DOCUMENT 1
FOI 24/25-0251
From:
DLOShorten
To:
MINISTERIAL; s47F - personal privacy
Cc:
DLOShorten
Subject:
FW: Urgent briefing required - NDIS Appeals process discussion Tuesday, 14 June at 9.15am
[SEC=OFFICIAL]
Date:
Friday, 10 June 2022 12:14:22 PM
Attachments:
FW Urgent briefing required - NDIS Appeals process discussion SECOFFICIAL.msg
Hi there
In addition to my previous email – please see additional point from the Advisor below.
Can you confirm the NDIA will take this brief and I will raise in PDMS.
Thanks, Louise.
Louise s47F - personal pr
| Departmental Liaison Officer
Office of the Hon. Bill Shorten MP
Minister for National Disability Insurance Scheme and Minister for Government Services
P: s47F - personal privacy
M: s47F - personal privacy|
E: xxx.xxxxxxx@xxx.xxx.xx
DSS acknowledges the traditional owners of country throughout Australia, and their continuing connection to land, sea
and community. We pay our respects to them and their cultures, and to elders both past and present.
From: s47F - personal privacy Thomas <Thomas.s47F - personal xxxxxxx@xxx.xxx.xx>
Sent: Friday, 10 June 2022 11:56 AM
To: s47F - personal privacy Sandra <Sandra.s47F - personal xxxxxxx@xxx.xxx.xx>; DLOShorten
<xxx.xxxxxxx@xxx.xxx.xx>
Cc: s47F - personal privacy Liam <Liam.s47F - personal xxxxxxx@xxx.xxx.xx>; s47F - personal privacy Natasha
<Natasha.s47F - personal xxxxxxx@xxx.xxx.xx>
Subject: Re: Urgent briefing required - NDIS Appeals process discussion [SEC=OFFICIAL]
Minor change, have added two more at bottom from my notes with Minister Shorten.
From: s47F - personal privacy Sandra <Sandra.s47F - personal xxxxxxx@xxx.xxx.xx>
Date: 10 June 2022 at 11:43:19 am AEST
To: DLOShorten <xxx.xxxxxxx@xxx.xxx.xx>
Cc: s47F - personal privacy Liam <Liam.s47F - personal xxxxxxx@xxx.xxx.xx>, s47F - personal privacy Natasha
<Natasha.s47F - personal xxxxxxx@xxx.xxx.xx>, s47F - personal privacy Thomas
<Thomas.s47F - personal xxxxxxx@xxx.xxx.xx>
Subject: Urgent briefing required - NDIS Appeals process discussion [SEC=OFFICIAL]
Louise,
The Minister has a meeting on
Tuesday, 14 June at 9.15am to discuss NDIS Appeals process
Page 1 of 13
He would like the following info in a brief please
- number of cases at AAT currently in each area - housing, support hours etc
- difference in funding and support types between original planning request - agency decision -
tribunal finding/ settlement outcome in plan
- time taken to resolve from planning to final decision, for total external review
- how many are resolved through hearings and settlement
- number and nature of model litigant complaints
- legal spend per case - average, median and max, including drivers of legal spending
- projections over the next 12 months for case numbers and legal spend
- staffing at the AAT branch - vacant positions and current processes/approach
- Sample of common matters at AAT across all areas of the scheme e.g housing, assistive
technology
- analysis of underlying issues leading to AAT cases
- Applicant $position, NDIA $position and AAT position by disability type, age, type of activity (eg
SDA)
- how many precedence set
Thank you
Sandra
Page 2 of 13
DOCUMENT 2
Official: Sensitive
MB22-000042
Ministerial Brief for Noting
FOR: Minister for the National Disability Insurance Scheme
Action Requested By: 10 June 2022
INFO: Information for Ministers
Reason for Urgency: Minister request
NDIS Appeals process
Key Issues:
Applications for review of decisions made under the
National Disability Insurance Scheme Act 2013 to the
Administrative Appeals Tribunal (AAT) have increased in the 2021-2022 financial year. The National Disability
Insurance Agency (NDIA) is working with stakeholders, including the AAT, to address this issue through
improvements to the planning pathway and appeal process. Initiatives include a potential expert review at
appropriate decision-making points and better explanation of decisions. Early efforts to improve internal
review decisions have seen a reduction in new applications. There has also been an increased emphasis on
early resolution of matters using existing AAT alternative dispute resolution processes. In recent weeks we
have started to close more matters than the number of new matters received. We anticipate these
improvements to accelerate over coming months.
Media Considerations: There has been recent media coverage regarding the NDIA’s AAT caseload.
Noted by Minister:
Signature: ………………………………….
Bill Shorten
……./……./2022
Minister comments
Cleared by: Dr Lisa Studdert, DCEO Markets, Government and Engagement
Contact: Matt Swainson, Chief Counsel
s47F - personal privacy s47F - personal privacy
s47F - personal privacy
Date cleared: 14 June 2022
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MB22-000042
Financial Impacts: Yes.
•
Increases to the NDIA’s AAT caseload has meant an increase to the NDIA’s legal spend. Improvements to
this caseload are expected to reduce the NDIA’s legal spend.
•
The NDIA does not currently have structured data on the value of supports that are added to plans as
part of settlement decisions, or of legal spend on matters relative to the value of plans and the
settlement decisions made. This could be considered for future system enhancements.
•
The NDIA’s model litigant and
Public Governance, Performance and Accountability Act 2013 obligations
mean that a range of factors are considered when looking at settlement options including settlement
cost, legal spend, administrative outcome consistent with legislative requirements, and impact on the
participant.
Regulatory Implications: No.
Attachments:
A:
AAT Monthly Snapshot – May 2022
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MB22-000042
Background:
1. A snapshot of the NDIA’s caseload in the AAT current at 27 May 2022 is at Attachment A. We would
welcome the opportunity to work further with your office to answer data related questions or produce
additional data sets. The NDIA would also welcome the opportunity to provide a more detailed briefing on a
selection of AAT matters to share insights and discuss further efforts to address this caseload.
2. As at 27 May 2022 there are 4,501 active matters before the AAT. 78% (3,524) of these involving planning
decisions, 11% (505) access decisions and 10% (472) other issues (jurisdiction, compensation etc).
3. Of current planning matters: 29% (1,481) primarily relate to capacity building; 27% (1,403) core supports;
14% (728) to general supports; 8% (429) assistive technology; 5% (258) transport; 3% (175) daily living
costs, 3% (180) specialist disability accommodation; 3% (165) supported independent living; 3% (143) home
modifications and 2% (103) plan management. Note planning matters may involve various issues and these
numbers reflect the primary issue under review.
4. The median time to finalise NDIA AAT matters is 22 weeks, with 89% of matters finalised within 12 months
(source: AAT Caseload Report 1 July 2021 – 31 May 2022). Note matters currently before the AAT are not
counted in these statistics until finalised.
5. 2,639 matters were closed in the year to date. Of these 2,528 were resolved without a substantive hearing.
6. The NDIA has received 27 model litigant complaints since November 2019. Most complaints relate to delays
and consistency in the management of matters. Not al of these have been substantiated as breaches. A
number are stil under review. The NDIA reports regularly to the Office of Legal Services Coordination on
these matters.
7. The NDIA acknowledges the important obligation to always act as a model litigant and criticisms regarding
meeting these requirements. The NDIA is committed to engaging with participants and improving
frameworks to ensure it meets its model litigant obligations.
8. The average legal cost per matter is calculated for concluded matters and is dependent on the type of
matter and when it resolves. For example, data at 31 December 2021 shows the average legal cost of an
access related matter which resolved early was $1,664. For early resolution planning matters the average
cost was $3,115. The average legal cost for matters which progress to substantive hearing (a smal er
number) ranges from $36,101 to $50,243.
9. The NDIA has been increasing staff numbers working on AAT matters to ensure timely consideration. This is
ongoing although recruitment is chal enging in the current labour market. To meet the growing AAT
caseload and ensure matters are progressed efficiently, the NDIA has engaged approximately 100
contractors. This number is increasing in the immediate term to ensure matters are progressed efficiently
and AAT timetables are met.
10. Various factors have driven the increased caseload. From 1 February 2014 to 1 July 2021, the number of
applications for review by the AAT increased approximately in line with increases in the number of Scheme
participants (approximately 0.40 – 0.44 % of total participant numbers). In financial year 2021-2022 internal
review requests have increased and efforts to reduce backlogs have led to a greater number of matters
proceeding to external AAT review.
11. The AAT is an administrative review body and, while its decisions provide guidance for decision-makers, it
does not set binding precedent. A very small number of NDIA AAT decisions in the context of the overal
caseload have been appealed to the Federal Court where precedent is set.
12. There are currently 7 appeals in the Federal Court, with 5 initiated by the NDIA and 2 by participants.
Where the NDIA initiates an appeal to the Federal Court, the NDIA implements the AAT’s decision so the
participant is not disadvantaged while the appeal is heard.
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