What Do I Do If I’m Unhappy With My NDIS Plan?
Written by: Anthea Taylor l NDIS Plan Management Team
Decisions, decisions, decisions! We all have to make them at some point, and we don’t always get it right. The National Disability Insurance Agency (NDIA) is no exception. Sometimes their NDIS Plan support and funding decisions are spot on, other times not so much.
If you are happy with the outcome of your NDIS Plan review and satisfied with the funding in your NDIS Plan – that’s great! If on the other hand, you have received your NDIS Plan, be it your first or a subsequent plan, and are unhappy with the supports and level funding, you do not have to sit back and accept the NDIS Plan as presented as a fait accompli. There are processes and options available to you.
Reasonable + Necessary: In Your Decisions
NDIS Plans are meant to be created on the basis of reasonable and necessary supports that:
- Are in context to your disability;
- Help you to work towards your NDIS Goals as noted in your NDIS Plan;
- Help you undertake activities that will increase your social and economic contribution;
- Will be value for money;
- Will be likely to be effective and beneficial for having regard to good practice and evidence;
- Compliment your informal and community; and
- Do not duplicate supports provided by other agencies or systems.
Although reasonable and necessary supports has its very own section (s34) in the National Disability Insurance Scheme Act, it is open to interpretation. What the Planner considers and has decided to be reasonable and necessary supports and funding, may not be what you think is reasonable and necessary.
Unsure what reasonable and necessary is or what it actually covers? Check out this previous blog we put together: What Actually Is Reasonable + Necessary?
Internal Review
You have received your NDIS Plan and thought ‘yeah, nah… this isn’t right’, and thought some more and come to the conclusion that you’re really not happy with the NDIA’s decision and your NDIS Plan? Did you know that you can request an internal review?
In NDIS land, this is referred to as a Review of Reviewable Decision, or RoRD for short. Your RoRD request can be done by a number of ways:
- Completing and submitting a Request for a Review of a Decision Form;
- Emailing the NDIA;
- Sending a letter to the NDIA;
- Calling the NDIS or visiting an NDIS or NDIS Partner office.
You will be on a time frame to submit your review request. It must be submitted within three months from the day after you received the original decision in writing, i.e. the NDIS Plan in question. The NDIA will want to know why you think they are wrong and you’re right, and requesting a review of their decision. Some points that you will need to cover include:
- What decision you were expecting?
- Why you think a different decision should have been made;
- Referring the NDIA to information already provided to them.
- Providing new information and evidence.
Upon receipt of your request, the NDIA will review their original decision relating to the NDIS Plan taking into account compliance with the NDIS Act and any other relevant legislation, NDIS Guidelines and the facts, information and circumstances at the time.
Internal reviews are conducted by internal Review Officers, who are separate from the original decision and staff member to the one who created the NDIS Plan. The Internal Review Officer will review all the information and evidence provided by you. Under the NDIS Participant Service Guarantee, the NDIA has 60 days in which to complete the review if no further information is required. If the NDIA need any additional information, you will be contacted to confirm what they need, and why they need it. If the NDIA do ask for more information, they will give you 28 days to provide it. Once the review has been completed and a decision made, the National Disability Insurance Agency will provide their decision and outcome in writing. The review decision can go one of the three ways:
- Vary the original decision and make some changes to the original decision;
- Set aside the original decision and make a new decision;
- Confirm the original decision and not make any changed.
The reasons for the internal review decision will be provided with an explanation of the decision, the reasons for the decision and what evidence was considered.
If the internal review decision is not to your liking, it doesn’t have to end there. You can take it further and request and external review.
Administrative Appeals Tribunal
If you disagree with the decision and outcome resulting from the internal review, you have the option and the right to request an external review through the Administrative Appeals Tribunal (AAT).
The AAT offers an avenue for dispute resolution when issues with the National Disability Insurance Agency processes and decisions can’t be resolved amicably or otherwise. You will have 28 days after you have receive the review decision to contract the AAT and request an external review.
The AAT is separate from the NDIA. It was established in 1975, well before any thoughts or talks about the National Disability Insurance Scheme, for the purpose of conducting independent reviews of administrative decisions made under Commonwealth law and only where the applicable Commonwealth Act or legislation cites that it can. The NDIS Act is one of those Acts.
Similar to requesting an NDIA Internal Review, if you are proceeding with an AAT request, you can apply through the AAT online service or complete and submit an Application for Review of a Decision form. You can also provide new information if you think it will support your case. You also have the right to engage your own representation such as a lawyer or advocate if you do not wish to represent yourself. If you are representing yourself, you can have a support person. Likewise, the NDIA can engage and often do, legal representation.
The AAT will confirm in writing that they have received your application, and will advise if any further information is required and the next steps. The NDIA will also be advised of your application. The NDIA is then required to provide you (or your representative) and the AAT with a copy of their internal review decision and all relevant documentation. As part of their process, the AAT will undertake one or more of the following:
- Case conference: an informal meeting between the parties to talk about your case.
- Conciliation: an informal meeting to help the parties reach an agreement.
- Interlocutory or Directions hearing: a brief hearing to talk about a single issue early on in the review.
- Hearing: opportunity for the parties to present information and arguments to the AAT.
Hearings, including Interlocutory and Directions are conducted by an AAT Member. AAT Members are appointed by the Governor-General and come from a wide range of professional backgrounds and areas of expertise. Case conferences are generally conducted by an AAT Conference Registrar. Conciliation can be conducted either by an AAT Member or AAT Conference Registrar.
The AAT Member will take into consideration the information and arguments provided and make a decision based on the merits, looking at the relevant facts law and policy.
The AAT has the power to:
- Confirm and uphold the NDIA review decision;
- Vary the review decision;
- Set aside the review decision and make a new decision; and
- Remit the review decision back to the NDIA for reconsideration.
The AAT may tell you their decision at the end of the hearing. The NDIA will be sent a notice citing the AAT decisions. If you are not told the decision at the end of the hearing, the AAT will send a notice of decision and reason within 60 days of the hearing. Generally the AAT decisions are made public on the AusLii website and makes for very interesting reading.
If either you or the NDIA disagree with the AAT decision, the next step is the Federal Court. The dissatisfied party has 28 days to appeal to the Federal Court. The Federal Court however can only hear an AAT appeal on the matter of law. The Judge hearing the appeal needs to be satisfies that the AAT made an error in law with their decision, and that the error contributed to the decision being appealed.
In an ideal world, there would be no need for internal reviews or AAT reviews and a Federal Court Review wouldn’t even enter into our thoughts. Even though it is not an ideal world and the review process can be arduous, it is good to know that the first “No” does not have to be the final “No”.
Canny Plan Management, Canny Legal + The NDIA
Canny Plan Management and Canny Legal can assist if you are considering requesting an NDIA internal review and need some more information on the process.
Canny Legal can also be engaged to represent you at the Administrative Appeals Tribunal. Considering requesting a review of the NDIA’s decision on your NDIS Plan, or lodging an application for an external review by the Administrative Appeals Tribunal? Canny Plan Management can assist you with further information and help you to understand the process and find confidence in Canny Legal for legal representation.
Get in touch with our teams to find out how exactly we can help you get an internal or external review for your plan and help you be satisfied with your NDIS Funding!
