FOI 24/25-2310

DOCUMENT 47

Official: Sensitive | Legal Privilege

MS24-000024

Ministerial Submission for Noting

For: Minister for the National Disability Insurance Scheme Critical date: N/A Reason for urgency: N/A Agency.

Updates on the NDIA Dispute Resolution Improvement Strategy and ART Reform

Key Issues:

The National Disability Insurance Agency (NDIA or the Agency) is continuing to improve the experience of participants in Administrative Appeals Tribunal (AAT) through key initiatives under the Dispute Resolution Improvement Strategy (DRIS). These initiatives have reduced external legal expenditure for FY23/24. More recently, the Agency is experiencing an increase in new AAT applications with work underway to understand the drivers of this increase and extent this is linked to scheme reform. The NDIA is working closely with DSS and the AGD-led Administrative Review Taskforce to progress critical transition activities to align with the new Administrative Review Tribunal (ART) settings on 14 October 2024. The amendments to the new Tribunal processes are anticipated to have positive impacts for participants of the Scheme. The NDIA is progressing six Federal Court appeal regarding the Tribunal’s interpretation of the current National Disability Insurance Scheme (NDIS) legislation. Act

Recommendation(s):

Decision: That you:

Note the information outlined in this brief about the AAT, ART and the Federal Court appeals. Noted / Please discuss

Media Considerations: The Agency’s AAT caseload and approach has previously been the subject of adverse media attention. Following considerable effort since 2022 to reduce the previous backlog and improve participant experience there is little media attention at present. The Agency is progressing activity to prevent another backlog and will brief you on any media activity. Talking points have been prepared should you get asked about the progress made in the AAT program (at Attachment A). Signature …………………………………. Bill Shorten ……./……./2024 document

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FOI 24/25-2310

Background:

AAT Updates

The NDIA has made significant improvements in reducing the backlog in the AAT through dispute resolution initiatives including early assessment, intensive case reviews and the Independent Expert Review (IER) trial. These initiatives have (at 31 August 2024):

Resolved 10,895 cases since 1 June 2022
Resolved 98% of the legacy AAT matters (active June 2022)
Resolved 97% of AAT matters without proceeding to a substantive hearing
Reduced the active caseload from 4,501 in May 2022 to 3,420
Reduced the median weeks to close matters from 35.2 weeks in January 2023 to 25.9 weeks in February 2024. In August 2024 the median weeks to close was 31.7 weeks.
Decreased disputation rate, from a peak of 1.52% of participants in FY2022 Q2 to a 3 year low of 0.42% in FY2024 Q3. This figure has since increased to 0.71% in FY2024 Q4.
Decreased new AAT matters from 1.11% of participants in 2021–22 to 0.59% in 2023–24.

The NDIA previously briefed you on medium and longer-term initiatives progressing through the NDIA’s three-year DRIS to continue driving improvement to NDIS disputes and deliver on Government commitments.
Initiatives implemented under the DRIS have reduced external legal expenditure for FY23/24. External legal expenditure attributed to AAT work decreased by 20% to $53.1 million from the previous financial year. The NDIA’s total legal expenditure for FY23/24 decreased by 12% to $71 million from $80.8 million in the previous financial year.
The NDIA is expanding internal legal capability to manage more AAT cases in-house, through APS recruitment activities, including recruitment of legal officers with disability.
A new contract arrangement for AAT external Legal Service Providers (LSPs) commenced in February 2024. This has assisted with reduced external legal spend and the number of LSPs that are engaged for outsourced AAT work to 4 firms (Maddocks, Mills & Oakley, Moray Agnew and Sparke Helmore).

6.redacted: s47E(d) - certain operations of agencies Freedom the

The NDIA must report its legal expenditure under the Legal Services Directions 2017. The NDIA’s external legal expenditure for FY23/24 will be reported to the Office of the Legal Services Coordination (OLSC) in under the Attorney-General’s Department for publication in October 2025.
Further detailed datasets on AAT matters as at 31 August 2024 are at Attachment B.

Recent increase in AAT matters

Since June 2024, the Agency has seen an increase in AAT applications compared to previous months. The increase is primarily across planning matters with access matters remaining steady across this period. This was has increased the active case load to 3,420 as at 31 August 2024, and creates a potential projected increase to approximately 4,300 by end of year.
The NDIA is addressing this increase as a priority by ensuring that the drivers of this increase are analysed to understand and extent the increase is linked to the scheme reform and the increasing number of internal reviews (s100 planning review) in the Agency. It is anticipated that public discourse on significant legislative reform underway may be impacting participant behaviour and attributing to increased appeals in the AAT.

FOI 24/25-2310

Official: Sensitive | Legal Privilege

MS24-000024

11.

The NDIA is proactively responding to the current increase and mitigate the potential associated increase in external legal spend. The NDIA has commenced immediate activities to address case resolution rates including increasing focus on AAT matters that can be resolved quickly through Early Assessment teams, and cross-Agency teams reviewing existing caseloads.

12.

The NDIA is continually reviewing matters that remain active in the AAT for over 12 months. As at 31 August 2024, the NDIA has 599 active AAT applications that are greater than 12 months old, which is 17% of all active applications. This is a reduction from a peak of 722 in April 2023.

Administrative Review Tribunal Reform

13.

The NDIA is supporting improvements the current AAT process and the new Administrative Review Tribunal (ART) with new ART processes anticipated to have positive impacts for participants of the Scheme. Among the amendments, the Administrative Reviews Tribunal Act 2024 expressly requires that the ART pursues the objective of providing administrative review that is accessible and responsive to the diverse needs of parties.

14.

The NDIA is working closely with DSS and the AGD-led Administrative Review Taskforce to progress critical transition activities to align with the new ART settings for a commencement date of 14 October 2024. The NDIA will focus on accessibility and take a co-design approach to policy development to ensure disability community perspectives are represented.

Federal Court Matters

15.

The NDIA has initiated three of the active Federal Court appeals. These include: a. an appeal (NDIA v Sutherland) challenging the Tribunal’s view that the NDIS Operational Guidelines: Applying to the NDIS (Access Guidelines, 1 February 2024) are inconsistent with the National Disability Insurance Scheme Act 2013 (NDIS Act). This is relevant to whether a prospective participant is likely to require support under the Scheme for their lifetime, or whether those support needs are most appropriately met by other systems, such as those provided by the states and territories. b. an appeal of the AAT’s decision to grant access to Ms Caitlin Jones under early intervention for psychosocial recovery services that are the responsibility for the health system or that are supports (currently unknown) that would meet the early intervention criteria.c. a full Federal Court appeal relating to Mr Carle Warwick was made by the NDIA in relation to an AAT decision that relocation costs from one home to another were not ‘day-to-day living costs’ under paragraph 5.1(d) of the NDIS (Supports for Participants) Rules 2013.

16.

An appeal regarding Ms Sandra Pallier challenged a decision of the AAT that dismissed a long-held position as set out in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016. However, following more recent advice from King’s Counsel that the Agency did not have reasonable prospects in successfully defending its position, the NDIA has since withdrawn this appeal.

17.

Most recently, a long-standing Federal Court appeal brought by Mr Sayed’s appeal was decided in favour of the Agency. Mr Sayed’s appeal was against an AAT decision that the Tribunal did not have jurisdiction to review his Plan. The Federal Court has agreed with the AAT’s decision. Mr Sayed has already lodged an appeal against that decision to the Full Federal Court. Legal costs, which have been awarded in favour of the Agency, are stayed until a decision in that Full Federal Court appeal.

18.

In the appeals lodged by the NDIA, the NDIA does not seek costs and has introduced self-represented participants to potential advocates, including Ms Sutherland to Victorian Legal Aid (VLA).

19.

The NDIA has been engaging with the DSS legal team on the appeals and whether any matters have been or can be better addressed by legislative reform.

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