Review of Decisions
If you are unhappy with your plan you must ask for a reviewable decision. If you ask informally and you are still not satisfied, you will lose the opportunity to take your appeal to the Administrative Appeals Tribunal.
NDIA is process driven so you will need to follow their process'. The Administrative Appeals Tribunal can only review plans that have requested a review under reviewable decisions.
What decisions can the Tribunal review?
Part 6 of Chapter 4 of the NDIS Act is headed Review of Decisions. It deals with reviews by the CEO of the NDIA of certain decisions, and reviews by the Tribunal of the CEO’s decisions.
Reviews by the CEO
Section 99 lists 26 decisions that are reviewable decisions. These are decisions that the CEO of the NDIA must review if asked to do so by a participant. A request for review of a reviewable decision must be made within three months: s 100(2).
When asked by a participant to do so, the CEO must appoint a reviewer who must review the reviewable decision as soon as reasonably practicable. Section 100(6) states that the reviewer must:
confirm the reviewable decision; or
vary the reviewable decision; or
set aside the reviewable decision and make a new decision in its place.
Variation of reviewable decision before review completed
(a) a request is made for review of a reviewable decision; and
(b) before a decision on the review is made, the reviewable decision is varied;
the request for review is taken to be for review of the reviewable decision as varied.
Reviews by the Tribunal
A participant who is dissatisfied with the reviewer’s decision can ask the Tribunal to review that decision: s 103.
Decisions made by a reviewer under s 100(6) are the only decisions by the NDIA that the Tribunal has power to review. Unless a decision has been made by a reviewer under s 100(6), the Tribunal cannot become involved.
Reviews and changes to plans under s 48(2)
Reviews under s 48(2) are different from those done by a reviewer under s 100(6).
Section 48(2) is in a part of the NDIS Act which is headed Reviewing and changing participants’ plans. It enables a participant to ask the CEO to review his or her plan at any time. The CEO must decide whether or not to review the plan, but is not obliged to do so. A decision by the CEO not to review the plan is a reviewable decision (s 99(f)) which may ultimately be reviewed by the Tribunal.
If the CEO decides to review the plan, the CEO must help the participant to prepare a new plan: s 49. A participant who is dissatisfied with the new plan may seek review by a reviewer under s 100(6) and, if still dissatisfied, by the Tribunal.
Although it does not say so in so many words, s 48(2) appears to be intended for situations where a change of circumstances means a plan needs replacing before it is due for its regular review. (A plan must include a date by which the NDIA will review it under Division 4: s 33(2)). For example, a participant’s goals or aspirations may have changed, or a change in circumstances means his or her needs have increased or decreased.
The only decision under s 48(2) that the Tribunal can review is a decision not to review a plan.
If NDIA make a final decision not to review your plan, you can then lodge an appeal with the Administrative Appeals Tribunal.
Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
If you choose to take your case to the Administrative Appeals Tribunal you will need to firstly go to arbitration with the NDIA to try to resolve the matter informally. If this fails you can then proceed to hearing.