This article explains the review of certain decisions made by the NDIS Commission.

BY KAI SINOR

 

This article discusses how to obtain review of certain decisions made by the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission (NDIS Commission).  It provides guidance on decisions made by the NDIS Commission that are reviewable, how internal review is obtained and what is considered by the internal reviewer. Details of the legislation and other resources cited in this article are available in the full text guidance note here.

What is an internal merits review?

An internal merits review allows the decision that was made to be reconsidered.  As the name suggests, internal merits reviews are carried out by the agency that made the decision. The reviewer stands in the shoes of the original decision maker and reconsiders the facts, law and policy aspects of the original decision to determine what is the correct and preferable decision. A merits review enables information that was not (but which should have been) considered to be taken into consideration.

Under both the NDIS Act and the Administrative Appeals Tribunal Act 1977 (AAT Act), the person or body carrying out the review (the Tribunal or the internal reviewer) can make a decision either affirming, varying or setting aside the original decision and making a new decision.

Review of decisions under the NDIS Act

A person directly affected by a “reviewable decision” has a right to request that the decision maker review the decision. The decision is reviewed internally by someone (the reviewer) who was not involved with making the decision.

Decisions that are reviewable

The right to internal review of a reviewable decision limited to certain decisions:

  • refusing to register a person as a registered provider;
  • imposing conditions on registration;
  • varying (or refusing to vary) registration;
  • suspending or revoking registration;
  • issuing a compliance notice;
  • making a banning order; and
  • varying (or refuse to vary) or revoke, a banning order.

Decisions made by the NDIS Commission that involve civil penalties and infringement notices are not reviewable.

Who can request a review?

Only persons directly affected by the reviewable decision can request review of a reviewable decision.

Limits on decisions that are reviewable

Only decisions listed in s 99 of the NDIS Act are ‘reviewable decisions’. Decisions made by the NDIS Commission that are reviewable are listed above. Decisions made by the NDIS Commission that involve civil penalties and infringement notices are not reviewable.

Making a request for internal review

The request may be made by sending or delivering a written request to the decision-maker or by making an oral request either in person or by telephone or otherwise.

What does an internal review involve?

The reviewable decision is reviewed by a person (the reviewer) to whom the NDIS Commission has delegated the responsibility for reviewing decisions. The reviewer must be someone who was not involved in making the reviewable decision. The reviewer must, as soon as reasonably practicable:

  • make a decision confirming the reviewable decision,
  • varying the reviewable decision, or
  • setting aside the reviewable decision and substituting a new decision.

The reviewer will contact the person who requested the internal review and give them an opportunity to explain the reasons why a different decision should be made.  Additional information or evidence can be provided to the reviewer during this process.

What will the reviewer consider?

The reviewer will look at all the facts that existed at the time the decision was made and consider any new facts or information that is relevant. If there are circumstances that the decision maker did not consider that they should have, these will be considered by the reviewer.

The reviewer will also examine any mandatory or discretionary considerations that the legislation required the decision maker take into account and assess if any of these were overlooked, or if there is any new information that changes how those considerations were assessed.

How long will the internal review take?

Under s 100(6) NDIS Act, the person carrying out the review is obliged to make a decision either to confirm, vary or set aside the reviewable decision and substitute a new decision. The reviewer must do one of these three actions “as soon as reasonably practicable”.

What are a provider’s appeal rights?

If not satisfied with the outcome of internal review, an application can be made to the Administrative Appeal Tribunal (AAT). Applications to the AAT can only be made in relation to decisions that are reviewable (decisions that are listed in s 99 of the NDIS Act). A person cannot apply to the AAT without having first undergone internal review.

Remember that judicial review is different to merits review.  Merits review reconsiders the facts, law and policy aspects of the original decision to determine what is the correct and preferable decision.  Judicial review is carried out by a court and looks at whether the decision is correct in law.

What are the options if the internal review is taking too long?

Generally, the AAT can only deal with an application for review if the internal reviewer has made their decision under s 100(6) of the NDIS Act.    However, in NNXF v National Disability Insurance Agency (NNXF v NDIA) the AAT found that failure to make a decision within a reasonably practicable period of time is a deemed decision.

Why is this significant?  Under the AAT Act, if a decision is not made within the timeframe set out in the legislation, a deemed ‘decision’ is made and the Tribunal has power to review that ‘decision’. The significance of the decision in NNXF v NDIA is that in some circumstances, where there are unreasonably long delays making an internal review decision (the decision was not made “as soon as reasonably practicable”), a provider can ask the AAT to review the original decision.

The time period that is considered “as soon as reasonably practicable” will depend on the circumstances of each case, including the complexity of the issues under review.

Complaints about decisions made under the NDIS Act, including delays completing reviews, can be made to the Commonwealth Ombudsman.  The Ombudsman will investigate what has happened and can make suggestions or comments to the NDIS Commission.  The Ombudsman cannot direct what actions are taken or change a decision.

For more information, contact Michael Pagsanjan (info@mpslaw.com.au).