Ministerial Brief for Noting

FOR: Minister for the National Disability Insurance Scheme INFO: Information for Ministers

NDIS Appeals process

Key Issues:

Applications for review of decisions made under the National Disability Insurance Scheme Act 2013 to the Administrative Appeals Tribunal (AAT) have increased in the 2021-2022 financial year. The National Disability Insurance Agency (NDIA) is working with stakeholders, including the AAT, to address this issue through improvements to the planning pathway and appeal process. Initiatives include a potential expert review at appropriate decision-making points and better explanation of decisions. Early efforts to improve internal review decisions have seen a reduction in new applications. There has also been an increased emphasis on early resolution of matters using existing AAT alternative dispute resolution processes. In recent weeks we have started to close more matters than the number of new matters received. We anticipate these improvements to accelerate over coming months.

Media Considerations:

There has been recent media coverage regarding the NDIA’s AAT caseload.

Noted by Minister:

Signature: …………………………………. Bill Shorten ……./……./2022

Minister comments

Cleared by:

Dr Lisa Studdert, DCEO Markets, Government and Engagement Contact: Matt Swainson, Chief Counsel s47F - personal privacy s47F - personal privacy s47F - personal privacy

Date cleared: 14 June 2022

Official: Sensitive

MB22-000042

Financial Impacts: Yes. • Increases to the NDIA’s AAT caseload has meant an increase to the NDIA’s legal spend. Improvements to this caseload are expected to reduce the NDIA’s legal spend. • The NDIA does not currently have structured data on the value of supports that are added to plans as part of settlement decisions, or of legal spend on matters relative to the value of plans and the settlement decisions made. This could be considered for future system enhancements. • The NDIA’s model litigant and Public Governance, Performance and Accountability Act 2013 obligations mean that a range of factors are considered when looking at settlement options including settlement cost, legal spend, administrative outcome consistent with legislative requirements, and impact on the participant.

Regulatory Implications: No.

Attachments: A: AAT Monthly Snapshot – May 2022

Background:

A snapshot of the NDIA’s caseload in the AAT current at 27 May 2022 is at Attachment A. We would welcome the opportunity to work further with your office to answer data related questions or produce additional data sets. The NDIA would also welcome the opportunity to provide a more detailed briefing on a selection of AAT matters to share insights and discuss further efforts to address this caseload.
As at 27 May 2022 there are 4,501 active matters before the AAT. 78% (3,524) of these involving planning decisions, 11% (505) access decisions and 10% (472) other issues (jurisdiction, compensation etc).
Of current planning matters: 29% (1,481) primarily relate to capacity building; 27% (1,403) core supports; 14% (728) to general supports; 8% (429) assistive technology; 5% (258) transport; 3% (175) daily living costs, 3% (180) specialist disability accommodation; 3% (165) supported independent living; 3% (143) home modifications and 2% (103) plan management. Note planning matters may involve various issues and these numbers reflect the primary issue under review.
The median time to finalise NDIA AAT matters is 22 weeks, with 89% of matters finalised within 12 months (source: AAT Caseload Report 1 July 2021 – 31 May 2022). Note matters currently before the AAT are not counted in these statistics until finalised.
2,639 matters were closed in the year to date. Of these 2,528 were resolved without a substantive hearing.
The NDIA has received 27 model litigant complaints since November 2019. Most complaints relate to delays and consistency in the management of matters. Not all of these have been substantiated as breaches. A number are still under review. The NDIA reports regularly to the Office of Legal Services Coordination on these matters.
The NDIA acknowledges the important obligation to always act as a model litigant and criticisms regarding meeting these requirements. The NDIA is committed to engaging with participants and improving frameworks to ensure it meets its model litigant obligations.
The average legal cost per matter is calculated for concluded matters and is dependent on the type of matter and when it resolves. For example, data at 31 December 2021 shows the average legal cost of an access related matter which resolved early was $1,664. For early resolution planning matters the average cost was $3,115. The average legal cost for matters which progress to substantive hearing (a smaller number) ranges from $36,101 to $50,243.
The NDIA has been increasing staff numbers working on AAT matters to ensure timely consideration. This is ongoing although recruitment is challenging in the current labour market. To meet the growing AAT caseload and ensure matters are progressed efficiently, the NDIA has engaged approximately 100 contractors. This number is increasing in the immediate term to ensure matters are progressed efficiently and AAT timetables are met.
Various factors have driven the increased caseload. From 1 February 2014 to 1 July 2021, the number of applications for review by the AAT increased approximately in line with increases in the number of Scheme participants (approximately 0.40 – 0.44 % of total participant numbers). In financial year 2021-2022 internal review requests have increased and efforts to reduce backlogs have led to a greater number of matters proceeding to external AAT review.
The AAT is an administrative review body and, while its decisions provide guidance for decision-makers, it does not set binding precedent. A very small number of NDIA AAT decisions in the context of the overall caseload have been appealed to the Federal Court where precedent is set.
There are currently 7 appeals in the Federal Court, with 5 initiated by the NDIA and 2 by participants. Where the NDIA initiates an appeal to the Federal Court, the NDIA implements the AAT’s decision so the participant is not disadvantaged while the appeal is heard.

OFFICIAL:Sensitive

Ministerial Brief (General)

Office:	Minister for the National Disability Insurance Scheme
Subject:	NDIS Appeals Process
PDR:	MB22-000042
Critical date:	N/A
History:	Nil
Consultation:	Nil
Contact officer:	Matthew Swainson, Chief Counsel
Markets, Government and Engagement
Comments:	Nil

Ministerial Section | (02) 6120 8228 | ministerial@ndis.gov.au

AAT Monthly Snapshot

May, 2022

Key Highlights

445 New Matters received in May

9% From April
Lower than the last 12 month average of 492 matters per month

349 Matters Closed in May

23% Increase in matters closed from April

Active matters

Total Active: 4510

Planning: 697
Access: 3723
Other: 90
31% Of all active matters have been received in the last 3 months
2% Increase in active matters from April to May (Prior month saw a 5% increase)

Active Aged Matters

Less than 3 months	3-6 months	6-12 months	1-2 years	2+ years
1415	1303	1417	264	47

AAT Monthly Snapshot | May 2022 Page 8 of 13

Matters Recieved

Date	Number of Matters
Jun-21	331
Jul-21	297
Aug-21	429
Sep-21	486
Oct-21	532
Nov-21	719
Dec-21	617
Jan-22	450
Feb-22	529
Mar-22	585
Apr-22	490
May-22	445

Primary Disability

Autism: 114
Other Physical: 72
Other: 61
Intellectual Disability: 40
Psychosocial Disability: 28
Cerebral Palsy: 19
Acquired Brain Injury: 18
Other Neurological: 16
Schizophrenia: 16
Hearing Impairment: 11

Matter Type

Matter Type	Number
Planning	292
Access	101
EOT	22
Jurisdiction	27
Time	0
Plan	1
Other	1

— PAGE TEXT START — Matters Recieved

585 529 450 445 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Matter Type o2 1 Planning = Access = EOT ® Jurisdiction

Closed Matters

Closed Matters Duration

Closed Matters	Duration
Jun-21	210+ days- 66
Jul-21	90 to 210 days- 192
Aug-21	31 to 90 days- 60
Sep-21	0 to 30 days- 31

The average duration of matters closed in May is 157 days The Annual average is 133 days

Outcome of Matters Closed

Resolved by Consent
Withdrawn
Dismissed
EOT not opposed
Hearing Decision - Varied
Hearing Decision - Set Aside
Hearing Decision - Affirmed
No Jurisdiction
EOT Declined

Risk overview

Very Low	Low	Moderate	High	Very High
0 days to close (0 matters closed)	115 days to close (108 matters closed)	111 days to close (62 matters closed)	140 days to close (131 matters closed)	124 days to close (4 matters closed)

Matters by State