What is the NDIS?
The National Disability Insurance Scheme (NDIS) provides support to people with a disability, their families and carers. It is jointly governed and is funded by the Australian government and participating states and territory governments.
The main component of the NDIS is individualised packages of support known as “participant plans” for people with disability whom are participants of the scheme. The NDIS also has a broader role in helping people with disability to access the community, to provide assistance with their activities of daily living and to help improve their functional capacity by providing funding for therapies specific to the participant’s disability.
Accessing the NDIS
To become a participant of the scheme, an applicant must complete an Access Request Form in writing or verbally and it will be determined by the National Disability Insurance Agency (NDIA) if the applicant fulfils the eligibility criteria for the scheme.
The eligibility criteria is set out in the National Disability Insurance Scheme Act 2013. The legislation sets out the criteria for eligibility such as age, residency and the disability and early intervention requirements.
Put simply, the applicant must be under the age of 65, they must reside in Australia as an Australian citizen, or be the holder of a permanent visa or a special category visa. They must also satisfy the other requirements in relation to residence set out in the National Disability Insurance Scheme Rules. Once a participant fulfils the age and residence requirements they then must fulfil the disability requirements set out in section 24 of the NDIS Act or the early intervention requirements set out in section 25 of the NDIS Act.
Appealing the NDIA’s decision about a participant plan
A new NDIS plan
When an applicant of the scheme has fulfilled the criteria for access, the NDIA will grant the applicant access to the scheme. They will organise an appointment for the new participant to meet with a Local Area Coordinator or a planner and the participant plan will be drafted. The plan is developed according to the participant’s needs for funding and the participant must take evidence to the meeting to show why they require the requested supports in their participant plan. The requested supports are assessed by the NDIA with reference to section 34 of the NDIS Act , which sets out the criteria for funding for reasonable and necessary supports.
Requesting a review
If a participant is not happy with their participant plan, they then can request the NDIA to review their plan. There are two forms of internal review. A plan review can be conducted at any time, which is set out under s 48 of the NDIS Act. Alternatively, an internal review can be requested within 3 months of receiving the participant plan from the NDIA. An internal review is set out under s 100 of the NDIS Act.
To request a “section 100” internal review the participant must complete a form called an Application for a Review of a Reviewable Decision or they will need to contact the agency verbally or write an email or letter explaining why they want their plan to be internally reviewed.
It is important that the participant attaches all supporting documentation that they have available such as medical reports and therapy reports which provide evidence as to why the participant requires funding at the requested level for that particular participant support. If there are multiple supports that are required then supporting evidence should be provided for each requested support.
When the NDIA receives the internal review application, the CEO delegate of the NDIA must then internally review the decision and then decide to either maintain the original decision or change the decision. If the participant is still not happy with the NDIA’s new decision, they can make an application to take the matter further to the Administrative Appeals Tribunal. This is known as the external review process.
The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. We recommend that participants who want to lodge an external review application seek legal advice.
If a participant is not happy with the internal review decision, section 103 of the NDIS Act includes that an Application can be made to the Administrative Appeals Tribunal for Review. This must be done within 28 days. All supporting evidence much be attached to the application inclusive of the internal review application that was provided to the NDIA and the agency’s decision in writing.
If an application is lodged after 28 days, an Extension of time Application is required to be completed and lodged first. This must explain the reasons why the Application for Review is late.
As soon as the tribunal has received and processed an application, a case plan is then generated by the AAT for the matter to be taken through the external review process. Generally, there are a number of case conferences that take place and then the matter is prepared for a conciliation. If the parties cannot reach an agreement by way of conciliating, then the matter is set down for hearing.