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?
- Sections 99 - 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act);
- Sections 25 - 29B, 41(1), 43(1) and 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act); and
- The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
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?).