FOI 24/25-1974
OFFICIAL
Model Litigant Obligations (MLO) Deep
Dive
Summary of Breaches
Between 1 July 2019 and 31 January 2025, there have been 9 breaches of the MLO.
A summary of the breaches over this period is as follows:
o the Agency failing to provide adequate statements of reasons for support
decisions and not informing the participant about information required
o the Agency causing unnecessary delay in handling the litigation; not resolving the
dispute without litigation where liability (at least in part) was clear; not
endeavouring to avoid, prevent and limit the scope of legal proceedings; and not
keeping costs to a minimum and by contesting liability where the issue was
quantum
o wide-spread procedural inadequacies, including document searches and an
overly adversarial approach
o the Agency not providing agreed supports through an Alternative Dispute
Resolution process
o the Agency causing unnecessary delay in the handling of the application and not
dealing with the application promptly
o the Agency’s failure to use its best efforts to assist the former Administrative
Appeals Tribunal (AAT), on the basis that the Agency was non-compliant with a
direction and then failed to attend 3 consecutive directions hearings
o the Agency not following internal processes that delayed acting on instructions
o a Legal Service Provider failing to notify the Agency of a request from a
participant to obtain records relating to phone records.
OFFICIAL
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FOI 24/25-1974
OFFICIAL
Model Litigant Obligations (MLO) Deep
Dive
Key themes and learnings from the MLO complaints:
The key learnings from MLO complaints include:
Timeliness:
o resolving matters early, appropriately and consistently where possible
o promptly implementing all Decisions and Orders (for example, by building and
approving participant plans)
o timely notification to the participant or prospective participant and the Tribunal of
any change in the Agency’s representation as soon as possible and
communicating expected delays or identified human error
o promptly seek a variation of, or an extension of time in which to comply with, a
procedural Direction with which the Agency suspects it may not be able to comply
o Acknowledge receipt of communication received by or on behalf of participants
and prospective participants, to minimise complaints which relate a manifest lack
of communication by or on behalf of the Agency.
Clear communication
o providing clear reasons for all decisions made by the Agency, and requests for
information
o engaging in pro-active, open and appropriate communication style with
participants and prospective participants and their representatives, and the
Tribunal
o ensure that the Agency’s submissions are clearly communicated, and that all
reasonable care and effort is made to obtain necessary information
o engage meaningfully in alternative dispute resolution by ensuring that a Case
Manager is available to attend and participate on behalf of the Agency
OFFICIAL
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FOI 24/25-1974
OFFICIAL
Model Litigant Obligations (MLO) Deep
Dive
o negotiate with participants and prospective participants as soon as possible and
in good faith, where it becomes necessary to rescind or withdraw an offer
previously made to resolve the matter.
Key NDIA MLO initiatives
The NDIA considers feedback from all Model Litigant complaints, regardless of
whether a breach is determined, and has improved and developed processes to
ensure recommendations from model litigant investigations contribute to the dispute
resolution improvement program.
To date, this feedback has been incorporated by:
o refining and improving the MLO complaint management and escalation process,
templates and responsive actions
o focusing on resolving matters as efficiently as possible and reducing the number
of outstanding ART matters aged greater than 12 months
o presenting a Model Litigant Series to ensure all staff involved in dispute
resolution have a thorough understanding of the operation, effect and impact of
MLOs. The MLO series for staff included participants, disability advocates and
special guests, Ms Natalie Wade, and Mr Graeme Innes AM. All external law
firms attend the Model Litigant Series.
o delivering training on the NDIA’s Model Litigant Obligations included in the legal
divisions’ induction and Continuing Legal Education sessions. The MLO sessions
have been programmed as part of the annual training calendar
o identifying and appointing case management complaint champions to support
prompt investigation and response to MLO complaints, whilst championing the
obligations across their teams.
o Establishing weekly engagement between the NDIA and the ART to review
potential non-compliance issues. These meetings will ensure the NDIA meets its
legislative obligations while improving participant outcomes.
OFFICIAL
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FOI 24/25-1974
OFFICIAL
Model Litigant Obligations (MLO) Deep
Dive
The NDIA has established and implemented a Legal Service Provider Quarterly
Performance Management Framework that ensures regular reporting and feedback
is provided to all ART external Legal Service Providers. This ensures that our panel
firms embed continuous improvement on NDIA ART matters.
OFFICIAL
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