Our model litigant guidelines

We respect your right to seek a review of a decision made by us. For some people, this means asking the Administrative Appeals Tribunal (AAT) to review a decision made by the NDIA because you do not agree with it.

The NDIA has an obligation to act as a model litigant in all litigation where the NDIA is a party, including in an AAT application.

The model litigant obligation is codified in the Legal Services Directions 2017 (legislation.gov.au)

The model litigant obligation balances the NDIA acting honestly and fairly with it acting firmly and properly to protect its interests. This means that in handling NDIS AAT applications, we (and the lawyers who represent us) are required to act with honesty, integrity, fairness and in accordance with the highest ethical standards.

If you apply for review of one of our decisions to the AAT, we will act consistently and fairly to resolve your AAT application as quickly as possible. We will act in accordance with our model litigant obligations at all times when working with you.

This does not mean we will always agree with you, but where we disagree, we will do so respectfully and we will explain to you why we disagree.

Our role in your AAT application is to ensure the NDIS is administered objectively and carefully, and to assist the AAT to reach the correct or preferable decision. 

The model litigant obligation does not create any additional legal rights. However, as a model litigant we are required to:

  • deal with your AAT application promptly and not cause unnecessary delays in progressing your AAT application 
  • make an early assessment of your AAT application and seek to resolve it, whether in whole or in part, if it is appropriate to do so
  • act consistently in the handling of AAT applications and any other decisions made about you that are not before the AAT 
  • participate in alternative dispute resolution throughout your AAT application and ensure that a delegate who can resolve your AAT application either attends or is available at any conciliation conference
  • use our best endeavours to assist the AAT to make the correct and preferable decision
  • apologise to you if we, or our lawyers, have not been a model litigant in your AAT application or appeal.

The obligation does not prevent us from:

  • acting firmly and properly to protect the Agency’s interest and, in particular, the objects and principles of the National Disability Insurance Scheme Act 2013 .
  • relying on legal arguments if we would be prejudiced, or it would be inconsistent with the objectives of the NDIS Act, if we did not raise those arguments 
  • appealing a decision where there are reasonable prospects that the decision will be overturned and it is in the public interest to do so.

Lodging a complaint

We are committed to investigating concerns about the breach of our model litigant obligations.

Any complaint alleging a breach of the model litigant obligations can be made in writing. It should detail your concerns and should include any documents supporting your concerns.

You can:

  • email your complaint to [email protected]
  • post your complaint to National Disability Insurance Agency, GPO Box 700, Canberra ACT 2601
  • drop your complaint off at a National Disability Insurance Scheme office. View locations .
  • call us on 1800 800 110.

Investigating your complaint

Your model litigant complaint will be assigned to officers in our legal team who have had no prior involvement in the matter to ensure the model litigant issues are investigated in an impartial way.

The investigation will review your complaint along with any other documents provided by you, information that already held by the NDIA and any information received by a relevant law firm. 

Your complaint will then be assessed in light of the Legal Services Directions, existing relevant AAT and court processes, directions and rules—for example, the AAT’s Review of National Disability Insurance Scheme Decisions Practice Direction .

The Agency will then decide whether it or its lawyers have breached the model litigant obligations in relation to your complaint.

Responding to your model litigant complaint

We will inform you of the outcome of your complaint once it has been investigated.

We will also send a notification of the complaint and outcome to the Office of Legal Services Coordination (OLSC) within the Attorney-General’s Department. 

If we have breached our model litigant obligations, we will:

  • apologise to you in writing
  • use our best endeavours to rectify any prejudice that has been caused to you by the breach
  • advise you of what, if anything, we have done to ensure such a breach does not occur again 
  • consider what further action, if any, is necessary to address the breach.

Even where there is not a breach, your feedback is important and will be included as part of our continuous improvement activity.

What if you disagree with the outcome of our investigation

We will notify OLSC of your complaint and the outcome. 

OLSC is responsible for administering the Legal Services Directions and supporting the Attorney-General, as First Law Officer, to oversee the delivery and management of the Australian Government’s legal work. 

As set out in its Compliance Framework , OLSC does not investigate individual complaints at the request of members of the public.

However, OLSC will consider the notification made to it by the NDIA and, in cases where it considers there are problems with the information provided or the process undertaken, OLSC may require additional information or further steps to be taken. 

We will advise you of any change in the outcome of your complaint if that occurs. 

The Commonwealth Ombudsman considers and investigates complaints from people who believe they have been unfairly or unreasonably treated by an Australian Government department or agency. 

Should you wish to do so, you may consider contacting the Commonwealth Ombudsman by:

  • making a complaint using the online form  on the Ombudsman website
  • calling 1300 362 072.


This page current as of
15 September 2023
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