The Process Of AAT For Your NDIS Plan + When You Need Legal Advice
Written by: Karlene Wightman | Legal Team
Before anything is stated, we must first answer one question:
“What is the AAT?”
The Administrative Appeals Tribunal (“AAT”) is an independent body set up to conduct independent reviews of administrative decisions made under Commonwealth Laws. One area that has kept the AAT busy in recent times are people seeking a review of a decision made by the National Disability Insurance Scheme (“NDIS”), which will be the focus of this article.
What Is The National Disability Insurance Scheme (NDIS)?
The National Disability Insurance Scheme (NDIS) is a scheme of the Australian Government that was first introduced to the public in 2013.
The purpose of the NDIS is to fund a person’s “reasonable and necessary” supports associated with their disability. NDIS supports are the ‘services, items and equipment’ that can be funded by the NDIS.
The person accessing NDIS is known as the NDIS ‘Participant’. To access the NDIS, there are several key requirements that all individuals must meet, including:
- The NDIS Participant must have a permanent and significant disability that affects their ability to take part in everyday activities;
- The NDIS Participant must be under 65 years of age when they first access the scheme;
- The NDIS Participant must be an Australian citizen, a permanent resident or a New Zealand citizen who hold a Protected Special Category Visa; and
- The NDIS Participant must live in an area where the NDIS is available.
Subject to a person falling into one of the above categories, they can apply to become a participant of the scheme. Once the individual has been accepted, the next step is a planning meeting.
Planning Meeting
A planning meeting is a meeting which is undertaken to determine what funding the participant requires.
At the meeting, the NDIS Participant (or their guardian) puts forward requests for particular areas of funding and provides evidence to support the funding that is being requested. While an NDIS Participant can request certain funding and supports in their planning meeting, it is ultimately the decision of the delegate as to what funding a participant receives.
Once the delegate decides what supports should be offered, an approved NDIS Plan is built and sent to the participant. It is at this point that the NDIS Participant can decide whether to accept the plan, or whether to request a ‘review of internal decision’.
Review Of An Internal Decision
A request for an internal review of a decision must be made within the ninety (90) days of the plan being approved. The information provided in this request can include the following:
- The decision the participant was expecting;
- Why a different decision/plan should be made;
- Any information already provided that you wish to be recognised; and
- Any new evidence, such as medical reports, that should be considered.
This NDIS will aim to review the decision within sixty (60) days of the review request being submitted. Should the NDIS Participant (or the guardian) still be unsatisfied with the plan, the next step is to file an appeal with the Administrative Appeals Tribunal (AAT).
What Are The Processes Followed By The AAT When Reviewing NDIS Plans?
An NDIS Participant has 28 days from the date of receiving the final decision from the NDIS to lodge an appeal with the AAT.
To file an appeal, you will need to complete an application, which can be either by way of an (a) online application; or (b) downloading and completing a hard copy application. Once the application is filed, the appeal will progress with the following steps:
- The AAT will review to confirm that no further information is required to proceed with the review.
- The AAT will contact the NDIS to advise that an appeal has been submitted.
- The AAT may set a Directions Hearing, which will determine the course of the appeal.
- After the Directions Hearing, a date for either a conciliation conference or a formal hearing will be set.
Conciliation Conference
A conciliation conference is a form of meditation, which is conducted in the hope of a resolution being reached, without the need for a formal hearing.
The representative for the National Disability Insurance Agency (NDIA) will most likely make a proposal as to what they are prepared to offer. It is then up to the NDIS Participant to either accept or reject that offer. If the offer is accepted, the matter will end at the conciliation conference. However, if the offer is rejected, the matter will be listed for a hearing.
Formal Hearing
At a formal hearing, all parties will have the opportunity to present their evidence to the AAT, which can include medical evidence, reports from therapists, expert witnesses and the like. Once you have presented your case, the NDIA will also present their evidence as to why the plan has been built in its current form.
Once both sides present their evidence, the AAT will make a formal decision, which will be binding on both parties.
Why + When Would You Need Legal Advice?
While you can be self-represented at the AAT, many participants often choose to be represented by a legal practitioner. A legal process can be quite daunting, and understanding the review process is extremely important when seeking a particular outcome.
A lawyer who knows both the intricacies of the NDIS and the AAT process can be invaluable. Once a settlement is reached in the AAT, there is not a second chance to change your mind. Therefore, it is important to be armed with the correct information.
What Can Legal Advice Do To Help You?
Legal advice can help you understand the process and procedures that the AAT has in place to deal with appeals relating to NDIS decisions.
Legislation (which has recently been changed) sets out the rules for what your NDIS funding can be used for and what it cannot be used for. Any AAT decision needs to also follow these legislative guidelines.
Canny Legal + Legal Advice For NDIS Participants
Assisting family members with a disability to navigate the NDIS, including building and implementing a plan, can be a very stressful job.
Sometimes, the NDIS Plan will not be as you expected. This may be due to a lack of knowledge, and this is where a lawyer can assist in any appeal process and education on what funding will and will not be given.
Canny Legal is here to help with these sensitive matters. Our expert lawyers are compassionate and professional, providing guidance and comfort through legal processes!
Get in touch with our team if you need support during this stressful and sometimes overwhelming process.
