Appeals & Review of Decision

This guide provides information about how decisions made by the NDIA can be reviewed and the processes and steps associated with a request for review or appealing a decision. Refer to the Overview for important contextual information about these guidelines and the NDIS. These guidelines are dynamic and will be regularly updated to reflect a changing NDIS model and procedures as the Scheme is implemented.

Important information for staff across Early Intervention, Child Protection and OOHC in this guideline includes the difference between requesting a review of a plan and requesting a review of a decision.

Important information and action for Child Protection and OOHC casework staff in this guideline includes when and how to request a review of a decision and the timeframes for requesting a review.

Requesting a review of an NDIA decision should be pursued when you do not agree with a decision made by the NDIA. This process is different to the process of reviewing a plan, which is outlined in Monitor & Review Plan. A participant's plan can be reviewed at various stages, for example at the request of a participant, or as a regular part of the planning cycle.

A reviewable decision is a decision made by the NDIA which carries formal rights of review under the NDIS Act1. If a person disagrees with a reviewable decision directly affecting them, the following avenues of review are available:

  1. the person directly affected may request that the reviewable decision be reviewed by the NDIA. This is the first avenue of review available and is called an internal review
  2. if the person whose interests are affected still disagrees with a decision following the outcome of an internal review, they may make an application to the Administrative Appeals Tribunal (AAT) requesting a further review. This is the second avenue of review available and is called an external review and
  3. if the person or the NDIA disagrees with a decision following the outcome of an external review, they may appeal to the Federal Court of Australia, on a question of law. This is the final avenue of review available which is known as an appeal on a question of law.

For children and young people in Parental Responsibility to the Minister, casework staff, as the child’s representative, will be responsible for requesting a review and making the review request. This will occur following discussion with the child or young person and carer.

The avenues of review outlined above must be undertaken in sequence. For example, a person affected by a decision must first request an internal review before proceeding to external review.

The main objective of the review processes is to ensure that correct or preferable decisions are made under the NDIS Act. Correct means that decisions are made according to law. Preferable means that, if there are a range of possible decisions that are correct in law, the decision is the best that could have been made on the basis of the relevant facts.

1 National Disability Insurance Scheme Act 2013, (Cth)

The majority of decisions made by the NDIA under the NDIS Act are reviewable decisions, including:

  • the right to access the NDIS
  • supports included in the plan
  • decisions in relation to children
  • decisions in relation to registered providers, and
  • most other decisions associated with a participant’s NDIS plan.

In an internal review an NDIA staff member who was not involved in the making of the original decision re-considers the facts, law and policy aspects of a decision and determines what the correct or preferable decision is.

The NDIA staff member who performs the review (the reviewer) puts themselves in the shoes of the original decision maker and considers the decision from a fresh perspective. The reviewer is also able to consider any new information which has become available. The reviewer will take all reasonable steps to speak to the person who has requested the internal review to provide them with the opportunity to explain their reasons for requesting a review.

A person must make a request for an internal review within 3 months of receiving written notice of a reviewable decision from the NDIA.

A reviewable decision remains in effect whilst an internal review is being undertaken.

A person directly affected by a reviewable decision may request that the decision be reviewed by the NDIA. This includes:

  • prospective participants
  • participants
  • people with parental responsibility (in the case of children and young people in Parental Responsibility to the Minister, this will be FACS or NGO casework staff)
  • a child’s guardian
  • nominees
  • people who seek to have parental responsibility or to become a nominee
  • registered providers of supports or persons or organisations applying to become registered service providers, and
  • a person who owes a debt to the NDIA.

If the carer of a child or young person in Parental Responsibility to the Minister is not happy with the child or young person’s NDIS plan, they should discuss their concerns with their OOHC caseworker. As the child’s representative, it is the responsibility of OOHC casework staff to determine whether a request for a review of a decision needs to be made and to make the request.

Casework staff need to work closely with the carer and the child or young person to determine if the decision needs to be reviewed.

OOHC casework staff should discuss their reasons for disagreeing with an NDIA decision with their manager, for example, if the level of support or assistive technology (equipment and aids) does not seem to be meeting the child or young person’s disability support needs. For FACS staff, delegation for determining to request a review of a decision sits with the Manager Client Services.

A request for internal review may be made by:

  • sending or delivering a written request (including by email) to the NDIA or
  • making an oral request, in person or by telephone or other means to the NDIA.

A written request can be sent to a particular NDIA office, NDIA branch or NDIA staff member. Requests for review of a decision need to be made within 3 months of the original decision.

For more detailed information on review of NDIA decisions, see Internal review of a decision.

After an internal review is completed, if the person whose interests are affected still disagrees with the decision they may make an application directly to the AAT for external review by an independent tribunal. The AAT will then decide whether to confirm, vary or set aside the original decision.

Similar to an internal review, the AAT will put themselves in the shoes of the original decision maker and consider the decision from a fresh perspective. In doing so, the AAT will consider the same legal framework as the original decision maker, together with any additional information of relevance, and may exercise all the powers and discretions which were available to the original decision maker.

The AAT cannot review a decision until an internal review has been completed. A person must make a request for external review within 28 days of receiving written notice of an internal review decision from the NDIA.

A person who is not satisfied with an external review can appeal the AAT's decision to the Federal Court on a question of law. The NDIA can also appeal to the Federal Court if dissatisfied with a decision of the AAT due to a question of law.

People who are considering appealing a decision of the AAT on a question of law are encouraged to seek independent legal advice before proceeding.

An appeal must be lodged within 28 days of receiving notice of the AAT's external review decision, or within such further time allowed by the Federal Court.

If you have a question about the NDIS and Early Intervention, Child Protection and OOHC email safehomeforlifereform@facs.nsw.gov.au.

If you encounter a situation with the NDIS that differs from these guidelines and needs clarification, speak to your manager to determine whether the matter needs to be raised with the NDIA locally or go through the FACS NDIS issues escalation pathway for resolution.