Creating a voice for the Disability Sector
Creating a voice for the Disability Sector
NDIS appeals heard by the AAT jumped by 700% over five years

NDIS appeals heard by the AAT jumped by 700% over five years

26 October 2021

The number of National Disability Insurance Scheme (NDIS) appeals by participants heard by the Administrative Appeals Tribunal (AAT) has skyrocketed by more than 700% over the past five years.

The Federal Government’s disability reforms are again under fire as the number of plan disputes allegedly escalated to the AAT increase along with the rapidly growing number of NDIS plans.

But while the number of cases heard by the tribunal climb, the number of successful outcomes appear very low.

According to SBS News, the AAT, which reviews federal government decisions, including those of the National Disability Insurance Agency (NDIA), received 1780 appeals related to the NDIS in 2019-20, an increase of 727% when compared with the 215 NDIS-related appeals in 2016-17.

In 2016-17, around 0.24% of the 89,610 participants sought an appeal, while in 2019-20 that figure was 0.45% of 391,999 participants.

In the July-August period this year alone, the AAT received 726 lodgements from NDIS participants, to make a total of 1966 applications on the books. Only 388 cases were finalised in that period and the proportion of applications in relation to which decision under review changed was only 52%.

According to SBS News, the government concedes parts of the process have been “complex, costly and inconsistent”.

Asked about the ballooning number of appeals, NDIS Minister Stuart Robert said not everyone who has previously applied for access to the AAT has been completely happy with their experience.

And while his favoured Independent Assessment proposal has now been axed, Mr Robert believed the scheme would have made the appeals process “more consistent and transparent.”

However, as we heard this week, The Parliamentary Joint Committee on the (NDIS) has vowed to keep a close eye on the next steps that the Government and the NDIA take, particularly around “redesigning” or relabelling the Independent Assessment scheme.

Numerous comments and posts on social media, reflecting disappointment, anger and frustration that participants’ needs are not being heard or met and that the appeals exercise and process is expensive and unattainable.

Mr. Robert agreed.

“Participants have reported they have spent thousands of dollars chasing assessments to show their functional capacity and some Australians cannot afford the same access to professionals as others,” he said.

A Digest of decisions states major themes raised in NDIS decision at the AAT include a proper use of operational guidelines, complex flexible use of funding understanding, conflict between the health system and NDIS, proper definition of impairment and how availability of treatment is affected by affordability and access to the scheme.

Reasons given for rejecting AAT applications range from not meeting the criteria, not meeting all requirements set out by the AAT and failure to provide sufficient evidence of permanent disability.

The AAT defines “disability” as the reduction or loss of an ability to perform an activity which results from an impairment and proving that to the tribunal, and NDIA’s, satisfaction is the bone of contention for participants trying to access the NDIS or get a plan approved.

To understand the scheme - The NDIS develops individual plans to provide funding and support for people with a disability.

NDIS decisions that can be appealed in the tribunal include whether someone meets funding criteria, as well as decisions to not review a participant's plan.

Jeff Southwell, writing for Probono Australia, claimed only a tiny proportion of appeals that people with disability bring to the AAT are actually heard by the tribunal – the rest are negotiated by the NDIA.

He wrote the AAT’s own figures showed the NDIA was potentially using undue influence to get participants to back down or to accept lesser claims.

Mr. Southwell wrote that when a person with a disability asks the AAT to review a decision, they do not automatically get heard by a tribunal member.

So, how can you be heard and receive a more positive outcome?

First of all, you need to be very prepared and armed with all relevant evidence and statements. And be prepared for the long haul: The entire AAT process can take over a year from start to end. Receiving a letter about a case conference is just the very first step.

But before you take that first step, ensure you have exhausted all possibilities.

Before accessing NDIS Appeals services you need to apply to the NDIA for an internal review. If you are unhappy with the outcome of the internal review you can apply to the AAT for an external review and access NDIS Appeal services.

An application for an AAT review must be made within 28 days of receiving the NDIA decision, though extensions can be granted by the AAT.

There are two types of supports available via NDIS Appeals:

  • Access to a skilled disability advocate who acts as a support person, and
  • Access to funding for legal services, where there is wider community benefit and/or disadvantage that would substantially benefit from legal representation.

Support people are National Disability Advocacy Program (NDAP) disability advocates. They are available in every state and territory.

An NDIS Appeals advocate can help by:

  • Explaining the review process, including what is involved in appealing to the AAT
  • Helping to prepare documents
  • Providing advice and skills so you can better represent yourself, or
  • Attending AAT conferences and hearings to help you put your case to the AAT.

While the focus of NDIS Appeals is advocacy support, funding for legal services is available where there is wider community benefit and/or disadvantage that would substantially benefit from legal representation.

Legal services are provided by Legal Aid Commissions, which determine eligibility by assessing your application against publicly available criteria.

All NDIS Appeals support is free of charge.

When reviewing a decision, the AAT has the power to:

  • Affirm the decision (meaning the decision is not changed); or
  • Vary the decision (meaning part of the decision is changed); or
  • Set aside the decision, and make a new decision in its place or send the case back to the agency to make a new decision.

For more information, head to NDIS Appeals | Department of Social Services, Australian Government

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