Our reference: FOI 22/23-1046
GPO Box 700
Canberra ACT 2601
1800 800 110
20 August 2023
ndis.gov.au
AS
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx.
Dear AS
Freedom of Information request — Notification of Decision
Thank you for your correspondence of 4 January 2023 in which you requested access to
documents held by the National Disability Insurance Agency (NDIA), under the
Freedom of
Information Act 1982 (FOI Act).
The purpose of this letter is to provide you with a decision on your request.
Scope of your request
You have requested access to the fol owing documents:
1. Standard operating procedure & any other policy or guidelines for reassessment
of NDIS access eligibility for participants over 7 years old.
2. Any forms or checklists used to determine referral for reassessment.
3. Any documents relating to NDIS eligibility reassessment for people with Chronic
Fatigue Syndrome (CFS), Myalgic Encephalitis (ME), ME/CFS or chronic
fatigue.
Extension of time
On 11 January 2023, you agreed to a 30-day extension of time under section 15AA of the
FOI Act, making 5 March 2023 the new date to provide you with a decision on access.
On 6 March 2023, the Office of the Australia Information Commissioner (OAIC) granted us a
30-day extension of time under section 15AB of the FOI Act, making 17 March 2023 the new
legislated deadline for provide you with a decision.
I note this access decision is being released to you after the due date and apologise for the
long delay. In the interests of providing you with our access decision without any further
delays, I have decided not to apply for an extension to the processing period from the Office
of the Australian Information Commissioner under section 15AC of the FOI Act. However,
your rights to an Internal Review (IR) of this decision, or Information Commissioner (IC)
review remain and are included in
Attachment B.
Search efforts
Searches for documents were conducted by relevant business areas including the National
Access and Reassessment Brach and Service Guidance and Practice Branch using
reasonable search terms that could return documents relevant to your request. Documents
have been identified which fall within Part 1 and 2 of the scope of your request.
Decision on access to documents
I am authorised to make decisions under section 23(1) of the FOI Act. My decision on your
request and the reasons for my decision are set out below.
1
I have identified 12 documents, which falls within the scope of Part 1 of your request.
I have identified 1 document that falls within the scope of Part 2 of your request.
In regard to Part 3 of your request, I have been advised by the relevant line area that no
documents exist relating to NDIS eligibility reassessment specifically for people with
chronic fatigue syndrome/myalgic encephalitis or any other disability or diagnosis in
particular.
I have excluded from this release any publicly available documents, such as legislation and
operational guidelines. I have included links below to specific guidelines identified as being
relevant to your request:
•
National Disability Insurance Scheme Act 2013
•
NDIS Becoming a Participant Rules 2016
•
Applying to the NDIS | NDIS
•
Leaving the Scheme | NDIS.
•
What happens if we check your NDIS eligibility? | NDIS
The documents were identified by conducting searches of NDIA’s systems, and making
enquiries with relevant staff, using all reasonable search terms that could return
documents relevant to your request, and consulting with relevant NDIA staff who could be
expected to be able to identify documents within the scope of the request.
I have decided to:
• grant access to 12 documents in full relating to Part 1 of your request
• grant access to 1 document in part in relation to part 2 of your request
• refuse access to part 3 of your request, on the basis that no documents exist.
In reaching my decision, I took the fol owing 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
• relevant case law concerning the operation 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
Part 2: 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 disclosure of this information would reveal methodologies the NDIA uses to better
ensure that participants on the scheme continue to meet access and receive supports that
are reasonable and necessary. Any disclosure resulting in the prejudice of the
effectiveness of the Agency’s operational methods and procedures would, or could
reasonably be expected to, result in the need for the Agency to change those methods and
procedures to ensure the future sustainability of the Agency and the Scheme.
2
Accordingly, I find that disclosure of this information would or could reasonably be expected
to have a substantial adverse effect on the operations of the Agency and is therefore
conditionally exempt under section 47E(d) of the FOI Act.
Public interest considerations – section 47E(d)
Section 11A(5) of the FOI Act provides that access to a document covered by a conditional
exemption must be provided unless disclosure would be contrary to the public interest.
I have not considered any of the irrelevant factors as set out under section 11B(4) of the FOI
Act in making this decision.
In favour of disclosure, I have considered the factors outlined in section 11B(3) of the FOI
Act, and I have determined that disclosure of the relevant information in Document 13 would
promote the objects of the FOI Act by providing access to documents held by the
government.
Against disclosure, I consider that disclosure of the relevant information in Document 13:
• would not contribute to the publication of information of sufficient public interest to justify
the likely harm caused by release
• would not enhance Australia’s representative democracy in the ways described in
section 11B(3) of the FOI Act
• would not inform any debate on a matter of public importance, or promote oversight of
public expenditure.
While there is limited public interest in the disclosure of information conditionally exempt
under section 47E(d) of the FOI Act, the harm that would result from disclosure is that it
could reasonably be expected to:
• hinder the Agency’s processes and the ability of Agency decision-makers to comply with
their obligations and make informed decisions, which, in turn, helps to ensure the
financial stability and integrity of the National Disability Insurance Scheme
• prejudice the ability of the Agency to provide guidance to staff and to decision makers in
order to comply with their obligations and make informed decisions in relation to the
continued eligibility of participants who access the scheme which, in turn, helps to
ensure the financial stability and integrity of the NDIS
• prejudice the ability of the Agency to protect the security and integrity of information held
in the Agency
In summary, I am satisfied that the factors against disclosure of the information outweigh the
factors in favour of disclosure and that, on balance, it would be contrary to the public interest
to release this information to you. Accordingly, I have decided that the relevant information in
Document 13 is exempt under section 37E(d) of the FOI Act.
Part 3: Refused Access (section 24A)
Section 24A of the FOI Act provides that an agency may refuse a request for access to a
document if all reasonable steps have been taken to find the document and the agency is
satisfied that the document cannot be found or does not exist.
I have conducted searches of the NDIA’s documents management systems and made
enquiries with NDIA staff. These enquiries have revealed that the NDIA is not in possession
of documents with respect to a number of points in the scope.
3
I am satisfied that all reasonable steps have been taken to locate the above documents and
that these documents do not exist. I have, therefore, decided to refuse access to these parts
of the scope of your request in accordance with section 24A(1)(b)(i ) of the FOI Act.
Release of documents
The document for release, as referred to in the Schedule of Documents at
Attachment A, is
enclosed.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at
Attachment B.
Should you have any enquiries concerning this matter, please do not hesitate to contact me
by email
at xxx@xxxx.xxx.xx.
Yours sincerely
Jade
Senior Freedom of Information Officer
Parliamentary, Ministerial & FOI Branch
Government Division
4
Attachment A
Schedule of Documents for FOI 22/23-1636
Document
Page
Description
Access Decision
number
number
1
1-38
Practice Guide – Eligibility Reassessment Process
FULL ACCESS
Date: 15 February 2019
2
39-85
Practice Guide- Access and ER Decision Tree
FULL ACCESS
Date: 31 October 2022
3
86-89
SOP - Action Call back Request for Eligibility
FULL ACCESS
Date: 1 August 2022
4
90-105
SOP- Action evidence extension request for an Eligibility
FULL ACCESS
Reassessment
Date: 3 March 2022
5
106-109
SOP- Check for procedural fairness in an Eligibility Reassessment
FULL ACCESS
Undated
6
110-149
SOP- Consider commencement of Eligibility Reassessment or
FULL ACCESS
Access Status Change
Date: 29 November 2022
7
150-186
SOP- Consider Eligibility Reassessment outcome following 1st
FULL ACCESS
chance to respond
Date: 29 November 2022
8
187-226
SOP- Make Eligibility Reassessment decision
FULL ACCESS
Date: 29 November 2022
5
Document
Page
Description
Access Decision
number
number
9
227-230
SOP- Refer an Eligibility Reassessment (ER) call back or evidence
FULL ACCESS
extension request to NARB
Date: 10 November 2021
10
231-237
SOP- Request technical advice to progress an Eligibility
FULL ACCESS
Reassessment
Date: 1 August 2022
11
238-243
SOP- Request technical advice to progress an Eligibility
FULL ACCESS
Reassessment
Date: 1 August 2022
12
244-250
SOP- Support the former participant to leave the NDIS after a
FULL ACCESS
revocation decision
Date: 30 March 2022
13
251-260
Eligibility Reassessment Checklist Age: 7 years or above
PARTIAL ACCESS
Exemption claimed:
Date: 4 April 2020
s47E(d) – certain operations of
agencies
6
Attachment B
Your review rights
Internal Review
The FOI Act gives you the right to apply for an internal review of this decision. The review
wil be conducted by a different person to the person who made the original decision.
If you wish to seek an internal review of the decision, you must apply for the review, in
writing, within 30 days of receipt of this letter.
No particular form is required for an application for internal review, but to assist the review
process, you should clearly outline your grounds for review (that is, the reasons why you
disagree with the decision). Applications for internal review can be lodged by email to
xxx@xxxx.xxx.xx or sent by post to:
Freedom of Information Section
Parliamentary, Ministerial & FOI Branch
Government Division
National Disability Insurance Agency
GPO Box 700
CANBERRA ACT 2601
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply to the Office of the Australian Information
Commissioner (OAIC) to seek a review of this decision.
If you wish to have the decision reviewed by the OAIC, you may apply for the review, in
writing, or by using the online merits review form available on the OAIC’s website at
www.oaic.gov.au, within 60 days of receipt of this letter.
Applications for review can be lodged with the OAIC in the following ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992 (local cal charge)
Complaints to the Office of the Australian Information Commissioner or the
Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the OAIC about actions
taken by the NDIA in relation to your request. The Ombudsman wil consult with the OAIC
before investigating a complaint about the handling of an FOI request.
Your complaint to the OAIC can be directed to the contact details identified above. Your
complaint to the Ombudsman can be directed to:
Phone: 1300 362 072 (local cal charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your complaint should be in writing and should set out the grounds on which it is considered
that the actions taken in relation to the request should be investigated
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