What can I expect during the appeals process?

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More and more people with disability and their families are taking reviews of decisions about their National Disability Insurance Scheme (NDIS) funding to the Administrative Appeals Tribunal (AAT) and it can help to know what to expect from the process.

Key points

  • The Administrative Appeals Tribunal (AAT) hears reviews of decisions made by the National Disability Insurance Agency
  • If you need to go to the AAT it can help to know what to expect from the process
  • You can be supported by family members, friends, health professionals and advocates

The AAT hears cases of disagreement between Australians and the Government, including decisions made by the National Disability Insurance Agency (NDIA) about the plans of NDIS participants.

You can take a decision about your access to the NDIS or a decision about the funding in your NDIS plan to the AAT, but this can only come after you have already had the NDIA conduct an internal review of the decision.

While the decision is under review you won’t get any additional funding so you will need to manage as best you can with the funding that the NDIA last gave you, or without the NDIS if the decision was that you shouldn’t have access.

What does the AAT do with my application?

The Tribunal reviews the decision of the NDIA “on the merits”. It must make the correct decision under the law, but if there is more than one correct option it will choose the preferable decision.

The types of decisions the AAT can make are:

  • to affirm a decision; meaning they’ll declare the original decision was correct
  • vary a decision; make changes to the original decision
  • discard the decision and make a new one; decide that the original decision was not right and make a new decision
  • or send the case back to the NDIA for reconsideration.

The AAT is separate from the NDIA, meaning no one who originally decided on your funding will be reviewing your application to the Tribunal and the AAT will make an objective decision about your case.

What does the review involve?

The AAT will call you within three days of receiving your application to talk about what happens next.

While the AAT aims for a review process that is accessible, fair, just, economical, informal and quick, NDIS matters can take a long time because they are complicated.

The NDIA will send documents for your case to the AAT within 28 days, and they will also be provided to you. If you can prove that 28 days will be too long to wait and will cause you hardship you may be able to speed this up.

You can also give the AAT any new and relevant information.

Once they have all the documentation for your case, the AAT will try to use alternative dispute resolution to solve the issue through a case conference between you, the NDIA and a mediator. Resolving cases at this stage often happens because it costs less and takes less time, but it’s important not to settle for a resolution that is less than what you need.

The case conference happens six to ten weeks after your application is received and can be done in person at an AAT office or over the phone.

Any decision made between you and the NDIA during the case conference has a cooling-off period of seven days during which you can pull out of the agreement.

If the case conference doesn’t provide a resolution you will create a case plan with staff from the AAT. The plan could include an informal conciliation meeting and gathering more documents, as well as what issues have been resolved, what is still disputed and any accessibility or communication supports you need for future meetings.

If you work through all the different parts of the plan and still don’t have a resolution, you will go to a final hearing.

A fast tracked hearing can be held within six weeks if you request that at the case conference and you can provide a list of dates that will suit you.

The AAT will contact you within seven to 14 days of the hearing to tell you when and where it is. The final hearing involves you, any support person or legal representation you have, the NDIA and AAT staff.

It is an opportunity for you, or your representative, to talk about why you disagree with the NDIA’s decision, present information and make arguments for your case.

Although it is a relatively informal hearing you can bring witnesses if necessary and it will usually last for a few hours.

The AAT will either give a decision at the end of the hearing or in writing at a later date, but within 60 days of the hearing.

If you are still not happy with the outcome, you can appeal the decision in the Federal Court and so can the NDIA.

Advocates and other support

Family members, carers, doctors and other people in your network can attend the conciliation meeting or the hearing if it is part of your plan.

A disability advocate – known as a support person – can also attend all meetings and hearings with you and help you understand the process, prepare review documents, put your case forward and apply for legal assistance.

Having an advocate is different to having legal representation, or a lawyer, as not all advocates can provide legal advice.

Advocacy is free and the Government has a search tool for advocates which you can use to find someone in your area.

You don’t need a lawyer, but you can have one if you would like to and can afford it. There is funding available for lawyers, but you will need to apply to the Legal Aid Commission and you will only get funding if your case will affect the wider community.

If you need an interpreter the AAT can arrange this for you for free.

What else would you like to know about the Administrative Appeals Tribunal? Tell us in the comments below.

Related content:
Plan reviews and appeals
How to apply for the NDIS
The complaints process for the NDIS