This article explains the AAT review of decisions made under the NDIS Act.

BY KAI SINOR

 

This article provides guidance on what the Administrative Appeals Tribunal (AAT) considers when reviewing decisions made under the National Disability Insurance Scheme Act 2013 (NDIS Act). Details of the legislation and other resources cited in this article are available in the full text guidance note here.

Refer to the MPS Law website for further guidance on orders that the AAT can make to stay the implementation of a reviewable decision.

What are an NDIS provider’s appeal rights?

Providers can obtain internal merits review of decisions that are listed in s 99 of the NDIS Act. Any person directly affected by a reviewable decision of the NDIS Commission can submit an application for internal review of that decision.  If not satisfied with the internal review decision, a person who has interest that is affected can apply to the AAT for review.  A person cannot apply to the AAT without having first undergone internal review. 

Guidance on what decisions are reviewable and the requirements for making an application for internal review is available on the MPS Law website. 

How does the AAT work?

The Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act) gives the Tribunal the same powers and discretions as the original decision maker, but this does not mean that the Tribunal stands in exactly their shoes.  The AAT can consider relevant evidence not considered by the original decision maker.

The Tribunal’s role is to make the correct or preferable decision based on the material before it. The Tribunal member carrying out the review reconsiders the facts, law and policy aspects of the original decision to determine what is the correct and preferable decision.

Who can apply to the AAT?

A person whose interests are affected by the decision to make an application to the AAT. The application to the AAT can be made by, or on behalf of, any person whose interests are affected. A mere general interest in the subject matter of a decision is insufficient to give a person standing to seek review of that decision – the person’s interests must be affected in some way.

What does the AAT consider?

The review undertaken by the AAT examines whether the original decision was the correct or the preferable decision. A decision is correct if it is in accordance the facts as presented and with the law.  A preferred decision is one which determines between a number of possible outcomes. This involves considering what is in the best interests of the parties and the community taking into account the findings of fact, the policy background to the legislation, any directions or guidelines of the authority that made the decision, and other material that may give legitimate guidance.

Will the AAT take account of material that was not considered by the decision maker?

The AAT can consider material that may impact on the circumstances that existed at the time of the initial decision, including information not considered by the original decision but which should have been. 

The Tribunal may also have regard to the state affairs at the time it reviews the decision, unless the legislation requires that only those circumstances that existed at the time the decision was made can be considered.

The AAT will consider:

  1. What were the relevant findings of fact?

  2. Are there any new facts which were not considered or information which changes the existing facts in a material way?

  3. What were the mandatory and/or discretionary considerations that the decision maker could have, or should have, considered?

  4. Do any of the ‘new’ facts influence how those considerations were assessed or indicate that some considerations were overlooked?

  5. Were there any facts or events that existed after the reviewable decision was made which may assist the decision maker in exercising a discretion?

What can the AAT decide?

When reviewing a decision, the Tribunal can exercise all the powers and discretions that were vested in the original decision maker and will make a decision affirming, varying or setting aside the decision under review.

Where the decision is set aside, the AAT can either make a new decision or refer the matter back to the NDIS Commission for reconsideration (and give directions about how it is to be reconsidered).

When can applications to the AAT be made?

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 taken to be 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.

Decision cannot be varied after application is made to the AAT

After an application is made to the AAT, the decision cannot be altered, unless parties to the proceedings (and the Tribunal) consent.

Seeking orders to stay or affect implementation of the decision

The making of an application to the AAT for review does not prevent the NDIS Commission from taking action to implement the decision under review. However, if the decision in question causes significant hardship, a provider can apply to the AAT asking for an order to stay implementation of the decision. Section 41(2) of the AAT Act enables the Tribunal to make orders to stay or affect the implementation of the decision under review. The test for making a stay order is whether it is “desirable to do so after taking into account the interests of any persons who may be affected by the review”.

The effect that the decision under review will have on the person (or business) concerned is a key factor in the Tribunal’s consideration of whether it “desirable” to stay a decision.  The Tribunal will weigh hardship to the provider against the danger to participants and the public if the provider is allowed to continue delivering services, or carrying out activities that are prevented by the decision under review.

Guidance on the factors that the AAT considers when making stay orders is available on the MPS Law website.

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