Good lawyers know the law. Great lawyers know the judge.

Stream of consciousness in regards to NDIS participants going through appeals....

I have been thinking a lot about the families I work with who go through the review process and some of whom on to the Administrative Appeals Tribunal.

The AAT is an external review process where overwhelmingly the outcome of the matter is in favour of the applicant (the participant).

I thought how validating it might feel at the end of the process (although a participant wouldn’t likely get the opportunity) to say to the Agency ‘hey does this mean you guys had it wrong all along?’ 

Fortunately for the Agency, this can be denied because more information and evidence is asked for / provided as the participant progressing their matter through the Tribunal and that the Agency always have the option to say ‘the ORIGINAL decision was correct and now based on NEW evidence provided we are able to make a NEW (also correct) decision’

That new decision just happens to have a larger budget quite frequently.

Side note this is why I personally would NEVER submit a request for an Internal Review without also submitting additional evidence. This is essentially asking one worker to out their colleague by saying they got it wrong. #awkward 

The Quarterly Report of performance and operations of the NDIA for the 3 months from 1 October 2023 to 31 December 2023 showed that around 7-8% of all plan reassessments led to a request for an Internal Review and around 13% of those internal reviews go on to have an application made to the AAT. 

The AAT Caseload Report for the period 1 July 2022 to 30 June 2023 states the decision that the NDIA made about what should be funded is changed 77% of the time.

In more simple terms we could say that 77% of the time the decision made by the Agency is incorrect. 

Let’s compare that with decisions in that report made by other Government Agencies; 

Decisions made about Child Support are only changed 35% of the time. 

Taxes: 35% of the time. 

Refugee Status: 11% of the time.  

Centrelink: 28% the time. 

These Decisions made by the NDIA stand out sorely (sadly) here where 77% of the time, taking the matter to an external review results in a different outcome for the participant. *

More recently, the AAT Case Load Report for 1 July 2023 to 31 March 2024 was released. The results stand pretty consistently with the decision that the NDIA made about what should be funded is changed 75% of the time. The next highest government agency having decisions overturned is around ‘Visa related decisions relating to character’ which one could argue is a far more subjective decision making process when compared with determining NDIS supports. 

And let’s be clear, there will be times where the new decision from a Tribunal matter might not be the outcome the participant was looking for.

But either way - the decision was wrong 75% of the time.

Lots of families going through the review process lament the way the Agency keep asking for more evidence, appear to have not read evidence or ask for information that has already been provided. And perhaps this is a tactic beyond the war of attrition that would wear out an already weary person and convince them to give up or bow out. One could consider if this is a back stop to ensure the Agency can never be accused of getting it wrong 75% of the time, by requiring the participant to provide more and more evidence as the matter proceeds and the funded supports increases. 

In a criminal law the onus of proof lies with the prosecution to prove guilt beyond reasonable doubt. However as an AAT application is a civil matter, the onus is on the applicant (the participant) to prove their case rather than defend their position. The burden of evidence, and all the responsibility and resources required to source and provide that evidence sits almost entirely with the participant. Someone who lives with a permanent and significant disability, who already may be extremely vulnerable, experiencing mental health issues and other complications.

If new evidence = new decisions (frequently in favour of the participant) then is the issue with the Agency or is it actually a fundamental flaw in the evidence being provided?

Do our therapists and specialists require more robust guidance about what information the NDIA requires to make a reasonable decision? 

But if so why does evidence from the same therapists frequently result in a different outcome at tribunal? Mysterious right?

Is it fair and reasonable that participants are almost required to have a law degree to ensure their basic disability support needs are met? 

And who is the real winner at the end of the day?

Please someone tell me it’s not the lawyers. 

X Anna 

Sources:

*https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/AAT-Whole-of-Tribunal-Statistics-2022-23.pdf

** https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/AAT-Whole-of-Tribunal-Statistics-2023-24.pdf