Dear National Disability Insurance Agency,

I request a list of all conditions/diagnoses (however described) that must be referred to TAB before an application that includes at least one of those conditions/diagnoses can be approved (that is, ‘access met’).

Yours faithfully,

Me

Dear foi,

Ordinarily I would agree to the extension but I would like the documents in the timeframe. I’d prefer OAIC review of deemed refusal to be available in 30 days not 60.

You’re welcome to apply to OAIC for extension but I understand understaffing is not an accepted reason

May I suggest NDIA does not seek an extension, plugs away at it, and hopefully the NDIA decision, albeit out of time, is before the OAIC gets to it

Yours sincerely,

Me

Dear National Disability Insurance Agency,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of National Disability Insurance Agency's handling of my FOI request 'NDIA technical advisory referral list'.

Thank you for the timely decision

I understand the reasoning about supports. I’m not after the information on level of supports. I’m interested in the list of conditions. If I’m an assessor, what conditions am I required to send to TAB and/or get TAB’s advice on before approving?

To respond to this request in compliance with the FOI Act NDIA could create a list to disclose (as this doesn’t have information about supports) or redact the document found so the information on level of support isn’t disclosed but the rest is

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/n...

Yours faithfully,

Perfectly Normal Applicant

Dear foi,

Thanks for the on time review decision.

I have sought OAIC review MR25/00693

The review is primarily concerned with s 47E. At the same time, it's odd that the title or similar of the document is redacted under s 22. I request NDIA re-release the documents with the title disclosed (regardless of the outcome on s 47E).

Reasons given to OAIC:

Section 22(1)(a)(ii) on the title: if a document is within scope, it's not clear why the title (or header or similar) of that document is beyond scope or irrelevant. The title should not be redacted.

Section 47E(d): the public interest favours disclosure. Problems with the IR reasoning: (1) if I understand the NDIA's process correctly, only Access Assesors make decisions. TAPIB give advice, not make decisions. It is in the public interest to know what AAs rely on when making their decisions (such as TAPIB advice) because, if they don't know, how can they make an informed decision about seeking internal, merits, or judicial review? (2) the first dot point - that the public will know when TAPIB advice is required - is given as a negative outcome, but it doesn't disclose anything negative. Mere knowledge is not something that will bear against NDIA's proper and efficient functioning (3) what NDIA gives here as 'manipulate' is more correctly described as 'submit applications that more directly address mandatorily relevant considerations'. NDIA is functionally admitting that their decision-making process is a black box, and if prospective participants actually knew what went on inside that black box, it would undermine the scheme. This is the opposite of the objects of the FOI Act and the opposite of the implied requirement of procedural fairness in any statutory decision-making process, including the NDIA's process. Put another way: if a participant sought review in the ART, the ART would be given a copy of TAPIB's advice and the ART applicant would have a chance to be heard on it. There is no reason for this to be different for an application at first instance. (4) Unless the NDIA is suggesting disclosure will lead to an increase in fraud against the NDIA (which the decision doesn't say), then 'enhancing [their] application to the scheme' is a positive, because NDIA will be making a decision based on a more complete application. Alternatively, an enhanced application that does not meet the criteria will still fail (absent outright lies, that is fraud). The fraud would need assistance from bona fide health practitioners. The NDIA should not be permitted to assume fraud by the medical profession in order to justify non-disclosure. (5) 'Manipulating' an application to exclude the need for TAPIB advice is an illogical argument. To exclude the need for TAPIB advice, the applicant would need to say they didn't have, or not include, a particular diagnosis/condition. That makes their application less likely to succeed, not more. (6) NDIA failed to take into account as a factor in favour that public disclosure will enable better quality applications (more evidence on relevant points) and, as a result, the NDIA will need to spend less time and resources assessing those applications (7) disclosing how the sausage is made is only a problem if the NDIA isn't making sausages properly. Scrutinising NDIA's internal sausage-making process is an express purpose of the FOI Act. (8) non-disclosure will result in unfair refusals to the scheme and undermine the scheme's integrity by the obvious inequity in how the scheme is administered (9) this is no different to the NDIA's public lists. The NDIA doesn't keep it a secret which diagnoses will help you to meet NDIA Act s 24. The TAPIB advice list is the same type of list, just for a different part of the process

Yours sincerely,

Perfectly Normal Applicant

Dear Sussan

I am replying to your 2 June 2025 email. I am doing it via RTK as it is easier for me to keep track of the FOI deadlines etc. this way. I've pasted your email below.

By way of further submissions / in reply:
1. 'The document provided to you, listed the list of conditions'. No? It has a list of 'topics' (essentially categories) such as 'chronic health conditions' and 'FND'. It does not list each of the conditions/diagnoses within each category. If there is not an express list, then it should be disclosed what criteria the NDIA use to decide if something is or isn't in one of the categories.
2. The list of dot points (bar the last 2) is a list of points in favour of disclosure, not against. Clear criteria known in advance avoids applications with no prospects of success, ensures the applications have evidence relevant to the criteria, and that the applicant is otherwise able to put their best foot forward (so to speak). If your points are correct, then the NDIA is a black box - prospective participants put an application in and hope for the best. Kafka's writings were a critique of bureaucracy, not an example to follow.
3. Put another way, NDIA is trying to reduce the success rate of applications by ensuring applicants don't know what they need to ask for or include as evidence in their application. That does not justify s 47E.
4. The points being argued makes it evident NDIA is a baby department. Services Australia wouldn't make such submissions - they know better. SA criteria and 'internal' decision-making processes are, generally speaking, clear and publicly known. Imagine if SA tried to argue its criteria for assessing the disability support pension must be kept secret in case applicants tried to tailor their applications to meet the criteria of the thing they were applying for. Ridiculous. Or consider the range of family-related social security payments - the overwhelmingly extensive list of criteria etc. is published in the mammoth Family Assistance Guide. No s 47E there.
5. The points assume that the people providing evidence - health practitioners, and usually medical doctors with a specialty - are, by default, willing to give fraudulent professional opinions and/or assessments. That is not a valid assumption.
6. Put another way, yes, fraud is possible. But that's true regardless of how public the criteria are (see: the extensive NDIS fraud already occurring without the benefit of clear criteria). Fraud is prevented/disrupted/prosecuted by anti-fraud measures, not by hiding the assessment criteria for various parts of an application.
7. The points necessarily require NDIA to be in breach of the fair hearing rule (that is, any decisions made without advising the criteria are unlawful). An administrative decision-maker must put to the applicant the factors they are going to consider and/or give weight to. If those factors are in an unpublished internal document, and not told to each individual applicant that they apply to, then the consequent decision is infected with jurisdictional error. Allowing or facilitating the making of decisions that are beyond power does not justify s 47E.
8. It is not the NDIA's place to suggest an applicant is 'misdiagnosed'. What diagnoses an applicant has, or seeks, or declines to seek, etc., is a matter for the applicant. The NDIA cannot look past bona fide medical evidence of diagnoses. Otherwise, how can an applicant ever succeed? NDIA can just say 'oh well these diagnoses are relevant but you haven't been assessed for every other vaguely possible diagnosis. Because some other diagnosis might be the cause, we don't think you've tried every treatment and therefore your disability isn't permanent'. Applications are assessed on what's in the application, not what NDIA thinks should've been in the application. If that's a 'misdiagnosis', that's a matter for the applicant and their treating professional. If it's an obviously fraudulent diagnosis, NDIA can report it. Plus, obviously fraudulent diagnoses will be obviously fraudulent whether the criteria were known in advance or not.
9. The points expressly state that the NDIA does not want to make known to applicants what supporting evidence applicants would need to have provided for their application to succeed. I know that 'insurance' is in the name, but NDIA is a government department, not an insurance company. White anting applicants so their applications fail and it's cheaper for NDIA is not an acceptable business practice for a government department. Section 47E does not exist to protect such white anting.

Yours sincerely,

Perfectly Normal Applicant

Our reference: MR25/00693
Agency/Minister reference: FOI 24/25-1481 | IR 24/25-021

Perfectly Normal Applicant
By email: [email address]

OIAC
By email: [email address]

Dear Me / Perfectly Normal Applicant,

I’m writing to you in response to the notice we received from OAIC.

I have consulted with TAPIB on the redacted document released to you and confirm that the exemptions s 22 and s 47E(d) still apply for the reasons listed below and we stand by our internal review decision and the reasons listed in it, against disclosure.

In the internal review you confirmed that ‘I understand the reasoning about supports. I’m not after the information on level of
supports. I’m interested in the list of conditions. If I’m an assessor, what conditions am I required to send to TAB and/or get TAB’s advice on before approving? To respond to this request in compliance with the FOI Act NDIA could create a list to
disclose (as this doesn’t have information about supports) or redact the document found so the information on level of support isn’t disclosed but the rest is’

The document provided to you, listed the list of conditions. The document is an internal NDIA document that also notes internal criteria and checklists outlining what supporting information requestors need to include in their technical advice requests, and to release that information pose the following risks to NDIA:

Enable participants to compare the information in public facing documents available to provide them with the information as to what delegates make decisions on with regards to access to the scheme, vs what they seek advice from the TAPIB for.
Enable providers of information to manipulate their justifications / recommendations for a potential participant, including supports they may require to enhance their application to the scheme.
Increase the risk that participants may be inappropriately diagnosed with conditions or evidence may be manipulated to enhance participant circumstances or needs, to meet the criteria as described for access to the scheme.
Will support participants, health providers and others to compare publicly available documentation against documentation internal to the NDIS regarding conditions that are or are not subject to further information and scrutiny to ensure the legislation has been met.
Will enable those with multiple disabilities to potentially bypass advice being sought by conditions not always being disclosed through the process of becoming a participant through selective provision of information
May mean that some participants are misdiagnosed based on intent to enter the NDIS
May mean that some conditions are identified and potential prognosis or treatment is misconstrued to support access to the NDIS

We have included OAIC in this reply.

If you have any comments or would like to make submissions, please include OAIC in the email for them to review your response within 10 business days.