Our reference:
FOI 24/25-0317
OAIC reference:
MR25/00038
GPO Box 700
Canberra ACT 2601
1800 800 110
ndis.gov.au
18 July 2025
Emily Lacey
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Emily Lacey
Freedom of Information request — Notification of Decision under section 55G
On 6 September 2024, the National Disability Insurance Agency (
Agency), received a
request from you under the
Freedom of Information Act 1982 (
FOI Act).
The purpose of this letter is to provide you with a decision and reasons for the decision, in
relation to your request, under section 55G of the FOI Act.
Scope of your request
You have requested access to the following documents:
“A copy of all “Advice Support Tool” documents held by the NDIA. I agree for the
surnames and contact details of any staff to be redacted, but please otherwise
provide the documents in their entirety.”
Procedural background
The Agency has been experiencing processing delays and was not able to provide you with
our decision by the original due date. Consequently, we are deemed to have refused your
application under section 15AC of the FOI Act. I sincerely apologise for the delay in relation
to your request.
On 8 November 2024, the Agency provided you with reasons for decision in relation to your
request (
Original Decision). Specifically, the Original Decision refused access to all 67
documents within scope of your request on the basis that the decision-maker considered
that the documents were conditionally exempt under s 47E(d) of the FOI Act and that
disclosure of the documents was contrary to the public interest.
1
On 6 February 2025, the Office of the Australian Information Commissioner (
OAIC) notified
the Agency under s 54Z of the FOI Act that the matter was subject to Information
Commissioner (
IC) review.
Decision on access to documents
I am an authorised decision maker under section 23 of the FOI Act to make decisions in
respect of requests to access documents. Having given further consideration to the
documents which are the subject of your request, I have determined it is appropriate to set
aside and substitute the Original Decision pursuant to section 55G(1)(a) of the FOI Act so as
to give you access to parts of the documents.
I have identified 64 documents, which fall within the scope your request, being the Agency’s
“Advice Support Tools”. I note that the Original Decision refers to 67 documents within scope
of the request. However, this figure included 3 documents which were duplicates. I have
removed these duplicates and can confirm that there are only 64 documents within the
scope of your request.
I have decided to disclose:
• one document in full; and
• 63 documents in part.
In reaching my decision, I took the following into account:
• your correspondence outlining the scope of your request
• the nature and content of the documents falling within the scope of your request
• the FOI Act
• the FOI Guidelines published under section 93A of the FOI Act
• consultation with relevant NDIA staff
• factors relevant to my assessment of whether or not disclosure would be in the public
interest
• the NDIA’s operating environment and functions.
Reasons for decision
Certain operations of agencies (section 47E(d))
Section 47E(d) of the FOI Act conditionally exempts a document if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
The NDIAs Advice Support Tools (
the Tools) are an internal resource that have been
developed for the exclusive use of Technical Advisors, who are allied Health Professionals
engaged by the NDIA, to ensure consistency in the provision of advice to delegates of the
NDIA. The tools outline specific detail on how to determine if supports are reasonable and
necessary against a specific criterion, and the quantum / intensity / volume of the supports
that a participant should receive based on evidence provided – such as reports from
therapists or providers.
I note that in
Shafran; Secretary, Department of Veterans Affairs and [2024] AATA 115 at
[36], the Tribunal summarised the authorities relevant to the words “
would or could
reasonably be expected to” in s 47E(d) as follows (citations omitted):
[the words "would or could reasonably be expected to"] "...convey something more
than an outcome...that ‘could’ be expected....”. It is not enough that the decision-
maker considers that there is a possibility that the relevant disclosure would result in
the requisite outcome. The words “...require a judgment to be made by the decision-
maker as to whether it is reasonable, as distinct from something that is irrational,
absurd or ridiculous, to expect...It is preferable to confine the inquiry to whether the
expectation claimed was reasonably based.” The decision-maker ought to have
“...real and substantial grounds for thinking that the production of the document could
...[have the requisite outcome]. But, stringent though that test may be, it does not go
so far as to require the decision-maker to be satisfied upon a balance of probabilities
that the production of the document wil in fact...” have that outcome.
In relation to the words "
substantial adverse effect" in s 47E(d), the Tribunal said at [38]
(citations omitted):
As for the “substantial adverse effect” words, they are said in the FOI Guidelines to
encompass an adverse effect which is sufficiently serious or significant to cause
concern to a properly informed reasonable person. It must arise from disclosure of
the relevant document and particulars of it need to be identified.
I note that each of the Agency’s “Advice Support Tools” (
Tools) generally comprises of:
• preliminary text describing the Theme and Sub-theme of the particular Tool, and
sometimes including detailed guidance (
preliminary text);
• a table split into 3 columns, being:
o
Criteria for reasonable and necessary supports (
first column);
o
Is criteria met?; and
o
Considerations (including evidence used) (
third column);
• a “Version Control” table.
I note that the Tools provide specific guidance to a group of experts engaged by the Agency
for the purpose of assisting those experts to assess submissions and evidence lodged by
NDIS providers and participants as against the relevant statutory criteria, in order to produce
technical expert advice to NDIA delegates in making their decisions as to eligibility for
particular supports and the level in which those supports should be provided.
I further note that particular parts of the Tools contain specific examples, or references to
particular kinds of situations or circumstances, for the expert's consideration in assessing
whether the information and evidence submitted by NDIS providers or participants may be
considered to satisfy the relevant criteria in the legislation. Depending on the particular Tool,
this text outlining guidance regarding specific examples or by reference to particular
situations can be found within the preliminary text, first column and/or third column of the
relevant Tool.
I am satisfied that public disclosure of these particular parts of the Tools would mean that
NDIS providers, NDIS participants, and participants' treating practitioners, will know how a
technical expert is likely to assess particular evidence and information so as to determine
whether relevant statutory criteria are satisfied, and the kind of evidence and submissions
that is likely to ensure that particular requested supports are then recommended by the
expert to be approved, both generally and in particular circumstances and by reference to
the specific examples in those parts of the Tools.
I consider that the disclosure of that information is highly likely to result in:
i.
prescribing therapists, with knowledge of the factors considered and
thresholds for each criteria, may report to address that criteria in a manner
that "matches" the described considerations and/or circumstances in the
tools, rather than reporting objectively on the participant's function and
anticipated support needs;
ii.
NDIS participants, with the knowledge of the guidance in those parts of the
Tools, may (whether knowingly or unknowingly) provide answers to their
treating practitioners and/or to the Agency that are more likely to fit within that
specific guidance;
iii.
the "tailoring" of information or submissions (whether knowingly or
unknowingly), will in turn result in findings that requested supports are
reasonable and necessary in circumstances where they would otherwise not
be approved;
iv.
the NDIS provider market being impacted because participants may be more
likely to engage providers and practitioners that report against the particular
guidance in the Tools, as opposed to providing objective reporting on a
participant's condition and circumstances; and
v.
the increase in fraud by NDIS participants and providers, which is
unfortunately a prevalent and well-known issue that the Agency is actively
addressing.
In all of these circumstances, I am satisfied that particular parts of the Tools are conditionally
exempt under s 47E(d) because its disclosure would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the operations of the
NDIA.
In considering whether access to the conditionally exempt material would be contrary to the
public interest for the purposes of s 11A(5) of the FOI Act, I acknowledge that there are
several factors favouring access to the material, including that disclosure may:
• promote the objects of the FOI Act by giving the Australian community access to
information held by government and promoting representative democracy by
increasing scrutiny, discussion, comment and review of government activities; and
• promote scrutiny and oversight of the Agency's operations and its decision-making
processes.
I consider that public interest factors weighing against disclosure of the conditionally exempt
material in the Tools include:
• the public interest in preventing and minimising manipulation of the NDIS and
ensuring that information provided by participants in support of their claims are as
accurate as possible;
• the public interest in preventing and minimising fraud;
• the public interest in ensuring the integrity of expert advice and assessment, and of
the NDIA's decision-making process; and
• the public interest in maintaining the sustainability and integrity of the National
Disability Insurance Scheme as a whole.
In weighing up the public interest for and against disclosure, I have not taken into account
the irrelevant factors outlined in s 11B(4) of the FOI Act.
I have taken into account the significant adverse impacts that disclosure of the conditionally
exempt information would have on the NDIA's operations, and in particular:
• the likely increase in manipulation (whether knowingly or unknowingly) of the
decision-making processes by providers, practitioners and participants;
• the likely increase in fraud as against the NDIA; and
• the likely significant impact that such fraud or manipulation would have on the
integrity of the Agency's decision-making processes and on the sustainability of the
NDIS as a whole,
Considering the above factors, on balance, I have determined the public interest factors
against disclosure outweigh those in favour.
Accordingly, I have determined that those parts of the documents should not be released on
the basis that they are conditionally exempt pursuant to s 47E(d) and because, on balance,
disclosure of the material in these documents would be contrary to the public interest.
Release of documents
The documents for release, as referred to in the Schedule of Documents at
Attachment A,
are enclosed.
Rights of review
In accordance with s 55G(2) of the FOI Act, the Agency understands that your application for
IC review (MR25/00038) is now an application for review of this new decision.
In accordance with section 55G(2) of the FOI Act, I will be providing the IC with a copy of this
revised decision.
If you determine that you are satisfied with this revised decision and do not require this
decision to be reviewed further by the IC, please let the Agency and the OAIC know.
Should you have any enquiries concerning this matter, please do not hesitate to contact me
by email at
xxx@xxxx.xxx.xx.
Yours sincerely
Karla (KHC190) Assistant Director, Information Access
Information Release, Privacy and Legal Operations Branch
Reviews and Information Release Division
Attachment A
Schedule of Documents for MR25/00038 | FOI 24/25-0317
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Air
1
1-6
Conditioning
PARTIAL ACCESS
s47E(d) – certain operations of agency
Advice Support Tool: Assistance
2
7-13
Animal (capital and ongoing
PARTIAL ACCESS
s47E(d) – certain operations of agency
maintenance)
Advice Support Tool: Auslan
s47E(d) – certain operations of agency
3
14-21
PARTIAL ACCESS
Advice Support Tool: Bed and
4
22-29
Sleep System
PARTIAL ACCESS
s47E(d) – certain operations of agency
Advice Support Tool: CB Daily
s47E(d) – certain operations of agency
5
30-35
Activities
PARTIAL ACCESS
Advice Support Tool: Ceiling Hoist
s47E(d) – certain operations of agency
6
36-41
PARTIAL ACCESS
Advice Support Tool:
s47E(d) – certain operations of agency
7
42-49
Communications Devices
PARTIAL ACCESS
Advice Support Tool: Concentrators
8
50-55
PARTIAL ACCESS
s47E(d) – certain operations of agency
Advice Support Tool: Continence
9
56-62
PARTIAL ACCESS
s47E(d) – certain operations of agency
1
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Core
s47E(d) – certain operations of agency
10
63-76
Supports
PARTIAL ACCESS
Advice Support Tool: Diabetes
s47E(d) – certain operations of agency
11
77-83
PARTIAL ACCESS
Advice Support Tool: Dog Guide
s47E(d) – certain operations of agency
12
84-89
Vision (Capital Purchase &
PARTIAL ACCESS
Maintenance)
Advice Support Tool: Driver
s47E(d) – certain operations of agency
13
90-96
Modifications
PARTIAL ACCESS
Advice Support Tool: Driving
s47E(d) – certain operations of agency
14
97-104
Lessons
PARTIAL ACCESS
Advice Support Tool: Dysphagia
s47E(d) – certain operations of agency
15
105-109
PARTIAL ACCESS
Advice Support Tool: Epilepsy
s47E(d) – certain operations of agency
16
110-114
PARTIAL ACCESS
Advice Support Tool: Eyegaze
s47E(d) – certain operations of agency
17
115-123
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Family
s47E(d) – certain operations of agency
18
124-134
Members as Paid Supports
PARTIAL ACCESS
Advice Support Tool: Functional
s47E(d) – certain operations of agency
19
135-139
Electrical Stimulation
PARTIAL ACCESS
Advice Support Tool: Hearing Aids
s47E(d) – certain operations of agency
20
140-146
PARTIAL ACCESS
Advice Support Tool: HMOD new
s47E(d) – certain operations of agency
21
147-150
build or purchase
PARTIAL ACCESS
Advice Support Tool: HMOD
s47E(d) – certain operations of agency
22
151-154
relocation costs
PARTIAL ACCESS
Advice Support Tool: HMOD
s47E(d) – certain operations of agency
23
155-158
remediation costs
PARTIAL ACCESS
Advice Support Tool: Hoist
s47E(d) – certain operations of agency
24
159-162
PARTIAL ACCESS
Advice Support Tool: Home access
s47E(d) – certain operations of agency
25
163-168
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Home
s47E(d) – certain operations of agency
26
169-173
automation
PARTIAL ACCESS
Advice Support Tool: Home
s47E(d) – certain operations of agency
27
174-178
extension
PARTIAL ACCESS
Advice Support Tool: KAFO
s47E(d) – certain operations of agency
28
179-182
(Orthotics)
PARTIAL ACCESS
Advice Support Tool: Kitchen
s47E(d) – certain operations of agency
29
183-190
laundry modifications
PARTIAL ACCESS
Advice Support Tool: Mainstream
s47E(d) – certain operations of agency
30
191-196
Education
PARTIAL ACCESS
Advice Support Tool: Manual
s47E(d) – certain operations of agency
31
197-203
Wheelchairs and Power
PARTIAL ACCESS
Wheelchairs
Advice Support Tool: Nutrition
s47E(d) – certain operations of agency
32
204-208
PARTIAL ACCESS
Advice Support Tool: Podiatry
s47E(d) – certain operations of agency
33
209-213
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Recreational
s47E(d) – certain operations of agency
34
214-217
Sporting Equipment
PARTIAL ACCESS
Advice Support Tool: Remote
s47E(d) – certain operations of agency
35
218-224
microphones for Autism
PARTIAL ACCESS
Advice Support Tool: Respiratory
s47E(d) – certain operations of agency
36
225-229
AT
PARTIAL ACCESS
Advice Support Tool: Roger
s47E(d) – certain operations of agency
37
230-235
PARTIAL ACCESS
Advice Support Tool: s24 Initial
s47E(d) – certain operations of agency
38
236-241
Access
PARTIAL ACCESS
Advice Support Tool: s25 Access
s47E(d) – certain operations of agency
39
242-245
Early Intervention
PARTIAL ACCESS
Advice Support Tool: Scooter
s47E(d) – certain operations of agency
40
246-250
PARTIAL ACCESS
Advice Support Tool: Seating
s47E(d) – certain operations of agency
41
251-255
Systems
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Sexual
s47E(d) – certain operations of agency
42
256-260
Therapies AT and sex worker
PARTIAL ACCESS
Advice Support Tool: Sexual Work
s47E(d) – certain operations of agency
43
261-265
and Sex Therapy
PARTIAL ACCESS
Advice Support Tool: Shower
s47E(d) – certain operations of agency
44
266-270
commode
PARTIAL ACCESS
Advice Support Tool: Sound
s47E(d) – certain operations of agency
45
267-275
Processor
PARTIAL ACCESS
Advice Support Tool: Specialised
s47E(d) – certain operations of agency
46
276-281
Seating
PARTIAL ACCESS
Advice Support Tool: Standing
s47E(d) – certain operations of agency
47
282-286
Frame
PARTIAL ACCESS
Advice Support Tool: Trans Tibal
s47E(d) – certain operations of agency
48
287-295
Prosthetics
PARTIAL ACCESS
Advice Support Tool: Transfemoral
s47E(d) – certain operations of agency
49
296-305
and Hip Disarticulation
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Transport
s47E(d) – certain operations of agency
50
306-311
PARTIAL ACCESS
Advice Support Tool: Upper Limb
s47E(d) – certain operations of agency
51
312-320
Prosthetics
PARTIAL ACCESS
Advice Support Tool: Vehicle
s47E(d) – certain operations of agency
52
321-328
harness buckle guard car seat
PARTIAL ACCESS
Advice Support Tool: Vehicle Hoists
s47E(d) – certain operations of agency
53
329-335
PARTIAL ACCESS
Advice Support Tool: Vision Device
s47E(d) – certain operations of agency
54
336-340
PARTIAL ACCESS
Advice Support Tool: Visualert
s47E(d) – certain operations of agency
55
341-347
system
PARTIAL ACCESS
Advice Support Tool: Wheelchair
s47E(d) – certain operations of agency
56
348-354
accessible vehicle
PARTIAL ACCESS
Advice Support Tool: Wheelchair
s47E(d) – certain operations of agency
57
355-360
accessories
PARTIAL ACCESS
Document
Page
Description
Access Decision
Applicable exemptions
number
number
Advice Support Tool: Wound
s47E(d) – certain operations of agency
58
361-367
Supports
PARTIAL ACCESS
Advice Support Tool: (Exercise
s47E(d) – certain operations of agency
59
368-373
Physiology) – Funding Exercise
PARTIAL ACCESS
Physiology Testing
Advice Support Tool: (Restrictive
s47E(d) – certain operations of agency
60
374-381
Practice) – CB Relationships and
PARTIAL ACCESS
R0
Advice Support Tool: Nursing
s47E(d) – certain operations of agency
61
382-389
supports clinical and RN DSOC
PARTIAL ACCESS
considerations
Advice Support Tool: s24 Initial
s47E(d) – certain operations of agency
62
390-395
Access Laryngectomy
PARTIAL ACCESS
Advice Support Tool: Bathroom
s47E(d) – certain operations of agency
63
396-400
Toilet Modification
PARTIAL ACCESS
Advice Support Tool: (Restrictive
n/a
64
401-442
Practice) – Restrictive Practice
FULL ACCESS
Processes by State and Territory
