compared to the supports requested; and
10.48
As outlined in Chapter 2, the committee in its interim report made the following recommendation:
Recommendation 6
The committee recommends that the National Disability Insurance Agency publish settlement outcomes relating to external review by the Administrative Appeals Tribunal, in de-identified form.
10.49
The government noted this recommendation and argued that publishing AAT ‘settlement outcomes would impose a significant administrative burden on resources and would pose privacy issues, even if published in a de-identified form’. It further contended that publishing settlement outcomes could lead to the misconception that AAT cases are precedent-setting and can be generalised to other applicants.
The NDIA’s conduct in the appeals process
10.50
The Legal Services Direction 2017 obliges the Commonwealth and Commonwealth agencies to ‘behave as model litigants in the conduct of litigation’, including in merits review proceedings. This requirement stipulated that Commonwealth agencies to ‘act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency’, including by:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
(aa) making an early assessment of:
(i) the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and
(ii) the Commonwealth’s potential liability in claims against the Commonwealth
(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid
(c) acting consistently in the handling of claims and litigation
(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum including by:
(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true
(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum
(iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution, and
(iv) ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or a Commonwealth agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement
(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and
(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.
10.51
However, some submitters alleged that the Commonwealth was not behaving as a model litigant. Leadership Plus outlined an instance of a case settled by consent in which, it argued, the plan provided to the participant ‘failed to adhere to the supports discussed at conciliation and was in direct contravention of the orders issued by the Tribunal and those agreements reached in correspondence between the solicitors’. Leadership Plus argued that the NDIA’s conduct was ‘reprehensible. As a government body, the [NDIA] has obligations to conduct itself as a model litigant. Unilaterally altering the agreed orders is contrary to the very purpose of merits review’.
10.52
ADACAS Advocacy stated that it had observed ‘many situations over the last few years’ where NDIA representatives and their lawyers had acted ‘in ways that have caused harm to appellants instead of acting as a model litigant, as is their duty as a government agency’. It acknowledged recent efforts to change the approach that the NDIA takes in the AAT, and argued that it ‘is imperative that efforts continue in this area’.
10.53
Others were of the opinion that the NDIA was deliberately delaying making offers to participants until the last minute. One submitter questioned if ‘the NDIA claim of being conciliatory is correct, why are so many good offers made after months of delay and at the 11th hour before the hearing?’ They suggested that the NDIA was deliberately using delay tactics ‘until people give up exhausted’. Roundsquared also noted that in many instances, participants are offered a settlement just before an AAT hearing, and argued that the ‘sceptical view of this action is that this avoids a precedence being set, that could impact on the funding decisions for other participants’.
10.54
As noted above, the NDIA is subject to the Legal Services Direction 2017, which requires it to engage in alternative dispute resolution where appropriate. The NDIA argued that it:
…adopts a non-adversarial approach, to the greatest extent possible, while attempting to assist the AAT and the applicant to obtain information relevant to the decision under review. This reflects the NDIA’s strong focus on achieving a good outcome for participants within the confines of the statutory framework.
The NDIA is subject to the Legal Services Directions 2017 and acts as a model litigant at all times. Importantly, in line with model litigant guidelines the NDIA will defend applications when it is appropriate to do so and in all cases assist the Tribunal to arrive at the correct and preferable decision. In line with these obligations, the NDIA at all times approaches AAT cases fairly and reasonably.
Limited impact of decisions on NDIA policy
10.55
The committee heard that despite AAT decisions, the NDIA was not updating its policy advice or even, in some instances, following AAT decisions in subsequent plans for the same participant. For example, National Legal Aid noted that there ‘have been instances of participants or their family members’ successfully challenging decisions at the AAT so that they were able to increase the level of support they received, ‘only to have that support reduced again at the next review’.
10.56
The Rights Information and Advocacy Centre provided the inquiry with an example of one participant living in regional Victoria who spent 12 months proving that funding for transport was a reasonable and necessary part of the plan. During this period, the participant was unable to access all of his funded services. Although the AAT outcome was successful for the participant, 12 months later, following a scheduled plan review, the participant experienced significant funding cuts, leading to an internal review again and the wait for a decision. The Rights Information and Advocacy Centre suggested that NDIA planners and decision makers were often disregarding previous outcomes of the AAT process, meaning participants had to ‘re-submit reviews each year for supports that were approved from the AAT process’.
10.57
As noted above, Leadership Plus provided an example of a case where a conciliation was held at the AAT followed by a consent order. However, the plan provided to the participant ‘failed to adhere to the supports discussed at conciliation and was in direct contravention of the orders issued by the Tribunal and those agreements reached in correspondence between the solicitors’ who were involved. Leadership Plus argued that the NDIA’s conduct was ‘reprehensible. As a government body, the [NDIA] has obligations to conduct itself as a model litigant. Unilaterally altering the agreed orders is contrary to the very purpose of merits review’. Further, the NDIA, according to Leadership Plus, did not contact the solicitor about the miscalculations in the plan and instead:
…contacted the family directly in an attempt to justify the plan provided to the participant, failing to consider that the family had spent over eighteen months in a state of severe stress and uncertainty over the participant’s future, and a considerable amount of time and energy in navigating the review process.
10.58
Mr Mark Toomey, the father of a participant, reported that he knew of one family who had been to the AAT twice about ‘the same situation…obtaining a result substantially in their favour on each occasion’. Mr Toomey argued that it was ‘deeply unfortunate’ that the NDIA had been unable to develop in the first instance ‘a satisfactory plan without going to the AAT’ and that it was ‘incomprehensible and utterly unacceptable that the NDIS forced the family to repeat the AAT process over the exact same issues in the following year’.
Impacts on broader NDIA policy
10.59
Carers Victoria noted the benefits of access to the AAT for participants, where in previous state or territory systems people with disability had little recourse for appeals. However, it argued that these mechanisms ‘are of little practical or symbolic value if the decisions made in these institutions are not implemented at the level of operational guidelines or practice’. Similarly, the Public Interest Advocacy Centre (PIAC) argued that the NDIA had ‘failed to implement, or unreasonably delayed implementation of, changes to policies and practices following settlement or decisions at the AAT or even at the Federal Court of Australia’. The PIAC further contended that current oversight mechanisms may be ‘ineffective, if policies which are deemed inconsistent with the NDIS Act (and thereby unlawful) continue to be applied by the NDIA’.
10.60
The PIAC noted that the NDIS can fund gym memberships in certain circumstances, according to a 2018 AAT decision which was upheld in two subsequent AAT decisions. However, it highlighted that the NDIA website continues to state that the NDIS does not fund gym memberships. The PIAC called for the NDIA to ‘implement a transparent and accountable process’ to make sure that its advice and operational guidelines reflect AAT and court decisions, and report on any updates in its quarterly reports to the Council of Australian Governments Disability Reform Council.
10.61
ConnectAbility suggested that because the NDIA is not legally bound to adopt the recommendations arising from AAT decisions, ‘the flood of cases going to the AAT will not cease as the [NDIA] just deals with them on a case by case basis’. It further contended that the re-negotiated funding arising as a result of the AAT appeals process ‘only lasts the length of the plan. Once the plan has run its course the money is then removed and the whole issue goes round the same circle again’.
10.62
Dr Darren O’Donovan, an academic specialising in administrative law, argued that NDIA ‘decision-makers are faced with the toughest of mandates in administrative law: the NDIS Act requires them to be consistently individual’. He called for an increased ‘culture of internal criticism and reflection’ within the NDIA to reduce appeals, and proposed that the NDIA ‘take immediate steps to better align frontline policy with existing Administrative Appeal Tribunal decisions and the legislative requirements’.
Suggestion that the NDIA should pay costs
10.63
Maurice Blackburn Lawyers proposed that applicants whose cases succeed in the AAT should have a legislated entitlement for the NDIA to pay 100 per cent of their legal costs at the Federal Court scale. This outcome, they suggested, would have the following benefits:
If internal reviewers were cognisant that there would be cost consequences in the AAT of not making quality review decisions, the number of substandard internal review decisions would reduce.
If initial planning was robust, comprehensive and responsive, and decision makers knew that costs accountability would be the consequence of poor decisions, then the reliance on the review system would be greatly reduced.
10.64
Maurice Blackburn Lawyers argued that the AAT should be ‘the last resort for the new questions of law, the novel things or the complex things’ and not ‘the safeguard used to double-check or protect poor decision-making within the agency’.
10.65
The Australian Lawyers Alliance (ALA) argued that ‘such a flawed process does nothing to improve decision-making within the NDIA…[and] simply protects the NDIA from accountability’. The ALA further suggested that the current process slows the development of jurisprudence, with previous decisions not narrowing the scope and nature of future disputes. Like Maurice Blackburn Lawyers proposed greater accountability for the NDIA when the AAT process overturns its internal review decisions, such as by requiring the NDIA to pay a participant’s legal costs.
The Australian National Audit Office (ANAO) report
10.66
As noted in Chapter 3, the Australian National Audit Office (ANAO) suggested that the NDIA could use ‘lessons learnt from each [AAT] review process to understand key themes and conduct further root cause analysis’ to improve its decision-making processes on what supports are reasonable and necessary. The NDIA in response stated that it has expanded and revised the role of its Performance Management and Quality Branch, which now ‘has responsibility for conducting post decision quality assurance for all planning and review activities’. It further noted that it has ‘developed a specific program of work to capture theme and emerging hotspots across complaints, reviews and administrative appeals’.
10.67
The report acknowledged that monthly and weekly reports are provided to the NDIA executive and Board, with the monthly report providing an overview of AAT cases categorised by the broad reason for appeal (e.g. access or plan review decisions), and cases not decided by the AAT, categorised by reasons for the AAT not making a decision (including because the case was resolved by consent). The ANAO suggested that the NDIA could review ‘the disaggregated data by decision type, to get a clearer understanding of the outcomes of reasonable and necessary decisions that have been subject to application for review by the AAT’.
The NDIA’s position
10.68
The NDIA informed the committee that internal review and AAT ‘trends are elements used to inform the NDIA’s approach to planning, service delivery and performance’, along with feedback from participants, their families and carers. It further explained:
The NDIA monitors applications for internal and external reviews to identify trends and possible systemic issues arising from earlier decisionmaking. While individual outcomes at internal review and AAT settlement are generally not a reliable guide to outcomes in other cases, trends in requests and applications received can assist the NDIA to identify areas where guidance materials, further training and improvement strategies may assist in improving the participant experience.
Access to advocacy and legal assistance
10.69
Submitters expressed concern that access to advocacy and legal assistance may be limited for some participants. For example, one submitter argued that advocates ‘and Legal Aid are not sufficiently funded for full representation. Both have waitlists’.
10.70
Maurice Blackburn Lawyers argued that the ‘no costs’ nature of the AAT restricts law firms from offering a ‘no win, no fee’ service. As a result, it suggested, most participants are unable to access legal representation because of the prohibitive costs, with limited Legal Aid funding for these appeals.
10.71
Similarly, the Australian Lawyers Alliance (ALA) noted that most participants are unable to afford the cost of paying for their own legal service, with law firms are largely unable to offer a ‘no win, no fee’ service because of the ‘no costs’ nature of the AAT. The ALA suggested that funding for Legal Aid in this area is limited, while most disability advocacy groups that receive funding are only able to offer advice, not formal legal representation. The ALA suggested that the following points unfairly disadvantage participants appealing to the AAT:
Many cases involve complex disabilities, high-care needs and require sophisticated expert evidence, which most participants will not be able to afford or arrange.
The legislation and rules are difficult to interpret, subjective, and may involve complex questions of law.
Despite this, the NDIA engages private firms to represent them in every AAT appeal.
10.72
Maurice Blackburn reported that anecdotally, some agencies may be reluctant to advocate forcefully against an NDIA decision because of concerns that they may lose funding.
10.73
Ms Lindsay Ash, a Senior Solicitor representing National Legal Aid, at the hearing on 21 November 2019 noted that Legal Aid Commissions were funded by the Department of Social Services until June 2020, with a decision on whether the funding would continue pending at the time of the hearing. She stated that for 2019, the funding that Legal Aid had received was sufficient, noting that ‘initially ‘the funding was inadequate, but the department has increased the funding and, from our perspective, the amount that we have got is fairly reasonable’ compared to other areas relying on funding.
10.74
The Department of Social Services advised the committee that it funds the NDIS Appeals program for participants to use when appealing to the AAT, with 42 advocacy organisations and eight Legal Aid Commissions being funded. As noted earlier, the NDIS Appeals program provides participants with:
access to a skilled disability advocate who acts as a support person; and/or
access to funding for legal services, if there is a wider community benefit and/or disadvantage that would substantially benefit from legal representation.
Committee view
10.75
The committee commends the Australian Government and the NDIA for their recent reforms announced to improve the timeliness and transparency of the internal review process, including the reasons for planning decisions. These reforms, if implemented well, will likely lead to less cases being appealed to the AAT. Nonetheless, the committee remains concerned about certain aspects of the AAT process that may continue for the small number of participants who will still appeal decisions in the AAT.
10.76
The committee notes that there are exceptions to the AAT being a no-cost jurisdiction. For example, under the Seafarers Rehabilitation and Compensation Act 1992, the AAT may order that the costs of proceedings incurred by claimants, in specific circumstances, are to be paid by the employer. In theory, such a scenario could be applied to participants and the National Disability Insurance Scheme, where the AAT varies or sets aside NDIA decisions in favour of participants. Such a path would suggest that the NDIS would need to be considered similar to a workers’ compensation scheme, rather than an insurance-based scheme sitting within the broader area of social services.
10.77
However, the committee was not convinced by arguments made by some bodies to the inquiry that the AAT should be empowered to order the NDIA to pay costs in instances where it loses appeals so that law firms can offer ‘no win, no fee’ services. First, such costs, if they were to be ordered, could possibly be taken from the overall budget allocated for the NDIS which is intended to support and improve the lives of participants. Second, the Department of Social Services already funds the NDIS Appeals Program to support participants through the AAT process, including through legal representation – although the question of whether this program is sufficiently funded is a separate matter, addressed below. Third, the NDIA is required, under the Legal Services Direction 2017, to endeavour:
…to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate.
10.78
The committee notes that the AAT also uses alternative dispute resolution in the first instance to try to resolve issues. Therefore, the high percentage of cases settled by conciliation—66 per cent of cases relating to the NDIS in 2019–20, with only 1 per cent being subject to an AAT decision—indicates that the major issues for participants involved in AAT appeals likely arise in the conciliation process, rather than through formal litigation hearings that end in an AAT decision. So long as the NDIA is subject through the Legal Services Direction 2017 to participate in alternative dispute resolution processes, and so long as the AAT continues to favour alternative dispute resolution in the first instance, most issues about NDIS appeals to the AAT will likely remain with the conciliation process, rather than in hearings. The committee discusses this issue separately below. As a final comment on the matter of the NDIA being ordered to pay costs, the committee considers it most appropriate that the NDIA should continue to try to resolve matters through alternative dispute resolution.
10.79
The committee considers that other recommendations outlined in this report may go some way to addressing the issue at the heart of arguments made in favour of the AAT becoming a cost jurisdiction—that is, to encourage the NDIA to be accountable in the first instance and ensure that it is approving appropriate plans. However, the committee is open to reviewing its position, depending on the impacts of the large-scale reforms that the Australian Government and the NDIA are currently implementing and the response of the Australian Government to the committee’s recommendations that are intended to fix major issues with planning and plan reviews.
10.80
The committee acknowledges that NDIS cases that have gone through the conciliation process in some instances have not been resolved for up to a year, in some instances two. However, the committee also acknowledges recent efforts by the NDIA to improve the average number of days to achieve early resolution, with this being 58 days as of September 2019. The committee recommends that the Australian Government ensure that the NDIA is sufficiently funded so that the NDIA’s AAT Applications and Decisions Division can continue to reduce the lengthy timeframes of early resolutions of AAT appeals and so that participants are not negatively impacted by delays, including by paying out-of-pocket for supports while awaiting decisions.
10.81
The committee recommends that the Australian Government provide the National Disability Insurance Agency with sufficient resources to ensure that its Administrative Appeals Tribunal (AAT) Applications and Decisions Division can reduce the amount of time it takes to resolve AAT appeals.
10.82
The committee was informed during the inquiry that for 2019 at least, Legal Aid Commissions were adequately covered for their case load. However, Legal Aid Commissions are not the only bodies that receive funding earmarked for advocacy and legal assistance for AAT appeals. In light of the evidence presented to this inquiry, the committee recommends that the Australian Government review the amount of funding it is providing to advocacy groups to assist participants with AAT appeals, and adjust this as appropriate.
10.83
The committee recommends that the Australian Government review the amount of funding that it provides to advocacy organisations through the NDIS Appeals program and ensure that these organisations are sufficiently funded to support participants throughout the Administrative Appeals Tribunal process.
10.84
The committee notes that the Australian Government supported the Tune Review’s recommendation that the NDIA be able to amend plans while they are being appealed to the AAT, with agreement from the participant and the AAT, so that participants are able to use other supports in their plan that are not in contention. As such, the committee does not consider it necessary to repeat this recommendation here. The committee looks forward to future announcements from the NDIA in relation to this issue.
10.85
The committee wishes to return to the issue it outlined in its interim report concerning publishing settlement outcomes where the NDIA and participants have come to an agreement through the conciliation process. The committee reiterates its recommendation from that report—that is, that the NDIA publish settlement outcomes from early resolutions in de-identified form. Publishing settlement outcomes would be in line with the NDIA’s commitment to transparency and the intent behind its recent reforms, as noted in evidence to this inquiry, is also done by another government agency, the Australian Human Rights Commission its Conciliation Register, which provides summaries of a selection of complaints, albeit for a different purpose.
10.86
The committee notes the NDIA’s response to this recommendation that publishing settlement outcomes would be an inefficient use of resources. If the NDIA still does not have capacity to publish settlement outcomes, the committee recommends that the Australian Government increase its resourcing so that it is able to do so in future years.
10.87
Recognising that it may be difficult for the NDIA to remove identifying details of settlement outcomes, the committee considers that summaries of key themes arising from settlement outcomes—including where settlements concern similar issues—may be an appropriate alternative approach. Such an approach would not only improve transparency and public trust in the appeals process, but also help the NDIA to implement changes to policy and practice should the same themes be reappearing. The committee acknowledges that the AAT does not set precedents, but given the high number of cases settled by consent, and the money that the NDIA spends on legal fees (during the 2019–20 financial year, $7,181,901), in some instances for cases with similar features, summaries of key themes and/or cases would be a useful exercise for all involved and show that this money is well-spent and leading to concrete outcomes beyond individual cases.
10.88
Multiple inquiries have now suggested that the NDIA needs to do better in terms of how it uses AAT decisions to ensure consistency in its decision-making. These inquiries include this committee, in its interim report; and the Tune Review, which also argued that although the decisions of the AAT are not binding, the AAT ‘does provide persuasive guidance for the types of supports that could be funded by the NDIS’. The Australian National Audit Office, in its report into decision-making controls for NDIS participants, argued that:
…there would be merit in the NDIA analysing data and information from AAT application early resolution decisions and hearing outcomes, and using this to inform continuous improvement in reasonable and necessary decision-making. There would also be merit in the NDIA collecting lessons learnt from each review process to understand key themes and conduct further root cause analyses.
10.89
If multiple reviews are proposing the same solution, this would suggest that the solution itself is necessary, reasonable and clear. In the interests of transparency and accountability, the NDIA should publish summaries of key themes arising from settlement to encourage confidence that the NDIA is in fact analysing these decisions, and using them to improve consistency in how it implements its decisions about whether a support is ‘reasonable and necessary’. Doing otherwise would suggest that the NDIA is publicly agreeing with the recommendations of multiple inquiries but continuing to follow the same flawed practices away from scrutiny. A commitment to not only analysing the themes of AAT cases decided by consent but also publishing this analysis would help to restore trust in the integrity of the NDIA’s decision-making processes.
10.90
The committee recommends that the National Disability Insurance Agency develop and publish de-identified summaries of key themes arising from settlement outcomes in the Administrative Appeals Tribunal.
10.91
The committee recommends that the Australian Government ensure that the National Disability Insurance Agency is sufficiently resourced to carry out the functions outlined in Recommendation 34.