Certain decisions by the NDIA are considered reviewable decisions [see National Disability Insurance Scheme Act 2013 (Cth) s 99] an can be reviewed through a specific process. A person can first apply for an internal review of the decision, which is a process undertaken by the NDIA [s 100]. If they are still unhappy with the decision made at internal review, they can seek further review by application to the Administrative Appeals Tribunal (AAT) [s 103]. A final avenue of review lies with the Federal Court in specific, limited circumstances.
A person cannot apply to the AAT before first having undergone an internal review [see s 103; FJKH and the National Disability Insurance Agency (2018) AATA 1294].
Examples of the types of decisions that are considered reviewable decisions include (but are not limited to):
- Whether a person is eligible to access the scheme;
- The supports a person receives under the scheme;
- Whether funding is limited or reduced because of a person receiving compensation;
- Whether a participant’s NDIS Plan is reviewed
- Revocation of access to the scheme.
See NDIS Act 2013 (Cth) s 99.
A reviewable decision made by the NDIA can be challenged by way of an internal review [s 99].
A request for an internal review must be made within 3 months of receipt of the decision [s 100(2)].
A request for an internal review can be made either in writing or over the phone by contacting 1800 800 110 [s 100(3)]. An application form is available on the NDIS website, although the NDIA will also accept written applications for review in other forms.
Once an application for internal review is received, an NDIA staff member not involved in the original decision will confirm, vary or revoke the decision [100(6)].
Review by the AAT
A person unhappy with the outcome of internal review can seek further review by the Administrative Appeals Tribunal (AAT). An application to the AAT must be lodged within 28 days of receipt of the internal review decision [Administrative Appeals Tribunal Act 1975 (Cth) s 29(2)]. There is no fee for making an application to the AAT, and in some instances legal aid assistance may be available.
The AAT can affirm, vary or set aside the decision made by the NDIA at internal review.
See the Administrative Appeals Tribunal – National Disability Insurance Scheme Applicants website for more information.
Support may be available for people seeking review of NDIA decisions through the AAT. The NDIS Appeals program provides funding to specific organisations, enabling them to provide advocacy or legal support to an eligible person as they go through the AAT process. The Disability Advocacy Finder website enables a person to search for an NDIS Appeals funded service in their area. Further information on the NDIS Appeals program can be located on the NDIS Appeals - Department of Social Services website.
Federal Court Appeal
An appeal of the decision of the AAT lies with the Federal Court. Such appeals must be made within 28 days of receipt of the decision of the AAT and can only be made on the grounds of a question of law [Administrative Appeals Tribunal Act 1975 (Cth) s 44(2a)].
Legal advice should be sought before commencing any appeal to the Federal Court, as fees may apply and there may be cost risks should the application be unsuccessful.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.