Chapter 11
Managing applications in the
National Disability Insurance
Scheme Division
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In this chapter
This chapter sets out the procedures to be followed in applications for review of a
decision under the
National Disability Insurance Scheme Act 2013. These applications
are dealt with in the AAT’s National Disability Insurance Scheme Division (NDIS
Division).
The AAT has issued a
Review of National Disability Insurance Scheme Decisions Practice Direction. Some of the AAT’s usual procedures have been modified to
streamline the process and to finalise applications as quickly and simply as possible.
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11.1 Overview of the National Disability Insurance
Scheme and the AAT’s role
The NDIS is a scheme for providing support to people with disability that is tailored to
their individual needs and choices. It includes
• information and referrals in relation to support options, including to community
services and activities
• funding for “reasonable and necessary supports” based on an individual plan for
individuals who meet the eligibility requirements (known as participants), and
• funding for persons or entities to enable them to assist people with disability to
participate in economic and social life.
The National Disability Insurance Agency (NDIA) is the agency responsible for the
NDIS (referred to in the NDIS Act as the NDIS Launch Transition Agency).
You can find more information about the scheme on the National Disability Insurance
Scheme website.
11.1.1 What decisions can the AAT review under the NDIS Act?
All reviewable decisions are listed in
s 99 of the NDIS Act. These include decisions
about:
• eligibility to access the scheme
• supports provided under the scheme
• who can act for, or do things on behalf, of participants
• recovery of compensation
• waiver and write off of debts
• the registration of service providers.
Before an application can be made to the AAT under
s 103 of the NDIS Act, the
NDIA must conduct an internal review in accordance with s 100(6) of the NDIS Act.
11.1.2 Who can apply for review?
An applicant might be:
• a person who wants to be, is, or was, a participant in the scheme
• a person who wants to be, is, or was a plan or correspondence nominee or a
child’s representative
• an organisation which wants to be, is, or was, a service provider.
Some key terms used in this jurisdiction are explained below.
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Participant
Participants are individuals who meet the access criteria. An individual must meet the
age requirements and residency requirements, and either the disability requirements
or early intervention requirements.
Nominees
Nominees can be appointed under the NDIS Act by the NDIA at the request of a
participant or where the NDIA considers it necessary. A nominee has a duty to
ascertain the wishes of the participant and make decisions that maximise the personal
and social wellbeing of the participant.
A nominee can be a correspondence nominee or a plan nominee.
• Correspondence nominees undertake all activities that a participant would
undertake, except for the preparation, review or replacement of the participant's
plan, and/or management of the funding for supports in the participant's plan.
• Plan nominees undertake all activities that a participant would undertake including
the preparation, review or replacement of the participant's plan, and/or
management of the funding for supports in the participant's plan.
Child’s representative
These are persons who are responsible for undertaking acts and making decisions in
relation to the NDIS Act on behalf of someone under the age of 18. They are usually a
person with parental responsibility but can be someone else or a group of persons
determined by the NDIA.
Service providers
A service provider is an individual or organisation that delivers a support or a product
to a participant in the NDIS: for example, an occupational therapist or an in-home care
organisation. Providers are registered under the NDIS scheme.
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11.2.1 Role of the contact officer
A case service officer will be assigned to each application and will become the
applicant’s “contact officer” at the AAT.
The contact officer will perform all of the usual tasks undertaken by a case service
officer as well as some additional duties.
The contact officer:
• conducts Outreach immediately (within 3 days) after an application has been
lodged and prior to each case event, unless Outreach is not required: see 11.6.1
for more information.
• responds to requests for information from the applicant and is available to answer
questions about the process
• identifies any accessibility requirements for the applicant (for example, wheelchair
access) and works with others to make sure they are met
• participates in the case assessment meeting and carries out the agreed actions
following that meeting
• ensures all arrangements are in place for listed case events, including any
bookings to use hosted venues and video-link requirements
• meets the applicant when attending a case event at an AAT registry and is
available after the case event to answer any questions, unless it has been
determined that this is not necessary
• contacts the applicant to advise that a decision will be published if a hearing has
been held and the decision was reserved
The contact officer will meet the applicant before, and after, the first event held at an
AAT registry, even if the applicant has legal representation or is assisted by an
External Merits Review (EMR) support person. Whether the contact officer will be
required to meet an applicant who is represented or assisted by an EMR support
person at any subsequent case events will be determined after the first event.
The contact officer does not attend any case events.
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More information about the role of the contact officer at different stages of the review
is set out below. See also the Contact Officer Quick Reference Guidelines for NDIS
matters that are available on the intranet.
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11.3 Assistance available for applicants in the NDIS
Division
An applicant can choose to be represented by a lawyer or by any other person,
including a family member or friend. However, there are also dedicated support
services that can assist an applicant with their application. These services are funded
by the Department of Social Services.
11.3.1 External Merits Review Support Persons
Any applicant (other than an applicant who is a service provider) is entitled to be
assisted by an independent support person (EMR support person).
The role of the EMR support person is to assist the applicant to navigate the process
at the AAT, including by:
• helping the person understand the AAT process
• attending conferences, conciliations and hearings with the applicant
• assisting the applicant to put the case to the AAT.
EMR support persons are employed by designated disability advocacy agencies.
The AAT will provide applicants with contact details to access this support. The
applicant does not have to take up the support.
Details of the designated disability advocacy agencies are set out on the AAT website.
11.3.2 Central Assessment Provider
If the Department of Social Services decides that a case raises complex or novel
issues and meets other guidelines, it can approve access to legal services that will be
provided by the local legal aid commission. These are known as the Central
Assessment Provider guidelines.
An AAT applicant cannot make a request to the Department directly. The request will
usually be made by an EMR support person as the referral point, but it can also be
made by a legal aid commission or the applicant’s legal representative. An applicant
must give written consent to the referral.
The Department has undertaken to:
• make the assessment within 30 days of receipt of the application
• contact the AAT if it looks like more time will be needed to assess the application
• take AAT timelines into account where possible.
If you want to find out more about how the Department assesses these applications,
view the guidelines on the Department’s website.
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11.3.3 Other supports
The Attorney-General’s Department administers a number of legal assistance
schemes that may be able to provide support to applicants in the AAT in relation to
the cost of disbursements, such as expert medical reports. In general, it is expected
that applications would be made by an EMR support person, a legal aid commission
or a legal representative.
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11.4 Who will the AAT deal with in relation to an
application?
11.4.1 When the applicant is a service provider
When an application is lodged by a service provider, the AAT’s usual practices for
dealing with the applicant and any representative apply.
• If the applicant is self-represented, correspondence and other documents will be
sent directly to the applicant and the AAT will deal with that person.
• If the applicant is represented, correspondence and other documents will be sent
to the representative and the AAT will deal with the representative, unless we are
advised otherwise.
11.4.2 When the applicant wants to be, is, or was, a participant, a
nominee or a child’s representative
For an application relating to a participant or potential participant, a nominee or a
child’s representative, the AAT has developed the guidelines set out below to clarify:
• who we will send documents to relating to the application
• who we will talk to about the application.
In relation to participants, there may be a number of people assisting an applicant or
otherwise interested in the application. This might include:
• a legal representative – either a private lawyer or a lawyer from a legal aid
commission or community legal centre
• an EMR support person or support person from another disability advocacy
agency
• a parent, guardian or attorney
• a plan or correspondence nominee
• friends, family members and carers
• a service provider.
The AAT’s guidelines have been developed to help ensure that information about an
application is only given to people to whom we are authorised to disclose that
information. This is particularly important in the context of the AAT’s obligations under
the
Privacy Act 1988 and section 62 of the NDIS Act
which
creates an offence for the
unauthorised use or disclosure of protected information that has been collected under
that Act.
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General rules
Applicants with legal representation
If the applicant is legally represented and not receiving assistance from an EMR
support person, the AAT will generally deal directly with the legal representative as in
other types of cases.
Applicants with legal representation and EMR support
If the applicant is receiving assistance from an EMR support person and is being
represented by a legal aid commission or community legal centre, both are recorded
as representatives in TRACS.
Correspondence and other documents will be sent to both unless the AAT is
instructed not to send it to the EMR support person. Correspondence and other
documents will not be sent to the applicant unless requested. The exception is the
Case Plan, a copy of which is always sent to the applicant.
The EMR support person can be given information about the application. However,
substantive instructions or requests relating to the application must be provided by the
legal representative.
Applicants without legal representation
If the applicant is not legally represented, the AAT will generally try to deal only with:
• the applicant and/or their legal guardian or attorney (for example, the parent of a
child), and
• one other person who may be an EMR support person, another support person
from a disability advocacy agency, a nominee, or a family member or friend.
Obtaining consent to give information to a person other than the applicant
The applicant must consent to the AAT providing information to another person. This
will usually be done in writing and may come from the application, from a separate
email or letter, or by being provided with evidence that the person is a plan or
correspondence nominee.
An applicant may also give verbal consent for sending documents or otherwise
providing information to another person. If this occurs:
•
• a letter must be sent to the applicant confirming that arrangement.
Limiting the number of people we are dealing with
Some applicants may want a number of people to receive documents or to be able to
talk to the AAT about their application.
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If the applicant is supported by an EMR support person, the AAT will usually only
communicate with the applicant and the EMR support person. In other cases, the AAT
will ask the applicant to nominate the one other person who is to receive copies of all
AAT documents and is otherwise authorised to receive information.
There might be circumstances that justify departing from these general rules. For
example, where an applicant is a child with separated parents and the applicant also
has a support person who has been authorised to receive information about the
application, it might be appropriate to deal with both parents as well as the support
person. Where an applicant has difficulty communicating with the AAT, it may be
appropriate to be able to discuss the case with the applicant’s partner or primary
carer. An important consideration will be whether dealing with the other person will
assist in managing the application.
If you are considering a departure from the general rules, make sure you
discuss this with your district registrar, registry manager or deputy district
registrar first. Record in TRACS and on the case file what decision was reached
about who will be sent documents or otherwise given information about the
case.
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• information about any appeals and their outcome.
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11.5 Receiving, registering and checking an
application
Parent, guardian or attorney applying on behalf of a child or other person
lacking legal capacity
Occasionally, the AAT will receive an application for review of a decision that is about
a child or a person who lacks legal capacity. The child’s parent or the person’s
guardian or attorney is making the application on behalf of the person but has
nominated themselves as the applicant rather than the child or other person.
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11.7 Case assessment
Once the T-documents have been received, a case assessment meeting will be held
to evaluate the file. The assessment will be undertaken by:
• the member who will preside at any Hearing unless this is not practical in which
case the coordinating member for the registry will participate
• the conference registrar dealing with the application
• the district registrar or registry manager, and
• the contact officer.
Prior to the assessment meeting, the meeting participants will need to familiarise
themselves with the file. Each registry will determine its own procedures as to how
the participants will do this in advance of the meeting.
The purpose of the assessment is to consider:
• the issues that appear to be in dispute, including whether any are “complex or
novel” issues
• whether any other persons are affected by the decision and should be notified of
the application and invited to apply to be joined
• any gaps in information or further evidence that is likely to be required
• whether the application should progress in accordance with the standard
procedures set out in the Practice Direction or whether those procedures should
be modified
• taking into account the operational principles (see the NDIS Principles document
which can be accessed under Guidelines and Procedures on the NDIS intranet
page), how the planned case events should be conducted (eg from the registry
with the parties participating by video-link or telephone, or with all participants
face-to-face at the registry or on circuit)
• anything else needed so that the application can be dealt with as quickly as
possible in the way most suitable to the issues and the applicant’s needs
• the extent of any further assistance the contact officer should provide to
applicants who are legally represented or service providers such as pre-case
event calls and whether the applicant will be met for case events at the registry
A Case Assessment Summary template has been developed for this purpose and is
available on the intranet. A copy should be placed on the file.
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Following the case assessment meeting, the contact officer will carry out the required
tasks, including confirming the details of the first case event. In most cases, a Case
Conference will be the next step.
The case assessment team will continue to liaise during the course of the review
process as needed: for example, if there is a request to vacate or move a case event
or if issues arise in relation to managing the application in accordance with the
Practice Direction.
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11.9 Conciliation or other ADR process
The Practice Direction states that Conciliation is the other type of ADR process (other
than conferencing) that the AAT will usually use for applications in the NDIS Division.
One of the other forms of ADR which the AAT offers might be used if a conference
registrar or member thinks it would be particularly suitable for this case.
Any Conciliation will be scheduled as specified in the Case Plan or otherwise
determined by a member or conference registrar.
11.9.1 Where and how will Conciliations be conducted?
The AAT’s operational principles specify that how Conciliation will be conducted will
be decided on a case-by-case basis in consultation with the applicant.
If the applicant is able and willing to travel to a registry, the applicant will be
encouraged to attend the Conciliation in person at the registry.
If attendance in person at the Registry is not feasible, the AAT will decide either:
• to encourage the applicant to participate by video-link from a hosted venue where
this is available, or
• travel and conduct the Conciliation in person at a hosted venue where the nature
of the case is such that it needs to be held face-to-face.
If an applicant is unable to travel to a hosted venue or otherwise prefers, he or she will
participate in the Conciliation by phone.
If the case assessment team decides that it is appropriate for the conference registrar
to conduct the Conciliation face-to-face with the applicant at a hosted venue, the
reasons for making this decision should be recorded on the Case Assessment
Summary.
The conference registrar/member will have discussed with the NDIA at the Case
Conference how the NDIA may participate in Conciliation.
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11.10 Hearing
A hearing – whether it is a Fast-Track Hearing or a standard Hearing – will be
scheduled as specified in the Case Plan or otherwise determined by a member or
conference registrar.
11.10.1 Where and how will hearings be conducted?
Hearings will usually be conducted face-to-face.
If the applicant is able and willing to travel to the registry, the applicant will be
encouraged to attend the hearing in person at the registry.
If attendance in person at the registry is not feasible, the AAT will travel and conduct
the hearing in person at a hosted venue unless the presiding member considers the
hearing can be conducted successfully by video-link or by telephone.
If the presiding member considers the hearing can be conducted by video-link, the
AAT will make arrangements for the applicant to participate by video from a hosted
venue where this is available. If an applicant is unable to travel to a hosted venue or
the presiding member otherwise agrees to a hearing by telephone, he or she will
participate in the hearing by telephone.
When choosing an AAT hearing room or a room at a hosted venue for a Hearing, we
should select the most informal room available that is also suitable for the number of
participants and the particular needs of the participants (e.g. wheelchair accessible
with easy access to accessible toilets).
Unless the presiding member decides otherwise on request, if a hearing is to be
conducted face-to-face, it is expected that the NDIA’s representative(s) will also
attend the hearing in person.
11.10.2 Tasks before a hearing
The tasks to be undertaken before a hearing are broadly the same as before the Case
Conference: se
e 11.8.2 .
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• explain where the toilets are located
• explain who will attend the hearing, clarify where people will sit and introduce the
applicant to the associate or hearing attendant
• explain the other matters set out in the Pre-Hearing Orientation Checklist (in
development) and answer any questions about general procedure.
A set of guidelines has been developed relating to the conduct of hearings in the
NDIS Division.
There are some differences from the way in which hearings are usually conducted in
the AAT. As required, the hearing attendant will need to draw these to the attention of
participants other than the applicant before the hearing commences.
• When everyone is ready, the hearing attendant will tell the parties that he or she
is going to get the members and the hearing is about to start. There should be no
need to knock on the hearing room door before the member(s) enter the hearing
room.
• Parties and others will not be required to stand when the member(s) enter or
leave the hearing room. Neither members nor participants should bow to each
other.
• The hearing attendant will not make any formal announcements at the beginning
of the hearing (e.g. that the AAT is in session or announcing the names of the
parties or the file number) or at the conclusion of the hearing (e.g. that the AAT is
adjourned). The presiding member will mark the start and end of the hearing.
• Parties will not be required to stand when addressing the Tribunal. Legal
representatives should be encouraged not to stand.
• There should be no need for the applicant to give evidence from the witness box
unless the presiding member considers it would be appropriate.
• There should be no need to take evidence formally on oath or affirmation except
where credibility is in issue.
Otherwise, the associate or hearing attendant will perform their usual tasks.
For hearings held at the AAT, the contact officer will not usually attend the hearing.
However, they must be available after the hearing to answer any questions the
applicant may have about what has happened and what will happen next.
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