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Yesterday, we listened in on the “What’s going on with NDIS AAT Appeals?” livestream hosted by Every Australian Counts and Disability Advocacy Network Australia. The livestream was a conversation about NDIS participant appeals of National Disability Insurance Agency (NDIA) decisions to the Administrative Appeals Tribunal (AAT). Conversation participants included the Minister for the NDIS Bill Shorten, NDIA Chief Counsel Matt Swainson, NDIS advocates, and NDIS participants.

At the start of the conversation, non-Government participants were asked to sum up the AAT appeals process in one word. Here is a screenshot of the wordcloud (about 110 responses): 

As part of the new Labor Government, Minister Shorten was keen to highlight that he does not support an adversarial approach with NDIS participants, and has told the NDIA that they are now “in a different world”. He acknowledged that there was a need to rebuild trust and fix problems with the NDIS. According to the Minister, under the previous Coalition Government:

• external reviews of NDIA planning decisions increased by 400%;
• appeals of NDIA decisions as a percentage of NDIS participants more than doubled;
• the NDIA received about 250 enquiries per month from participants experiencing problems with the system – this increased to 1,250 enquiries per month when the Labor Government took over; and
• there were 4,501 active NDIS appeal cases in the AAT by the time of the last election. 

He described internal NDIA reviews as opaque and unaccountable and has sought to decrease the number of decisions going to appeal to the AAT since the election. As at 19 September 2022, the number of active cases before the AAT has apparently dropped by 10% and is now “under 4000”.

Alternative Dispute Resolution to deal with Legacy Cases

The Minister said he wanted to introduce an alternative dispute mechanism in an attempt to decrease the backlog of cases at the AAT. According to the Minister, the model would include:

• the creation of an ‘Oversight Committee’ to look at legacy cases and chaired by former Federal Disability Discrimination Commissioner Graeme Innes and include members from the disability sector including advocates; 
• the appointment by the Oversight Committee of independent expert reviewers to “blitz” the thousands of cases currently before the AAT. The experts would seek to resolve outstanding cases and make offers to participants; 
• the following features of the proposed alternative dispute resolution (ADR): 
  • entirely voluntary for NDIS participants to use; 
  • run concurrently with the AAT appeal process – so participants would not be disadvantaged or lose access to (or their queue spot in) the AAT appeals process; 
  • access for participants to a 1800 number if they had questions about the ADR, with NDIS advocates providing assistance via the hotline; 
  • participants could accept or reject the decision of the ADR; and
  • NDIS participants would have an opportunity to consult with lawyers, if an offer was made, so they could obtain advice; and
• a trial/pilot scheme of 15-20 matters and then the reviewers tackling 2000+ cases before Christmas 2022.

Changing processes

In addition, the Minister would like to undertake a review of NDIA processes to create a less adversarial, more efficient process including:

• improving the initial planning process for participants;
• greater transparency of internal review of NDIA decisions;
• the provision of written reasons for NDIA decisions; 
• providing model litigant rules in all cases; and
• a recognition there has been an overuse of external lawyers, which has created an unfair “David and Goliath sort of struggle” for NDIS participants.

In response to a question about the ongoing nature of the ADR, the Minister indicated he wanted to streamline the system so:

1. a lot more of the planning decisions are made in-house at the NDIA;
2. there is greater communication between NDIS planners and participants;
3. there is continuity between an NDIS planner and an NDIS participant and their family;
4. there is availability of a decision review by the NDIA; and 
5. if a participant is unhappy about the outcome of an internal review, access to an experienced independent mediator via the ADR.

The Minister said he did not want the NDIA to “lawyer-up” or for the process to become a process of attrition for NDIS participants. The focus should be on resolution, not playing games. He wanted to resolve matters in the interests of the participants, with support from advocates.

Settled positions

In response to a question about NDIS participants needing to go repeatedly to the AAT to have NDIA decisions overturned, in circumstances where supports had previously been funded, Matt Swainson said that the NDIA general principle would be that if the NDIA had agreed to a position, or if the evidence showed that the AAT had made a ruling on a particular support, then the ruling should be the position of the NDIA, and should remain in place without the need for the participant to seek support from the AAT (subject to where circumstances may have changed).

Guidelines

In response to a question about if it was going to be necessary for the NDIA to speak with participants during the internal review process (as was not the case under the previous Government), Matt Swainson said that operational guidelines may need to be changed so that NDIA staff must speak with participants (and/or advocates) prior to making decisions following an internal review, however he understood that NDIA staff were now contacting participants prior to making making a decision.

Whilst the Minister acknowledged that all NDIS participants are unique individuals, he advocated for the NDIA to publish clearer guidelines and previous decisions so as to make it easier for NDIS participants and planners, and not have NDIS participants needing to re-argue over things that were common sense and common claims. 

Training

A question was asked about the skills and knowledge of NDIA staff with the questioner citing an example of NDIA staff not knowing about a particular decision of the Federal Court and not understanding about the validity of the decision.

Matt Swainson acknowledged that training of NDIA staff was a “big piece of the puzzle” and committed to further training of NDIA staff. He acknowledged that a lack of training was a problem and publishing guidelines about how AAT or Federal Court decisions will be applied is needed.

Conclusion

The Minister acknowledged that people had been let down by the NDIA. He stressed that the Government couldn’t change everything immediately, however he wanted to work with the disability sector and build trust. 

Conversation participants were asked to provide some feedback at the end of the one-hour conversation about how they felt about the discussion. Here is a screenshot of the responses:

We look forward to reading more about the formation of the Oversight Committee, the ADR process for legacy cases, better training (and retention) of NDIA staff, and respectful outcomes for NDIS participants.

The recording of the livestream is available via the Every Australian Counts Facebook page at: https://www.facebook.com/everyaustraliancounts/videos/782013843134082